*1 DVORAK, v. MATADOR ROGER Plaintiff/Appellant, foreign SERVICE, INC., corporation; and Koch Indus foreign Defendants/Respondents. tries, Inc., corporation, No. 85-568. July 1986. Submitted Aug. Decided 1986.
Rehearing
Dec.
Denied
Crowley Firm, Montana, Cashmore, Law Billings, Charles R. ar- gued, defendants/respondents.
MR. JUSTICE Opinion HARRISON delivered the of the Court. plaintiff-appellant brought injuries The this to recover action gas hydrogen he sustained he was when overcome sulfide preparing welding repairs. as he was a vacuum tank for The District granted summary judg- Court the defendants’ second motion for plaintiff appeals. ment. From that judgment order and We affirm.
In March plaintiff-appellant, Roger Dvorak (“Dvorak”), employed journeyman was as a welder at Inc. of Billings, repairs Montana. Beall truck tanks used for fabricates hauling gas as commodities such and oil. 4, 1981, defendant-respondent
On Com- March Matador Services pany, Inc., subsidiary Industries, defendant-respondent Koch repairs. delivered a vacuum The one tank truck Beall for truck at water, water, production time or other had oil salt and bot- hauled sediment, sulfide, highly tom all contaminated with toxic substance. Beall officials were aware that all trucks from the Willis- Basin, truck, ton including expected this could be to have hauled hydrogen sulfide contaminated matter. The record is also undis- puted generally that Beall officials were aware of the serious associated with sulfide.
When Beall received the truck from it followed its stan- procedures readying repair. placed dard truck on tanks for It a steam rack where it It then left outside to was steam cleaned. was foreman, overnight. following morning, cool March Beall’s Sanchez, explosimeter Israel tested the tank with an to determine any explosive present. determining gases were After safe, assigned tank was Sanchez Dvorak and an assistant to do necessary welding repairs. work, When Dvorak begin entered the tank to he discovered that it still contained a considerable amount of tar-like material and sediment, generally dirty. Fearing explosion that an still if began welding, would occur he Dvorak left the tank and com- plained entered the tank about its condition to Sanchez. Sanchez inspect in- himself to smells or it. He noticed no unusual dications the tank was unsafe so he “ordered” Dvorak and *3 scoop assistant to reenter the tank and the sediment from the bot- welding. tom before assistant to either Sanchez told Dvorak “go reenter the tank or down the road.” tank, began As he col- shoveling sludge Dvorak the out of the lapsed. into Dvorak’s assistant and several workers reached pulled the tank and out. was learned that Dvorak Dvorak It later exposed inju- had serious hydrogen been sulfide. Dvorak received exposure hydrogen ries as a result of his to the sulfide. against On March suit Matador and Dvorak filed alleged Koch. Dvorak liable under the intentional that Beall was Workers’, exception exclusivity provisions tort of Montana’s summary judgment Compensation was laws. Beall’s motion for subsequent appeal that granted January from on 1984. Dvorak’s judgment fully on the prejudice was dismissed with as settled merits. and Koch against
Dvorak stated two claims for relief (hereinafter “Matador”). al- The claim for relief defendants or first leged strictly engaging an ab- that the defendants were normally dangerous activity. claim for relief was Dvorak’s second First, negligence. Dvorak contended based on the several theories of responsible generally negligent that the conduct was for defendants’ injuries (primarily the were that defendants under special precautions when warn or advise Beall that sulfide). Second, dealing hydrogen with Dvorak contended that the peculiar inherently risks associated with sulfide make it an intrinsically dangerous activity, making thus the defendants vi- cariously wrongful liable Beall’s conduct.
The summary February judgment defendants moved for of 1984 argument based on the the sole cause of Dvorak’s injuries properly in failing Beall’s clean the sub- ject tank requiring to reenter the tank even with ac- tual knowledge of its Court unclean condition. District found existed, relating that a issue material of fact to whether Beall was danger presented by aware of gravity presence hy- drogen basis, tank. sulfide On that the court denied summary judgment. first defendants’ motion for
Following discovery, further the defendants renewed their motion summary judgment based on information which Be- showed that all had knowledge dangers hy- actual serious associated drogen sulfide. The granted District Court thereafter defend- ants’ summary judgment motion for concluded Beall’s knowledge potential sulfide’s rendered its con- duct the sole cause of Dvorak’s It is granting summary from the judgment of the de- favor fendants appeals. that Dvorak presents now following this Court: issues review
I. Did erroneously impose summary the District Court judgment on plaintiffs negligence claims?
A. Did the District in holding Court err as a matter law that the peculiar (inherently dangerous activity) exception risk to the inde- pendent contractor rule does not this case?
1. recognize peculiar exception? Does risk Montana employees protected Are of an under the peculiar exception? risk summary
B. erroneously impose judgment Did District Court *4 plaintiff’s general on the negligence claim when the record reflected disputed foreseeability regarding issues fact and causation? impose summary
II. erroneously judgment Did the District Court plaintiff’s liability abnormally dangerous on strict claim for an activity?
102 negligence claims
I. by noting at issue begins argument under this Dvorak employee Inc. Dvorak injured, an he was he was the time em independent contractor Beall was turn further notes that rule, law common ployed by defendant Matador. negligence follows, employer is not liable for the is that an Montana v. Har See, Storrusten independent contractor. wrongdoing or of an 525, are 464. there some rison 169 Mont. argues that very general rule. Dvorak important exceptions to this independent exceptions two common falls under activity (1) inherently dangerous peculiar risk or contractor rule: (2) negligence. doctrine; employer’s for his own summary Court, judgment, imposing the District Dvorak asserts “inherently dangerous ac recognize the does not held that Montana that, event, exception would not any tivity” exception employer’s own regard to the the facts of this case. With recognized the ex apparently exception, trial court basis. on that could not be liable ception held that Matador but in its conclusions. argues the trial court erred Dvorak exception, First, inherently dangerous regard This long recognized this doctrine. argues has that Montana performed to be basically provides where the acts doctrine nature, inherently dangerous are of an contractor injury vicariously resultant employer held will be independent contrac- wrongdoing of the caused in- peculiar risk or adopted the tor. To establish that Montana this Court’s activity exception, Dvorak directs herently dangerous Co., Construction Kemp v. Bechtel attention to the recent cases St.Rep. 1986) 1022 (Mont. 519,] P.2d 43 et al. 720 Mont. [221 1984), (Mont. Elevator Co. Cash v. Otis P.2d of inde- note, employees argues, that important
It is also inherently dangerous protected under pendent are contractors only to words, exception extends activity exception. In contractor. employees of an persons, also to third but Matador) (i.e. hires an activity, Beall) inherently dangerous (i.e. engage in an em- own injure the contractors negligent acts which will be liable for Kober Stepanek v. Kemp, Dvorak). See, supra, and (i.e. ployees St.Rep. 385. P.2d Construction inherently dangerous recognition of the light of Montana’s clear *5 activity exception, argues, only remaining Dvorak the issue is exception applies words, whether the In to this case. repairing by the hydro- and fabrication Beall of tanks which contain gen inherently sulfide contaminated dangerous matter is an thereby making vicariously negligence Matador liable for Beall’s wrongdoing. argues question Dvorak this issue is a of fact which can only by jury. asserts, be Consequently, determined Dvorak this case must be reversed and remanded for trial. argues
Dvorak exception the second to the rule that an em- ployer is not liable for the independent tortious acts of an contractor employer that if the negligent dealings himself in his own with independent contractor, give this can employer liability. rise to In case, primarily instant argues Dvorak that Matador’s conduct exception falls under this negligently because Matador failed to ad- vise or warn special precautions Beall when dealing with hydrogen sulfide. Dvorak igno- contends that Beall was rant of particular protections necessary reasonable against hy- drogen sulfide’s and that igno- Matador knew of Beall’s Thus, rance. reasonably it was foreseeable to Matador that a Beall (i.e. employee Dvorak) injured. would be theory Dvorak based his on Section 413 of the Torts. response issue, to Dvorak’s contentions under this Matador ar- gues it vicariously is not wrongful liable for Beall’s conduct. Mata- dor acknowledges appears there exceptions to be gen- several to the eral rule that an vicariously is not liable for the tortious acts agent of his if independent the latter is an contractor. The ex- ceptions (1) relied on inherently Dvorak are: activ- ity exception; (2) employer’s liability for his own exception. objective, notes, Matador is to establish that Beall was an employed by thereby contractor Matador making vicariously Matador liable for Beall’s tortious conduct under exceptions noted above. argues, Matador this whole argument line of simply begs question entirely point. misses agree. We agree
We with simply Matador that Beall agent not its in the proferred sense in which the liability doctrines and vicarious simply does not attach Working through to the instant case. the ex- ceptions is, therefore, contractor rule to no avail since the underlying agency relationship upon which vicarious liabil- ity rests does not exist. points
Matador provides out the rule principal (employer) that a acts of will not be liable for the tortious independent contractor, agent (employee) if the latter is an with case, however, exceptions. In certain limited the instant Matador ar- gues agent place. that Beall is not its the first Matador did not engage in Mata- Beall to undertake activities on behalf of Matador Rather, parties public generally. dor’s relations with third or the engaged perform Beall to tasks for not tasks perform which Matador had and was dele- undertaken to others gating simply principle agency to Beall. This is not an case and no applied. of vicarious can be agree simply attempts We to stretch to apply excep- point misapplication properly the cases which do *6 example, tions to the contractor rule. For such doc- (i.e. inherently dangerous activity exception) espe- trines the are cially prevalent clearly cases a subcontractor construction because agent (principal) purposes performing is an of the contractor agreed perform work which to for the owner the contractor had (third party). See, Kemp, supra inherently dangerous (although the activity exception ultimately to this fact situa- held not to tion). may very In arrangement, such an there well be a situation vicariously which the the subcon- contractor is liable for the acts of tractor, relationship though exists. even however, present case, relationships agency the the which form can the framework of the doctrines are absent. Matador vicariously wrongful not be liable for Beall’s conduct. note, argues, is not lia important
It is to Matador that it also theory, any associ general negligence ble to Dvorak under not, exception ated with contractor rule or to the proximate cause of Dvorak’s because Beall’s conduct was the sole presence and injuries. since Beall knew of the Matador asserts that tank, responsibil sulfide in the had the ity entry, adequately to do prior employee to clean the tank to failed so, despite protests and then ordered Dvorak into the tank unsafe, Beall, is liable and not the tank was unclean and came to this injuries. Matador notes the District Court summary judgment. We granted its motion for same conclusion and agree. theory, points out that Dvorak under a injuries basically arguing are liable for that the defendants advising care
because Matador failed to exercise reasonable dealing warning special precautions were when Beall that assuming sulfide. Even Matador owed such a to (which questionable), highly Beall at all and then breached such duty, clearly conduct, the law and facts establish that Beall’s conduct, proximate not Matador’s was the cause of Dvorak’s injuries. Corp. v. & of Rost C.F. I. Steel strongly relies on the case to establish that Beall’s The Rost case
conduct was the cause of Dvorak’s products liability was a against action the manufacturer of eleva- injuries tor frayed cable for sustained when and torn cable broke Rost case and the plaintiffs elevator fell. The settled their dispute against proceeded against the store owner and trial to cable theory manufacturer on the defendant failed warn the store owner of the dangerous affirming jury use of the cable. In manufacturer, verdict favor of the cable this Court found that negligent cause of the accident was the conduct of the failing store owner in to properly inspect maintain and the cable and part failure to warn on the manufacturer. Court conduct, law, characterized the store owner’s as a as the matter superseding intervening “operative leading force or conduct” plaintiff’s injuries. of the Rost case
We find analogous circumstances are circumstances injuries instant case. Dvorak’s be- occurred tank, Beall expected required did not clean the as it was do, and then forced Dvorak tank un- to enter the even after the clean brought conditions had been attention of Dvorak’s fore- man. grossly We find negligent without Beall’s conduct the accident *7 and, therefore, would not have occurred Beall’s conduct was “operative conduct” or superseding force which intervened as the proximate cause of A injuries. warning Dvorak’s from Matador (if Beall hydrogen as to the risks of at sulfide such a existed all) avail, consequently, would have been to a failure to warn no not proximate could have been the cause of accident. liability II. Dvorak’s strict claim above,
In addition to the claims mentioned Dvorak’s complaint upon against also a strict included claim Matador based liability activity. abnormally dangerous for in engaging an Shell points this Court Matkovic v. Oil Co. out in recently the the- addressed ory liability involving abnormally dangerous of ac- strict cases 519 of the Restate-
tivity. Matkovic this Court adopted Section (Second) basically holds that ment Torts “[o]ne of liability activity abnormally is dangerous carries on an activity, al- person resulting of from the harm to the ... another prevent the harm.” though utmost care to he has exercised the Matkovic, addition, listed numerous P.2d at 3-4. In this Court of the adopted from factors Section 520 of abnormally Torts to determine whether a particular dangerous. Matkovic, argues, now consistent with the law embodied transport storage of sulfide contaminated
that activity, abnormally thereby materials Matador is an injuries. strictly Dvorak further as- making Matador liable storage hydrogen sul- handling serts of this issue of whether the abnormally dangerous activity is a fide matter contaminated jury. question of for the fact this issue create a acknowledge allegations
We under that Dvorak’s sul- handling superficial as to factual issue activity. abnormally dangerous is an fide contaminated materials Court, jury find, if a could the District that even we as did abnormally dangerous, have found that activities Matador’s proxi- it can not be liable event because was injuries. mate of Dvorak’s cause showing proxi a previously that
This Court
established
recovery in
any plaintiff’s
mate cause
element
Manufacturing Co.
Brown v. North American
liability.
strict
Therefore,
for Dvorak to estab
176 Mont.
mary judgment in repeatedly favor of Matador. This Court plaintiff summary stated “that a is subject judgment if in to he fails establishing (or certain material in a elements action” matter). Scott v. (1979), cause of action for that Robson Mont. Kyger 1154; see also Pickett v. 597 P.2d general applies 57. This rule instant case. regard I,
With to his negligence claims under issue Dvorak failed to principles establish the agency necessary basic law to hold Mata- vicariously dor Further, wrongful Beall’s conduct. even under a negligence theory can not be held liable Dvorak because Dvorak failed to establish that Matador was the (This injuries. assuming is even duty owed a to Beall place.) the first Finally, regard II, to his strict claim under issue Dvorak failed to prima establish a facie case for this cause of action. explained above, As opinion failed, again, once show that there was a causal connection between Mata- dor’s conduct and his
We hold because Dvorak failed establish the elements action, summary judgment stated causes of appropriately granted in favor of Matador. granting
The order of the summary judgment District Court affirmed. WEBER,
MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES SHEEHY and GULBRANDSON concur. MORRISON, part dissenting
MR. JUSTICE concurring part:
I specially part. in part concur and dissent Koch, presents Plaintiff as owners three theories: Matador and contractor, employed the services of an should be persons injured liable to con- nondelegable to be tractor because the on basis en- inherently dangerous. 2. Koch were performed was Matador and *9 activity, transporting and conducting gaged in an ultra hazardous resulting sulfide, injury storing hydrogen for and should be liable liability. 3. Matador and Koch on the basis of strict therefrom contractor, Beall its independent and negligent failing in to warn the in hydrogen and employees, dangerous propensities of sulfide expos- dangerous highly to in a condition delivering the truck Beall harm. ing employees to unreasonable risk of Beall’s and summary judgment on the first two theories I would affirm involving direct defendants’ remand for trial on the third issue negligence. (Mont. Kemp v. Co.
In Bechtel Construction recent case of 1986), 270, 1022, 519,] St.Rep. recognized we P.2d 43 Mont. 720 [221 of negligence that an be liable for the owner can to employs contractor contractor where the owner inherently Kemp majority engage dangerous activity. In in an inherently cir- trenching dangerous under the found that was not of that case. cumstances con- Kemp premised upon in that the owner rule fact safety place delegate responsi- in cannot
trols the work and bility effectively insulating the owner thereby ato subcontractor However, case, liability. in control of the from in this Matador is not truck, place. in which personalty, work owns the form of servicing. no Matador has is taken to an way performed place work is right nor to enter the work control Therefore, premises. on the it make no sense extend would Kemp I affirm sum- to the Matador circumstance. would rationale mary non-delegable judgment in favor and Koch on the of Matador duty theory. Matkovic v. Shell Oil Co. the recent case of [218 156,] St.Rep. held that strict
Mont. P.2d we activity. I conducting believe attached for an ultra hazardous was applicable at issue the Matkovic rule is not here. The Again, I being not would conducted Beall and defendants. summary judgment affirm on this count. Koch alleges of negligence
Plaintiff direct on behalf Matador sulfide propensities in failure to warn of the an unreasona- cleaning presented delivering for truck claim working the truck's tank. This ble risk harm those inside majority Apparently the go should forward factual resolution. there feels issue on but finds the action plaintiff’s employer, superseding majority be a cause. The alludes “proximate case.” multiple pertinent
This case in- involves causes. quiry is whether the defendants’ was a substantial conduct factor cause, cause, producing plaintiff’s injuries. Legal Kyriss (Mont. v. State 1985), Montana test. Beall, acting through supervisory personnel, may its well have been negligent directing plaintiff containing to enter the tank sulfide. if negligent Koch were failing to danger, given advise of the extreme the amount of sedi- they tank, ment knew negligence may have con- causation, curred with the question of Beall. The proper legal instructions, under jury. is for a This case should be reversed and remanded trial on the direct negligence claim. *10 HUNT,
MR. JUSTICE dissenting: This of action should be reversed and remanded trial the Appellant District Court. Dvorak has stated a claim for which may granted relief questions be only and of fact which exist can be by resolved trial.
Appellant legal by asserts three respondents theories which Mata- may dor and Koch be All held liable for his three theories rely on recognized exceptions employers rule that of independent injury by contractors are not in- caused those dependent discussing theory contractors. liability, Before each of it is necessary relationship to examine the between Beall and subsidiary the of Koch.
I agree majority with the acting agent that Beall of as an agency Matador. An relationship from “results the manifestation of by person consent one to another that the other shall on be act subject control, to half and by the act. and consent other to State v. Holdren (1963), 109, 446, 103, 449, 143 cit Mont. 387 P.2d ing Restatement, Holdren). 1 Agency, (Emphasis 1 No Section alleged where the is it employed record Beall act that Matador to Rather, on its or subject behalf to control. Matador did Matador’s any right operation. not have to control the details of Beall’s There Sharp fore Beall must be an See considered contractor. v. 419, Corporation Hoerner (1978), 424, 584 178 Mont. Waldorf Ferguson (1974), ex v. District Court 1302; State rel. 1298,
P.2d 151, 88, 84, Mont. 519 P.2d 153. by appel- liability
I now of the turn to the three theories asserted appellant argues lant. and Koch are liable be- First that Matador trucks, cleaning are contaminated cause Beall’s work which often v. In Matkovic sulfide, abnormally dangerous. with 4, 2, Company Shell Oil question Fed- replied from the we to certified liability prin- eral Court for Montana. We stated that strict District holding, we ciples apply abnormally dangerous in an situation. In so Torts in Restatement adopted the set forth standard (1976). The Restatement also treats the issue of abnor- Section mally dangerous by on contractor. activities carried A. states: Section 427 of the do work which employs “One contractor to who abnormally to to employer the knows or has reason know involve extent liability to same dangerous activity, as to by activity.” physical harm others caused to 427A reader to Sections 419-524A Comment a to Section refers the employer indepen “to determine the of both the liability is employer dent The rationale for this rule contractor.” cri employer An meets the stated in Section 427A comment b. responsi permitted escape the teria of Section be 427A “cannot bility activity which danger created for the abnormal [the motion, delegate responsibil employer] set in so cannot ity language This resulting to the contractor.” harm others may that an longstanding harmonizes well with our rule person operation property not “set in causes primary he owes others . . . divest himself of the [and then] community contracting others for members work, performance probable result Mtge. v. & War A.M. Holter Co. Western persons.” injury to third ranty Co. 149 P. 51 Mont. *11 be majority’s
I that “Matador cannot disagree with conclusion of has cause liable in because it event only in applicable a direct injuries.” is Proximate causation liability. action, negligence not in the area of strict may granted. be relief Appellant of action which states a cause Beall’s activities theory, jury whether On this should determine rea- knew or had abnormally dangerous and whether danger. son to know about the abnormal
Ill in Matkovic sets forth the factors to be considered opinion Our jury determining activity abnormally danger whether an Matkovic, 4, 148, Restatement St.Rep. ous. 707 P.2d citing at at (Second) (1976). Next, Torts appellant Section 520 asserts that of exception non-liability employers another rule of of of applies Again, ap contractors to the facts of this case. pellant relies on Montana exception cases reflect the found in (Second) 427, (1976). Restatement Sections 416 and Torts Mon of long tana recognized employ independent that those who con “inherently dangerous” activity, tractors to undertake in primarily volving “peculiar risks” growing are liable for harm of out (Mont. Kemp v. Bechtel dangers. 1986), inherent See 270, (Morrison, Hunt, 720 P.2d 1029-1034 JJ. Schweiger (1932), Ulmen v. dissenting) 331, 247, 92 Mont. 856, 857; Shope City Billings (1929), v. 826; 85 Mont. 278 P. of Mtge. AM. v. Warranty Holter Co. Western & Co. 51 Mont. 149 P. imposes liability
This rule upon employers for “the failure of the (Second) to exercise reasonable care.” Restatement Torts Section at 395. the contractor’s negligence can- not be employer’s liability held cut off simply because that is the sole injury. very It negligence of the Again contractor which makes the liable. this vicarious exists policy because Montana’s is not to let those who set in escape liability. motion activities And again, theory this jury calls for determination of the factual issue of shoveling sediment from trucks used the Williston Basin inherently dangerous particular or involves risks.
Finally appellant upon theory also relies a direct to hold Matador and Koch liable for his The first two theories despite would hold any neg- Matador and Koch liable absence of ligence upon part. argument, appellant their In this third contends directly negligent exercising Matador was in not reasonable provide precautions care to pecu- that Beall take avoid liar theory Again unreasonable risks inherent the work. this Torts, reflects the time this Section 413. That recognizes employers section contractors right do not have the to control the details of the contractor’s work. employers, by experience, where the knowledge and realize inherently dangerous, that the employers work is have a due setting simplest way care in exer- that work in motion. The *12 112 precautions the con- provide preventative that care is to
cise 413(a) independent contractor. Section tract with the realizes, (1976). forming employer after Torts contract, prevent those dangers should act to have arisen Again, a 413 comment d. causing injury. See Section from experience, knowl- Matador’s jury the extent of should determine the acts of danger and evaluate edge, of unreasonable and awareness prevail appellant to against of due care. For that standard course, must, action, jury theory, on this third act, appel- actions, proximately caused failure to find Matador’s injury. lant’s the Re majority position that
Finally, disagree I must non-liability exceptions rule of statement sampling simply I cite a apply only in the construction context. the construc applied outside cases where these sections have been 1974), Kirkpatrick (Tex.App. 514 Pipeline Co. v. Sun tion area. Tug easement); Trexler v. along an (spraying defoliant S.W.2d 789 (E.D.Va. 1968) (gasoline being 444 dis F.Supp. Raven Oakland McDonald v. barge); charged storage into tanks from a (1967) 816, Cal.Rptr. (painting a water tank Cal.App.2d paint). with volatile 427A policy Sections long as the behind the
As every negli- remembered, suddenly liable for employers be will not These theo- employed them. gent act of contractors which are activities apply only employers set motion ries where policy is long-standing inherently dangerous and where Montana’s any resulting liable initiator of activities to hold the for trial. injury. I would reverse and remand