Porter v. Galarneau, 94-552

• Decision Date: 14 February 1996
• Docket Number: No. 94-552,94-552
• Citation: 275 Mont. 174,53 St.Rep. 99,911 P.2d 1143
• Parties: Lorraine A. PORTER, individually, and as Personal Representative of the Estate of Robert Porter, and Jeff R. Porter and Kirk A. Porter, Plaintiffs and Appellants, v. Gordon GALARNEAU, Defendant and Respondent.
• Court: Montana Supreme Court

Page 1143

911 P.2d 1143

275 Mont. 174

Lorraine A. PORTER, individually, and as Personal Representative of the Estate of Robert Porter, and Jeff R. Porter and Kirk A. Porter, Plaintiffs and Appellants, v. Gordon GALARNEAU, Defendant and Respondent.

No. 94-552.

Supreme Court of Montana.

Submitted Nov. 16, 1995.

Decided Feb. 14, 1996.

[275 Mont. 176] Appeal from District Court of the Thirteenth Judicial District, In and for the County of Yellowstone, G. Todd Baugh, Judge presiding.

James P. Molloy (argued), Helena, Thomas E. Boland, Great Falls, for Appellants.

Maureen H. Lennon (argued), and E. Craig Daue, Garlington, Lohn & Robinson, Missoula, Lee A. Henderson, Hessian, McKasy & Soderberg, Minneapolis, Minnesota, for Respondent.

ERDMANN, Justice.

This is an appeal from orders issued by the Thirteenth Judicial District Court, Yellowstone County, granting the defendant's motions for summary judgment. We affirm in part and reverse in part.

We restate the issues on appeal as follows:

1. Did the District Court err in determining that Montana's Scaffolding Act did not apply?

2. Does House Bill 158, which amended Montana's Scaffolding Act, apply retroactively to this case?

3. Did the District Court err in determining that Gordon Galarneau did not have a duty to provide Robert Porter with a safe work place?

4. Did the District Court err in determining that Gordon Galarneau did not breach any common law duty as a landowner?

5. Did the District Court err in not allowing Lorraine Porter to fully amend the complaint?

FACTS

Robert and Lorraine Porter operated Personal Touch Services, a business in Billings that provided cleaning and maintenance services to commercial and residential customers. Gordon Galarneau is a Minnesota businessman who owns a business and residence in Billings. In 1986, Gordon engaged the Porters to perform various services for himself and Rinda Penrod, his wife. In 1988, Gordon sold his Billings residence but then repurchased the home in May 1992, at which time the Porters were again hired to perform In late November 1992, the parties agreed that Robert would paint an interior wall of the Billings house which was approximately twenty-two feet high. The floor of the room to be painted was tile. Lorraine testified that on the morning of November 30, 1992, Gordon told her that scaffolding was not necessary and that Robert should use a ladder for the job. Gordon denies this conversation ever took place. On December 3, 1992, Robert borrowed a ladder from his landlord and while preparing the wall for painting, fell from the ladder and was fatally injured. He died later that day at a Billings hospital. When Robert fell from the ladder Gordon was at his office in Minnesota and Rinda was in an upstairs bathroom of the Billings residence. Lorraine was working at another location and Kirk Porter, Robert's son, was on his way to help his father paint the wall. No one witnessed Robert's fall. Following Robert's death, Gordon terminated the working relationship with Lorraine and Kirk.

miscellaneous jobs at the residence. Robert and Lorraine did a variety of work for Gordon and Rinda, including cleaning, grounds maintenance, repairs, and painting. The Porters were responsible for opening the house for contractors and delivery men, as well as leaving vehicles at the Billings airport when Gordon and Rinda arrived in town.

On April 26, 1993, Lorraine and her sons, Jeff and Kirk, brought this action to recover damages for Robert's wrongful death and for Lorraine's and Kirk's wrongful termination of employment. Kirk subsequently abandoned his wrongful termination claim. The wrongful death claims alleged liability theories of negligence, violation of Montana's Scaffolding Act, and failure to provide a safe place to work. In a memorandum and order dated April 22, 1994, the District Court granted Gordon's motion for summary judgment on the wrongful death claims and denied summary judgment on Lorraine's wrongful termination claim.

Prior to the District Court's order, Lorraine filed a motion to amend the complaint seeking to allege alternate theories of liability. In a memorandum and order dated April 28, 1994, the District Court denied most of Lorraine's proposed amendments but allowed her to amend the complaint to include a claim that Robert was a common law employee covered by Montana's Safety Act. Gordon subsequently renewed his motion for summary judgment on the basis that Robert was not an employee within the meaning of the Safety Act. On August 26, 1994, the District Court granted Gordon's motion for summary judgment, entered final judgment in favor of Gordon on the wrongful death claims, and stayed further proceedings on Lorraine's wrongful termination claim. Lorraine appeals the District Court's orders granting Gordon's motion for summary judgment on the wrongful death claims.

STANDARD OF REVIEW

Our standard of review in appeals from summary judgment rulings is de novo. Mead v. M.S.B., Inc. (1994), 264 Mont. 465, 470, 872 P.2d 782, 785. Under Rule 56(c), M.R.Civ.P., summary judgment is proper if the record discloses no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Lutey Const. v. State (1993), 257 Mont. 387, 389, 851 P.2d 1037, 1038. A party seeking summary judgment has the burden of establishing a complete absence of any genuine factual issues. Howard v. Conlin Furniture No. 2, Inc. (1995), 272 Mont. 433, 435-36, 901 P.2d 116, 118. Once the moving party has presented evidence to support its motion, the party opposing summary judgment must present material and substantial evidence, rather than conclusory or speculative statements, to raise a genuine issue of material fact. Howard, 901 P.2d at 119. All reasonable inferences that might be drawn from the offered evidence should be drawn in favor of the party opposing summary judgment. Howard, 901 P.2d at 119.

ISSUE 1

Did the District Court err in determining that Montana's Scaffolding Act does not apply?

Lorraine alleges that Gordon violated Montana's Scaffolding Act, §§ 50-77-101 to -107, MCA (1991). The District Court determined as a matter of law that Gordon did not exercise the necessary degree of supervision or control to impose liability under the Scaffolding Act.

Section 50-77-101, MCA (1991), states that:

All scaffolds erected in this state for use in the erection, repair, alteration, or removal of buildings shall be well and safely supported, of sufficient width, and properly secured so as to ensure the safety of persons working on them or passing under them or by them and to prevent them from falling or to prevent any material that may be used, placed, or deposited on them from falling.

Additionally, § 50-77-102, MCA (1991), states that it is the duty of "every owner, person, or corporation who shall have the direct and immediate supervision or control of the construction or remodeling" to provide safe and adequate scaffolding. We have defined "scaffolding" to include "any device utilized by workmen to allow them to work where a fall might result in serious injury." Steiner v. Dept. of Highways (1994), 269 Mont. 270, 278, 887 P.2d 1228, 1233 (citing Mydlarz v. Palmer/Duncan Const. Co. (1984), 209 Mont. 325, 338, 682 P.2d 695, 702).

Lorraine argues that a ladder clearly falls under our definition of scaffolding and that control for Scaffolding Act purposes is automatically established by the employment relationship which existed between the parties. Lorraine relies on Pollard v. Todd (1966), 148 Mont. 171, 418 P.2d 869, to assert that, as an employer, Gordon had a nondelegable duty and concomitant right of control over Robert's work. In Pollard, the defendants hired a carpenter to construct a grain storage building on their property. When a carpenter's helper was injured in a fall from a ladder and plank scaffold we held that the defendants were liable under the Scaffolding Act. We concluded the defendants had actual control of the work because they had discussed the scaffolding needs of the project with the carpenter who was supervising the job and had not objected to the use of the ladder scaffold. Pollard, 418 P.2d at 871-72.

Gordon maintains that an employer is not necessarily the person or entity having the direct and immediate control of the work involving the scaffolding necessary to create liability under the Scaffolding Act. Gordon relies on our holding in State ex rel. Great Falls Nat. Bank v. District Court (1969), 154 Mont. 336, 463 P.2d 326, to argue that the purpose of the Scaffolding Act is to create liability on the "person, firm, or corporation having direct and immediate control of the work involving the use of the scaffolding." Great Falls Nat. Bank, 463 P.2d at 331.

Gordon contends that outside of asking Robert to paint the wall, he (Gordon) had no contact with or control over the work involving the scaffolding. He argues that Robert did not consult with him prior to undertaking the project and that Robert alone obtained the ladder and arranged for Kirk to assist him, which resulted in Robert assuming complete responsibility for the job. In urging us to affirm the District Court's grant of summary judgment, Gordon argues that even if the issue of control is a question of fact, where reasonable minds could not differ the district court may determine questions of fact as a matter of law. Brohman v. State (1988), 230 Mont. 198, 202, 749 P.2d 67, 70.

The District Court, in its April 22, 1994, memorandum and order, stated "there are material facts which support finding that the Porters were both independent contractors and employees of defendant." In its August 26, 1994, memorandum and order, the District Court stated that "this [c]ourt will take as true for purposes of defendant's motion that decedent was a resident or common law employee at the time he fell to his death...." For purposes of this appeal, therefore, we will consider Robert to have been an...