Fabich v. Ppl Montana, LLC

• Decision Date: 09 October 2007
• Docket Number: No. DA 06-0315.,DA 06-0315.
• Parties: Daniel J. FABICH, Plaintiff and Appellant, v. PPL MONTANA, LLC a Delaware Company and John Does 1 through 10, Defendant and Appellees.
• Court: Montana Supreme Court

170 P.3d 943

2007 MT 258

339 Mont. 289

Daniel J. FABICH, Plaintiff and Appellant, v. PPL MONTANA, LLC a Delaware Company and John Does 1 through 10, Defendant and Appellees.

No. DA 06-0315.

Supreme Court of Montana.

Submitted on Briefs January 31, 2007.

Decided October 9, 2007.

For Appellant: Patrick T. Gallagher; Skakles & Gallagher, Anaconda, Montana, Robert G. McCarthy; McCarthy Law Firm, Butte, Montana.

For Appellees: Robert L. Sterup; Holland & Hart, Billings, Montana.

Chief Justice KARLA M. GRAY delivered the Opinion of the Court.

¶ 1 Daniel Fabich filed this action seeking damages for injuries he suffered when he fell from scaffolding. The Third Judicial District Court, Anaconda-Deer Lodge County, granted summary judgment for PPL Montana, LLC (PPL). Fabich appeals. We affirm.

¶ 2 We restate the issues as follows:

¶ 3 1. Was summary judgment premature because discovery had not been completed?

¶ 4 2. Did the District Court correctly interpret the Montana Scaffolding Act?

¶ 5 3. Did the District Court correctly apply Montana law concerning liability for negligence?

¶ 6 4. Do genuine issues of material fact preclude summary judgment?

BACKGROUND

¶ 7 Daniel Fabich was employed as a boilermaker by Power Maintenance Resources, Inc. (PMRI), which contracted to perform maintenance work at PPL's Colstrip, Montana, power plant. On June 14, 2000, Fabich was working inside a scrubber vessel which he and other members of a PMRI crew were relining with steel plates. In performing the work, PMRI's crew was using scaffolding erected by other PMRI employees. While Fabich was climbing the scaffolding inside the scrubber vessel, his foot and hand slipped off the rungs of the scaffolding. He fell approximately 25 feet to the floor. Fabich fractured his ankle, back and wrist. After the accident, PMRI issued Fabich a safety violation citation for climbing with materials in his hands when buckets and ropes were available—and should have been used—for hauling materials up the scaffolding.

¶ 8 In June of 2003, Fabich filed this negligence suit against PPL and John Does 1 through 10—unknown owners, builders, contractors or subcontractors who allegedly erected, provided, installed or otherwise were responsible for the scaffolding or its condition. In October of 2005, PPL moved for summary judgment pursuant to M.R. Civ. P. 56. The following March, after briefing and oral argument, the District Court granted PPL's motion for summary judgment. Fabich appeals.

STANDARD OF REVIEW

¶ 9 Summary judgment is proper under M.R. Civ. P. 56(c), if "the pleadings depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." We review a summary judgment ruling de novo. Cole v. Valley Ice Garden, L.L.C., 2005 MT 115, ¶ 4, 327 Mont. 99, ¶ 4, 113 P.3d 275, ¶ 4.

ISSUE 1

¶ 10 Was summary judgment premature because discovery had not been completed?

¶ 11 Fabich contends summary judgment was premature because PPL failed to identify its safety people in its discovery responses. He contends the District Court erred in "not allowing" him to depose PPL's "undisclosed safety persons" before granting summary judgment. The record does not support Fabich's contentions.

¶ 12 Fabich filed this action in June of 2003. In an August of 2005 deposition, a PMRI supervisor stated PPL did not routinely check safety, but that a PMRI employee checked the scaffolding on a daily basis. PPL filed its motion for summary judgment on October 5, 2005.

¶ 13 Fabich did not make his first written discovery requests of PPL until October 27, 2005—over two years and four months after he filed this action, nine months after the District Court issued its scheduling order including a discovery deadline of December 30, 2005, and more than three weeks after PPL moved for summary judgment. In the discovery requests, Fabich asked for the names of persons with knowledge of the operating condition and safety features of the scaffolding involved in his accident, the names of persons who inspected the scaffolding, the name and address of the owner of the scaffolding, a description of the scaffolding, and whether PPL had conducted an investigation of the circumstances of the accident. The gist of PPL's answers—provided on December 16, 2005—was that PPL was unaware of any PPL safety person who had inspected the scaffolding or work site and that PMRI, not PPL, was responsible for supplying, erecting, inspecting, maintaining, moving and cleaning the scaffolding.

¶ 14 On December 29, 2005, Fabich moved to extend the discovery deadline of December 30, 2005, on grounds that PPL had not provided names of its safety employees, whom Fabich wanted to depose. The court ordered all deadlines and further briefing suspended pending its ruling on PPL's motion for summary judgment. After a hearing in January of 2006, the court granted summary judgment to PPL.

¶ 15 Fabich has not established an entitlement to additional discovery. He moved to extend the discovery deadline, but not the scheduled summary judgment hearing. More importantly, Fabich did not meet the requirements for continuing a summary judgment proceeding on grounds that further discovery was necessary. M.R. Civ. P. 56(f) provides:

Should it appear from the affidavits of a party opposing [a motion for summary judgment] that the party cannot for reasons stated present by affidavit facts essential to justify the party's opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.

Fabich did not file a Rule 56(f) affidavit at any time.

¶ 16 On this record, we hold summary judgment was not premature.

ISSUE 2

¶ 17 Did the District Court correctly interpret the Montana Scaffolding Act?

¶ 18 The District Court concluded that the Montana Scaffolding Act (Act), by its terms, did not apply to PPL. Fabich asserts error.

¶ 19 The Act provides:

[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 [subject to comparative negligence principles and excluding a fellow employee or an immediate employer] when the damages are caused by negligence of the contractor, subcontractor, or builder in the use or construction of the scaffold.

Section 50-77-101(3), MCA. Fabich appears to contend that, as the "builder" of the lining in the scrubber vessel, PPL is liable for his damages. This contention merits little discussion.

¶ 20 The record before us is clear that PPL neither used nor constructed the scaffolding at issue. Fabich's PMRI supervisor stated via affidavit that PMRI carpenter crews erected and maintained the scaffolding and moved it as required. On this record, we conclude PPL is not a "contractor, subcontractor, or builder" which "use[d] or construct[ed] the scaffold."

¶ 21 We hold the District Court correctly interpreted the Act.

ISSUE 3

¶ 22 Did the District Court correctly apply Montana law concerning liability for negligence?

¶ 23 Negligence generally consists of the breach of a duty which causes damages. If a plaintiff fails to offer proof of any one of the elements of negligence, summary judgment in favor of the defendant is proper. Abraham v. Nelson, 2002 MT 94, ¶ 11, 309 Mont. 366, ¶ 11, 46 P.3d 628, ¶ 11 (citation omitted). The existence of a legal duty and the scope of any duty are questions of law. Dukes v. City of Missoula, 2005 MT 196, ¶ 11, 328 Mont. 155, ¶ 11, 119 P.3d 61, ¶ 11 (citation omitted).

¶ 24 As a general rule, an owner, employer or general contractor (hereinafter, "owner") does not have a duty to prevent injuries to an independent contractor's employees. Cunnington v. Gaub, 2007 MT 12, ¶ 13, 335 Mont. 296, ¶ 13, 153 P.3d 1, ¶ 13 (citations omitted). Fabich contends PPL had a duty to him under three recognized exceptions to that general rule: PPL negligently exercised retained control, the activity was inherently dangerous, and PPL had a nondelegable duty. Consequently, according to Fabich, the District Court erred in rejecting these theories of liability.

¶ 25 Negligence in exercising retained control. If an owner retains control over an independent contractor's employees and negligently exercises that control, the owner has a duty based on a theory of retained control. See Beckman v. Butte-Silver Bow County, 2000 MT 112, ¶¶ 35-37, 299 Mont. 389, ¶¶ 35-37, 1 P.3d 348, ¶¶ 35-37. The standard is whether the owner retained authority to direct the manner in which the work was performed and knew or should have known that the independent contractor was performing work in an unreasonably dangerous manner. Beckman, ¶ 33.

¶ 26 In Beckman, Butte-Silver Bow County had retained an independent contractor to extend city water lines. Beckman, an employee of the independent contractor, was injured when a trench in which he was working collapsed. Beckman sued Butte-Silver Bow for negligence. The district court subsequently entered summary judgment for the county, and Beckman appealed. Beckman, ¶ 10.

¶ 27 Contract documents between Butte-Silver Bow and the independent contractor in Beckman provided that "materials and methods of construction . . . shall conform to the requirements of Butte-Silver Bow," and Butte-Silver Bow retained responsibility to furnish a construction expert "for monitoring all construction work." In addition, it was undisputed that Butte-Silver Bow employees were present at the job site. We determined that the evidence, when viewed in a light most favorable to the plaintiff, revealed genuine issues of material fact regarding whether Butte-Silver Bow retained the means with which to both discover and cure any unreasonably dangerous conditions created by the...