Kemp v. Big Horn County Elec. Co-op., Inc.

• Decision Date: 24 October 1990
• Docket Number: No. 89-602,89-602
• Parties: William E. KEMP, Plaintiff and Appellant, v. BIG HORN COUNTY ELECTRIC COOPERATIVE, INC., a Montana Corporation, Defendant and Respondent.
• Court: Montana Supreme Court

Page 999

798 P.2d 999

244 Mont. 437

William E. KEMP, Plaintiff and Appellant, v. BIG HORN COUNTY ELECTRIC COOPERATIVE, INC., a Montana

Corporation, Defendant and Respondent.

No. 89-602.

Supreme Court of Montana.

Submitted on Briefs May 3, 1990.

Decided Sept. 18, 1990.

Rehearing Denied Oct. 24, 1990.

Robert C. Kelleher, Sr., Kelleher Law Office, Butte, for plaintiff and appellant.

James E. Torske, Kronmiller & Torske, Hardin, for defendant and respondent.

WEBER, Justice.

This appeal arises from an order of the District Court, Thirteenth Judicial District, Big Horn County, Montana, granting defendant's motion for summary judgment. Plaintiff appeals. We affirm.

The sole issue on appeal is whether the District Court erred in granting summary judgment in favor of defendant.

Big Horn County Electric Cooperative Inc. (Big Horn) contracted with Swain and Morris Construction Company (S & W) for construction of a 69 KV line between Lodge Grass, Montana, and Hardin, Montana.

Plaintiff, William Kemp, was an employee and foreman for S & W on this project. On August 28, 1986, plaintiff was injured when the cables broke on a High Ranger bucket lift in which plaintiff was riding. The bucket turned upside down and plaintiff fell ten to twelve feet to the ground. Plaintiff had a safety belt but was not wearing it at the time of the accident.

Plaintiff filed a complaint against Big Horn alleging breach of a duty to furnish a safe place of employment; breach of a duty to furnish and require safety practices; and breach of a duty to comply with various safety codes. Plaintiff later amended the complaint to allege a breach of a non-delegable duty to comply with the Montana Scaffolding Act. Defendant filed a motion for summary judgment. After consideration of memoranda, depositions and exhibits, the District Court granted summary judgment in favor of defendant, concluding that Big Horn did not retain control over the manner of work performed by S & W and had no duty in respect to plaintiff. It is from this order that plaintiff appeals.

Summary judgment is appropriate only if there are no genuine issues of material fact. See, Kelly v. Widner (1989), 236 Mont. 523, 526, 771 P.2d 142, 144:

... a summary judgment is proper when it appears "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." 10 Wright, Miller and Kane, Federal Practice and Procedure, section 2716, P. 643.

. . . . .

Initially the burden of proof must be carried by the moving party seeking summary judgment ... However, where the record discloses no genuine issue of material fact, the burden of proof shifts to the party opposing the motion ... Once the burden has shifted in this fashion, the party opposing the motion is held to a standard of proof about equal to that initially imposed upon the moving party under Rule 56(c), M.R.Civ.P....

The general rule of contractor liability is that an employer is not liable for the negligence of an independent contractor or its employees. Micheletto v. State (Mont.1990), 798 P.2d 989, 991; Kemp v. Bechtel Constr. Co. (1986), 221 Mont. 519, 524, 720 P.2d 270, 274; Dvorak v. Matador Serv. Inc. (1986), 223 Mont. 98, 102, 727 P.2d 1306, 1308; Restatement (Second) of Torts Sec. 409.

On appeal, plaintiff contends that three exceptions to this general rule apply in his case. First, plaintiff contends that Big Horn had non-delegable duties in respect to safety. Second, plaintiff contends Big Horn retained control over the performance of work, creating a duty to S & W employees. Third, plaintiff contends the work was inherently dangerous, creating vicarious liability on the part of Big Horn. We will discuss each contention separately.

In Stepanek v. Kober Constr. (1981), 191 Mont. 430, 434, 625 P.2d 51, 53, we recognized that non-delegable duties may be created by contract. In addressing plaintiff's contention on this issue, we begin by examining relevant contractual language. The District Court found, and we agree, that the contract between Big Horn, the general contractor, and S & W, the subcontractor, placed no duty on Big Horn in regard to safety. The relevant sections of the contract pursuant to Article IV, "Particular Undertakings of the Bidder," provide:

Section 1, Protection to Persons and Property. The Bidder [S & W] shall at all times take all reasonable precautions for the safety of employees on the work and of the public, and shall comply with all applicable provisions of Federal, State, and Municipal safety laws and building and construction codes, as well as the safety rules and regulations of the Owner [Big Horn]. All machinery and equipment and other physical hazards shall be guarded in accordance with the "Manual of Accident Prevention in Construction" of the Associated General Contractors of American unless such instructions are incompatible with Federal, State, or Municipal laws or regulations.

The following provisions shall not limit the generality of the above requirements:

. . . . .

f. The Project, from the commencement of work to completion, or to such earlier date or dates when the Owner [Big Horn] may take possession and control in whole or in part as hereinafter provided shall be under the charge and control of the Bidder [S & W] and during such period of control by the Bidder [S & W] all risks in connection with the construction of the Project and the materials to be used therein shall be borne by the Bidder [S & W]. The Bidder [S & W] shall make good and fully repair all injuries and damages to the Project or any portion thereof under the control of the Bidder [S & W] by reason of any Act of God or other casualty or cause whether or not the same shall have occurred by reason of the Bidder's [S & W] negligence. The Bidder [S & W] shall hold the Owner [Big Horn] harmless from any and all claims for injuries to persons or for damage to property happening by reason of any negligence on the part of the Bidder [S & W] or any of the Bidder's [S & W] agents or employees during the control by the Bidder [S & W] of the Project or any part thereof.

Further, Construction Specifications, which were incorporated into the Contract at page CS-4, stated:

4. Construction Safety Procedures

The Contractor [S & W] will adhere to all safety practices as described by O.S.H.A. standards. Hard hat protection, eye, and hand protection are recommended. Any fines or requirements imposed by O.S.H.A., Workmen's Compensation, or any other authorized safety agency will be strictly the responsibility of the Contractor [S & W]. Construction safety is exclusively the responsibility of the Contractor [S & W]. The Contractor [S & W] shall develop and maintain for the duration of this contract a safety program that will effectively incorporate and implement all safety provisions. The Contractor [S & W] shall appoint an employee who is qualified and authorized to supervise and enforce compliance with the safety program.

Based on the language of the contract, the District Court concluded that the contract placed the responsibility for implementation of the safety program and job safety on S & W. Although plaintiff contends that certain written policies of Big Horn imposed safety duties upon Big Horn, we agree with the District Court that these policies are irrelevant since they are not a part of the contract. Plaintiff's contention that the Montana Scaffolding Act placed duties upon Big Horn is likewise misplaced since S & W assumed the safety duties.

Plaintiff also contends that Big Horn had a non-delegable duty to provide him a safe place to work, citing the "Safe Place to Work Statute," Sec. 50-71-201, MCA. This statute requires the general contractor to exercise reasonable care in its establishment of the safety program. Kemp v. Bechtel Constr. Co., 720 P.2d at 276. In the present case the contract provided for safety precautions which, pursuant to the above analysis were totally assumed by S & W. Further, exhibits and deposition testimony demonstrated that at the preconstruction conference S & W's safety program was discussed. Plaintiff has failed to present any facts indicating that Big Horn failed in its duty to establish a safety program.

The contract provisions in the present case are directly comparable to the contract provisions regarding safety responsibilities in Micheletto. In that case as well as in the present case, the contract did not contain any provisions requiring the general contractor to be responsible for either initiating, maintaining or supervising safety programs as was present in Stepanek. As a result, in Micheletto, this Court agreed that a non-delegable duty based on contract was not assumed by the State and held that the District Court correctly concluded that the State as a general contractor did not have a non-delegable contractual duty to supervise the safety of the trenching operations by the Telephone Company. In a similar manner, in the present case, we conclude that the plaintiff has failed to present any genuine issues of material fact to support his contention that Big Horn had a non-delegable contractual duty to the plaintiff to supervise the operation of S & W, or that Big Horn breached a duty under Sec. 50-71-201, MCA.

As a second contention, plaintiff urges that Big Horn retained control of the work performed by S & W, triggering an exception to the general rule of non-liability. Plaintiff's contention in regard to control is premised upon Restatement (Second) of Torts Sec. 414, which provides:

Sec. 414. Negligence in Exercising Control Retained by Employer.

One who entrusts work to an...