Micheletto v. State, 89-452

• Decision Date: 14 September 1990
• Docket Number: No. 89-452,89-452
• Citation: 47 St.Rep. 1740,798 P.2d 989,244 Mont. 483
• Parties: Gene and Leslie MICHELETTO, Plaintiffs and Appellants, v. STATE of Montana, Defendant and Respondent.
• Court: Montana Supreme Court

Page 989

798 P.2d 989

244 Mont. 483

Gene and Leslie MICHELETTO, Plaintiffs and Appellants, v. STATE of Montana, Defendant and Respondent.

No. 89-452.

Supreme Court of Montana.

Submitted on Briefs March 16, 1990.

Decided Sept. 14, 1990.

Steven J. Harman, Anderson, Brown, Cebull, Fulton, Harmon & Ross, Billings, Theodore R. Dunn, Goetz, Madden & Dunn, Bozeman, for plaintiffs and appellants.

K. Kent Koolen, Moulton, Bellingham, Longo & Mather, Billings, for defendant and respondent.

WEBER, Justice.

The plaintiffs appeal the grant of summary judgment to the State of Montana, acting through the Department of Highways, herein referred to as the State. Mountain States Telephone Company (Telephone Company) entered into a subcontract with the State. Gene Micheletto was seriously injured in the course of his employment by the Telephone Company and received workers' compensation benefits for that injury. Gene Micheletto and Leslie, his wife, then sought recovery in tort from the State in its capacity as general contractor. The plaintiffs now appeal the summary judgment for the State. We affirm.

The plaintiffs raise the following issues:

(1) Was it error for the District Court to conclude that the State as general contractor did not have a non-delegable contractual duty to supervise the safety of the trenching operations by the Telephone Company?

(2) Was it error for the District Court to conclude that trenching is not an inherently dangerous activity under the facts of this case?

(3) Were there disputed issues of material fact demonstrating control on the part of the State which prohibited summary judgment for the State?

In 1985 the State widened State Highway 200 between Sidney and Fairview as part of a federal aid road project. Such widening required the Telephone Company to relocate some of its cables which were buried adjacent to the existing roadway. The State and the Telephone Company entered into a Utilities Agreement.

Gene Micheletto was employed as a lineman by the Telephone Company and assisted in the relocation of the buried telephone cable. The Telephone Company work crew dug a trench in connection with the cable relocation. On the afternoon of July 18, 1985, Micheletto entered the trench with the aim of digging under a culvert to assist in the cable relocation. While he was in the trench, a large portion of the trench caved in upon him, resulting in severe injury and disability.

Deposition witnesses testified that prior to the cave in, the trench was between six and seven feet deep and no shoring, sloping or other support was used. Additional testimony established it had rained the previous day and a cave-in occurred earlier that day at a different location. The testimony established that an inspector employed by the State had observed the earlier cave-in after it had occurred.

Gene Micheletto received workers' compensation benefits from the Telephone Company. The plaintiffs brought suit against the State on several tort theories. The State moved for summary judgment on several grounds. In granting summary judgment for the State, the District Court made the following findings and conclusions:

(2) Under the subcontract, The Telephone Company became a subcontractor and assumed the status of an independent contractor.

(3) As a general rule, the State of Montana, as a general contractor, would not be liable for injuries suffered by an employee of the subcontractor.

(4) A nondelegatable [sic] duty, based on contract, does not apply in this case.

(5) The State of Montana, as a general contractor, had no nondelegatable [sic] duty under the inherent danger or peculiar risk exception to nonliability rule.

(6) Plaintiff failed to establish vicarious liability based on breach of duty based on control.

(7) The duty of the State's project engineer did not include safety and did not run to the Plaintiff who was The Telephone Company's employee.

The plaintiffs appeal the granting of summary judgment to the State based upon the foregoing.

There is no dispute that the Telephone Company was a subcontractor of the State, that the Telephone Company was an independent contractor, and that the State was the general contractor.

The parties also agree that the general rule was properly stated by the District Court. In Kemp v. Bechtel Constr. Co. (1986), 221 Mont. 519, 720 P.2d 270, we stated the general rule as follows:

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.

The issues framed by the plaintiffs correspond directly to the three exceptions to the foregoing general rule of non-liability on the part of the general contractor: (1) the non-delegable duty based on a contract exception; (2) the "inherently or intrinsically dangerous activity" exception; and (3) the negligent exercise of control reserved over a subcontractor's work exception. For further discussion of these exceptions, See Shannon v. Howard S. Wright Constr. Co. (1979), 181 Mont. 269, 593 P.2d 438; Storrusten v. Harrison (1976), 169 Mont. 525, 533, 549 P.2d 464, 469; Wells v. Thill, (1969), 153 Mont. 28, 452 P.2d 1015; Kemp v. Bechtel Constr. Co.; and generally, Prosser, Law of Torts § 71 (5th ed. 1984); Restatement (Second) of Torts §§ 410-429 (1965).

I

Was it error for the District Court to conclude that the State as general contractor did not establish a non-delegable contractual duty to supervise the safety of the trenching operations by the Telephone Company?

Plaintiffs contend that the contract between the parties raised a non-delegable duty with regard to safety in the trenching operations as to the State. This contention is primarily based on Paragraph 15 of the Utilities Agreement which provides in part:

15. Work done on Highway right-of-way with respect to the location of the facilities and in the manner which the facilities are installed or attached within the right-of-way must be approved by the District Engineer to insure that installation of the facilities will meet the "Standard Specifications for Road and Bridge Construction" as adopted by the Department.

Plaintiffs contend that this language created a duty on the part of the State to supervise the trenching operation and ensure his safety. As a part of this argument, the plaintiffs refer to the Standard Specifications for Road and Bridge Construction adopted by the State and which were in effect at the time. Such Standard Specifications contain the following with regard to excavations:

52.03 CONSTRUCTION REQUIREMENTS:

. . . . .

All excavated material piled adjacent to the excavation or in a roadway or public thoroughfare shall be piled and maintained so that the toe of the slope or the pile is at least 2 feet from the edge of the excavation ... The walls and faces of all excavations in which employees are exposed to danger from moving ground shall be guarded by a shoring system, sloping of the ground, or some other equivalent means consistent with the type of excavation.

Standard Specifications For Road and Bridge Construction. 1981 ed. (adopted by the Montana Department of Highways and the Montana Highway Commission, March 1, 1981.) In addition, the Standard Specifications require that all excavations conform to the requirements of the U.S. Department of Labor, Occupational Safety and Health Administration [OSHA], and Safety and Health Regulations for Construction. The OSHA regulations include provisions regarding safety during excavation operations. See 29 C.F.R. § 1926.651(i)(1) (1986). The regulations require that trenches more than five feet deep shall be shored or sloped or otherwise supported to prevent cave-ins. 29 C.F.R. § 1926.652 (1986). Like the Standard Specifications OSHA also requires that "spoils" (the material that is excavated from the trench) are stored at least two feet from the edge of the excavation.

The plaintiffs argue that Stepanek v. Kober Constr. Co. (1981), 191 Mont. 430, 434, 625 P.2d 51, 53, establishes the theory for non-delegable duty under the contract in this case. In this Court's analysis of Stepanek in Kemp v. Bechtel Constr. Co., the Court stated:

In Stepanek, the non-delegable 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 ... There is no similar provision in the general contract between MPC and Bechtel in the instant case....

Kemp v. Bechtel Constr. Co., 720 P.2d at 274. Our present case does not contain a similar contractual provision establishing non-delegable duty.

In Kemp v. Bechtel Constr. Co., the employee of a subcontractor who had been injured in a trench cave-in sought recovery from the general contractor claiming that the general contractor had contractually assumed safety duties. In Kemp v. Bechtel Constr. Co., the subcontractor had agreed to "comply with all the applicable laws, regulations, and standards and the project safety program." The Court concluded that there was no provision in the contract between MPC and Bechtel which was similar to Stepanek and that as a result the theory of non-delegable duty based on contract did not apply.

In our case, under the Utilities Agreement, the Telephone Company was required to perform the work in accordance with the various specifications and safety requirements as previously outlined. Clearly the Telephone Company expressly assumed the safety...