McMillan v. U.S., s. 95-35597

• Decision Date: 02 May 1997
• Docket Number: 95-35628,Nos. 95-35597,s. 95-35597
• Citation: 112 F.3d 1040
• Parties: 97 Cal. Daily Op. Serv. 3251, 97 Daily Journal D.A.R. 5649 Lowell A. McMILLAN; Michele L. McMillan; Stephanie L. McMillan, Plaintiffs-Appellees, Cross-Appellants, v. UNITED STATES of America, Defendant-Appellant, Cross-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1040

112 F.3d 1040

97 Cal. Daily Op. Serv. 3251, 97 Daily Journal

D.A.R. 5649

Lowell A. McMILLAN; Michele L. McMillan; Stephanie L McMillan, Plaintiffs-Appellees, Cross-Appellants, v. UNITED STATES of America, Defendant-Appellant, Cross-Appellee.

Nos. 95-35597, 95-35628.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Feb. 5, 1997.

Decided May 2, 1997.

Steve Frank, United States Department of Justice, Washington, DC, for defendant-appellant-cross-appellee.

Roger M. Sullivan and Jon L. Heberling, McGarvey, Heberling, Sullivan & McGarvey, Kalispell, MT, for plaintiffs-appellees-cross-appellants.

Appeals from the United States District Court for the District of Montana, Charles C. Lovell, District Judge, Presiding. D.C. No. CV-91-00107-CCL.

Before: BROWNING, RYMER, and T.G. NELSON, Circuit Judges.

T.G. NELSON, Circuit Judge:

OVERVIEW

Plaintiff Lowell McMillan ("McMillan") was injured when he was struck by a tree in the Kootenai National Forest in Lincoln County, Montana. McMillan, along with his wife, Michelle McMillan, and his daughter, Stephanie McMillan, (collectively "plaintiffs"), filed an action against the United States ("Government") under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b) and 2671-80, to recover damages arising out of the injuries sustained. After conducting a bench trial, the district court found the Government liable to McMillan, but only to the extent of 55% of the damages arising out of the injuries. The Government appeals and the plaintiffs cross-appeal. We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm.

FACTS AND PROCEDURAL HISTORY

The essential facts of the case are undisputed. At the time of his injury, McMillan was employed as a sawyer with Anderson Logging Company, Inc. ("Anderson"). The accident occurred in the Kootenai National Forest where Anderson was building a road pursuant to a contract with the United States Forest Service.

This contract required Anderson to cut all of the trees in the right-of-way corridor. At least 20% of the standing trees in this right-of-way were snags (dead standing trees). The contract also contained provisions informing Anderson that it was responsible for initiating and maintaining an accident prevention program; for ensuring that its employees' working conditions were not unsanitary, hazardous or dangerous to employee health and safety; and providing that Anderson was required to follow all applicable safety and health regulations, including the Occupational Safety and Health Administration ("OSHA") regulations with respect to safety. The contract explicitly directed Anderson to comply with OSHA regulations regarding training in avoidance of unsafe conditions and control of hazards.

On July 13, 1987, McMillan was cutting trees on a strip of the right-of-way corridor below a strip being cut by fellow Anderson employee Paul Scroggie. McMillan finished his strip and made voice contact with Scroggie, telling him he was going to pass to get to the next strip to be cut on the right-of-way. Scroggie yelled back, telling McMillan to wait because he was going to finish felling a tree. McMillan went back alongside his strip, picked up his gear and began to pass the strip being cut by Scroggie, staying twenty to thirty feet outside the right-of-way corridor.

As McMillan approached Scroggie, he stopped behind two trees outside the right-of-way corridor and waited for Scroggie to fell the tree. McMillan's location was more than one tree length away from Scroggie, but less than two. The men did not reestablish verbal or visual contact at that time. Although McMillan knew where Scroggie was, Scroggie did not know where McMillan was when he felled the tree.

Scroggie felled the tree into a group of trees in the right-of-way, striking one of the trees in the group which then fell out of the right-of-way. McMillan watched the tree that Scroggie felled hit the ground, then he began walking and was struck by the tree that fell out of the right-of-way. The tree that Scroggie felled was a snag, as was the one that struck McMillan.

As a result of the accident, McMillan was rendered a paraplegic. McMillan, along with his wife and his daughter, filed an action against the United States under the FTCA to recover damages arising out of the injuries sustained in the accident. After conducting a bench trial, the district court held that the Government had a nondelegable duty to ensure that Anderson employed proper safety precautions and that the Government breached this duty by failing to inquire into the safety precautions of Anderson, including whether a safety program had been implemented; by failing to conduct inspections to determine whether safety precautions were being taken; and by ignoring Anderson's deficient safety practices. The district court also found that, by negligently standing too close to Scroggie while Scroggie was sawing and by failing to let Scroggie know where he was while waiting, McMillan breached his duty to protect and conduct himself in a reasonable manner. Therefore, the district court found that only 55% of the total damages arising out of McMillan's injuries were attributable to the Government, with the other 45% attributable to McMillan. The district court accordingly reduced McMillan's gross damages of $4,762,686 by 45%, awarding McMillan damages of $2,619,477 against the Government. The Government timely appeals, claiming that the district court erred in finding that the activity McMillan was involved in was inherently dangerous. ¹ The plaintiffs cross-appeal, claiming that the district court erred in finding that McMillan was 45% negligent and offsetting damages for comparative negligence.

ANALYSIS

A. Governmental Liability Based on Montana's Nondelegable Duty Exception for Inherently Dangerous Activities

Under the FTCA, the United States is liable for certain torts "in the same manner and to the same extent as a private individual under like circumstances," 28 U.S.C. § 2674, "in accordance with the law of the place where the [alleged] act or omission occurred," 28 U.S.C. § 1346(b). McMillan's injury occurred in Montana. Therefore, Montana law applies to the resolution of this case. See McCall v. United States Dep't of Energy Through Bonneville Power Admin., 914 F.2d 191, 193 (9th Cir.1990).

Montana follows the general rule that a general contractor or project owner is not liable for injuries sustained by the employees of a subcontractor. Kemp v. Bechtel Constr. Co., 221 Mont. 519, 720 P.2d 270, 274 (1986). However, Montana has adopted sections 416 and 427 of the Restatement (Second) of Torts, which provide an "inherently dangerous" exception to the general rule. ² See McCall, 914 F.2d 191, 195; Micheletto v. State, 244 Mont. 483, 798 P.2d 989, 993 (1990); Bechtel Constr. Co., 720 P.2d at 274. Under this exception, where a subcontractor is performing inherently dangerous work, and the general contractor should have reasonably known of the inherent danger, the general contractor has a nondelegable duty to ensure that the subcontractor employs proper safety precautions. See McCall, 914 F.2d at 193-95. Work is not considered inherently dangerous if the work presented no peculiar risk or inherent danger when standard precautions are taken. Micheletto, 798 P.2d at 993-94; Kemp v. Big Horn County Elec. Coop., 244 Mont. 437, 798 P.2d 999, 1003-04 (1990). The comments to sections 416 and 427 make it clear that the general contractor must have reasonably contemplated the danger at the time that the contract was executed, and cannot shift the responsibility for such dangers, or for taking precautions against them, to the subcontractor. ³ Restatement (Second) of Torts § 416 cmt. a (1965); Restatement (Second) of Torts § 427 cmt. d (1965).

The district court found that the activity involved in the present case-the felling of trees in a right-of-way corridor where over 20% of the trees were snags and where all the trees had to be felled-was inherently dangerous. The Government appeals this finding.

1. Standard of Review

The parties disagree on the standard that this court applies in reviewing a district court's decision that a particular activity is inherently dangerous. The Government argues that the determination of whether an activity is inherently dangerous is a question of law reviewed de novo. The plaintiffs argue that it is a question of fact reviewed for clear error.

We apply a federal standard of review to a district court's application of state law in an FTCA case. Miller v. United States, 587 F.2d 991, 994 (9th Cir.1978). In our previous cases dealing with the question of whether, under Montana law, an activity is inherently dangerous, we have been faced with a district court's grant of summary judgment and have therefore reviewed the case de novo. See Crane v. Conoco, Inc., 41 F.3d 547 (9th Cir.1994); McCall, 914 F.2d 191. However, we have reviewed an analogous ruling that a task was "extra hazardous" as a finding of fact subject to the clear error standard. Barron v. United States, 654 F.2d 644, 646-47 (9th Cir.1981) (applying Hawaii law).

Most jurisdictions explicitly addressing the issue have held that the determination of whether an activity is inherently dangerous is generally a question of fact for the jury. See, e.g., Donovan v. General Motors, 762 F.2d 701, 703 (8th Cir.1985) (interpreting Missouri law); Schultz & Lindsay Constr. Co. v. Erickson, 352 F.2d 425, 436 (8th Cir.1965) (interpreting North Dakota law); Caudel v. East Bay Mun. Util. Dist., 165 Cal.App.3d 1, 211 Cal.Rptr. 222, 227 (1985); Western Stock Ctr., Inc. v. Sevit, Inc., 195 Colo. 372, 578 P.2d 1045, 1050 (1978); Levy v. Currier, 587 A.2d 205, 210 (D.C.1991); Warren v. McLouth Steel Corp., 111 Mich.App. 496, 314 N.W.2d 666, 669 (1981); Christie v. Ranieri & Sons, 194 A.D.2d 453, 599 N.Y.S.2d 271, 272 (N.Y.App.Div.1993). However, as the Eighth Circuit pointed out in Donovan:

[A]ny issue of...