West v. Morrison-Knudsen Company

• Decision Date: 08 November 1971
• Docket Number: No. 24042.,24042.
• Citation: 451 F.2d 493
• Parties: Arthur E. WEST, Plaintiff-Appellant, v. MORRISON-KNUDSEN COMPANY, Inc., et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

451 F.2d 493 (1971)

Arthur E. WEST, Plaintiff-Appellant, v. MORRISON-KNUDSEN COMPANY, Inc., et al., Defendants-Appellees.

No. 24042.

United States Court of Appeals, Ninth Circuit.

November 8, 1971.

Robert W. Gabriel (argued), of Bretz & Gabriel, Great Falls, Mont., for plaintiff-appellant.

Jack L. Lewis (argued), of Jardine, Stephenson, Blewett & Weaver, Great Falls, Mont., for defendants-appellees.

Before HAMLEY, HUFSTEDLER and TRASK, Circuit Judges.

TRASK, Circuit Judge.

This is an action to recover damages for personal injury filed by Arthur West, plaintiff, against a joint venture, as defendant, one of whose members was Morrison-Knudsen Company, Inc., which will hereafter be referred to as Morrison-Knudsen. It was filed in the District Court of Pondera County, Montana, and thereafter removed to the United States District Court for the District of Montana, Great Falls Division. No petition to remand was ever filed and the documentation before us would confirm jurisdiction in the United States District Court pursuant to the removal statutes, 28 U.S.C. §§ 1441-1450.

The amended complaint alleged that the defendants had contracted with the United States to construct a missile launching base in Pondera County. The defendants in turn had entered into a written subcontract with the American Bridge Division of the United States Steel Corporation to furnish and erect structural and miscellaneous steel.

The general contract between the United States Government and defendants incorporates certain safety requirements which plaintiff alleges imposes duties on Morrison-Knudsen, the general contractor, which duties are made nondelegable by the contract. A breach of some of these duties by Morrison-Knudsen, it is asserted, resulted in injury to the plaintiff who was an employee of the subcontractor. Morrison-Knudsen is thus stated to be liable in damages for these personal injuries. A motion to dismiss had been granted to an original complaint, and a second motion to dismiss was addressed to the amended complaint. Briefs were submitted on the questions raised by the amended complaint, the motion to dismiss, and certain interrogatories and answers filed in the action. The court entered an order dismissing the case and denying plaintiff all relief. West v. Morrison-Knudsen Co., 294 F.Supp. 1336 (D.Mont.1969). The court held that no recovery could be based upon the contract provisions, even though this plaintiff might be deemed a third party beneficiary, because under the law of Montana such a beneficiary of safety clauses in a contract could not recover in the absence of a specific promise in the contract to pay damages. The court also ruled against the plaintiff on his alternate theory that recovery could be based upon the "inherently dangerous or ultra-hazardous" exception to the rule that a prime contractor is not liable for the acts of subcontractors. The court found that the work performed was not within the exception. We affirm.

The appellant was injured when he slipped on the platform of a trailer from which he was unloading heavy cylinders containing gas used in welding. The trailer had been towed to the work site by a pickup truck and oil had leaked from a small engine on the trailer to the floor of the trailer causing the condition which resulted in the fall. This manner of delivering cylinders of welding gas to the work site was alleged to have been known, or should have been known, by Morrison-Knudsen.

The contract provisions upon which appellant relies are safety requirements in the United States Army Corps of Engineers Manual which appellant alleges are incorporated by reference in the prime contract between the United States and Morrison-Knudsen. Those requirements were recited in the complaint as follows:

"HOUSEKEEPING

11-35: Material, or debris shall not be strewn about in a manner which may cause tripping or other hazard.

"FLAMMABLE LIQUIDS

11-25: Accumulations of flammable liquids on floors, walls, etc., is prohibited. All spills of flammable liquids shall be cleaned up immediately.

"MACHINERY AND MECHANIZED EQUIPMENT—Inspection and testing 18-1: Before any machinery or mechanized equipment is put into use on the job, it shall be inspected and tested by a qualified person and determined to be in safe operating condition. Continued periodic inspections shall be made at such intervals as necessary to assure its safe operating condition and proper maintenance.

"MOTOR VEHICLES

18-89: Definition. The term `motor vehicle\' as used in this section * * shall mean any vehicle * * * designed to be towed * * *.

"INSPECTION

18-91: No vehicle shall be placed in service until it has been inspected by a qualified person and found to be in a safe operating condition."

C.T. 18-19

The provisions are assertedly made non-delegable by the following clause of the manual:

"Compliance with the provisions of this article by subcontractors will be the responsibility of the Contractor." C.T. 19.

That all of these provisions are intended to extend to and protect this plaintiff is alleged to be made plain by the final clause quoted by appellant:

"In order to provide safety controls for protection to the life and health of employees and other persons * * * the contractor will comply with all pertinent provisions of the Manual `Safety Requirements\' approved by the Chief of Engineers 16 December, 1941 etc." C.T. 19.

Absent the contract provisions and their effect upon the rights and obligations of the parties, the Montana law clearly follows the general rule that a prime or general contractor is not liable for injuries to employees of an independent contractor. Baird v. Chokatos, Mont., 473 P.2d 547 (1970) ; Wells v. Stanley J. Thill & Associates, Inc., 153 Mont. 28, 452 P.2d 1015 (1969) ; Hackley v. Waldorf-Hoerner Paper Products Co., 149 Mont. 286, 425 P.2d 712 (1967). Nor is the rule any different where the work to be performed is inherently hazardous. Jackson v. Coast Painter & Lacquer Co. (D.Mont., November 18, 1970) ; Wells v. Stanley J. Thill & Associates, Inc., supra.

In Baird v. Chokatos, supra, the owners of land had agreed with 4-B's Restaurants, Inc., that a restaurant building would be constructed on their land, with the landowners and 4-B's participating in the cost. 4-B's designed the building and hired one Leslie to construct it. They were to lease and operate it upon completion. Leslie was to engage subcontractors as needed and coordinate the construction. He engaged Ace Equipment to dig a trench for the underground lines. Baird, the plaintiff, was injured while an employee of Ace Equipment on this job. The court found Ace Equipment Company to be an independent contractor. The court posed the question for decision as:

"Whether or not appellant as an employee of Ace Equipment Company can hold landowners, contractee, contractor, and subcontractor liable under Montana law for personal injuries received on the job when exclusive control of means and methods of digging the ditch resided in Ace Equipment Company." 473 P.2d at 548.

The matter came before the court on a motion for summary judgment. Relying upon Wells v. Stanley J. Thill & Associates, Inc., supra, the court held the landowners not liable since there was no evidence that they retained control over the work area. The court then found 4-B's to be in the position of a contractee and thus not liable, noting the rule of Wells to be that:

"`* * * the servant of an independent contractor or of a subcontractor is not a servant of the contractee, ordinarily the contractee is not liable for injuries to such servant caused by the acts or negligence of the contractor, or subcontractor, or co-employee of the injured servant.\'" Id.

The same result applied to Leslie who was interested only in the completion of the contract and insuring that the building was constructed according to plans and specifications. Concluding, the court announced the common thread missing as to each claim and the court's rationale:

"In each issue, the single element needed to attach liability to third parties is their immediate control and responsibility for means, methods, and details of constructing the project at hand, i. e., digging the ditch. Respondents did not exercise any direction over construction of the ditch and were not so obligated, therefore they cannot be held accountable for appellant\'s injuries." 473 P.2d at 549.

Wells v. Stanley J. Thill & Associates, Inc., supra, is the case which Baird follows. In Wells, the City of Belt constructed a sewer system. It engaged Thill & Associates to draw the plans and specifications and supervise the construction of the system. Fedco, Inc., was hired as an independent contractor to do the work, and the plaintiff, an employee of Fedco, was injured during construction when the wall of a trench collapsed upon him. Fedco had not shored up the wall of the trench as it was obligated to do under its contract with the city. The suit was brought against the city and Thill & Associates. The Montana Supreme Court framed the issue as fellows:

"Therefore, the question became whether there is a duty on the part of the owner or his supervising engineer, running to the employee of an independent contractor, to see that the independent contractor complies with minimum safety standards promulgated by the Montana Industrial Accident Board pursuant to statute, section 92-1204, R.C.M. 1947, when the independent contractor has, in his written contract with the owner, specifically agreed to comply with such standards." 452 P.2d at 1016.

It was held that neither the city nor Thill was legally liable for the negligence of Fedco, the independent contractor.

In the case before us the United States would correspond to the City of Belt as the owner and West was an employee of a subcontractor. The complaint here alleges that West "was at all times employed by a subcontractor working for defendant." There is no allegation that the general contractor...