Dvorak v. Matador Service, Inc.

• Decision Date: 09 December 1986
• Docket Number: No. 85-568,85-568
• Citation: 727 P.2d 1306,43 St.Rep. 1562,223 Mont. 98
• Parties: Roger DVORAK, Plaintiff/Appellant, v. MATADOR SERVICE, INC., a foreign corporation; and Koch Industries, Inc., a foreign corporation, Defendants/Respondents.
• Court: Montana Supreme Court

Page 1306

727 P.2d 1306

223 Mont. 98

Roger DVORAK, Plaintiff/Appellant, v. MATADOR SERVICE, INC., a foreign corporation; and Koch Industries, Inc., a foreign corporation Defendants/Respondents.

No. 85-568.

Supreme Court of Montana.

Submitted July 8, 1986.

Decided Aug. 28, 1986.

Rehearing Denied Dec. 9, 1986.

Goetz, Madden and Dunn, P.C., James P. Molloy, Bozeman, Montana, argued, Jeffrey T. Renz, Billings, for plaintiff/appellant.

Crowley Law Firm, Charles R. Cashmore, Billings, Montana, argued, for defendants/respondents.

HARRISON, Justice.

The plaintiff-appellant brought this action to recover for injuries which he sustained when he was overcome by hydrogen sulfide gas as he was preparing a vacuum tank for welding repairs. The District Court granted the defendants' second motion for summary judgment. From that order and judgment the plaintiff appeals. We affirm.

In March of 1981, the plaintiff-appellant, Roger Dvorak ("Dvorak"), was employed as a journeyman welder at Beall, Inc. of Billings, Montana. Beall repairs and fabricates truck tanks used for hauling commodities such as gas and oil.

On March 4, 1981, defendant-respondent Matador Services Company, a subsidiary of defendant-respondent Koch Industries, Inc., delivered a vacuum tank truck to Beall for repairs. The truck at one time or other had hauled oil production water, salt water, and bottom sediment, all contaminated with hydrogen sulfide, a highly toxic substance. Beall officials were aware that all trucks from the Williston Basin, including this truck, could be expected to have hauled hydrogen sulfide contaminated matter. The record is also undisputed that Beall officials were generally aware of the serious dangers associated with hydrogen sulfide.

When Beall received the truck from Matador, it followed its standard procedures for readying tanks for repair. It placed the truck on a steam rack where it was steam cleaned. It was then left outside to cool overnight. The following morning, March 5, Beall's foreman, Israel Sanchez, tested the tank with an explosimeter to determine whether any explosive gases were present. After determining that the tank was safe, Sanchez assigned Dvorak and an assistant to do the necessary welding repairs.

When Dvorak entered the tank to begin his work, he discovered that it still contained a considerable amount of tar-like material and sediment, and was generally still dirty. Fearing that an explosion would occur if he began welding, Dvorak left the tank and complained about its condition to Sanchez. Sanchez entered the tank himself to inspect it. He noticed no unusual smells or any other indications that the tank was unsafe so he "ordered" Dvorak and his assistant to reenter the tank and scoop the sediment from the bottom before welding. Sanchez told Dvorak and his assistant to either reenter the tank or "go down the road."

As Dvorak began shoveling the sludge out of the tank, he collapsed. Dvorak's assistant and several other workers reached into the tank and pulled Dvorak out. It was later learned that Dvorak had been exposed to hydrogen sulfide. Dvorak received serious injuries as a result of his exposure to the hydrogen sulfide.

On March 4, 1983, Dvorak filed suit against Beall, Matador and Koch. Dvorak alleged that Beall was liable under the intentional tort exception to the exclusivity provisions of Montana's Workers' Compensation laws. Beall's motion for summary judgment was granted on January 16, 1984. Dvorak's subsequent appeal from that judgment was dismissed with prejudice as fully settled on the merits.

Dvorak stated two claims for relief against Matador and Koch (hereinafter defendants or "Matador"). The first claim for relief alleged that the defendants were strictly liable for engaging in an abnormally dangerous activity. Dvorak's second claim for relief was based on the several theories of negligence. First, Dvorak contended that the defendants generally negligent conduct was responsible for his injuries (primarily that the defendants were under a duty to warn or advise Beall that special precautions were necessary when dealing with hydrogen sulfide). Second, Dvorak contended that the peculiar risks associated with hydrogen sulfide make it an inherently or intrinsically dangerous activity thus making the defendants vicariously liable for Beall's wrongful conduct.

The defendants moved for summary judgment in February of 1984 based on the argument that the sole proximate cause of Dvorak's injuries was Beall's negligence in failing to properly clean the subject tank and in requiring Dvorak to reenter the tank even with actual knowledge of its unclean condition. The District Court found that a material issue of fact existed, relating to whether Beall was aware of the gravity of the danger presented by the presence of hydrogen sulfide in the subject tank. On that basis, the court denied the defendants' first motion for summary judgment.

Following further discovery, the defendants renewed their motion for summary judgment based on information which showed that Beall had actual knowledge of the serious dangers associated with hydrogen sulfide. The District Court thereafter granted the defendants' motion for summary judgment and concluded that Beall's knowledge of hydrogen sulfide's potential dangers rendered its conduct the sole proximate cause of Dvorak's injuries.

It is from the granting of summary judgment in favor of the defendants that Dvorak appeals.

Dvorak now presents the following issues for review by this Court:

I. Did the District Court erroneously impose summary judgment on plaintiff's negligence claims?

A. Did the District Court err in holding as a matter of law that the peculiar risk (inherently dangerous activity) exception to the independent contractor rule does not apply to this case?

1. Does Montana recognize the peculiar risk exception?

2. Are employees of an independent contractor protected under the peculiar risk exception?

B. Did the District Court erroneously impose summary judgment on the plaintiff's general negligence claim when the record reflected disputed issues of fact regarding foreseeability and causation?

II. Did the District Court erroneously impose summary judgment on plaintiff's strict liability claim for an abnormally dangerous activity?

I. Dvorak's negligence claims

Dvorak begins his argument under this issue by noting that at the time he was injured, he was an employee of Beall, Inc. Dvorak further notes that Beall was in turn an independent contractor employed by defendant Matador. The general common law rule, which Montana follows, is that an employer is not liable for the negligence or wrongdoing of an independent contractor. See, Storrusten v. Harrison (1976), 169 Mont. 525, 549 P.2d 464. However, there are some very important exceptions to this general rule. Dvorak argues that Matador falls under two common exceptions to the independent contractor rule: (1) the peculiar risk or inherently dangerous activity doctrine; and (2) the employer's liability for his own negligence. Dvorak asserts the District Court, in imposing summary judgment, held that Montana does not recognize the "inherently dangerous activity" exception and that, in any event, the exception would not apply to the facts of this case. With regard to the employer's own negligence exception, the trial court apparently recognized the exception but held that Matador could not be liable on that basis. Dvorak argues the trial court erred in its conclusions.

First, with regard to the inherently dangerous activity exception, Dvorak argues that Montana has long recognized this doctrine. This doctrine basically provides that where the acts to be performed by an independent contractor are of an inherently dangerous nature, the employer will be held vicariously liable for any resultant injury caused by the negligence or wrongdoing of the independent contractor. To establish that Montana has adopted the peculiar risk or inherently dangerous activity exception, Dvorak directs this Court's attention to the recent cases of Kemp v. Bechtel Construction Co., et al. (Mont.1986), 720 P.2d 270, 43 St.Rep. 1022 and Cash v. Otis Elevator Co. (Mont.1984), 684 P.2d 1041, 41 St.Rep. 1077.

It is also important to note, Dvorak argues, that employees of independent contractors are protected under the inherently dangerous activity exception. In other words, the exception extends not only to third persons, but also to employees of an independent contractor. Therefore, an employer (i.e. Matador) who hires an independent contractor (i.e. Beall) to engage in an inherently dangerous activity will be liable for negligent acts which injure the contractors own employees (i.e. Dvorak). See, Kemp, supra, and Stepanek v. Kober Construction (Mont.1981), 625 P.2d 51, 38 St.Rep. 385.

In light of Montana's clear recognition of the inherently dangerous activity exception, Dvorak argues, the only remaining issue is whether the exception applies to this case. In other words, whether the repairing and fabrication by Beall of tanks which contain hydrogen sulfide contaminated matter is an inherently dangerous activity thereby making Matador vicariously liable for Beall's negligence or wrongdoing. Dvorak argues this issue is a question of fact which can only be determined by a jury. Consequently, Dvorak asserts, this case must be reversed and remanded for trial.

Dvorak argues the second exception to the general rule that an employer is not liable for the tortious acts of an independent contractor is that if the employer is himself negligent in his own dealings with the independent contractor, this can give rise to employer liability. In the instant case, Dvorak primarily argues that Matador's conduct falls under this exception because Matador negligently failed to advise or warn Beall that special precautions were necessary when dealing with hydrogen sulfide. Dvorak contends that Beall was ignorant of the reasonable...