Roy v. Blackfoot Telephone Co-op.

• Citation: 101 P.3d 301,324 Mont. 30,2004 MT 316
• Decision Date: 12 November 2004
• Docket Number: No. 04-116.,04-116.
• Parties: Steve M. ROY and Felicia A. Roy, Individually and as parents and guardians of Patrick Roy and Brandon Roy, Plaintiffs and Appellants, v. BLACKFOOT TELEPHONE COOPERATIVE, Inc., Defendant and Respondent.
• Court: United States State Supreme Court of Montana

101 P.3d 301

2004 MT 316

324 Mont. 30

Steve M. ROY and Felicia A. Roy, Individually and as parents and guardians of Patrick Roy and Brandon Roy, Plaintiffs and Appellants, v. BLACKFOOT TELEPHONE COOPERATIVE, Inc., Defendant and Respondent.

No. 04-116.

Supreme Court of Montana.

Submitted on Briefs October 14, 2004.

Decided November 12, 2004.

For Appellants: Cynthia K. Smith, Smith Law Offices, PC, Missoula, Montana, Kathleen O'Rourke Mullins, O'Rourke Mullins Law Office, St. Ignatius, Montana.

For Respondent: Kelly M. Wills and Kathleen L. DeSoto, Garlington, Lohn & Robinson, PLLP, Missoula, Montana.

Justice W. WILLIAM LEAPHART delivered the Opinion of the Court.

¶ 1 Steve Roy appeals from the District Court's grant of summary judgment and denial of his motion to alter or amend the judgment. Felicia A. Roy and their children brought attendant claims for loss of consortium. We affirm the judgment of the District Court.

¶ 2 We restate the issues on appeal as:

¶ 3 1. Whether Blackfoot failed to properly train Roy in the use of aerial ladders.

¶ 4 2. Whether Blackfoot had a policy requiring the use of safety belts on ladders prior to Roy's injury.

¶ 5 3. Whether industry standards and OSHA regulations gave notice to Blackfoot that there was a high probability Roy would be injured if he did not use a safety belt on aerial ladders.

FACTUAL AND PROCEDURAL BACKGROUND

¶ 6 Steve Roy worked for Blackfoot Telephone Cooperative for over twenty years. For most of that time Roy's position was that of an installation and repair technician, commonly referred to as a "lineman." In 1998 Roy moved to Plains, Montana, and began performing mid-span aerial work. Mid-span work involves repairing lines between telephone poles with the assistance of an aerial ladder or bucket truck.

¶ 7 Per Blackfoot's safety requirements, Roy regularly attended safety classes and was regularly provided with literature on safety. Blackfoot also gave Roy some safety equipment, such as a hard hat and an extension ladder. He was not provided with a safety belt for use on aerial ladders, although he was provided with a telephone pole climbing belt. In his deposition Roy stated that he had never used a safety belt while climbing an aerial ladder, nor had he ever seen anyone else use one. He also stated that he knew if he needed a bucket truck to assist him in his mid-span work then one would be brought to him upon request. A bucket truck allows a worker to reach a telephone line without the dangers involved when using a ladder.

¶ 8 On May 5, 1999, Roy fell 18 feet from an aerial ladder, breaking his neck and sustaining numerous other injuries. He had not requested a bucket truck for that day's work because he believed that he did not need one. As a result of the accident, Roy can no longer work. Both parties agree that if Roy had been wearing a safety belt he very likely would not have fallen off of the ladder. A post-accident report undertaken by Blackfoot noted that Roy should have been restrained "by a harness or positioning belt."

¶ 9 The same person who authored the report, James Harper, was unclear in his deposition whether Blackfoot had a policy requiring the use of safety belts on aerial ladders before Roy's fall. However, Roy's supervisor, Al Williams, unequivocally stated that Blackfoot did not have such a policy. Both sides to this litigation investigated whether other telephone companies require the use of safety belts or bucket trucks for their linemen. Roy submitted evidence that most other companies in Montana and in the region require one of the two methods, while Blackfoot submitted evidence that at least two other companies in the region do not require their linemen to use those methods.

¶ 10 Roy brought suit against Blackfoot for his injuries. After a period of discovery, Blackfoot moved for summary judgment, arguing that since Roy did not meet the malice standard of Sherner v. Conoco, Inc., 2000 MT 50, 298 Mont. 401, 995 P.2d 990, he was bound by the exclusive remedy of the workers' compensation act. The motion was granted. Roy's motion to alter and/or amend the judgment was denied. Roy now appeals.

STANDARD OF REVIEW

¶ 11 We review a grant of summary judgment de novo. Grassy Mountain Ranch Owners' Ass'n v. Gagnon, 2004 MT 245, ¶ 7, 323 Mont. 19,

¶ 7, 98 P.3d 307, ¶ 7. To meet its initial burden, the movant must demonstrate that, viewing the evidence in the light most favorable to the non-moving party, there exists no genuine issue of material fact. Fulton v. Fulton, 2004 MT 240, ¶ 6, 322 Mont. 516, ¶ 6, 97 P.3d 573, ¶ 6. Once the movant does this, the burden shifts to the non-moving party, which then must establish that a genuine issue of material fact exists, and must do so with more than mere denial and speculation. Fulton, ¶ 6. Once the court concludes that no genuine issue of material fact exists, it must then determine whether the moving party is entitled to judgment as a matter of law. On review we determine whether the District Court correctly applied the law. See Chain v. State, Dept. of Justice, Motor Vehicle Div., 2004 MT 216, ¶ 8, 322 Mont. 381, ¶ 8, 96 P.3d 1135, ¶ 8.

¶ 12 Roy points to four factors which illustrate that Blackfoot knew there was a high probability that he would be injured and nevertheless acted in conscious disregard of or indifference to that knowledge: it (1) failed to train Roy in ladder safety, (2) had a policy requiring the use of safety belts on ladders, (3) disregarded the applicable industry standard, and (4) disregarded OSHA regulations requiring the use of safety belts. We determine that Roy has failed to raise a genuine issue of material fact concerning whether Blackfoot's actions were intentional and malicious under the Sherner standard. We examine Roy's arguments in turn.

DISCUSSION

ISSUE ONE

¶ 13 Whether Blackfoot failed to properly train Roy in the use of aerial ladders.

¶ 14 Before we proceed with Roy's argument concerning safety training, and with the other three arguments Roy raises, we must first establish the standard that Roy must meet in order to recover damages. In most circumstances a workers' compensation claim is the exclusive remedy for an employment-related injury claim such as Roy's. See § 39-71-411, MCA. However, an exception exists under § 39-71-413, MCA, for injuries that are caused intentionally. Given the timing of Roy's injury, the 1999 version of § 39-71-413, MCA, is at issue here. That version provided that an injured worker has a cause of action if he "receives an injury while performing the duties of his employment and the injury or injuries so received by the employee are caused by the intentional and malicious act or omission of a servant or employee of his employer...."

¶ 15 In Sherner we interpreted the meaning of "malice" and "intentional." We adopted the definition of "malice" provided at § 27-1-221(2), MCA, which states:

A defendant is guilty of actual malice if the defendant has knowledge of facts or intentionally disregards facts that create a high probability of injury to the plaintiff and: (a) deliberately proceeds to act in conscious or intentional disregard of the high probability of injury to the plaintiff; or (b) deliberately proceeds to act with indifference to the high probability of injury to the plaintiff.

We interpreted "intentional" according to its plain meaning: "`1. done deliberately; intended. 2. having to do with intention.'" Sherner, ¶ 36 (quoting The American Heritage Dictionary of the English Language, Third Edition (1996)). This plain meaning comports with the word's use in § 27-1-221(2), MCA. Therefore, to meet the standard of Sherner an injured worker must satisfy the definition of malice in § 27-1-221(2), MCA.

¶ 16 Additionally, we have strictly interpreted the requirement that the injury be of a "high probability." Recently, we stated that "[t]he malice standard requires more than a showing that the job in question involves a known risk of injury or a dangerous situation. The standard requires that the employer actually knew of, or intentionally disregarded, a probability of injury that is higher than that caused by gross negligence. Here, there is simply no evidence the companies knew their employees would actually be injured by a routine which was usually performed without incident." Olszewski v. BMC West Corp., 2004 MT 187, ¶ 19, 322 Mont. 192, ¶ 19, 94 P.3d 739, ¶ 19. Roy argues that "high probability" does not refer to the high probability of an injury as such, but to the high probability of serious injury if an accident occurs. However, the above language of Olszewski tells us that "high probability" refers to both the accident and the injury. What is at issue, of course, is whether Blackfoot acted with intentional indifference to or disregard of knowledge that there was a high probability of injury, as opposed to knowledge that there was a high probability of injury if something occurred that itself was not of a high probability. See Olszewski, ¶ 19 ("usually performed without incident"). If there was not a high probability of Roy's falling off a ladder, or if Blackfoot did not know there was such a probability, then Roy does not satisfy the Sherner standard. Put another way, to meet the Sherner standard Blackfoot must have known there was a high probability that Roy would be injured in working on an aerial ladder without a safety belt.

¶ 17 Having established the Sherner standard, we shall move on to the questions of Roy's training. It is undisputed that Blackfoot did not train Roy in the use of a safety belt. It is also undisputed, however, that Roy regularly attended Blackfoot's safety training sessions. Roy never requested training in the use of safety belts, and Roy was issued a belt to be used in climbing telephone poles. Blackfoot's failure to instruct Roy on the use of ladder safety belts might rise to the level of negligence, but it is not evidence that Blackfoot failed to train him in the...