Olson v. Shumaker Truck. and Excav. Contr.
| Decision Date | 18 November 2008 |
| Docket Number | No. DA 07-0226.,DA 07-0226. |
| Citation | 347 Mont. 1,196 P.3d 1265,2008 MT 378 |
| Parties | Cody J. OLSON, Plaintiff, Appellee and Cross-Appellant, v. SHUMAKER TRUCKING AND EXCAVATING CONTRACTORS, INC., Defendant and Appellant. |
| Court | Montana Supreme Court |
For Appellant: Stephanie A. Hollar and William J. Gregoire, Smith, Walsh, Clarke & Gregoire, Great Falls, Montana.
For Appellee: Kurt M. Jackson and Alexander (Zander) Blewett, III, Hoyt & Blewett, Great Falls, Montana.
¶ 1 Shumaker Trucking and Excavating Contractors, Inc. (Shumaker) appeals from various rulings of the Eighth Judicial District, Cascade County, during the course of a jury trial where the jury found in favor of Cody J. Olson (Olson). Olson cross-appeals the District Court's denial of his motion for summary judgment on the issue of contributory negligence. We affirm.
¶ 2 Shumaker presents the following issues for review:
¶ 3 Whether the District Court properly instructed the jury as to Shumaker's negligence.
¶ 4 Whether the District Court properly excluded evidence of Olson's alleged preexisting condition.
¶ 5 Whether the District Court properly allowed Olson to present evidence that Shumaker alleges constituted hearsay and lacked foundation.
¶ 6 Whether the District Court properly divided a single pattern instruction into several separate instructions.
¶ 7 Whether the District Court properly instructed the jury regarding Shumaker's obligation to provide workplace transportation.
¶ 8 Olson presents the following issue on cross-appeal:
¶ 9 Whether the District Court properly denied Olson's motion for partial summary judgment on the issue of contributory negligence.
¶ 10 Olson worked as a laborer for Balfour Beatty Rail, Inc. (Balfour), a subcontractor of Shumaker, on a project to install a rail line for the Great Falls Development Authority (the Authority). The jobsite was located some distance from the parking area. The distance required the workers to be transported from the parking area to the jobsite. Neither Balfour nor Shumaker provided transportation. Balfour's superintendent, Stephen Green (Green), routinely transported workers in the back of a company pickup truck. Workers also routinely rode on equipment used on the project, including a front-end loader. Workers had been known to ride to and from the jobsite in the bucket of a front-end loader.
¶ 11 Olson had ridden to the jobsite in the back of Green's pickup truck on the morning of June 8, 2005. Green's pickup was not available at the end of the shift. Only the front-end loader was available. Green instructed the work crew to wait for him to return with the pickup truck. The crew's leader, Mike Roberts, and two others, rode in the cab of the front-end loader. Olson and three of his co-workers climbed into the front-end loader's bucket for the ride back to the parking area.
¶ 12 The front-end loader's operator lifted the bucket off the ground and began driving to the parking area while Olson's legs dangled in front. One of the men sitting in the cab accidentally bumped a lever causing the bucket to drop suddenly. Olson's right leg became trapped between the bucket and the ground as the front-end loader continued to move forward for several feet. Olson suffered serious injuries to his leg. Olson also suffered post-traumatic stress disorder (PTSD) as a result of the accident.
¶ 13 Olson brought a personal injury action against Shumaker. Olson alleged that Shumaker's contract with the Authority and the Montana Safety Act obligated it to undertake responsibility for the safety of all persons and employees on the job. Olson claimed that the responsibilities included transportation for workers from the parking area to the jobsite. Olson argued that Shumaker had caused his injuries when it breached that duty by negligently failing to provide transportation.
¶ 14 The District Court granted partial summary judgment to Olson on the issue of Shumaker's duty to provide a safe workplace. The District Court noted that the contract between Shumaker and the Authority and the Montana Safety Act obligated Shumaker to provide a safe workplace. Shumaker had failed to monitor Balfour employees to ensure safety pursuant to the contract. Shumaker never informed its superintendent of the contract's safety provisions. Shumaker never had informed the superintendent of his duty to monitor Balfour employees to prevent jobsite accidents. The Shumaker superintendent never discussed safety with Balfour. The District Court determined that Shumaker was liable as a matter of law on the grounds that it had breached a nondelegable duty to provide a safe workplace as required by the safety provision in the construction contract between Shumaker and the Authority, and as required by the Montana Safety Act, § 50-71-201, MCA.
¶ 15 The District Court denied Olson's second motion for summary judgment on the issue of contributory negligence. Olson contended that Shumaker could not, as a matter of law, assert a contributory negligence defense in light of the District Court's previous ruling that Shumaker had breached its nondelegable duty to provide a safe workplace. The District Court characterized Shumaker's liability as arising from a breach of a nondelegable contract duty under the Montana Safety Act. The District Court determined, based upon Montana's statutory comparative negligence scheme, however, that contributory negligence does not constitute delegation or transfer of a nondelegable duty. The court determined that liability based upon negligence per se under the Montana Safety Act, arising from a breach of a nondelegable contract duty, does not preclude comparison and apportionment of contributory negligence as a matter of law in all cases. The District Court concluded that Shumaker had presented evidence showing that Olson's negligence had contributed to his injuries thereby rendering summary judgment inappropriate.
¶ 16 The case proceeded to trial to determine damages and the extent of the parties' negligence. The parties discussed apportionment and preexisting conditions with the court before the trial in the context of Olson's PTSD claim. Shumaker agreed on the first day of trial that its witness was "not going to talk about preexisting conditions and try and [sic] apportion those" with regard to the PTSD claim. Shumaker confirmed, however, that it would present witness testimony that Olson suffered symptoms of anxiety, rather than PTSD. Shumaker later attempted to present witness testimony showing that the symptoms that Olson had claimed stemmed from PTSD actually related to a longstanding anxiety disorder. The District Court prohibited Shumaker from presenting this evidence on the grounds that Shumaker previously had agreed that it would not apportion or discuss preexisting conditions. The District Court concluded that this testimony would be prejudicial and of marginal relevance "absent some noticed basis for apportionment."
¶ 17 The District Court presented several jury instructions before the trial. The court instructed the jury that Shumaker had breached its nondelegable duty to provide a safe workplace as required by the safety provision in the construction contract and pursuant to the Montana Safety Act. This Instruction 8 set out at length the factual details of the contract and the accident, and noted the ways in which Shumaker had breached its duty. Instruction 8 instructed the jury that Shumaker had been negligent as a matter of law, and that the jury also could consider Olson's contributory negligence. The instruction ran eight pages.
¶ 18 Shumaker objected to Instruction 8. Shumaker argued that the instruction should have stated merely that Shumaker was negligent as a matter of law. Shumaker further contended that the length of the instruction had the potential to prejudice Shumaker. Shumaker finally asserted that the instruction suggested that Shumaker's negligence constituted a cause of Olson's injuries. The District Court overruled Shumaker's objection on the basis that the complicated issue of contributory negligence asserted by Shumaker necessitated the factual detail and length.
¶ 19 Shumaker also objected to Instructions 14 through 22. The District Court based these instructions on Pattern Instruction 25.00 through 25.08. The District Court presented the instructions in the same order in which they appear in the Pattern Instructions. Shumaker argued, however, that the Commission on Pattern Instructions had intended Pattern Instruction 25 to be given as a single instruction rather than separate instructions. The court determined that presenting the instructions separately constituted the functional equivalent of presenting them as a single instruction in light of the fact that the instructions had been presented in the same sequential order.
¶ 20 Shumaker also objected to the admission of several of Olson's proposed exhibits. Shumaker objected to Olson's Exhibit 23, an accident report produced by Stephen Green, Balfour's on-site superintendent. Olson presented the evidence during the reading of Green's deposition. Shumaker first objected on the grounds that the report addressed subsequent remedial measures. Shumaker stipulated, after discussion on the record, that the exhibit could be admitted subject to redaction relating to subsequent remedial measures and Shumaker's approval. Shumaker then objected to a portion of the exhibit on the grounds that it constituted "hearsay inside of hearsay." The District Court overruled the hearsay objection on the grounds that Shumaker already had stipulated to the exhibit's admission and in light of the fact that Shumaker should have raised the objection during Green's deposition.
¶ 21 The jury ultimately rendered a verdict finding Shumaker 90 percent negligent and Olson 10 percent negligent....
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