Crane v. Conoco, Inc.

• Decision Date: 02 December 1994
• Docket Number: No. 93-35661,93-35661
• Citation: 41 F.3d 547
• Parties: Daryl CRANE; Pamela Crane, Plaintiffs-Appellants, v. CONOCO, INC., a corporation, Defendant-Appellee, and Nunnallee-Cantwell, Inc., a foreign corporation, Defendant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 547

41 F.3d 547

Daryl CRANE; Pamela Crane, Plaintiffs-Appellants, v. CONOCO, INC., a corporation, Defendant-Appellee and Nunnallee-Cantwell, Inc., a foreign corporation, Defendant.

No. 93-35661.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Oct. 3, 1994.

Decided Dec. 2, 1994.

Jeffrey T. Renz, Jeffrey T. Renz & Associates, Missoula, MT, for plaintiffs-appellants.

David A. Veeder, Veeder Law Firm, Billings, MT, for defendant-appellee.

Appeal from the United States District Court for the District of Montana.

Before: LAY, ^* TROTT and T.G. NELSON, Circuit Judges.

T.G. NELSON, Circuit Judge:

OVERVIEW

The Cranes appeal the district court's grant of summary judgment in favor of Conoco, Inc., on all claims relating to injuries Daryl Crane sustained while working for an independent contractor at Conoco's oil refinery. We affirm the district court.

FACTS AND HISTORY OF PROCEEDINGS

On September 10, 1988, Plaintiff-Appellant Daryl Crane ("Crane"), an employee of Scaffold Rental and Erection ("SRE"), was injured in the course of making repairs at the Conoco Refinery in Billings, Montana, pursuant to a contract between Conoco and SRE. In order to survey the work site and compose a list of working materials required to repair a fire-damaged condensate unit, Crane had climbed onto a pipe rack, a permanent fixture of the refinery consisting of lines of pipe joining pieces of equipment. While standing on the pipe rack, about 16-20 feet off the ground, Crane noticed workers suddenly throwing down their tools, running, and yelling, "Get out! Get out!" Panicking, he tried to reach the ground by lowering himself onto a heat exchanger located below the pipe rack, fell, and suffered a herniated disc.

Later in the day, after the workers had resumed their duties, and Crane had returned to his position on the pipe rack, workers again starting running and shouting. This time Crane was better prepared to exit, and he reached the ground safely with the help of a ladder standing against a scaffold near the pipe rack. Crane asserts that the workers reacted in response to fires which broke out at the refinery that day. Conoco maintains that Crane never saw the fires, and that other workers' reports of fire are inadmissible hearsay; nevertheless, Conoco's records show, and Conoco acknowledges, that several small fires broke out on the morning Crane was injured, one of them 100-200 feet from where Crane was working.

On August 15, 1991, the Cranes filed suit for damages against Conoco and Nunnallee-Cantwell, Inc., in the United States District Court for the District of Montana. On April 27, 1993, the district court entered an order for summary judgment in favor of Conoco and Nunnallee-Cantwell, rejecting all of the Cranes' claims. The Cranes concede that the claims against Nunnallee-Cantwell are not factually supported, and agree that judgment was properly entered in Nunnallee's favor. They appeal the judgment with regard to Conoco.

DISCUSSION

A. Standard of Review

A grant of summary judgment is reviewed de novo. Jones v. Union Pac. R.R., 968 F.2d 937, 940 (9th Cir.1992). A grant of summary judgment should be affirmed only if the evidence, read in the light most favorable to the nonmoving party, demonstrates that there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law. Taylor v. List, 880 F.2d 1040, 1044 (9th Cir.1989); Fed.R.Civ.P. 56(c). The court must not weigh the evidence or determine the truth of the matter but only determine whether there is a genuine issue for trial. Federal Deposit Ins. Corp. v. O'Melveny &amp Meyers, 969 F.2d 744, 747 (9th Cir.1992), rev'd on other grounds, --- U.S. ----, 114 S.Ct. 2048, 129 L.Ed.2d 67 (1994).

B. Strict Liability

The Cranes allege that Conoco is strictly liable for Crane's injuries under sections 519 and 520 of the Restatement (Second) of Torts, as adopted by the Supreme Court of Montana, Matkovic v. Shell Oil Co., 218 Mont. 156, 707 P.2d 2, 4 (1985), because Conoco was engaged in the "abnormally dangerous activity" of refining and storing volatile, flammable and explosive substances, which presents a risk of "catastrophic fire or explosion." Section 519 provides that:

(1) One who carries on an abnormally dangerous activity is subject to liability for harm to the person, land or chattels of another resulting from the activity, although he has exercised the utmost care to prevent the harm.

(2) This strict liability is limited to the kind of harm, the possibility of which makes the activity abnormally dangerous.

Assuming, without deciding, that oil refinery operations are, as the Cranes contend, "abnormally dangerous" in the sense of section 519(1), we note that liability is limited under section 519(2) to "the kind of harm, the possibility of which makes the activity abnormally dangerous." The risk of catastrophic fire or explosion is what would make oil refinery operations abnormally dangerous. Crane's injury arose not from catastrophic fire or explosion, but from his attempt to get down off the pipe rack and escape the area in response to the sight of other workers fleeing some unknown danger. ¹ Because Crane's injury did not result from the "kind of harm, the possibility of which makes the activity [in this case, operating an oil refinery] abnormally dangerous," sections 519 and 520 of the Restatement (Second) of Torts do not here apply. We therefore affirm the district court's award of summary judgment for Conoco on this issue.

C. Liability under the Montana Scaffolding Act

The Cranes contend that Conoco violated the Montana Scaffolding Act, M.C.A. Secs. 50-77-101 to 106, which requires that:

[a]ll scaffolds erected in this state for use in the erection, repair, alteration, or removal of buildings shall be well and safely supported, of sufficient width, and properly secured so as to ensure the safety of persons working on them or passing under them or by them and to prevent them from falling or to prevent any material that may be used, placed, or deposited on them from falling.

Id. Sec. 50-77-101. The parties dispute the applicability of the Scaffolding Act on the following counts: 1) Can the pipe rack be construed as a scaffold for the purpose of the Act under Montana law?; and 2) Does Conoco's status as landowner render it liable under the Act? We need not resolve either of these questions. The Cranes have produced no evidence that the Act was violated. The Cranes do not show, or even contend, that there was any fault in the design or construction of the pipe rack, or that the injury sustained by Daryl Crane was in any way attributable to the design or construction of the rack itself.

The Cranes' contention that "at its most fundamental level, Conoco's omission [with regard to the Scaffolding Act] lay in not providing a safe means of egress from Mr. Crane's position of peril," is not relevant to the Scaffolding Act, which requires only that scaffolds be "safely supported" and "properly secured." As the district court correctly observed, "the alleged lack of safe egress does not constitute a violation of the Scaffolding Act." It is, moreover, undisputed that there was a safe means of egress available to Crane, although he was either not aware of or prepared to use it on the occasion of his first descent from the pipe rack.

For the reasons listed above, we affirm the district court's award of summary judgment with regard to the claim involving the Montana Scaffolding Act.

D. Conoco's Duty to Maintain a Safe Workplace

The Cranes allege that Conoco breached its duty to maintain a safe workplace under Montana statutory and common law. Under Montana common law, the general rule is that landowners and general contractors are not liable for injuries to the employees of independent contractors or subcontractors. Shannon v. Howard S. Wright Constr. Co., 181 Mont. 269, 593 P.2d 438, 441 (1979). This rule, however, has been described as "a preamble to the catalog of its exceptions." Id. (internal quotation omitted). In Montana, those exceptions have been designated as follows: "1) where there is a nondelegable duty based on a contract; 2) where the activity is 'inherently or intrinsically dangerous;' and 3) where the general contractor negligently exercises control reserved over a subcontractor's work." Umbs v. Sherrodd, Inc., 246 Mont. 373, 805 P.2d 519, 520 (1991) (citing Micheletto v. State, 244 Mont. 483, 798 P.2d 989, 991 (1990)); see also Kemp v. Big Horn County Elec. Co-op, Inc., 244 Mont. 437, 798 P.2d 999, 1001-04 (1990); Kemp v. Bechtel Constr. Co., 221 Mont. 519, 720 P.2d 270, 274-75 (1986). The Cranes allege that each of these exceptions applies. Additionally, the Cranes argue that Conoco is liable under the Montana Safe Place to Work statute which creates a nondelegable duty to provide a safe workplace. See Mont.Code Ann. Sec. 50-71-201. We deal with each of these claims in turn.

The Cranes' attempt to apply the exception for nondelegable duty based on contract is not persuasive. Under Montana law, there is no nondelegable duty based on contract where a subcontractor contractually assumes safety responsibilities, and the contracting employer does not expressly agree to be responsible for "initiating, maintaining or supervising safety programs." Micheletto, 798 P.2d at 992-93. Conoco did not assume any contractual duties regarding SRE employee safety. Rather, the safety provisions set out in sections 16.1 and 16.2 of the contract between SRE and Conoco state that:

[SRE] shall have the primary responsibility for notifying and training its employees, subcontractors and agents with respect to Company's safety rules and procedures and any other governmental laws or regulations pertaining to the health and safety of workers.... [and] shall designate a responsible person to supervise health and safety matters and to prevent accidents.

Because Conoco did not contractually assume safety...