*1 Representative DUKES, Personal L. as TRACI and on DUKES, of KEITH of the Estate TRACI and and on behalf her own behalf JACOB children, minor KEITH DUKES’S DUKES; KYLE DUKES and legal parent HENRY, SANDRA guardian HAUCKE of SKYLER minor,
DUKES, Appellants, Plaintiffs v. MISSOULA,
THE
CITY OF
A-D,
DEFENDANTS
FICTITIOUS
Respondents.
Defendants
No. 04-758.
on Briefs June
2005.
Submitted
August
2005.
Decided
196.
For Appellants: Condra, Lon J. Dale B. Philip and Milodragovich, Dale, Binney PC, Missoula; & Steinbrenner James T. Towe, Offices, Towe Law Missoula. Respondents: Crowley, PC,
For William L. Boone Karlberg Missoula. Opinion LEAPHART
JUSTICE delivered the of the Court. Appellants Dukes, Traci L. as the personal representative of the ¶1 Estate Keith her Dukes and on own and her Keith and Dukes’s behalf, Henry, minor children’s Sandra behalf of her minor (hereafter ‘Dukes”), child brought against referred to as this action (the City Construction, Inc., City), Paradigm Missoula Sirius Architects, Posewitz, P.C., Montana, Carl the State of University City summary judgment, Montana. The moved for City’s the District Court appeals. motion. Dukes We affirm. three parties raise issues:
¶2 City 1. Did the have a under scaffold §50-77- ¶3 1999)? (repealed 2. doctrine Does law establish ¶4 inspect? City negligent 3. Was the se? per address, instead, appeal We will the issue is moot. whether
BACKGROUND (Keith) using the scaffold he was helped Keith Dukes erect University at University on the Theatre project in a construction insufficiently The scaffold was wide February of Montana in bolts, it the workers and, securing together height, its instead nothing about the scaffold used knew wire. employee top were on of the scaffold inadequacies. Keith and another Instead they they needed to move it to another location. when decided it, employee top the other climbing down move Keith and pulled pulled along employee pushed while another scaffold injured. over, fatally fell Keith was from the bottom. The scaffold alia, brought negligence against claim under Inter (1997) (the Chapter of Title Part MCA section 106 Act). concerning to reach this Court Keith’s appeal This the second Construction, Inc., 2003 MT
tragic death. In Dukes v. Sirius had moved the District Court 12(b)(6), M.R.Civ.P., alleging under Rule complaint dismiss Dukes’s 91-596, Safety & Health Act of Pub. L. No. Occupational that the (1970) (codified §651-678, 5 §5108, 84 Stat. at 29 U.S.C. U.S.C. (OSH §1114) Act), 5314-15, 7902, 15 §633, U.S.C. U.S.C. *3 Occupational Safety and Health regulations that promulgated preempted any thereunder had Administration had City. imposed duties Scaffold Act on the We concluded that §50-77-106, Act not duties MCA preempt any OSH contained (1997) 1999). (repealed meantime, Construction, had settled with Sirius Dukes
Inc., million, stipulated and to dismiss the State of $1.8 for The District University prejudice. and the of Montana with Montana P.C.’s, Paradigm Architects, granted Court had Carl Posewitz’s 12(b)(6), losing its Rule summary judgment. motions for After Court, City summary M.R.Civ.P., moved for motion in under the alleging City legal duty that the owed no to Keith judgment summary Act, judgment alleging for Dukes moved The se under that act. District Court negligent per was and denied Dukes’s motion. motion Act in 1909. Act Legislature The first enacted the Scaffold (codified at 6,1909, 107,1909 Title Mar. ch. Mont. Laws approved Act). MCA) (hereinafter 1909 Scaffold 50, Chapter Part duty on the was Originally, imposing the sentence an enforcement violating fine monetary that part imposed of same section a §5; Scaffold Act. See 1909 Scaffold (1997). 106 and §50-77- §5, Act, provided The 1909 Scaffold that any [a]ny person violating foregoing shall Sections be fined not less than One Hundred nor Dollars more than Two Dollars hereby Hundred for each offense. It is duty made the inspector, deputy or other any city, State, county, village authorities town or attorney through county other attorney, owner, such failure of person promptly, necessary steps take the to enforce the provisions
of this act. (Codified §69-1405, R.C.M. §50-77-106 (1997).) plaintiffs brought this case to determine the nature duty. extent of this
STANDARD OF REVIEW grant summary a judgment legal decision is decision that Valley Garden, L.L.C., we review de novo. Cole v. Ice 2005 MT ¶ 99, 16, 327 Mont. non-moving 113 P.3d 16. If the party ¶ ¶ fails to provide raising genuine substantial evidence a issue ofmaterial fact, the district court must decide the moving party whether is judgment Cole, entitled to as a of law. 16. party matter Whether a ¶ duty owed a legal someone and the of that are scope questions State, 20, 21, 307, 21, law. Henricksen v. 319 Mont. ¶ ¶
DISCUSSION that, argues plain meaning under the (1997) 1999), (repealed legal duty inspect had a the scaffold. and, The City duty, duty, avers that it had if it had a no only City. arises notice to upon portions Relevant the Scaffold Act, read as follows: - - - safety definition practices
50-77-101. Scaffolds liability. part, “scaffolding”means As used in this “scaffold”or a elevated temporarily platform supporting structure material, person, support used on construction site *4 term ladder equipment both. The includes a or other that is any route of the scaffold does not exclusive access to but include or equipment. other ladder other mobile construction (2) Employers safety employees practices shall follow industry commonly recognized in the construction as well safety laws. occupational and federal applicable state (3) provided negligence principles Subject comparative to the subcontractor, 1, 7, contractor, or 27, chapter part a Title site is a on a construction or constructs scaffold builder who uses scaffold, by any who uses the damages person sustained liable for immediate employer, or when employee a fellow except by negligence are caused damages subcontractor, in the or construction ofthe scaffold. or builder use by the injury negligent an caused use person If a dies from scaffold, may right or of a action survives construction by personal decedent’s heirs or prosecuted be and maintained representatives. chapter. to enforce It is Building inspector
50-77-106. deputy, or hereby building inspector, made the of the town, village state, any county, city, other authorities county attorney attorney, other case of through owner, person, of such failure necessary enforce the
chapter steps to take promptly, chapter. provisions of this Penalty violating any Any person for violation.
50-77-107. fined not less provisions foregoing of the sections shall be than or more than for each offense. $100 $200 that, 1997, split noteworthy It is as of codifiers (which encompassed fine original of the 1909 Scaffold both §5 enforce) statutes, separate thereby giving into rise two attorney's duty to argument building inspector/county seeking Act was not limited to enforce the of the Scaffold Act, §5; statutory 50-77-106 penalties. See 1909 Scaffold §§ (1997). in a scope their to narrow clauses restricting Rather than scheme, in their statutory read the relevant statutes courts will entireties; gives by the tools which to effect will courts 650, 94 417 U.S. S.Ct.
Legislature. Kokoszka v. Belford 2431, 2436, by statute on other superseded 41 L.Ed.2d Bozeman, 2001 MT grounds, Carlson v. ¶ Jr., al., 15; Eskridge, et Cases and William N. ¶ 2002). (3rd ed. This canon construction Legislation Materials on Eskridge, Jr., al., et Cases and William N. is the Whole Rule. 2002). (3rd ed. Legislation Materials on controversy court justiciable before present Parties must *5 160
can the issue, consider merits of an can question Court the justiciability any of controversy sua neither sponte because the United States the Constitution nor Montana Constitution has power Brown, nonjusticiable questions. Court the to decide Dennis v. 85, 8, 422, 8; 17, 2005 MT 326 Mont. P.3d see Roosevelt v. ¶ ¶ ¶ Revenue, 30, 47, Dept. 47, 240, 295, 1999 MT 293 Mont. 975 P.2d ¶ ¶ case, §50-77-101(3), (1997), 47. In this MCA and not ¶ 1999), (repealed liability addresses under the Scaffold Act. 50-77-101(3), (1997), Specifically, parties § lists three who are injuries by using liable for caused their in or negligence constructing contractor, subcontractor, the scaffold: “a [and] builder.” Under the alterius, canon expressio unius estexclusio we the interpret expression thing of one in a to imply statute the exclusion v. of another. State Good, 17, 378, 2004 323 Mont. 100 P.3d ¶ ¶ Clearly, Legislature did liability the not intend to impose town, “county, city, village,” Act, or under the Scaffold or it would have parties along contractors, subcontractors, listed those (Va. 1938), Tate Ogg builders. See v. 195 S.E. (deciding 496 horse, mule, cattle, statute to applying “any hog, sheep, goat” turkeys). not apply to interpretation comports This of the Act Scaffold with our
interpretation of the Scaffold Act in State ex rel. Falls National Great (1969), 344-45, Bank v. District Court 463 P.2d - (interpreting 330-31 the 1909 Act Scaffold codified at to §§69-1401 (1947)) (italics added), R.C.M. we where held: our view neither nor the of the language purpose Scaffold suggests any by legislature grant Act intention multiple workmen damages injured by remedies or granting one recovery against recovery landowner, against another general contractor, recovery against a third the subcontractor it using scaffolding, contrary so on ad infinitum. On language light is clear to us from the Act construed purpose legislature only intended make the injured by granting workman whole him the extent relief injuries against person, corporation damages firm involving direct and the use having immediate control work scaffolding. only having We those direct interpreted requiring Scaffold involving and immediate control of work the scaffold make Bank, injured Under Great Falls National because the workers whole. work, require the City had no control over the the statute did not make Keith whole. Falls interpreted that we Great The version delineating parties than specific less at liable Bank was even National interpreted the Scaffold Act 50-77-101(3), MCA but we § effective version parties delineated those nonetheless. have subcontractor, “contractor, [and] listed the February specifically (1997). 50-77-101(3), more version general If the Section builder.” firm person, Act limited to “the of the Scaffold involving the use of control of work having direct and immediate Bank, Falls 154 Mont. scaffolding,” concluded National as we Great specific version limits fortiori, at more subcontractor, recovery to and builder. *6 imposed liability City on the for arguing In that the Scaffold Act
¶18 In failing lobbyist to the dissent cites to statements. inspect, liability, League the such Montana Cities Towns concerned over (1997). successfully repeal for the An Act lobbied Removing Inspector Responsibility to Enforce the General Building the Safety; Repealing Construction Site Health and Section Provisions of 50-77-106, MCA; Providing Hearing an Immediate Date: Effective Labor, Leg., on on HB Before the House Comm. Bus. and 1999) (statement (Mont. Hanson, Alec p. Sess. 56th Jan. Towns); League Approved Apr. of Cities and Act proponent, say, to of the interpretations ch. Laws Needless an by legislative lobbyists binding appellate are not on court. law Furthermore, contrary protestations, question to the dissent’s the inspect. question Act to The imposed duty not whether the Scaffold is, assuming City duty inspect, the had a to violation of that even injuries to a duty give liability for worker? rise ¶19 [3] Assuming the City duty inspect the scaffold and duty, under Scaffold Act assuming it that Dukes’s claim the breached liability only on certain imposes fail the Scaffold Act must since (1997). 50-77-101(3), entities, This including not cities. Section that, earlier, the pointed the out holding is consistent with fact both the originally encompassed had one section that Scaffold Act The sentence monetary inspector’s duty and the to enforce. penalty attorney, acting through county inspector, requiring immediately after of the Scaffold followed to enforce fine must be read that context. Since establishment cities, questions impose liability on the Scaffold Act does not Act and inspect under had a whether ‘This negligent violating it se that are moot. per for whether was Court affirms a district court’s if results those results are correct even if the district court wrong Dennis, reached that result reason.” ¶6. Affirmed. ¶20 GRAY,
CHIEF JUSTICE JUSTICES WARNER MORRIS concur.
JUSTICE NELSON dissents. I from Opinion. dissent our deciding In this matter on the of a and an theory basis issue not Court, raised in by Court, the District not utilized the District and not raised appeahjusticiability/mootness-fchis on has Court turned case on head. its §50-77-101(3), liability While did limit for violations (the Act) Scaffolding contractor, to a subcontractor and
builder, the violation of the Act is not and never was what this case is case liability imposed about. This is about must which be on the (the City) by Missoula reason of building inspector’s negligent undisputedly faulty scaffolding failure to and enforce the issue here. Complaint, In by by her Amended Dukes claimed building inspector’s negligence failing
reason of the
The
inspect.
City defended on that
court
basis.
trial
ruled on
basis. The
appealed-twice-on
City’s
case was
basis.
involvement in this
negligent
about
was not
construction or use of
but
scaffolding,
about
negligent
require
failure
subcontractor and
with the
creating
builder
Act.
from
whole
the theory
justiciability/mootness
theory
cloth
defeat
*7
actually litigated,
just
wrong.
which the case was
Opinion
plain
our
is
the
in
of
actually litigated
We decided
issue
favor Dukes the first
¶25
Construction, Inc.,
time
appeal.
this case was on
Dukes v. Sirius
I).
I,
lengthy
316 Mont.
it had a and enforce the Act. moved dismiss litigation by claiming preempted duty. from that OSHA that itself that argument trial into bought court that I, I, appeal raising was filed that issue. Dukes motion. Dukes 1.¶ And, we reversed the decision of the District Court and remanded 3.¶ I, consistent with the proceedings-Dukes 70-supposedly for further Opinion. of the case which we established in our law of§50-77-106, Moreover, history repeal ofthe legislative (1997),1 League the Montana of Cities and demonstrates effected-elearly believed that repeal Towns-at whose behest was duty organization’s lobbyist That told imposed inspect. the statute Legislature “required city building inspectors go this law Apparently, it never occurred inspect out construction sites.” novel, theory-that this anyone-before this Court’s from-whole-cloth inception because 50-77- nonjusticiable § case was and moot from 101(3), Act to the (1997), limited for violations contractor, subcontractor and builder. initio, I, if our current In Dukes no existed ah MCA, provided: The 1997 version of hereby Building inspector chapter. It is made the to enforce town, any county, city, deputy, building inspector, or other authorities county attorney attorney, with village state, through in case of other chapter owner, person, failure of such promptly, chapter. necessary steps take to enforce Legislature. repealed by Sec. Ch. L. 1999. the 1999
This statute was
Opinion appears suggest, nothing then there was for OSHA to More if preempt. point, initio, to the there nowas ab 50-77-106, MCA, meaningless; then was it was pure surplusage § building not, because whether the inspector inspected ultimately all contractor’s; contrary, was the statute to the inspector why no all. That is precisely the Montana League got Legislature of Cities and Towns repeal MCA; the cities did not want to separate duty be stuck with the inspect. certainly We’ve made fools League out of Montana of Cities Legislature 50-77-106,
and Towns and the the repealing § (1997), not to the lawyers, Judge, mention the District and the of this Court that enough members were all dumb to waste their time and resources on I. I actually would reverse this on the issue that was litigated and, least, on appeal raised at the I very would remand for trial. I dissent.