Dukes v. Sirius Const., Inc.

Decision Date03 June 2003
Docket NumberNo. 01-519.,01-519.
Citation73 P.3d 781,2003 MT 152,316 Mont. 226
PartiesTraci L. DUKES, as Personal Representative of the Estate of Keith Dukes, and on her own behalf and on behalf of Traci and Keith Dukes' 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. SIRIUS CONSTRUCTION, INC., a Montana corporation; Paradigm Architects, P.C., Carl Posewitz, The City of Missoula, The State of Montana, and The University of Montana, and Fictitious Defendants A-D, Defendants and Respondents.
CourtMontana Supreme Court

Lon J. Dale and James T. Towe, Milodragovich, Dale, Steinbrenner and Binney, P.C., Missoula, Montana, for Appellants.

William L. Crowley and Dean A. Stensland, Boone & Karlberg, Missoula, Montana (City of Missoula), Shelton C. Williams and Susan Moriarity Miltko, Williams & Ranney, P.C., Missoula (Paradigm & Posewitz), Robert J. Phillips and Fred Simpson, Jr., Phillips & Bohyer, P.C., Missoula, Montana (University of Montana and State of Montana), Neil Ugrin and J. Michael Young, Great Falls, Montana (Sirius Construction), for Respondents.

Justice JIM RICE delivered the Opinion of the Court.

¶ 1 Appellants Traci L. Dukes, as personal representative of the Estate of Keith Dukes and on her own and her minor children's behalf, and Sandra Henry, on behalf of her minor child (hereafter referred to as "Dukes"), brought this action against the defendants in the Fourth Judicial District Court, Missoula County. Defendant City of Missoula (City) moved the District Court to dismiss Dukes' complaint, alleging that any inspection or other duties imposed on it by Montana's Scaffolding Act in § 50-77-106, MCA (1997),1 were preempted by the Occupational Safety & Health Act of 1970 (OSH Act) and the regulations promulgated thereunder by the Occupational Safety and Health Administration (OSHA). The District Court agreed and dismissed Dukes' complaint against the City, concluding that any duties imposed on the City by Montana's Scaffolding Act were preempted under federal law. Dukes now appeals the District Court's dismissal of the complaint against the City. We reverse and remand.

¶ 2 We address the following issue on appeal:

¶ 3 Did the District Court err when it concluded that the duty to inspect under Montana's Scaffolding Act, § 50-77-106, MCA, is preempted by the Occupational Safety & Health Act?

FACTUAL AND PROCEDURAL BACKGROUND

¶ 4 The facts in this case, as reflected in Dukes' amended complaint, are as follows: On February 10, 1998, Keith Dukes, an employee of Sirius Construction, Inc. (Sirius), while in the course of his employment, was injured and eventually died as a result of his injuries. Defendant Sirius was involved in performing services under a written contract with the University of Montana at the time of Keith Dukes' injuries. When the injury occurred, Keith Dukes was performing work for Sirius on the University of Montana campus.

¶ 5 In the amended complaint, Dukes alleged that, pursuant to the Montana Scaffolding Act, § 50-77-106, MCA, the City had a duty to conduct inspections to ensure that the other named defendants complied with the provisions of the Act, §§ 50-77-101 through -107, MCA. The Act required, in part, that employers follow safety practices commonly recognized in the construction industry as well as applicable state and federal occupational safety laws. See § 50-77-101(2), MCA.

¶ 6 Dukes alleged that the City failed to enforce Montana's Scaffolding Act by failing to perform the inspections required under § 50-77-106, MCA, and alleged that the City's failure to inspect constituted a breach of a legal duty and negligence per se under the Act.

¶ 7 The City thereafter filed a Rule 12(b)(6), M.R.Civ.P., motion to dismiss, arguing that Dukes' amended complaint failed to state a claim for which relief was available. The City argued that the Montana Scaffolding Act was preempted by the OSH Act and the OSHA regulations promulgated thereunder. The City argued therefrom that it could not owe a duty to Dukes under preempted state law, and likewise, that it did not owe a duty to Dukes under OSHA regulations because the regulations do not impose liability upon a third party who is not an employer of the worker. Absent an imposed legal duty, the City argued that there could be no negligence.

¶ 8 The District Court agreed and granted the City's motion to dismiss. The court concluded that Congress intended the OSH Act and OSHA regulations to occupy the field of occupational safety and health regulation, thus preempting the safety standards set forth in the Montana Scaffolding Act as well as any enforcement provisions thereunder, except where the state has submitted a comprehensive plan pursuant to 29 U.S.C. § 667(b), and where that plan was approved by the Secretary of Labor. Montana has not done so. The District Court additionally concluded that the OSH Act savings clause, 29 U.S.C. § 653(4), while preserving private tort actions, does not save from preemption state occupational safety and health standards or their enforcement.

¶ 9 The District Court concluded, therefore, that the Montana Scaffolding Act could not impose a duty on the City to inspect and that, without a legal duty, the City could not be held liable for negligence arising under the Montana Scaffolding Act.

¶ 10 Dukes now appeals the District Court's dismissal of the claim against the City.

STANDARD OF REVIEW

¶ 11 This Court's standard of review of district court rulings on motions to dismiss under Rule 12(b)(6), M.R.Civ.P., is: A complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of a claim which would entitle the plaintiff to relief. Reidelbach v. Burlington Northern and Santa Fe Ry. Co., 2002 MT 289, ¶ 14, 312 Mont. 498, ¶ 14, 60 P.3d 418, ¶ 14. A motion to dismiss under Rule 12(b)(6), M.R.Civ.P., has the effect of admitting all well-pleaded allegations in the complaint. In considering the motion, the complaint is construed in the light most favorable to the plaintiff, and all allegations of fact contained therein are taken as true. Reidelbach, ¶ 14 (citation omitted). The District Court's determination that Dukes failed to state a claim for which relief was available is a conclusion of law. Our standard of review of a district court's conclusion of law is whether its interpretation of the law is correct. Reidelbach, ¶ 14 (citation omitted).

DISCUSSION

¶ 12 Did the District Court err when it concluded that the duty to inspect under Montana's Scaffolding Act, § 50-77-106, MCA, is preempted by the Occupational Safety & Health Act?

¶ 13 In the District Court, the City argued that, by virtue of 29 U.S.C. § 667(b), the OSH Act preempted all state occupational safety and health standards as well as their enforcement, and that a state may develop and implement its own occupational safety and health plan only by submitting and receiving approval of its plan by the Secretary of Labor. Relying on Gade v. National Solid Wastes Management Association (1992), 505 U.S. 88, 112 S.Ct. 2374, 120 L.Ed.2d 73, and Industrial Truck Ass'n, Inc. v. Henry (9th Cir.1997), 125 F.3d 1305, the City argued that any non-approved state regulations are preempted even if they merely supplement the federal standard.

¶ 14 The City thus asserted that it could not owe a duty to Dukes for two reasons: first, any imposition of duty under the Montana Scaffolding Act was preempted; and second, citing to Russell v. Bartley (6th Cir. 1974), 494 F.2d 334, the OSH Act imposes a duty of care only on employers to care for employees, but imposes no duty of care on third party non-employers. Consequently, the City argued, violation of an OSHA regulation could not be the basis for a negligence cause of action.

¶ 15 Finally, relying on this Court's decision in Thornock v. State (1987), 229 Mont. 67, 69, 745 P.2d 324, 325, the City argued that this Court has already held that OSHA preempts any duty to inspect where OSHA has promulgated regulations. This Court held in Thornock that the OSH Act and OSHA regulations impliedly preempted the entire field of regulating occupational safety and health issues. We thus held that OSHA preempted any duty of inspection imposed on the state by the Montana Safety Act of 1969. Thornock, 229 Mont. at 74-75,745 P.2d at 328-29.

¶ 16 The District Court agreed with the City and, relying on this Court's decision in Thornock, concluded that Congress intended to wholly occupy the field of "assuring worker safety." The District Court concluded that, because OSHA preempted the Montana Scaffolding Act, the Act imposed no duty of care or duty to inspect on the City. The District Court thus determined that the only duty to inspect or duty to enforce safety standards arose under OSHA and that the only entity with responsibility for inspection and enforcement of scaffolding safety standards is the Secretary of Labor. Accordingly, the District Court dismissed Dukes' claim against the City, concluding that, without a legal duty, Dukes' claim against the City for negligence must fail.

¶ 17 On appeal, Dukes argues that neither the OSH Act nor OSHA regulations provide for express preemption, nor do they imply field preemption, and that the District Court thus erred in concluding that Montana's Scaffolding Act was preempted. Dukes argues that the City had distinct duties under the Act, including a duty to inspect and verify compliance with manufacturer specifications, state law and federal laws, and a duty to enforce compliance. Finally, Dukes argues that, in light of decisions in subsequent state and federal cases, Thornock was incorrectly decided.

¶ 18 The United States Supreme Court and this Court have repeatedly held that preemption is not easily favored. See Favel v. American Renovation and Constr. Co., ...

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