Pierce v. ALSC Architects, P.S.

• Decision Date: 23 March 1995
• Docket Number: No. 93-541,93-541
• Citation: 270 Mont. 97,890 P.2d 1254
• Parties: Douglas J. PIERCE, Plaintiff and Appellant, v. ALSC ARCHITECTS, P.S., a Washington Professional Service Corporation, Defendant and Respondent.
• Court: Montana Supreme Court

Page 1254

890 P.2d 1254

270 Mont. 97

Douglas J. PIERCE, Plaintiff and Appellant, v. ALSC ARCHITECTS, P.S., a Washington Professional Service Corporation, Defendant and Respondent.

No. 93-541.

Supreme Court of Montana.

Submitted on Briefs Aug. 12, 1994.

Decided Feb. 23, 1995.

Rehearing Denied March 23, 1995.

Roger M. Sullivan, McGarvey, Heberling, Sullivan & McGarvey, Kalispell, for appellant.

I. James Heckathorn, Murphy, Robinson, Heckathorn & Phillips, Kalispell, for respondent.

TRIEWEILER, Justice.

The plaintiff, Douglas J. Pierce, filed a complaint in the District Court for the Eleventh Judicial District in Flathead County in which ALSC Architects, P.S., was named as the defendant. Pierce sought to recover damages for personal injuries which he alleged were caused by the professional negligence The following issues are raised by Pierce's appeal:

                of Steven Hindley, one of ALSC's principals.   Following trial, the jury returned a verdict in favor of ALSC.   Pierce moved for judgment notwithstanding the verdict pursuant to Rule 50(b), M.R.Civ.P., or in the alternative, for a new trial pursuant to Rule 59, M.R.Civ.P.   However, due to the District Court's failure to rule on those motions within 45 days, they were deemed denied.   Judgment was entered in favor of the defendant.   Pierce filed a notice of appeal.   We reverse the judgment of the District Court and remand for further proceedings
                

1. Was the defendant negligent as a matter of law?

2. Was the plaintiff free from contributory negligence as a matter of law?

3. Is the plaintiff entitled to an order dismissing the defendant's affirmative defense which was based on the accepted work doctrine?

FACTUAL BACKGROUND

In March 1987, ALSC Architects, P.S., entered into a written agreement with Rosauers Supermarkets, Inc., to provide architectural services related to a remodeling project at Rosauers Supermarket in Kalispell, Montana. In addition to other services, ALSC agreed to act as the owner's representative during the construction phase of the project for the purpose of communicating instructions to the contractor. The architect also agreed to assure that the project progressed in a manner consistent with the contract plans and other documents. Toward that end, ALSC agreed that its representative would periodically visit the site of the construction work and "endeavor to guard the owner against defects and deficiencies in the work of the contractor."

Richard Salsbury is the vice president of Rosauers and acted as the owner's representative for the remodeling project. He is also a licensed architect.

Steven Hindley is a partner in ALSC Architects, and served as ALSC's project architect during the remodeling of Rosauers' Kalispell store.

Stewart and Meredith, Inc., was the contractor which performed the remodeling services on Rosauers' Kalispell store. Roy Beekman was their foreman and construction supervisor for the project.

The store manager's office is located on the second floor of Rosauers' Kalispell store. Prior to the remodeling project, there was a door in the manager's office which provided access to an observation and storage room. The room included a security walkway, windows from which the store could be observed, and areas where surplus material and decorations were stored.

Prior to the remodeling project, the store also had a walk-in cooler located on the main floor immediately below the observation and storage room. The roof of the cooler was even with the security walkway and provided a floor for the storage room, and a place for storage of seasonal displays used in the store.

During the remodeling project, the large walk-in cooler was removed and replaced with a smaller walk-in freezer. A suspended ceiling was installed in the space between the new walk-in freezer and the observation walkway. The plans which led to these changes were developed by Hindley and ALSC.

As part of the remodeling project, closed circuit televisions were installed, and the walkway and observation windows were no longer necessary. The observation room was redesigned as a security room which housed the closed circuit televisions.

As a result of these changes, Salsbury discussed with Hindley the options of developing the walkway as accessible space, or abandoning it and sealing it off. They agreed that if it was going to be accessible, in order to make it safe and satisfy the requirements of the Uniform Building Code, it would be necessary that they install guardrails in the area of the drop ceiling, provide lighting, and improve the walkway surface. However, they agreed that it would not be necessary to use the space, and therefore, to seal off access to the drop ceiling by removing the access door, covering the opening with drywall, and moving the access door to another location in the store manager's office to provide access to the new security room.

The first step toward accomplishing the changes agreed upon was the preparation of a change order which illustrated the relocation of the access door. The contractor agreed to make the change for the amount of $1647, which was in fact paid by Rosauers to the contractor. However, the change was never made.

Roy Beekman testified that when he did the work on the security room, he had an extra door, and that rather than relocate the door from the storage area, he simply left it in place and used the extra door for the new security room. Beekman testified that he did not have Salsbury's authorization to leave the storage area access door in place, but that he did discuss it with Hindley. He was not advised by Hindley that Salsbury wanted to abandon the space and that the door was supposed to be removed; nor was he advised that if the door was going to remain, a guardrail would have to be installed, and lighting and an improved walking surface would have to be provided. He was aware that the access door had been used in the past and assumed it would be used in the future.

Hindley recalled a discussion with Salsbury during which removal of the access door was discussed. Pursuant to that discussion, on November 18, 1987, he prepared a change order which required that the access to the storage area be sealed off with sheetrock. During a subsequent visit to the store for inspection, he became aware that the removal of the door, as required by that change order, had not been accomplished, but did not inform Salsbury that the door had been left in place. In fact, prior to final payment by Rosauers to the contractor, Hindley conveyed drawings to Salsbury which indicated that the removal of the access door, as required by the November 18, 1987, change order, had in fact been accomplished.

Doug Pierce was working as a stock clerk at Rosauers on May 21, 1988, when a customer asked to borrow some of the store's Hawaiian Day posters. Pierce conveyed the request to his supervisor, Lynn Sterling, who approved the request and advised Pierce that the posters would either be located in the new security room or the old storage area.

Prior to that date, Pierce's duties required that he occasionally visit the storeroom to retrieve store decorations. He estimated that he had been there once or twice a year and at least a dozen times altogether. He testified that the door to the store manager's office was normally open and that to recover the displays he would normally enter the storage area through the access door; proceed down a walkway for several feet; make a turn to the left; and then step down on the roof of the freezer where items were often stored, or from where access could be gained to another area where items were stored. There was a light switch accessible from the roof of the freezer which illuminated the storage area.

On the date of his accident, Pierce opened the door to the storage area, noticed there was no light switch in the area of the doorway, and proceeded down the walkway. He turned to his left to step down on what he thought would be the freezer, but instead, stepped onto the drop ceiling and crashed to the floor ten feet below. As a result of his fall, Pierce sustained serious physical injuries.

Although Pierce had often entered the storage area prior to the remodeling project, the date of his injury was the first occasion he had to enter that area after the remodeling project was completed. He stated that there was nothing different about the appearance of the access door on the date of his accident. Neither did the plywood walkway look any different, and because there was no light in the area, there was no way to tell that a drop ceiling had been substituted for the former walk-in cooler. No warning had been placed outside the door and there was no lock on the door.

Sterling is the grocery department manager at the Kalispell Rosauers and was Pierce's supervisor on the date of his injury. He was the one who advised Pierce that the decorations were most likely in the storage room behind the manager's office because that is where they had been located in the past. Sterling testified that he had entered the storage area himself as often as six times a year prior to the remodeling project and he presumed it was still okay to use the storage area because the door was still there. He expressed his surprise at learning of Pierce's fall. He explained, "The door was still there, I mean, it could have been me."

On September 8, 1989, Pierce filed this complaint against ALSC based on his allegation that Hindley negligently failed to guard against the inherent danger presented by the suspended ceiling by failing to warn of the hazard, provide adequate lighting in the area, or provide a guardrail. ALSC answered by denying negligence, and alleged as affirmative defenses that Pierce was contributorily negligent and that his claim was barred by the accepted work doctrine.

Prior to trial, ALSC moved for summary judgment on the basis that, since the remodeling project was substantially complete by ...