Bonawitz v. Bourke
| Decision Date | 18 August 1977 |
| Docket Number | No. 13520,13520 |
| Citation | 34 St.Rep. 638,567 P.2d 32,173 Mont. 179 |
| Parties | Norval C. BONAWITZ, Plaintiff and Respondent, v. Lois BOURKE as Executrix of the Estate of Pat Bourke, Defendant and Third Party Plaintiff and Appellant, v. Russell FLEHARTY, Gene Mossey, William H. Webster, and William J. Webster, Third Party-Defendants and Respondents. |
| Court | Montana Supreme Court |
Cure & Borer, Great Falls, Edward W. Borer argued, Great Falls, Patterson & Marsillo, Missoula, for defendant and third party plaintiff and appellant.
Robert L. Johnson, Lewistown, Torger Oaas argued, Lewistown, Marra Wenz & Iwen, Great Falls, David A. Hopkins argued, Great Falls, Rapkoch & Knopp, Lewistown, Robert L. Knopp argued, Lewistown, for plaintiff and respondent.
Plaintiff Norval Bonawitz brought suit in the district court, Cascade County, against the Estate of Pat Bourke, deceased, to recover damages for injuries suffered when a scaffold upon which he was working collapsed. Bourke died after the accident, but prior to commencement of this action. The Estate of Bourke (Bourke) filed a third party complaint for indemnity against third party defendants Russell Fleharty, Gene Mossey, William H. Webster and William J. Webster. After extensive formal discovery by all parties, third party defendants filed motions for summary judgment. The court entered summary judgment in favor of all third party defendants. Bourke appeals this ruling.
Bonawitz and Bourke were the sole stockholders of a corporation known as Bonawitz & Bourke, Inc. Bourke was the president and owned 75% of its stock. Bonawitz was the vice-president and owned 25% of the stock. Bonawitz & Bourke, Inc. owned a ranch south of Lewistown, Montana known as the "Lewis Place". Bourke was leasing this ranch from the corporation pursuant to an oral lease.
On the morning of the accident, a work party consisting of Bourke, Bonawitz, and the four third party defendants met at a ranch house located on the Lewis Place. The purpose of this gathering was to reshingle the roof of the ranch house. The work was undertaken at the request of Bourke. There is some question whether Bourke individually, or the corporation, supplied the shingles and at least a portion of the materials to be used in the construction of a scaffold. All labor was on a volunteer basis.
The four third party defendants arrived at the Lewis Place first, and commenced building the scaffold to be used in the reshingling process. The Websters and Mossey had previous experience in the construction of scaffolds. Neither Bourke nor Bonawitz participated in the actual construction or erection of the scaffold. During this time they were engaged in hauling the shingles from a storage shed and various other duties incidental to the shingling operation.
When the scaffolding was fully erected, Bonawitz and the third party defendants climbed upon it and began removing the old shingles. They had been working about an hour and were just beginning to put on the new shingles when the center support for the scaffold collapsed. As he fell, Bonawitz apparently put his arm through the glass of a nearby window in an attempt to catch himself. Severe and partially disabling injuries resulted. Pretrial discovery indicated the cause of the scaffold failure was improper construction, rather than weakness of the component parts.
Bonawitz's complaint alleges he was in the employ of Pat Bourke at the time of the accident and Bourke, as the employer, had an obligation to furnish plaintiff with a safe place to work and safe appliances and instrumentalities with which to work. After discovery was completed, Bourke filed a third party complaint for indemnity against the third party defendants alleging it was their active and primary negligence in the construction of the scaffold that caused plaintiff's injuries.
Two issues are presented upon appeal:
1. Whether the district court erred in granting summary judgment in favor of third party defendants?
2. Whether Bourke is liable to Bonawitz by virtue of the Scaffold Act under the facts and circumstances of this case?
Rule 56(c), M.R.Civ.P., states that summary judgment shall be rendered only if:
" * * * the pleadings, depositions, answers to interrogatories, and admissions on file show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. * * * "
The general purpose underlying Rule 56, M.R.Civ.P., is to promptly dispose of actions which have no genuine issue of fact, thereby encouraging judicial economy through the elimination of unnecessary trial, delay and expense. Guthrie v. Dept. of Social and Rehab. Services, Mont., 563 P.2d 555, 34 St.Rep. 255; Silloway v. Jorgenson 146 Mont. 307, 406 P.2d 167. Nevertheless, summary judgment is not a substitute for a trial. Guthrie, supra; Johnson v. Johnson, Mont., 561 P.2d 917, 34 St.Rep. 162.
This Court has consistently held that the party moving for summary judgment has the burden of showing the complete absence of any genuine issue as to all facts which are deemed material in light of those substantive principles which entitled him to a judgment as a matter of law. Harland v. Anderson, Mont., 548 P.2d 613, 33 St.Rep. 363. This rule imposes a strict standard upon the movant and in Kober & Kyriss v. (Stewart) Billings Deaconess Hosp., 148 Mont. 117, 122, 417 P.2d 476, 478, this Court, quoting from 6 Moore's Fed.Prac.2d § 56.15(3), held:
" ' * * * To satisfy his burden the movant must make a showing that is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact.' "
It is clear therefore that the party opposing the motion will be indulged to the extent of all inferences which may be reasonably drawn...
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