*1
KEMP,
Appellant,
DAVID L.
v. BECHTEL
Plaintiff
Corpora-
COMPANY;
CONSTRUCTION
Bechtel
Power
corpora-
tion;
Spring,
Associates,
Christian
Sielbach and
Respondents.
tion,
al.,
et
Defendants
No. 85-42.
Submitted Jan.
1986.
Decided June
1986.
Rehearing
July 15,
Denied
Kelly argued, & Billings, Patrick Prindle plaintiff appellant.
Anderson, Brown, Gerbase, Jones, L. ar- Cebull & James Jones gued, Billings, & for Bechtel Montana Power.
Crowley, Hanson, Dietrich, Haughey, Bronson Toole & William O. Christian, argued, Billings & Spring, Sielbach Associates. Sidney Thomas, Billings, respondents. R. for defendants Opinion MR. CHIEF JUSTICE delivered the TURNAGE Court. appeal summary judg-
This is an granting from District Court’s Christian, ment personal favor of defendants case. Spring, (Christian) & litigated Sielbach Associates have this matter separate Company from the other defendants. Bechtel Construction *3 by stipulation. was dismissed from the lawsuit Bechtel Power Cor- poration, Company, Puget Light Montana Power Sound Power and Company, Company, Washington Portland General Electric Water Company Power Light Company and liti- Pacific Power and have gated together this party matter as one which will referred to be collectively “companies” dealings except as where the individual important. the entities are
We affirm the District Court on all issues. significant companies involving issue is whether companies, owner, as contractor and had a duty rendering employee reserved them liable to an of a subcontrac involving tor. The Chris issue we considered Christian is whether duty safety project engineer encompassed tian’s status a as breached, other If subcontractors. there was no owed or there summary judgment granting can be no issues of material fact and Rennick v. Hoover appropriate. was 186 Mont. 1079, 1081; see also Scott v. Robson
P.2d P.2d 1150. parties arrangement relevant facts concern the contractual project trenching
on a accident. construction and the details of a contract arrangements prescribed The contractual Bechtel’s (MPC), with Company Christian’s contract with Montana Power (COP) Bech- MPC, Company’s contract with COP and Construction development expansion of and with MPC for tel. Bechtel contracted property Colstrip, Montana. Chris- a townsite on some of MPC’s subsequently employed by project engineer. COP tian MPC as putting in a which included subcontracted with Bechtel for work sewer line for the townsite. Bechtel addresses provision MPC and
No in the contract between sets out these safety. with Bechtel Section GC-25 of COP’s contract parties’ safety duties:
“GC-25 SAFETY operations under the times conduct all
“Subcontractor shall at all persons bodily harm to the risk of Subcontract a manner to avoid promptly property. shall damage any Subcontractor or risk of any necessary adequate against and take all which are persons or a risk of bodily harm to conditions which involve a risk of continuously inspect any property. shall damage to Subcontractor any equipment and determine to discover all materials discovery, deter- solely responsible for such shall be conditions and any such conditions. mination and correction Program. Safety Subcontractor Project “Contractor will establish laws, regulations and standards comply applicable shall with all shall coordinate with Safety Program. Subcontractor Project comply promptly safety shall matters and other subcontractors on Subcon- given to any specific safety instructions or directions Safety shall submit written tractor Contractor. Subcontractor performed, work to Program, with the be with detail commensurate approval not relieve shall for Contractor’s review. Such review ap- Safety, responsibility nor shall Subcontractor its obli- any Subcontractor’s proval limiting in manner be construed as required necessary or any may gation action which be to undertake site. Sub- working at the conditions to establish and maintain safe who, un- Safety Representative appoint qualified contractor shall herein, Such have no other duties. provided shall less otherwise Safety meetings and project Safety Representative all shall attend Safety Project fully *4 participate in all activities outlined Program. reports and accurate accident
“Subcontractor shall maintain summary injuries and monthly and shall furnish Contractor injuries. man-hours lost due to meetings to instruct regular scheduled shall hold
“Subcontractor the Pro- requirements of Safety practices and the personnel its on Safety equipment ject shall furnish Safety Program. Subcontractor by employees.” equipment its and enforce the use of Bech- and in between Christian 2.h 2.i the contract Provisions and phase during responsibilities the construction tel set out Christian’s project: “(2.h.) layout; staking surveying and of construction “(2.i) administration, coordination, inspection of observation and monitor- purposes quality assurance and cost construction for the informing ing obligation promptly the Owner with the [MPC] part perform work all failures on the of construction contractors to plans specifications in applicable accordance or to accom- schedules, plish contract as well as inform- work accordance with plans ing apparent in the the Owner of conflicts or omissions specifications they in the course of a contractor’s as are discovered work.” provision safety.
No in this contract addresses employed by Colstrip project Plaintiff was COP as a laborer at the Nikula, on working November 1979. He with Ron a backhoe was operator, placement digging a ditch for of a sewer line for a trailer previously dug court. The ditch been an area that had purposes. personnel supervised opera- trenched other COP digging Kemp tions. Nikula was followed the ditch with a backhoe. shovel, cleaning backhoe with a the bottom of the ditch and checking being dug grade. see To check the that the ditch was grade, Kemp compared mark on his shovel handle with the level of a supervisor. a laser also stakes set at beam set a COP There were regular along specifications which the intervals the ditch with diggers could double check the laser. They dug
Kemp began digging a.m. had and Nikula about 8:30 grade of -foot-deep ground to 200 feet of 4V& ditch over flat when the began abruptly. plans specified a ditch that terrain to rise had 4V2-feet-deep. never exceeded no one from COP changing terrain as changed setting adjust of the laser for the responsibility. the laser so diggers was their continued to follow dug deepened rapidly. By had been trench 10:30 a.m. the trench deep. During another this time length 50 to 75 feet and was 9-feet deep. becoming dangerously diggers realized that trench was (a They “cage” put in trenches also that a trench that is knew box cave-ins) protect job site. How- digger from was available on ever, they digging the trench box. chose to continue without *5 meantime,
In the portion Nikula back-tracked over a of the ditch dig deeper to it guide. conform with the laser Nikula believes this back-tracking may have fractured the dirt and the contributed to point back-tracked, eventual cave-in. At the where the backhoe had in, the burying Kemp dirt caved causing to his neck the and upon which this action is based. companies
Plaintiff Discovery sued the and Christian. was com- by parties. companies menced all the failed a motion for sum- mary judgment May in Appellant opposition 1984. filed a in brief companies’ the summary judg- motion. Christian filed its motion for September ment in opposition 1984. No briefs or affidavits in Christian’s motion were granted filed. The District Court both mo- summary tions for judgment hearing without in December and appeal this ensued.
Appellant (1) companies contends the upon are liable to him based (2) nondelegable contract, in nondelegable duties the arising duties inherently from dangerous peculiar the by nature of or risk created (3) the control over the subcontractor’s work that contrac- (4) subcontract, tor reserved in the the “Safe Place to Work Statute,” 50-71-201, general Section MCA. We will follow this for- inmat our involving companies. discussion of the issues A dis- involving cussion duty Christian’s will follow.
NONDELEGABLE DUTY BASED ON CONTRACT general
Montana follows the rule that “absent some form of con- trol over the operation, general subcontractor’s method of con- tractor and project owner of the construction inju- are not liable for employees.” ries to the subcontractor’s Shannon v. Howard S. Wright Construction Co. 181 Mont. 593 P.2d 441. recognized we exceptions gen- one of several to this eral rule nondelegable by where duties are created contract. (Mont. Stepanek v. Kober 1981), St.Rep. Ap- 625 P.2d pellant argues that duties were created contract companies here so as to render the liable. Stepanek,
In nondelegable duty subjected gen which employee eral contractor to an of a subcontractor was provision created general general contract between the County. Specifically, provision contractor and Yellowstone re quired general “responsible initiating, contractor to be main taining, safety supervising programs” all con provision construction. We held that in a nected with this resulted by provision delegated subcontractor duty not be that could safety responsibilities purports to shift the subcontract which general con- provision in the There is no similar subcontractor. fact, In there is in the instant case. tract MPC and Bechtel between Therefore, nondelegable safety general provision no contract. apply. on contract does not based DANGER- NONDELEGABLE DUTY BASED ON INHERENTLY OUS NATURE OF THE WORK may employee
A contractor also owe the of a subcon “inherently nondelegable duty safety tractor a the work is where Schwieger Ulmen v. dangerous.” 12 P.2d *6 See appellant requests adopt 856. On 416 and this issue us to Sections Torts, 2d: Special Dangerous “Section 416. Work in Absence of Precautions employs “One which independent who an contractor to do work employer recognize likely during progress its should as to create peculiar physical precautions special a risk of unless harm to others taken, subject liability physical is them to harm caused to the failure of the contractor exercise care to take such to reasonable precautions, provided pre- though employer even has for such cautions in the contract or otherwise. Negligence Danger
“Section 427. as Inherent in the Work employs involving “One who an contractor to do work special danger a to others knows or has reason which to know he con- to be inherent or normal or which contract, templates contemplate making the or has reason to when subject physical harm caused to such others precautions against contractor’s failure to take reasonable danger.” Restatement, which
We in the note Comment a to Section 416 represent dif- states: “The two rules 416 and Section [Section 427] ferent . . .” We will thus consider forms of the same rules application together. their interpreted Section 416 Supreme Dakota has Court of North dug depth of six respect a sewer trench to a
and Section 427 with
Valley, North Da-
City
Golden
soil. See Peterson
sandy
feet in
Peterson,
employee
kota
(N.D.1981),
In
an
The OSHA manual and operator sloping the backhoe using establish that or a trench box during trenching Moreover, procedure. is standard the subcontract specifically required the subcontractor to use standard regulations. and follow diggers occurred after the failed they to use a trench box that knew was available. Sections 416 and applicable. companies 427 are thus not We hold that the had no nondelegable duty danger peculiar excep under the inherent risk nonliability tion to the rule.
CONTROL THE RESERVED IN SUBCONTRACT
Appellant companies’ also contends that the control over the companies subcontractor Restate renders the liable. Section *7 Torts, 2d, duty general ment defines the of a contractor or owner of when control over the subcontractor is retained: by Negligence Exercising
“Section 414. Control Retained Employer contractor,
“One who entrusts work to an but who re- any part liability tains the subject control of of the is to physical duty safety harm to others for whose the owes a care, by to exercise reasonable which is caused his failure to exercise his control with reasonable care.”
Thus, general duty the contractor’s is care. He is one of reasonable vicariously negligence not liable for this the subcontractor’s under exception nonliability control to of contractors and owners. Here, by companies a the subcontract the were to establish safety project program. day-to-day im- no control over the companies. plementation safety program reserved the of the responsibility implementation places for on-site The subcontract subcontractor, COP. safety safety program job and on of the only Thus, companies’ duty under extended Section safety is no that this program. There evidence establishment duty was breached. care in companies’ duty its establish- to exercise reasonable safety program specifically is defined within
ment of the more 50-71-201, MCA, Statute, Section Montana Safe Place to Work which states: employment
“Every employer place of which safe shall furnish require the use employees therein and shall furnish and use and safety use such safeguards adopt shall and devices and and practices, means, methods, operations, processes and as are reasona- bly adequate place employment shall do to render the safe and every thing reasonably necessary protect safety other to the life and employees.” case, applying
In the statute the instant we find that companies duty require and procedures had COP to use safe steps procedures take reasonable ensure followed. those were duty require constantly Such a a general does not contractor Only each constant su oversee individual task the subcontractor. pervision prevented could have this accident. companies undisputed
The record that re is clear safety precautions comply regulations. quired COP to use companies daily spot checks and monitored re utilized ports safely. proceeding We find to make sure the construction was companies complied duty care. with their of reasonable summary,
In appellant has failed to establish vicarious duty duty on control. based on or breach of a based summary judgment We therefore affirm District order Court’s companies. in favor of the
PROJECT DUTY ENGINEER’S summary Appellant, judgment.
We will now consider Christian’s here Court despite ample opportunity District level at the evidence to appeal, presented legal arguments or factual has no no had that Christian counter the District Court’s conclusion is in record and does safety. contract with MPC Christian’s safety. not address supported Court’s deci- this
The District Court’s conclusion is *8 Associates, Stanley Thill and Inc. sion in Wells J. Wells, City Belt contracted with
Mon.
Our by subsequent changes in Montana law on contractor duties altered Stepanek, employees supra. will not of subcontractors. See We holding alter the now. Because the District Court's conclusion law, supported by we affirm. substantial evidence and Montana summary judgment in favor of granting The District Court’s order companies Christian and the is affirmed. HARRISON,
MR. JUSTICES WEBER and GULBRANDSON concur. HUNT, part: concurring part dissenting
MR. JUSTICE portion majority’s opinion dealing I concur with the in reserved for the rea- duties based control. sons I Court and remand for stated below would reverse the District trial. 427, majority’s
The 416 and construction Sections (Second) (1981) Torts major- renders those sections aimless. ity sloping support regulations notes that OSHA call for or prevent caving in and sides of trenches the trench walls from causing injury majority From this the concludes that to workers. digging inherently dangerous trench boxes trench is not because necessary sloping usually prevent injury. If to avoid injury scope 416 and what were excluded from the of Sections in- employer of an interpretation would be no left? On this kind any negligence dependent be liable for act of contractor would ever reading precautions against risks. This failing to take inherent rely any purpose. may well strips those sections them We as employers con- the common law rule that negli- tractors caused the contractors’ are not liable general rule exceptions to that analyze gence, need to without in Sections 416 and embodied Supreme Dakota of the North majority relies on the decision *9 (N.D.1981). Valley N.W.2d 308 City v. Golden in Peterson
Court in- that 550, sections. interpretation of those ground to its and to the Restatement contrary comments to terpretation is to the majority of state by the interpretation given sections those courts, by previous cases. this Court (Second) general Torts states the 408, Restatement Section is independent contractor employer an rule that the common law independent contractor. by the not liable for the harm caused v. Peate taken Bower many departures rule was first of from that (1876), multiplied so Q.B.D. exceptions the rule have 1 321. The to primar proper say the rule is now it would be to that “[i]ndeed exceptions.” Shan ily important preamble catalog of its as a to the 269, 275, 438, (1977), P.2d 441. Wright non v. 181 593 Mont. Pacific 500, (1937), 277 Kenny 201 Minn. Mfg. Fire Ins. Co. v. Boiler & Co. N.W. 226. catego exceptions three that the fall into
specific precaution . . . . . . commonly Section 427 is more [while] applied where danger involved the work calls for a number of possible hazards, as in blasting, the case of repainting or carried on upon a highway.” scaffold above the Chesapeake & Potomac Chesapeake 1981), Tel. v. (Del.Super. Util. 314, 326, (Second) 436 quoting A.2d (1981), Retatement Torts at of 395. “peculiar The terms “special precautions” may risk” and lead the reader subject to believe the atypical of these sections is an or heightened risk extraordinary which would precautions. necessitate “ out, However the point ‘[p]eculiar’ comments to the Restatement does not mean that the risk must be one which is abnormal to the type done, of work or that abnormally great it must mean an risk. It has only special, reference recognizable to a danger arising out of the work itself . . . arising particular created, out of the situation calling special precautions.” (Second) Torts of (1981), 396, 385-86, at Comment b and Comment b. See also Castro (1981), v. State Cal.App.3d 503, 510-511, 734, 114 Cal.Rptr. 738; 170 (1979), Griesel v. Dart 578, 213, Industries Cal.Rptr. 23 Cal.3d 153 217, 503, 507; Regal (1979), 591 P.2d Aceves v. Pale Brew. 24 Co. 502, 41, 44, Cal.3d Cal.Rptr. 619, 622; 156 595 P.2d v. Inter- Smith (Mo. County Telephone 1977), 518, Co. 559 S.W.2d 522. clearly illustrations to “special Sections 416 and 427 indicate
531 precautions” precautions specially deigned means to counter the risk, extraordinary precautions. Among special precautions not those necessitated portrayed inherent risks of work situations excavation, up illustrations are a fence shoring around an a com- demolished, mon wall between two being houses when one house is restraining paint bucket so that it does not fall from scaffold- ing. ordinary These reasonably in the sense that a cautious contractor “special” would take them. What is about them particular is that the arising situation out of the work itself calls for precautions specially designed to counter inherent risks.
There
negligence by
are two kinds of
a contractor which will not be
employer
First,
ascribed to the
under Sections 416 and 427.
a risk
by negligently
“normal,
created
undertaking a
routine matter of cus
tomary
activity”
to,
human
peculiar
is not a risk
“arising
that is
out
particular
of the
by,
situations created”
the work itself. Restatement
(Second)
(1981),
385;
Industries,
Torts
at
Griesel v. Dart
Inc.
(1979),
213, 217,
Cal.Rptr.
23 Cal.3d
153
Finally, there is one more section in the Restatement which de- serves category exceptions attention. Section 413 falls the first to the employer nonliability. excep- rule of category That tions relating are those “[n]egligence in se- lecting, instructing, supervising the contractor.” Restatement (Second) places duty upon Torts at 371. Section 413 *11 employer provide taking precautions against for the of the dan- gers in involved work entrusted to a contractor. The comments to way employer may provide
that section indicate that one the for the taking precautions by requiring is in the contract between the employer precautions and contractor that such be taken. While Sec- 416, tion they policy 413 is similar to Section are based on different grounds. places duty employer Section 413 a on the to exercise rea- 532 drafting in the contractual selecting in and
sonable care contractor discharge work. requirements placed that in his the contractor duty of care the is on the existence of a owed Section 416 based (1981), 114 plaintiff. Castro v. State public particular or the 734, f Cal.App.3d Cal.Rptr. Comment to Section 170 737. done points under work is 413 out the “fact the contract which special necessary precau provides that the contractor take the shall necessarily liability, since not the from tions does relieve may he liable under the stated in Section 416.” be rule 331, (Second) (1981), (1932), Torts at 92 Mont. 386. Ulmen Cf. 347, 856, spells out the cru P.2d 860. Comment c to Section cial difference the two sections: employs
“Section 416
the
of one who
a contrac-
deals with
work,
in a
though
stipulates
do
he
his contract or
tor to
even
that the
contract with another
contractor
taken,
bodily
by
negligent
shall be
harm caused
failure
precautions.”
either contractor to take such
op
long recognized
employer may not
Montana has
that an
“set
. . .
person
property
of others
dangerous
eration causes
and
primary
owes
other
divest himself of the
he
[and then]
community
per
by contracting
members
with others
probable
in
necessary and
of which is
formance of
result
Mtge. &
jury
persons.”
A.M. Hotter Co. v. Western
War
third
99,
489,
Fagan v.
ranty
94,
149 P.
also
Co.
51 Mont.
490. See
900,
In
Silver
188 P.
such a case
party authorizing
justly regarded
work
as the author
it,
lets
resulting
mischief
he does the work himself or
from whether
Shope, Mont.
In A.M. Hotter Co. Western Mortgage to 94, 149 P. hired Western Mont. contractor
533 building. The atop the repair roofing materials negligently a roof left damage a caused wind these materials off the roof and blew affirmed, found, that nearby building. jury and this Court guard “failing anticipate and Mortgage was liable for Western neces- consequences” taking precautions against probable of not A. M. sary prevent being roof. the materials from blown off the Holter, 94, 99, 489, 149 P. 51 Mont. 856, Schwieger (1932), 331, 12 v. P.2d Ulmen
Similarly in
92 Mont.
cementing
culvert
jury
involving digging
a
found work
inherently dangerous. In
the subcontrac
highway
across a
that case
Ulmén
negligently
place
signs
tor
and barriers and
failed to
detour
speed
at a
reasonable for
injured
driving
over the culvert
highway
against
In
con
affirming
judgment
travel.
noted,
employed
negligent
tractor who
this Court
subcontractor
adequate
“The erection and
barriers and detour
maintenance
signs
public
very thing
pre
traveling
to warn the
was the
that would
Mont,
Ulmen,
dangerous.”
92
being intrinsically
vent the work from
346,
my position
jury
12
find
P.2d at 859. It is
that a
could well
box,
sloping
frequent
on
that the use of
or a trench
as well as
checks
trench,
very things
marking
grade
the laser
were the
that
Bar
prevented
digging.
would have
inherent
in trench
See
risks
ron
(D.
1979),
v. United States
F.Supp.
Hawaii
473
Aff’d.
(9th
644;
part;
relevant
Barron v.
States
Cir.1981),
United
654 F.2d
(Mo. 1977),
Inter-County Telephone
518;
Smith
Co.
559 S.W.2d
Industries,
(1979),
Griesel v. Dart
Inc.
Cal.Rptr.
23 Cal.3d
153
Engineers,
(1980),
Heath v. Huth
Inc.
503;
591
279
P.2d
(all
Pa.Super.90,
trench-digging
Yet there one of law which would have to be prior to the before the case could be remanded for trial. Case law nondelegable adoption of the 1972 Montana Constitution held that employees a contractor only parties duties ran to third and not v. District State ex Great Falls Nat’l Bank rel. or subcontractor. II, Court Art. Section P.2d 326. 463 redress, legal guarantees 16 full of the Montana Constitution employ- compensation exception of fellow workers’ for the (Mont. employers. Stepanek v. Kober Constr. ees and immediate In 385, 396, 1981), St.Rep. held that this consti- P.2d we duty based in con- provision nondelegable that a tutional mandated to that tract an of an contractor did run from I Montana Con- employees. language see no contractor’s can legal creating exception right stitution full redress rid- an nondelegable duty ing on based inherent a distinction between nondelegable duty risks in contract. and a based Company and Therefore I would the Montana Power hold if, running appellant Kemp Bechtel have duties *13 present. remand, were jury on the find that inherent risks would (Mont. 1984), Mydlarz Palmer Construction Co. [209 /Duncan 738, (Morrison, 325,] St.Rep. J. Mont. P.2d 751 in- jury I of whether dissenting). would remand for determination duty precautions present herent to take risks were and whether necessarily This would include breached. determination whether, involved, the facts the Montana Safe COP violated Statute, 50-71-201, Any Place to MCA. violation of Work Section this be Montana Power statute would attributable Bechtel and Company, jury trenching previously if also in trenched the finds the was, ground, inherently dangerous. in conducted the manner it GARY, Judge, sitting for MR. HONORABLE JOSEPH B. District SHEEHY, joins in HUNT. JUSTICE the dissent of MR. JUSTICE MORRISON, dissenting: MR. JUSTICE I very in concur the discussion of Mr. Justice Hunt con- learned I majority opinion. tained in add these his dissent to the filed comments. here, risk
Trenching ground, in involves inherent soft as was done precautions precautions unless The those certain are taken. fact that application necessary risk does eliminate the not avoid “nondelegable duty”.
Trenching imposing involves risk inherent upon principals then become the owner and contractor. The Any COP, including negli- negligence liable the foremen. for the jury gence part plaintiff should the on the be submitted comparative negligence under statute. Schwieger Ulmen v. opinion, majority light
The 331, 12 same conclu Mont. P.2d be bound to come to the would except majority trenching to not be “work opinion sion finds obviously dangerous special precautions.” Trenching is dan- absent why special special precautions and that gerous in the absence of how the I a loss to understand were to be taken. am at Dakota except to follow the North majority comes to its conclusion major- position Supreme The as articulated Court. Montana Restatement and the decisions ity contrary illustrations runs trenching cases. nearly every jurisdiction has treated other which which trial under an instruction This case should be remanded for 416, nondelegable duty submits as defined Section (Second) (1981). Torts plaintiff and jury might find that the equally equally responsible for negligent COP’s foreman were plaintiff’s would become injuries. negligence of the foreman Company. negligence Power Under of Bechtel and Montana plaintiffs recovery these would be reduced circumstances his plaintiff remaining recover the 50% of 50% but would still damages. total comments,
With these
I
dissent of Mr. Justice Hunt.
concur
notes
“nondelegable
belong
categories of
ries.
and 417
Sections 416
pub
employer,
relation toward the
arising
duties of the
out of some
pecu
specially,
particular plaintiíf;”
which is
lic or the
and “[w]ork
(Second)
Torts
liarly,
‘inherently’ dangerous.” Restatement
331, 247,
(1932),
(1981),
371, 394;
Schwieger
v.
92 Mont.
Ulmen
Warranty Co.
Mtge. &
859; A.M. Holter Co. v. Western
12 P.2d
(1915),
94, 99,
Chesapeake & Potomac
P.
490.
149
314, 324,
n.
1981),
325
(Del.Super.
436 A.2d
Chesapeake
Tel. v.
Util.
may
policy reasons
involve duties which for
Sections 416 and 427
independent
to'
by
employer of
contractors
delegated
not be
Cal.App.3d
State
Castro v.
those contractors.
Engineers
279 Pa.
734, 737;
v. Huth
Cal.Rptr.
Heath
Telephone Co.
760;
Inter-County
Super.
Smith
420 A.2d
fall
(Mo.1977),
“If the circumstances
case]