Mydlarz v. Palmer/Duncan Const. Co.
| Decision Date | 31 May 1984 |
| Docket Number | No. 82-98,82-98 |
| Parties | Johann J. MYDLARZ, Plaintiff and Appellant, v. PALMER/DUNCAN CONSTRUCTION COMPANY and Rice Motors, Defendants and Respondents. |
| Court | Montana Supreme Court |
Jardine, Stephenson, Blewett & Weaver, Curtis G. Thompson and Alexander Blewett, III, Great Falls, argued, for plaintiff and appellant.
Smith, Baillie & Walsh, Dennis Clarke and William Baillie argued for Respondents Palmer/Duncan, Great Falls, Cure & Borer, Edward W. Borer, Great Falls, argued, for defendant and respondent Rice Motors.
Johann J. Mydlarz appeals a Cascade County District Court judgment, based upon the jury's special verdict, in favor of Palmer/Duncan Construction (respondent) and Rice Motors (respondent) in an action to recover damages for injuries he received in a fall from a ladder at the construction site of a new Rice Motors building. We reverse and remand for a new trial.
Rice Motors, an automobile dealership, let bids and awarded contracts for building a new sales facility in Great Falls, Montana. Rice awarded a substantial portion of the contract to Palmer/Duncan. It awarded electrical, mechanical, plumbing and installation of the sprinkler system to several other contractors. Palmer/Duncan, as the general contractor, subcontracted the painting to Don Bidwell, Mydlarz's employer.
Pursuant to specific instructions from Rice, Bidwell's employees covered the overhead sprinkler nozzles prior to painting the ceiling. They used scaffolding owned by the electrical subcontractor when they covered the nozzles and painted the ceiling. It is important to note that Rice contracted independently to have the sprinkler system installed. It was not part of the Rice-Palmer/Duncan contract and, thus, not part of the Palmer/Duncan-Bidwell subcontract. The painting of the sprinkler pipes was independent of the installation contract.
Palmer/Duncan allowed use of its scaffolding during construction of the building but removed all of its scaffolding before July 29, 1977. On August 3, 1977, Palmer/Duncan received a certificate of substantial completion and none of its employees were at the site after that date.
After the painting was completed, Bidwell apparently ordered an employee, Ron Lins, to remove the coverings from the sprinkler nozzles. Lins arrived at Rice Motors on July 29, 1977, and found no scaffolding was available. He used a ladder that was present at the work site to remove the nozzle covers. The ladder was leaned against the sprinkler pipes and slipped when Lins was on it. He fell and sustained injuries.
On August 1, 1977, Mydlarz was ordered by Bidwell to complete the removal of the nozzle covers. The scaffolding owned by the electrical subcontractor was in use; the scaffolding owned by Palmer/Duncan had been removed. Bidwell directed Mydlarz to use a ladder to remove the covers.
Mydlarz removed several nozzle covers near the horizontal east-west sprinkler pipe before removing the fifth or sixth covering at a narrower point in the pipe. While removing the covering, Mydlarz fell from the sixteen-foot ladder. As a result of this fall he sustained serious knee and elbow injuries and was unable to work.
The sprinkler pipes moved under pressure from the ladder. They had a lateral movement of five inches and a vertical movement of two inches before resting against concrete beams.
Mydlarz was given specific instructions by Bidwell how to place the ladder, i.e., if the ladder was placed several inches above the pipe, the lateral-vertical movement of the pipe would not cause the ladder to fall. Before Mydlarz fell, Peter Rice of Rice Motors attempted to contact Bidwell or Palmer to request scaffolding for Mydlarz but was unable to reach them in time. After the accident, Bidwell removed the nozzle covers with the use of a ladder. Peter Rice testified he climbed the same ladder at the point where Mydlarz fell with no difficulty. Evidence was presented showing Mydlarz had placed the ladder only one inch above the pipe.
Under the Rice-Palmer/Duncan contract, Palmer/Duncan was responsible for scaffolding:
The contract further provided that Palmer/Duncan would be responsible for the safety of all workmen:
In addition, this contract provided that Palmer/Duncan would be specifically responsible for the safety of all workmen and property on the project:
Under the contract Palmer/Duncan was to protect work and materials by suitable covering while painting was in progress. Rice retained the right to perform cleanup work.
Before trial Mydlarz filed two motions in limine to prevent respondents from introducing evidence of workers' compensation benefits he received from the accident and a prior fall. This evidence was admitted, but the trial court instructed the jury not to use the evidence of workers' compensation benefits to reduce any damages awarded Mydlarz. The court allowed the jury to consider evidence of Mydlarz's drinking problem.
Mydlarz attempted to introduce evidence that would show grounds for the workers' compensation benefits and that he would have to pay the state fund its subrogation interest from any recovery in the lawsuit. This evidence was excluded.
By special verdict, the jury found that neither Palmer/Duncan nor Rice had breached a duty to provide scaffolding to Mydlarz, thus finding that the Scaffolding Act had no application. The jury also found that neither respondent was negligent in failing to provide a safe place to work or safe equipment to Mydlarz. Finally, the jury found that Mydlarz was 100 percent contributorily negligent and such negligence was the proximate cause of his injuries. Based upon the special verdict, judgment was entered against Mydlarz from which he appeals. He asserts numerous issues for review:
1. Does the Montana Scaffolding Act apply to the facts of this case?
2. Did the District Court err by allowing evidence of Mydlarz's receipt of workers' compensation benefits?
3. Did the District Court err by refusing to allow evidence explaining receipt of such benefits?
4. Did the District Court err by allowing evidence of Mydlarz's alleged drinking problem?
5. Did the District Court err by admitting evidence of a prior fall taken by Mydlarz on another project?
6. Did the District Court err by excluding the opinion testimony of Mydlarz's fellow employee who had a similar accident?
7. Did the District Court err by excluding evidence of Palmer/Duncan's offer to repay an outstanding debt to a witness prior to giving his testimony?
8. Did the District Court err by striking Mydlarz's claim for punitive damages?
9. Was it error to fail to instruct the jury that following the directions of an employer is not contributory negligence?
10. Was Palmer/Duncan Construction Company negligent as a matter of law for removing scaffolding before completion of the project?
11. Were instructions on OSHA violations improperly refused?
12. Did the District Court err in allowing certain costs and disbursements?
Respondent Palmer/Duncan has raised two issues not addressed by appellant. We will not consider such issues because Palmer/Duncan has not complied with Montana Rules of Appellate Civil Procedure; specifically, Palmer/Duncan has not perfected a cross-appeal. Although Rule 14, M.R.App.Civ.P., provides for review of matters by cross-assignment of errors, this does not eliminate the necessity for cross-appeal by a respondent who seeks review of matters separate and distinct from those sought to be reviewed by appellant. Johnson v. Tindall (Mont.1981), 635 P.2d 266, 268, 38 St.Rep. 1763; Francisco v. Francisco (1948), 120 Mont. 468, 470, 191 P.2d 317, 319.
We will first consider the applicability of Montana's Scaffolding Act. Mydlarz argues that the obligation to provide for the safety of all workers on a construction project mandates application of the Scaffolding Act. Liability falls on the entity who assumed that obligation, according to Mydlarz.
Furthermore, Mydlarz asserts that the term "scaffolding" must include any device utilized to allow work in high places. The Act must be construed in light of evils it is intended to prevent. Since the Act was intended to increase safety in ultrahazardous work (i.e., work in high places from which a fall could cause death or injury), "scaffolding" should be any device that would protect a worker from that peril.
Mydlarz alternatively argues that where the contractor or owner agrees to provide scaffolding and fails to do so, such failure constitutes a violation of the Scaffolding Act.
Respondent Palmer/Duncan contends...
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