Madler v. McKenzie County

• Decision Date: 23 February 1993
• Docket Number: No. 920028,920028
• Parties: Daniel MADLER, Plaintiff and Appellant, v. McKENZIE COUNTY, Defendant and Appellee. Civ.
• Court: North Dakota Supreme Court

Page 17

496 N.W.2d 17

Daniel MADLER, Plaintiff and Appellant, v. McKENZIE COUNTY, Defendant and Appellee.

Civ. No. 920028.

Supreme Court of North Dakota.

Feb. 23, 1993.

Dann E. Greenwood (argued), of Greenwood, Greenwood, Greenwood, Selinger & Ramsey, Dickinson, for plaintiff and appellant.

Daniel L. Hovland (argued) and DeeNelle L. Ruud (no appearance), of Fleck, Mather & Strutz, Bismarck, for defendant and appellee.

LEVINE, Justice.

Daniel Madler appeals from a district court judgment dismissing his action against McKenzie County. We affirm.

The North Dakota Department of Transportation [DOT] entered into an agreement with the Federal Highway Administration [FHWA] for federal funding of a bridge construction project in McKenzie County. DOT contracted with Edward H. Schwartz Construction [Schwartz] to construct the bridge. DOT then contracted with McKenzie County to provide "[a]dequate engineering, supervision, and inspection" for the project and to maintain the bridge after completion of construction.

Madler was employed by Schwartz on the construction project. While working on scaffolding on the outboard side of the partially constructed bridge, Madler was seriously injured when he lost his balance and fell 37 feet to the ground below. There were no guardrails, safety nets or safety lines in use on the project.

Madler sued the County, ¹ alleging that the County had breached a duty to ensure that Madler was provided a safe workplace. Madler further alleged that the scaffold arrangement used at the worksite violated state and federal safety regulations.

The County moved for summary judgment, asserting that it owed no duty of care for Madler's safety. The district court entered summary judgment dismissing Madler's claims. We reversed on appeal holding that preliminary material issues of fact existed on whether the County owed a duty of care to Madler under Sections 324A and 414 of the Restatement (Second) of Torts. See Madler v. McKenzie County, 467 N.W.2d 709 (N.D.1991) [Madler I ].

On remand, Madler argued that a newly discovered federal regulation, 23 C.F.R. Sec. 635.105(d), imposed a duty of care upon the County, as a matter of law. The trial court, however, refused to rule that regulation created a duty, as a matter of law. The jury found that the County was not negligent. Judgment was entered dismissing Madler's claims, and he appealed.

Although Madler raises numerous issues on appeal, ² we find it necessary to address only three:

I. Did the trial court err in refusing to rule that the County had a duty, as a matter of law, to provide for Madler's safety?

II. Did the trial court err in allowing representatives of the County and DOT to testify about their understanding of the allocation of safety duties under the various contracts, and about custom and usage in such contracts?

III. Did the trial court's instructions adequately apprise the jury of the applicable law?

I

Madler asserts that the trial court erred in refusing to rule that the County had a duty, as a matter of law, to provide for Madler's safety.

In Madler I, we held that Madler had raised material issues of fact on whether the County incurred a duty to him by exercising retained control over the project under Section 414 of the Restatement (Second) of Torts, and by undertaking to render services to another under Section 324A of the Restatement (Second) of Torts. ³ We concluded that, under both sections, the existence of a duty was dependent upon a determination of the nature and extent of the responsibilities undertaken by the County in its contract with DOT. Because the contract was ambiguous, resolution of the parties' intent was a question of fact for the jury. Madler I, supra, 467 N.W.2d at 713. Accordingly, we remanded for trial.

Upon remand, Madler requested that the trial court rule that the County had a duty, as a matter of law. The basis of Madler's request was a newly discovered federal regulation, ⁴ 23 C.F.R. Sec. 635.105, which, he argued, required the County to be "in responsible charge and direct control of the project at all times." The trial court refused to find a duty, as a matter of law, and submitted the issue to the jury.

Madler asserts on appeal that the federal regulation required the County to be in "responsible charge and direct control" of the bridge construction project and, therefore, created a duty, as a matter of law, under Section 414 of the Restatement. In essence, Madler argues that the federal regulation establishes that the County retained control of the work, thereby answering one of the unresolved fact questions recognized in Madler I.

Although Madler seeks to focus upon one phrase in subsection (d) of 23 C.F.R. Sec. 635.105, a review of all relevant portions of the regulation is necessary to its proper construction. We rely upon the principles of statutory construction when interpreting administrative rules and regulations. See Gofor Oil, Inc. v. State, 427 N.W.2d 104, 108 (N.D.1988). Statutes, rules and regulations must be construed as a whole to determine their intent, deriving that intent by comparing every section as a part of a whole. See, e.g., Johnson v. North Dakota Workers' Compensation Bureau, 484 N.W.2d 292, 295 (N.D.1992).

At the time this bridge was built, ⁵ 23 C.F.R. Sec. 635.105 provided, in pertinent part:

"Sec. 635.105 Supervising agency.

"(a) The State highway agency has responsibility for the construction of all Federal-aid projects, and is not relieved of such responsibility by authorizing performance of the work by or under the supervision of a county, city, or other local public agency. The State highway agency will be responsible for insuring that such projects receive the same degree of supervision and inspection as a project constructed under a contract let and directly supervised by that agency and that the project is completed in conformity with approved plans and specifications.

"(b) When a project is not located on a highway system over which the State highway agency has legal jurisdiction, or when other special conditions warrant, the State highway agency may arrange for a local public agency having jurisdiction over such streets or highways to perform the work with its own forces, or to let a contract therefor, provided the division administrator approves such proposed arrangements in advance and provided all the following conditions are met:

"(1) There is an agreement between the State highway agency and the local public agency setting forth the conditions under which the project will be constructed. The agreement shall provide that construction work performed by or under the supervision of a local public agency will be subject to inspection at all times by the State highway agency and the FHWA.

"(2) The State highway agency certifies that the work performed by the local public agency is cost effective.

"(3) The local public agency is paying part of the cost of the work or has other special interest therein.

"(4) The local public agency is adequately staffed and suitably equipped to undertake and satisfactorily complete the work.

"(5) In the case of force account work, there is full compliance with Subpart B of this part.

"(c) When the work is to be performed under a contract awarded by a local public agency, all Federal requirements including those prescribed in this subpart shall be met.

"(d) Although the State highway agency may employ a consultant to provide construction engineering services, such as inspection or survey work on a project, the State highway agency shall provide a full-time State-employed engineer to be in responsible charge and direct control of the project at all times. In those instances where a city or county can justify the use of consultants for these services, the city or county shall have a similar duty. The State highway agency and any such city or county shall not be relieved of its responsibilities under Federal law and the regulations in the event it utilizes the services of an engineering organization." [Emphasis added].

We do not agree with Madler's assertion that subsection (d) creates a duty, as a matter of law, on the County under the facts of this case. Subsection (d) does suggest that, under certain circumstances, the County may be required to provide a full-time engineer to be in "responsible charge and direct control" of a project. However, when read within the context of the entire regulation, we believe that provision applies only when the County performs the work itself or lets the contract for the project. Subsection (b) clarifies that, when the project is not located on the state highway system, the State may arrange for "a local public agency ... to perform the work with its own forces, or to let a contract therefor," and subsection (c) provides that all federal requirements must be met "[w]hen the work is to be performed under a contract awarded by a local public agency." We construe the regulation to require the State or local agency which actually performs the work or lets the contract for the project to provide a full-time engineer to be in charge and control of the project.

In this case, the County did not perform the work itself or let the contract for the project. DOT entered into the contract with Schwartz to build the bridge. The County's involvement came after-the-fact, in a subsequent contract to provide engineering, supervision and inspection of the project. At best, this regulation created a nondelegable duty upon the state contracting agency, in this case, DOT. It created no duty upon the County.

Furthermore, we do not read the language "in responsible charge and direct control" as broadly as urged by Madler. Madler argues that an entity, "in responsible charge and direct control" under the regulation, would automatically satisfy the "retained control" element of Section 414 of the Restatement. We disagree.

In Madler I, supra, 467 N.W.2d at 711-712, we outlined the...