Stepanek v. Kober Const., 80-333

• Decision Date: 11 March 1981
• Docket Number: No. 80-333,80-333
• Citation: 191 Mont. 430,38 St.Rep. 385,625 P.2d 51
• Parties: Larry STEPANEK, Plaintiff and Appellant, v. KOBER CONSTRUCTION and the County of Yellowstone, By and Through the Commissioners Thereof et al., Defendants and Respondents.
• Court: Montana Supreme Court

Page 51

625 P.2d 51

191 Mont. 430

Larry STEPANEK, Plaintiff and Appellant, v. KOBER CONSTRUCTION and the County of Yellowstone, By and Through the Commissioners Thereof et al Defendants and Respondents.

No. 80-333.

Supreme Court of Montana.

Submitted Feb. 20, 1981.

Decided March 11, 1981.

Stephens & Cole, Kinnard & Woodward, Dave Kinnard argued, Billings, for appellant.

Moulton, Bellingham, Longo & Mather, Corinne Courtney and Ward Swanser argued, Billings, for respondents.

MORRISON, Justice.

Appellant, an employee of a subcontractor hired by the respondent general contractor, appeals from summary judgment granted to the defendants in the District Court. However, appellant limits his appeal to the general contractor, Kober Construction.

In December of 1973, the respondent and Yellowstone County entered into a contract for the construction of the Metra, a multi-purpose recreational facility in Billings, Montana. In January of 1974, the respondent entered into a subcontract with Albert D. Wardell Masonry for the completion of masonry work required in the Metra project. Appellant was injured in a fall from the subcontractor's scaffolding on April 17, 1975.

The trial court granted summary judgment for defendants but failed to state the reasons therefor. Disapproval of such failure has been recently stated in a concurring opinion filed in Big Man v. State of Montana and Case, ---- P.2d ---- (No. 80-265, decided March 10, 1981). In the future, we ask that the District Courts state the reasons for granting summary judgment. Here we will review all issues argued to this Court.

For purposes of this appeal, all factual disputes must be resolved in favor of appellant, against whom summary judgment was granted. Harland v. Anderson (1976), 169 Mont. 447, 450, 548 P.2d 613, 615.

Defendant and respondent, Kober Construction, will hereafter be referred to as general contractor. Albert D. Wardell Masonry will be referred to as subcontractor.

The primary contract between the general contractor and Yellowstone County required the general contractor to be "responsible for initiating, maintaining, and supervising all safety precautions and programs" connected with the construction. Consistent with this provision, the general contractor's job superintendent conducted regular safety meetings with all subcontractors on the project and in one instance, the subcontractor was ordered to remove a workman from scaffolding because the general contractor felt the workman's negligent conduct would cause injury.

The subcontract provided that the subcontractor comply with all applicable safety and health laws and further:

"... provide all safeguards, safety devices, and protective equipment and take any other needed actions on his own responsibility; or as the Contractor may determine reasonably necessary to protect the life and health of employees on the job and the safety of the public and to protect property in connection with the performance of the work covered herein."

The significant issue raised in this appeal is whether the general contractor owed a duty of care to the appellant and if so, upon what basis. If there was no duty owed, then there can be no issues of material fact and granting of summary judgment was proper. Rennick v. Hoover (1980), Mont., 606 P.2d 1079, 1081, 37 St.Rep. 308, 310.

Appellant contends the general contractor owed him a duty of care predicated upon (1) control of the subcontractor's work reserved in the subcontract and in fact, exercised by the general contractor; (2) the Scaffolding Act, section 50-77-101, M.C.A.; (3) the Safe Place statute, section 50-71-201, M.C.A.; and (4) the primary contract requiring the general contractor to be responsible for safety on the project.

The general contractor contends (1) control of the subcontractor was neither reserved nor exercised; (2) application of the statutes would be improper because the requisite element of control was lacking; (3) safety obligations assumed in the primary contract were delegated; and (4) appellant's contributory negligence bars recovery.

Appellant further contends that if the case is remanded for trial, Occupational Safety and Health Administration (O.S.H.A.) violations should be treated as negligence per se. The effect of those regulations is herein discussed.

GENERAL CONTRACTOR'S CONTROL:

Montana recognizes the general rule that "absent some form of control over the subcontractor's method of operation, the general contractor and owner of the construction project are not liable for injuries to the subcontractor's employees." Shannon v. Howard S. Wright Construction Co. (1979), Mont., 593 P.2d 438, 441, 36 St.Rep. 632, 636; 2 Restatement of Torts 2d, section 414 (1965). Both parties rely upon Shannon as the controlling statement of law. Appellant contends that the requisite "control" exists if the general contractor had a nondelegable duty to "control."

A review of the record before us indicates the general contractor's degree of actual control is disputed. First, the subcontract clause purported by respondent to have delegated all safety responsibility to the subcontractor, does not do so. The general contractor reserved right to control safety compliance on the project.

Second, the depositions of the subcontractor and the job superintendent for the general contractor, demonstrate the subcontractor's acquiescence in the general contractor's supervision of the project's safety. The subcontractors attended weekly safety meetings conducted by the general contractor. Subcontractor Wardell complied with the general contractor's request that an employee be removed from the scaffolding and assigned to work on the ground. However, appellant's claim is not limited by a showing of actual control.

The general contractor assumed contractual obligations under the contract with Yellowstone County. Specifically, the general contractor agreed to maintain and supervise job safety.

Montana has previously held that similar contractual arrangements result in creation of a nondelegable duty. Ulmen v. Schwieger (1932), 92 Mont. 331, 12 P.2d 856. In Ulmen the duty extended to a third person not employed by a subcontractor. Here we must decide if that nondelegable duty extends to employees. We hold that it does, and the basis for our holding is discussed in connection with application of the Scaffolding Act.

APPLICATION OF THE SCAFFOLDING ACT:

Section 50-77-101, M.C.A., states:

"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."

The statute does not explicitly state what persons owe the duty imposed. In State ex rel. Great Falls Nat. Bank v. District Court (1969), 154 Mont. 336, 463 P.2d 326, this Court held a landowner bank, not in control of the work involving the scaffold, was not liable to a contractor's employee under the statute. The Court defined the scope of the Scaffolding Act in the following terms:

"... it is clear to us from the language of the Act construed in the light of its purpose that the legislature intended only to make the injured workman whole by granting him relief to the extent of his injuries and damages against the person, firm or corporation having direct and immediate control of the work involving the use of scaffolding." Great Falls Nat. Bank, 154 Mont. 336, 345, 463 P.2d 326, 331.

The court reasoned that section 50-77-102, M.C.A., and section 50-77-104, M.C.A., then referred to as section 69-1402, R.C.M. 1947, and section 69-1404, R.C.M. 1947, showed legislative intent to limit the Scaffolding Act to "one in immediate control." The court noted that these two statutes expressly applied only to "owners, contractors, builders, or persons having the direct and immediate control or supervision of any buildings." (Emphasis supplied.) However, the court had to face the issue of nondelegable duty because if the bank owed a duty to control which it could not delegate, then it would be subject to the provisions of the Act. The court referred to previous decisions which were based upon nondelegable duty, i. e., Ulmen v. Schwieger, supra, but distinguished on the basis that they did not involve employees of a subcontractor.

This Court thus began to construct a distinction between employees of a subcontractor and third person such as the one injured in Ulmen. This distinction reached its climax in Ashcraft v. Montana Power Co. (1971), 156 Mont. 368, 480 P.2d 812. It was there held that, where the Montana Power Co. employed an independent contractor to construct lines, an injured employee of that subcontractor was precluded from suing Montana Power because of the exclusive provisions of the Workmen's Compensation Act. Justice Daly dissented. Justice Haswell did not participate.

In response to Ashcraft, the delegates to the state constitutional convention adopted Article II, Section 16, which, as ratified, provides in part:

"The administration of justice. Courts of justice shall be open to every person, and speedy remedy afforded for every injury of person, property, or character. No person shall be deprived of this full legal redress for injury incurred in employment for which another person may be liable except as to fellow employees and...