Dukes v. City of Missoula, 04-758.

• Decision Date: 16 August 2005
• Docket Number: No. 04-758.,04-758.
• Court: Montana Supreme Court
• Parties: Traci L. DUKES, as Personal Representative of the Estate of Keith Dukes, and on her own behalf and on behalf of Traci and Keith Dukes's minor children, Jacob Dukes and Kyle Dukes; and Sandra Henry, as parent and legal guardian of Skyler Haucke Dukes, a minor, Plaintiffs and Appellants, v. The CITY OF MISSOULA, and Fictitious Defendants A-D, Defendants and Respondents.

119 P.3d 61

2005 MT 196

Traci L. DUKES, as Personal Representative of the Estate of Keith Dukes, and on her own behalf and on behalf of Traci and Keith Dukes's minor children, Jacob Dukes and Kyle Dukes; and Sandra Henry, as parent and legal guardian of Skyler Haucke Dukes, a minor, Plaintiffs and Appellants, v. The CITY OF MISSOULA, and Fictitious Defendants A-D, Defendants and Respondents.

No. 04-758.

Supreme Court of Montana.

Submitted on Briefs June 8, 2005.

Decided August 16, 2005.

For Appellants: Lon J. Dale and Philip B. Condra, Milodragovich, Dale, Steinbrenner & Binney PC, James T. Towe, Towe Law Offices, Missoula, Montana.

For Respondents: William L. Crowley, Boone Karlberg PC, Missoula, Montana.

Justice W. WILLIAM LEAPHART delivered the Opinion of the Court.

¶ 1 Appellants Traci L. Dukes, as the personal representative of the Estate of Keith Dukes and on her own and her and Keith Dukes's minor children's behalf, and Sandra Henry, on behalf of her minor child (hereafter referred to as "Dukes"), brought this action against the City of Missoula (the City), Sirius Construction, Inc., Paradigm Architects, P.C., Carl Posewitz, the State of Montana, and the University of Montana. The City moved for summary judgment, and the District Court granted the City's motion. Dukes appeals. We affirm.

¶ 2 The parties raise three issues:

¶ 3 1. Did the City have a duty to inspect the scaffold under § 50-77-106, MCA (1997) (repealed 1999)?

¶ 4 2. Does the law of the case doctrine establish the City's duty to inspect?

¶ 5 3. Was the City negligent per se?

¶ 6 We will address, instead, the issue whether this appeal is moot.

BACKGROUND

¶ 7 Keith Dukes (Keith) helped erect the scaffold that he was using in a construction project on the University Theatre at the University of Montana in February 1998. The scaffold was insufficiently wide for its height, and, instead of securing it together with bolts, the workers had used wire. The City knew nothing about the scaffold or its inadequacies. Keith and another employee were on top of the scaffold when they decided they needed to move it to another location. Instead of climbing down to move it, Keith and the other employee at the top pulled the scaffold along while another employee pushed or pulled from the bottom. The scaffold fell over, and Keith was fatally injured. Inter alia, Dukes brought a negligence claim against the City under section 106 of Title 50, Chapter 77, Part 1, MCA (1997) (the Scaffold Act).

¶ 8 This is the second appeal to reach this Court concerning Keith's tragic death. In Dukes v. Sirius Construction, Inc., 2003 MT 152, 316 Mont. 226, 73 P.3d 781, the City had moved the District Court to dismiss Dukes's complaint under Rule 12(b)(6), M.R.Civ.P., alleging that the Occupational Safety & Health Act of 1970, Pub.L. No. 91-596, 84 Stat. 1590 (1970) (codified at 29 U.S.C. §§ 651-678, 5 U.S.C. §§ 5108, 5314-15, 7902, 15 U.S.C. §§ 633, 636, 18 U.S.C. § 1114) (OSH Act), and that the regulations the Occupational Safety and Health Administration had promulgated thereunder had preempted any duties the Scaffold Act imposed on the City. We concluded that the OSH Act did not preempt any duties contained in § 50-77-106, MCA (1997) (repealed 1999).

¶ 9 In the meantime, Dukes had settled with Sirius Construction, Inc., for $1.8 million, and had stipulated to dismiss the State of Montana and the University of Montana with prejudice. The District Court had granted Paradigm Architects, P.C.'s, and Carl Posewitz's motions for summary judgment. After losing its Rule 12(b)(6), M.R.Civ.P., motion in this Court, the City moved for summary judgment alleging that the City owed no legal duty to Keith under the Scaffold Act, and Dukes moved for summary judgment alleging the City was negligent per se under that act. The District Court granted the City's motion and denied Dukes's motion.

¶ 10 The Legislature first enacted the Scaffold Act in 1909. Act approved Mar. 6, 1909, ch. 107, 1909 Mont. Laws 151 (codified at Title 50, Chapter 77, Part 1, MCA) (hereinafter 1909 Scaffold Act). Originally, the sentence imposing an enforcement duty on the City was part of the same section that imposed a monetary fine for violating the Scaffold Act. See 1909 Scaffold Act § 5; §§ 50-77-106 and 107, MCA (1997). The 1909 Scaffold Act, § 5, provided that

[a]ny person violating any of the provisions of the foregoing Sections shall be fined not less than One Hundred Dollars nor more than Two Hundred Dollars for each offense. It is hereby made the duty of the building inspector, his deputy or other authorities in any county, city, town or village in the State, through the county attorney or any other attorney, in case of failure of such owner, person or corporation to comply with this Act promptly, to take the necessary steps to enforce the provisions of this act.

(Codified at § 69-1405, R.C.M. (1947), and §§ 50-77-106 to 107, MCA (1997).) The plaintiffs brought this case to determine the nature and extent of this duty.

STANDARD OF REVIEW

¶ 11 The decision to grant summary judgment is a legal decision that we review de novo. Cole v. Valley Ice Garden, L.L.C., 2005 MT 115, ¶ 16, 327 Mont. 99, ¶ 16, 113 P.3d 275, ¶ 16. If the non-moving party fails to provide substantial evidence raising a genuine issue of material fact, the district court must decide whether the moving party is entitled to judgment as a matter of law. Cole, ¶ 16. Whether a party owed a legal duty to someone and the scope of that duty are questions of law. Henricksen v. State, 2004 MT 20, ¶ 21, 319 Mont. 307, ¶ 21, 84 P.3d 38, ¶ 21.

DISCUSSION

¶ 12 Dukes argues that, under the plain meaning of § 50-77-106, MCA (1997) (repealed 1999), the City had a legal duty to inspect the scaffold. The City avers that it had no duty, and, if it had a duty, that duty arises only upon notice to the City. Relevant portions of the Scaffold Act, read as follows:

50-77-101. Scaffolds — definition — safety practices — liability. (1) As used in this part, "scaffold" or "scaffolding" means a temporarily elevated platform and its supporting structure that is used on a construction site to support a person, material, or both. The term includes a ladder or other equipment that is the exclusive route of access to the scaffold but does not include any other ladder or other mobile construction equipment.

(2) Employers and employees shall follow safety practices commonly recognized in the construction industry as well as applicable state and federal occupational safety laws.

(3) Subject to the comparative negligence principles provided in Title 27, chapter 1, part 7, a contractor, subcontractor, or builder who uses or constructs a scaffold on a construction site is liable for damages sustained by any person who uses the scaffold, except a fellow employee or immediate employer, when the damages are caused by negligence of the contractor, subcontractor, or builder in the use or construction of the scaffold.

(4) If a person dies from an injury caused by the negligent use or construction of a scaffold, the right of action survives and may be prosecuted and maintained by the decedent's heirs or personal representatives.

....

50-77-106. Building inspector to enforce chapter. It is hereby made the duty of the building inspector, his deputy, or other authorities in any county, city, town, or village in the state, through the county attorney or any other attorney, in case of failure of such owner, person, or corporation to comply with this chapter promptly, to take the necessary steps to enforce the provisions of this chapter.

50-77-107. Penalty for violation. Any person violating any of the provisions of the foregoing sections shall be fined not less than $100 or more than $200 for each offense.

¶ 13 It is noteworthy that, as of 1997, the codifiers had split the original § 5 of the 1909 Scaffold Act (which encompassed both the fine and the duty to enforce) into two separate statutes, thereby giving rise to the argument that the building inspector/county attorney's duty to enforce the provisions of the Scaffold Act was not limited to seeking statutory penalties. See 1909 Scaffold Act, § 5; §§ 50-77-106 to 107, MCA (1997).

¶ 14 Rather than restricting their scope to narrow clauses in a statutory scheme, courts will read the relevant statutes in their entireties; this gives courts the tools by which to effect the will of the Legislature. Kokoszka v. Belford (1974), 417 U.S. 642, 650, 94 S.Ct. 2431, 2436, 41 L.Ed.2d 374, 381, superseded by statute on other grounds; Carlson v. City of Bozeman, 2001 MT 46, ¶ 15, 304 Mont. 277, ¶ 15, 20 P.3d 792, ¶ 15; William N. Eskridge, Jr., et al., Cases and Materials on Legislation 830 (3rd ed.2002). This canon of construction is the Whole Act Rule. William N. Eskridge, Jr., et al., Cases and Materials on Legislation 830 (3rd ed.2002).

¶ 15 Parties must present a justiciable controversy before a court can consider the merits of an issue, and this Court can question the justiciability of any controversy sua sponte because neither the United States Constitution nor the Montana Constitution has granted this Court the power to decide nonjusticiable questions. Dennis v. Brown, 2005 MT 85, ¶ 8, 326 Mont. 422, ¶ 8, 110 P.3d 17, ¶ 8; see Roosevelt v. Dept. of Revenue, 1999 MT 30, ¶ 47, 293 Mont. 240, ¶ 47, 975 P.2d 295, ¶ 47. In this case, § 50-77-101(3), MCA (1997), and not § 50-77-106, MCA (1997) (repealed 1999), addresses liability under the Scaffold Act. Specifically, § 50-77-101(3), MCA (1997), lists three parties who are liable for injuries caused by their negligence in using or constructing the scaffold: "a contractor, subcontractor, [and] builder." Under the canon expressio unius est exclusio alterius, we interpret the expression of one thing in a statute to imply the exclusion of another. State v. Good, 2004 MT 296, ¶ 17, 323 Mont. 378, ¶ 17, 100 P.3d 644, ¶ 17. Clearly, the Legislature did not intend to impose...