Dick Irvin Inc. v. State

• Decision Date: 24 September 2013
• Docket Number: No. DA 12–0607.,DA 12–0607.
• Citation: 372 Mont. 58,310 P.3d 524
• Parties: DICK IRVIN INC., Third Party Plaintiff and Appellant, v. STATE of Montana, Third Party Defendant and Appellee.
• Court: Montana Supreme Court

372 Mont. 58

310 P.3d 524

DICK IRVIN INC., Third Party Plaintiff and Appellant,

v.STATE of Montana, Third Party Defendant and Appellee.

No. DA 12–0607.

Supreme Court of Montana.

Submitted on Briefs May 28, 2013.

Decided Sept. 24, 2013.

For Appellant: William J. Gregoire; Michael L. Rausch; Smith, Walsh, Clarke & Gregorie, PLLP; Great Falls, Montana.

For Appellee: Maxon R. Davis; Davis, Hattley, Haffeman & Tighe, P.C.; Great Falls, Montana.

Justice MICHAEL E. WHEAT delivered the Opinion of the Court.

[372 Mont. 59]¶ 1 Dick Irvin, Inc. (Irvin) appeals from the Order of the Eighth Judicial District Court, Cascade County, denying Irvin's motion for summary judgment on the issue of duty in its negligence action against the State of Montana and United Rentals Highway Technologies, Inc. (collectively, State) and granting judgment in favor of the State.

ISSUES

¶ 2 The issues on appeal are as follows:

¶ 3 Did the State owe a statutory, nondelegable duty to Irvin?

¶ 4 Did the State owe a common law duty to Irvin?

¶ 5 Was the State vicariously liable for the torts of contractors working on this road project?

¶ 6 Did the District Court err when it determined Irvin is not entitled to summary judgment?

FACTUAL AND PROCEDURAL BACKGROUND

¶ 7 This case arose after Keith Davies (Davies), who worked for Great Falls Sand and Gravel (GFSG), was run over by a tractor-trailer driven by Paul Tychsen (Tychsen), who worked for Irvin. Davies was directing traffic and had his back to the turning truck when it struck him.

¶ 8 The incident occurred during a project to construct a Flying J Travel Plaza in Great Falls. To accommodate large semi-trucks and tractors accessing the Plaza, 31st Street Southwest in Great Falls needed to be widened. Flying J hired Deerfield Construction as the general contractor. GFSG subcontracted for the road work. GFSG completed most of the paving in 2004. In 2005, a portion of the roadway remained unpaved. The City of Great Falls requested repaving on a portion.

¶ 9 Common access to 31st Street Southwest occurs by turning south off Interstate 15(I–15) at the airport exit (Gore Hill Interchange). Whether this portion of 31st Street Southwest is a state highway remains in dispute; however, the District Court observed “it appears that the accident itself occurred on a state right of way.” The State did not request or pay for the paving or repaving. At the time of the accident the State was not aware that the City of Great Falls had directed GFSG to do the work or that repaving work was occurring.

¶ 10 In “Special Provisions” dated March 1, 2000, the State provided supplemental conditions with which the contractors were required to abide. Those provisions required Flying J to:

Prior to the start of construction develop and submit to the Engineer for approval, a traffic control management plan to provide for the movement and safety of traffic through the project during construction.

Submit a revised plan whenever a change in work schedule significantly effects [ sic ] traffic control. Provide a traffic control management plan including as a minimum the following requirements ...

(5) Include the intended traffic control method including flagging and spacing and type of traffic control devices. Provide traffic control in compliance with the current Manual on Uniform Traffic Control Devices.

Those provisions also stated:

This project (31st Southwest) is a Montana Department of Transportation (MDT) project. The Contractor is required to provide all required submittals and adhere to all applicable MDT standards for construction. Applicable specifications for the roadway construction is the “Standard Specifications for Road and Bridge Construction, 1995 Edition.” The owner will employ a full time representative (engineer) to provide construction inspection services.

It is the Contractor's responsibility to be familiar with all MDT special provisions, standards, specifications, and construction requirements.

The provisions required that flaggers provided possess current certification from either the Montana Flagger training program, the ATSSA ¹ flagger program, or Idaho, Oregon or Washington state flaggers training programs. The record provides no indication that the State required use of flaggers to control traffic, although the State's Maintenance Chief, David Kelly, testified he advised GFSG that if it did have flaggers it needed to have proper signs in place.

¶ 11 In April, 2000, before work began, Flying J and the Montana Department of Transportation (MDT) entered into a Memorandum of Agreement (MOA) for Roadway Improvements Interstate 15 Gore Hill Interchange. The MOA provided that “the Developer has proposed a travel plaza ... southeast of the Interstate 15 Gore Hill Interchange which will affect the roadway under the authority of MDT ...” and that “the parties set forth the duties and responsibilities necessary to address the needs of the traveling public due to the resulting impact on traffic flow on the affected MDT roadway resulting from the Developers proposed actions.” To this end, the MOA required that “... Developer's contractor shall submit for MDT approval a traffic control plan that is sufficient to protect the traveling public and maintain traffic flow through the construction sites on state roadways.” MDT was to “[r]eview and approve the Developer/contractor's submittals related to the traffic control plan.” The MOA specifically provided that the necessary road improvements to the Gore Hill Interchange were “a direct result of the Developer's proposed action....”

¶ 12 GFSG contracted with United Rentals to develop a traffic control plan. In September 2004, United Rentals formulated a plan for signage and submitted it to GFSG. GFSG, in turn, submitted the plan to the State of Montana for approval. The plan made general provisions for signage but no specific provision for flaggers. David Kelly reviewed and approved the plan. He testified that he found the plan sufficient to notify people coming off the interstate and frontage roads that they were coming into a construction zone. He also testified that he inspected the work on at least three occasions to look at drainage issues and the quality of some paving.

¶ 13 The accident occurred on May 11, 2005. GFSG's paving foreman, Doug Conley, had directed Davies to control traffic coming from the I–15 interchange area at the intersection of 31st Street Southwest and the Tri Hill Frontage Road. Davies was not a certified flagger. Conley did not rely on any traffic control plan; and indeed, did not know GFSG had asked anyone to develop a traffic control plan.

¶ 14 Tychsen was operating a Kenworth Supertrain, traveling north on Tri Hill Frontage Road. Tychsen came to a full stop at the intersection. Tychsen saw Davies as Davies stood behind construction candles closing off the eastbound land of 31st Street Southwest and leading into the single open lane that normally contained westbound traffic. Tychsen attempted a broad right turn from Tri Hill Frontage Road onto 31st Street Southwest. Davies and Tychsen could see each other as Tychsen's truck passed. Davies waved Tychsen's truck by, then turned his back on Tychsen's moving vehicle. The truck struck Davies, knocking him to the ground and dragging him along the pavement. Davies sustained serious injuries.

¶ 15 Davies filed a negligence action in the Eighth Judicial District Court, Cascade County, against Irvin. Irvin answered denying negligence. Irvin filed a third-party complaint seeking contribution from the State, alleging the State negligently approved the traffic control plan. Irvin settled Davies' claims, which were dismissed from the case, leaving Irvin's third-party claims against the State. Irvin moved for summary judgment on the issue of the State's duty to Irvin and Davies. The District Court denied Irvin's motion, holding the State did not owe any duty to Irvin or Davies. Irvin moved for entry of judgment on the District Court's order denying its motion for summary judgment. The District Court entered judgment in favor of the State. Irvin appealed.

STANDARD OF REVIEW

¶ 16 We review a district court's denial of summary judgment de novo. Dubiel v. Mont. Dept. of Transp., 2012 MT 35, ¶ 10, 364 Mont. 175, 272 P.3d 66. Summary judgment is proper when no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. M.R. Civ. P. 56(c)(3) (2013).

The movant must demonstrate that no genuine issues of material fact exist. Once this has been accomplished, the burden then shifts to the non-moving party to prove, by more than mere denial and speculation, that a genuine issue does exist. Having determined that genuine issues of material fact do not exist, the court must then determine whether the moving party is entitled to judgment as a matter of law.

Beckman v. Butte–Silver Bow Co., 2000 MT 112, ¶ 11, 299 Mont. 389, 1 P.3d 348 (quoting Bruner v. Yellowstone Co., 272 Mont. 261, 264, 900 P.2d 901, 903 (1995)).

[372 Mont. 63]¶ 17 Ordinarily, questions of negligence are poorly suited to adjudication by summary judgment and are better left for jury determination. Prindel v. Ravalli Co., 2006 MT 62, ¶ 20, 331 Mont. 338, 133 P.3d 165. However, the existence of a legal duty presents a question of law to be determined by the court. State v. Butte–Silver Bow Co., 2009 MT 414, ¶ 20, 353 Mont. 497, 220 P.3d 1115.

¶ 18 The interpretation and construction of a statute is a matter of law. In re J.D.N., 2008 MT 420, ¶ 8, 347 Mont. 368, 199 P.3d 189. A district court's interpretation and application of a statute are reviewed de novo. J.D.N., ¶ 8.

DISCUSSION

¶ 19 1. Did the State owe a statutory, nondelegable duty to Irvin?

¶ 20 Irvin argues on appeal that § 61–8–203, MCA (2003), imposed a statutory duty on the State to place and maintain traffic control devices on highways in conformance with State-issued standards; and that § 61–1–403, MCA (2003), provides a flagger is a...