Cunnington v. Gaub

• Decision Date: 23 January 2007
• Docket Number: No. DA 06-0035.,DA 06-0035.
• Citation: 2007 MT 12,153 P.3d 1,335 Mont. 296
• Parties: Raymond M. CUNNINGTON, Plaintiff and Appellant, v. Mike GAUB, d/b/a Zebra Construction, and Alrick Hale, Defendants and Respondents.
• Court: Montana Supreme Court

153 P.3d 1

2007 MT 12

335 Mont. 296

Raymond M. CUNNINGTON, Plaintiff and Appellant, v. Mike GAUB, d/b/a Zebra Construction, and Alrick Hale, Defendants and Respondents.

No. DA 06-0035.

Supreme Court of Montana.

Submitted on Briefs November 22, 2006.

Decided January 23, 2007.

Rehearing Denied February 27, 2007.

For Appellant: Stephen C. Pohl, Attorney at Law, Bozeman, Montana.

For Respondents: John E. Bohyer and Fred Simpson, Phillips & Bohyer, P.C., Missoula, Montana, Mike Gaub, pro se, Missoula, Montana.

Justice W. WILLIAM LEAPHARTdelivered the Opinion of the Court.

¶ 1 Plaintiff Raymond M. Cunnington was injured when he fell from makeshift scaffolding while putting up siding on a house under construction in Flathead County. Cunnington sued Defendant Mike Gaub, his direct employer, and Defendant and Respondent Alrick Hale, the owner of the house which was under construction. The District Court granted Hale's motion for summary judgment on the basis that Hale owed no duty to Cunnington. Cunnington appeals the grant of summary judgment for Hale. We affirm in part, reverse in part, and remand for further proceedings.

¶ 2 We restate the issues as follows:

¶ 3 1. Did the District Court err in concluding that Cunnington's work on the makeshift scaffolding was not an inherently dangerous activity when Cunnington admitted that no special precautions were necessary to render the activity safe?

¶ 4 2. Did the District court err in concluding that there is no genuine issue of material fact as to whether Hale exercised sufficient control over the project to establish potential liability?

BACKGROUND

¶ 5 Hale, since 1984, has worked as an estimator and manager of a construction company which builds roads, provides ready-mix concrete, and performs asphalt paving, gravel crushing, and other similar work. Hale lived with his family in Missoula until 2001, when they moved to Kalispell. A few years before building the home at issue here, Hale had built a second home in Whitefish. He acted as the general contractor on that house, and he and his father, Martin Hale, dug the foundation, poured the concrete, and were in charge of the electrical, plumbing and painting work. Hale hired subcontractors to do the framing, roofing, siding and sheet rocking for the Whitefish house.

¶ 6 In June 2002, Hale and Gaub entered into a construction contract whereby Gaub agreed to build a home for Hale in Flathead County on the shore of Bitterroot Lake. Although Gaub was apparently responsible for building the structure of the 4,400 square foot home, Hale again undertook responsibility for the excavation, concrete, plumbing and electrical work. The contract is silent as to who was responsible for safety on the project. During construction, Hale was on site almost every day.

¶ 7 On September 12, 2002, Gaub erected a makeshift scaffold that he and Cunnington used to nail siding to the house. The scaffold consisted of a scaffolding plank laid over a sawhorse and a eight foot stepladder, which was folded and leaned against the wall with the bottom resting in a pit in front of the basement window. Gaub had apparently asked Hale three or four times to complete the backfilling so that he could finish the siding. Hale's response, according to Gaub, was that he had other projects he needed to finish first.

¶ 8 Gaub instructed Cunnington to stand on the scaffolding plank. When Cunnington was unable to reach the top piece of siding, Gaub suggested that he place a three-foot stepladder on top of the scaffolding plank. Cunnington did as he was instructed but, as soon as he stepped onto the three-foot ladder, the apparatus kicked out from under him and he fell into the window pit. Cunnington sustained a severe fracture/dislocation of his right foot and ankle in the fall.

¶ 9 When Cunnington was injured, Hale and his father were on site, installing the drain tile in the septic system. For a while after the accident, Gaub continued to work on the house. However, in early October, Gaub presented Hale with an invoice for about $15,000 which Hale refused to pay until Gaub obtained a release from Cunnington discharging Hale from any liability regarding Cunnington's accident. Gaub was unable or unwilling to obtain the release, and soon thereafter packed up his supplies and left the worksite. Hale then hired out the remaining work to subcontractors who completed the siding, finish work, closets and doors.

¶ 10 Cunnington later filed a complaint alleging that both Gaub and Hale were negligent and had violated the Montana Safety Act, and claiming that Gaub violated the Montana Scaffolding Act. Cunnington later amended the complaint to allege that Hale is vicariously liable for Gaub's negligence. Hale eventually filed a motion for summary judgment claiming he had no liability for Cunnington's injuries. Cunnington opposed Hale's motion and filed his own motion for partial summary judgment.

¶ 11 On March 28, 2005, the District Court granted Hale's motion as against Cunnington, denied Cunnington's motion as to Hale, and granted Cunnington's motion for partial summary judgment on the issue of liability as to Gaub. The court determined that summary judgment for Hale was appropriate because Cunnington failed to show the existence of a legal duty on the part of Hale. Specifically, the court concluded that, as to Hale, Cunnington's accident was not foreseeable, and that Hale did not exercise any control over the project or Cunnington. Further, the court concluded that Cunnington was not engaged in an inherently dangerous activity because Cunnington admitted that no special precautions were necessary to render the activity safe. From the court's order, Cunnington appeals.

STANDARD OF REVIEW

¶ 12 We review a district court's grant of summary judgment de novo applying the same standards as the trial court pursuant to M.R. Civ. P. 56. Montana Mountain Products v. Curl, 2005 MT 102, ¶ 8, 327 Mont. 7, ¶ 8, 112 P.3d 979, ¶ 8 (citations omitted). The district court must decide, while viewing the offered proof in the light most favorable to the non-moving party, whether there exists any genuine issue of material fact. Montana Mountain Products, ¶ 8 (citations omitted). If none exists, the district court must then decide whether to grant the motion as a matter of law. Montana Mountain Products, ¶ 8 (citations omitted).

DISCUSSION

¶ 13 We have long recognized the general rule that absent some form of control over the subcontractor's method of operation, the general contractor and owner of a construction project are not liable for injuries to the subcontractor's employees. Shannon v. Wright, 181 Mont. 269, 275, 593 P.2d 438, 441 (1979) (citations omitted). There are, however, three exceptions to the general rule: (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, 376, 805 P.2d 519, 520 (1991) (citations omitted).

¶ 14 Both parties agree that the construction contract did not impose upon Hale a nondelegable duty concerning workplace safety. Therefore, the only issues to be resolved are whether the scaffolding work was inherently dangerous and whether Hale exercised sufficient control over the project to be subjected to liability.

¶ 15 1. Did the District Court err in concluding that Cunnington's work on the makeshift scaffolding was not an inherently dangerous activity when Cunnington admitted that no special precautions were necessary to render the activity safe?

¶ 16 An inherently dangerous activity is one, like large-scale trenching, that requires "special precautions" to prevent injury or death. See Beckman v. Butte-Silver Bow County, 2000 MT 112, ¶¶ 24-25, 299 Mont. 389, ¶¶ 24-25, 1 P.3d 348, ¶¶ 24-25. The District Court concluded that the scaffolding work was not an inherently dangerous activity primarily because, in the court's words, Cunnington "[admitted] that no special precautions were necessary to render the activity in this case safe, therefore, the activity could not be inherently dangerous." Though the court does not cite to a particular part of the record, its conclusion that Cunnington admitted no special precautions were necessary is presumably based on language in Cunnington's summary judgment reply brief, where he notes that "[i]n the present action, the precautions need not even have been special. The use of an actual scaffold . . . would have been sufficient to prevent Cunnington's injury."

¶ 17 On appeal, other than generally claiming that the scaffolding work was inherently dangerous, Cunnington does not directly contest the court's conclusion that he admitted no special precautions were necessary, nor does he point to any part of the record to contradict the court's conclusion. We therefore affirm the District Court.

¶ 18 2. Did the District court err in concluding that there is no genuine issue of material fact as to whether Hale exercised sufficient control over the project to establish potential liability?

¶ 19 An owner-contractee may be liable for injuries sustained by a subcontractor's employee if the owner retains sufficient control over the property on which the work is performed, though the owner need not retain control over the specific manner in which the worker himself performs. See Shannon, 181 Mont. at 277, 593 P.2d at 442. In Shannon, the employee was injured when he fell from a ladder while trying to gain access to the upper level of a condominium that was under construction. Shannon, 181 Mont....