Kemp v. Bechtel Const. Co.
| Decision Date | 15 July 1986 |
| Docket Number | No. 85-42,85-42 |
| Citation | 43 St.Rep. 1022,720 P.2d 270,221 Mont. 519 |
| Parties | David L. KEMP, Plaintiff and Appellant, v. BECHTEL CONSTRUCTION COMPANY; Bechtel Power Corporation; Christian Spring, Sielbach and Associates, a corporation, et al., Defendants and Respondents. |
| Court | Montana Supreme Court |
Kelly & Halverson, P.C., Billings, Patrick Prindle (argued), for plaintiff and appellant.
Anderson, Brown, Gerbase, Cebull & Jones, James L. Jones (argued), Billings, for Bechtel & Montana Power.
Crowley, Haughey, Hanson, Toole & Dietrich, William O. Bronson (argued), Billings, for Christian, Spring, Sielbach & Associates.
Sidney R. Thomas, Billings, for defendants and respondents.
This is an appeal from District Court's granting of summary judgment in favor of defendants in a personal injury case. Christian, Spring, Sielbach & Associates (Christian) have litigated this matter separate from the other defendants. Bechtel Construction Company was dismissed from the lawsuit by stipulation. Bechtel Power Corporation, Montana Power Company, Puget Sound Power and Light Company, Portland General Electric Company, Washington Water Power Company and Pacific Power and Light Company have litigated this matter together as one party which will be referred to collectively as "companies" except where the individual dealings of the entities are important.
We affirm the District Court on all issues.
The significant issue involving the companies is whether the companies, as general contractor and owner, had a nondelegable or reserved duty rendering them liable to an employee of a subcontractor. The issue we considered involving Christian is whether Christian's status as project engineer encompassed a duty of safety to the other subcontractors. If there was no duty owed or breached, there can be no issues of material fact and granting of summary judgment was appropriate. Rennick v. Hoover (1980), 186 Mont. 167, 170, 606 P.2d 1079, 1081; see also Scott v. Robson (1979), 182 Mont. 528, 597 P.2d 1150.
The relevant facts concern the contractual arrangement of parties on a construction project and the details of a trenching accident. The contractual arrangements are prescribed by Bechtel's contract with Montana Power Company (MPC), Christian's contract with MPC, and COP Construction Company's (COP) contract with Bechtel. Bechtel contracted with MPC for development and expansion of a townsite on some of MPC's property at Colstrip, Montana. Christian was employed by MPC as project engineer. COP subsequently subcontracted with Bechtel for work which included putting in a sewer line for the townsite.
No provision in the contract between MPC and Bechtel addresses safety. Section GC-25 of COP's contract with Bechtel sets out these parties' safety duties:
GC-25 SAFETY
Subcontractor shall at all times conduct all operations under the Subcontract in a manner to avoid the risk of bodily harm to persons or risk of damage to any property. Subcontractor shall promptly take all precautions which are necessary and adequate against any conditions which involve a risk of bodily harm to persons or a risk of damage to any property. Subcontractor shall continuously inspect all work, materials and equipment to discover and determine any such conditions and shall be solely responsible for discovery, determination and correction of any such conditions.
Contractor will establish a Project Safety Program. Subcontractor shall comply with all applicable laws, regulations and standards and the Project Safety Program. Subcontractor shall coordinate with other subcontractors on safety matters and shall promptly comply with any specific safety instructions or directions given to Subcontractor by Contractor.
Subcontractor shall submit written Safety Program, with detail commensurate with the work to be performed, for Contractor's review. Such review and approval shall not relieve Subcontractor of its responsibility for Safety, nor shall such approval be construed as limiting in any manner Subcontractor's obligation to undertake any action which may be necessary or required to establish and maintain safe working conditions at the site.
Subcontractor shall appoint a qualified Safety Representative who, unless otherwise provided herein, shall have no other duties. Such Safety Representative shall attend all project Safety meetings and participate fully in all activities outlined in the Project Safety Program.
Subcontractor shall maintain accurate accident and injury reports and shall furnish Contractor a monthly summary of injuries and manhours lost due to injuries.
Subcontractor shall hold regular scheduled meetings to instruct its personnel on Safety practices and the requirements of the Project Safety Program. Subcontractor shall furnish Safety equipment and enforce the use of such equipment by its employees.
Provisions 2.h. and 2.i. in the contract between Christian and Bechtel set out Christian's responsibilities during the construction phase of the project:
(2.h.) surveying and staking of construction layout; and
(2.i.) administration, coordination, observation and inspection of construction for the purposes of quality assurance and cost monitoring with the obligation of promptly informing the Owner [MPC] of all failures on the part of construction contractors to perform work in accordance with applicable plans and specifications or to accomplish work in accordance with contract schedules, as well as informing the Owner of apparent conflicts or omissions in the plans and specifications as they are discovered in the course of a contractor's work.
No provision in this contract addresses safety.
Plaintiff was employed by COP as a laborer at the Colstrip project on November 21, 1979. He was working with Ron Nikula, a backhoe operator, digging a ditch for placement of a sewer line for a trailer court. The ditch was dug in an area that had been previously trenched for other purposes. COP personnel supervised the operations. Nikula was digging the ditch with a backhoe. Kemp followed the backhoe with a shovel, cleaning the bottom of the ditch and checking to see that the ditch was being dug on grade. To check the grade, Kemp compared the level of a mark on his shovel handle with a laser beam set by a COP supervisor. There were also stakes set at regular intervals along the ditch with specifications by which the diggers could double check the laser.
Kemp and Nikula began digging about 8:30 a.m. They had dug 150 to 200 feet of 4 1/2-foot-deep ditch over flat ground when the grade of the terrain began to rise abruptly. The plans specified a ditch that never exceeded 4 1/2-feet-deep. However, no one from COP had changed the setting of the laser to adjust for the changing terrain as was their responsibility. The diggers continued to follow the laser so the trench deepened rapidly. By 10:30 a.m. the trench had been dug another 50 to 75 feet in length and was 9-feet deep. During this time the diggers realized that the trench was becoming dangerously deep. They also knew that a trench box (a "cage" that is put in trenches to protect digger from cave-ins) was available on the job site. However, they chose to continue digging without the trench box.
In the meantime, Nikula back-tracked over a portion of the ditch to dig it deeper to conform with the laser guide. Nikula believes this back-tracking may have fractured the dirt and contributed to the eventual cave-in. At the point where the backhoe had back-tracked, the dirt caved in, burying Kemp to his neck and causing the injury upon which this action is based.
Plaintiff sued the companies and Christian. Discovery was commenced by all the parties. The companies filed a motion for summary judgment in May 1984. Appellant filed a brief in opposition to the companies' motion. Christian filed its motion for summary judgment in September 1984. No briefs or affidavits in opposition to Christian's motion were filed. The District Court granted both motions for summary judgment without hearing in December 1984, and this appeal ensued.
Appellant contends the companies are liable to him based upon (1) nondelegable duties in the contract, (2) nondelegable duties arising from the inherently dangerous nature of or peculiar risk created by the work, (3) the control over the subcontractor's work that contractor reserved in the subcontract, and (4) the "Safe Place to Work Statute," Sec. 50-71-201, MCA. We will follow this general format in our discussion of the issues involving the companies. A discussion involving Christian's duty will follow.
Montana follows the general rule that "absent some form of control over the subcontractor's method of operation, the general contractor and owner of the construction project are not liable for injuries to the subcontractor's employees." Shannon v. Howard S. Wright Construction Co. (1979), 181 Mont. 269, 275, 593 P.2d 438, 441. However, we recognized one of several exceptions to this general rule where nondelegable duties are created by contract. Stepanek v. Kober (Mont.1981), 625 P.2d 51, 38 St.Rep. 385. Appellant argues that nondelegable duties were created by contract here so as to render the companies liable.
In Stepanek, the nondelegable duty which subjected the general contractor to liability to an employee of a subcontractor was created by a provision in the general contract between the general contractor and Yellowstone County. Specifically, that provision required the general contractor to be "responsible for initiating, maintaining, and supervising all safety precautions and programs" connected with construction. We held that this provision resulted in a duty that could not be delegated to the subcontractor by a provision in the subcontract which purports to shift safety responsibilities to the subcontractor. There is no similar provision in the general contract...
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