*1
MICHELETTO,
GENE AND LESLIE
Appellants,
Plaintiffs
STATE OF MONTANA,
Respondent.
Defendant
No. 89-452.
on Briefs
Submitted
March
1990.
Sept.
Decided
JUSTICE JUSTICE BARZ concurred. dissenting opinion.
JUSTICE HUNT issued Anderson, Brown, Cebull, Fulton, & Harman, Harmon J. Steven Bozeman, Goetz, Dunn, Ross, Dunn, & Billings, Theodore R. Madden plaintiffs appellants. Mather, Moulton, Billings, & Koolen, Bellingham, Longo K. Kent respondent. for defendant and of the Court. Opinion
JUSTTICE WEBER delivered judgment to the State grant summary appeal the plaintiffs The herein Montana, Highways, acting through (Tele- Company Telephone Mountain States referred to as the State. State. Gene with the entered into subcontract phone Company) seriously injured employment Micheletto was in the course of his Telephone Company compensation and received workers’ benefits Leslie, wife, injury. sought for that Gene Micheletto and his then recovery capacity in tort from the State in its contractor. summary judgment the State. plaintiffs appeal now We affirm. following raise the issues:
(1) Was it error for the District Court to conclude that the State as non-delegable contractor did not have contractual supervise trenching operations by Telephone Company?
(2) Was it error for the District Court to conclude that inherently not an dangerous activity under the facts of this case? (3) disputed Were there issues of material fact demonstrating the part prohibited summary control on of the State which judgment for the State? Highway 1985 the State widened State Sidney between project.
Fairview as of a federal aid road widening required Such to relocate some of its cables were adjacent existing roadway. buried to the The State and the *3 Company entered into a Agreement. Utilities
Gene employed Micheletto was Telephone as lineman the Company and assisted in the relocation ofthe buried telephone cable. Telephone The Company dug work crew a trench in connection with the July 18, 1985, cable relocation. On the afternoon of Micheletto entered the digging trench with the aim of under a culvert to assist in the trench, cable relocation. While he large portion was of him, the trench in upon resulting caved injury severe disability.
Deposition prior in, witnesses testified that to the cave the trench was between six and deep shoring, sloping, seven feet and no or other support testimony was used. Additional it established had rained the previous day and a day cave-in occurred earlier that at a different testimony location. The inspector employed by established that an the State had the observed earlier cave-in after it had occurred. workers’compensation
Gene Micheletto received from the benefits Telephone Company. plaintiffs brought against The suit the State on summary judgment several tort theories. The State moved for on State, grounds. granting summary judgment several In for the District following findings Court made the and conclusions:
“(2) subcontract, Telephone Company Under the The became a independent the status of an contractor. subcontractor assumed “(3) rule, Montana, contractor, as a general general As a the State of injuries by an employee would not be liable for suffered subcontractor.
“(4) contract, not nondelegatable duty, apply [sic] A on does based in this case.
“(5) Montana, contractor, general The State as had no non- delegatable duty peculiar [sic] under the inherent risk nonliability rule. exception
“(6) establish on breach Plaintiff failed to vicarious based duty based on control. “(7) did include project engineer The of the State’s Telephone Company’s run Plaintiff The and did not to the who was employee.” summary appeal granting judgment State upon foregoing.
based dispute Company There is no that the was a subcontrac- State, independent was an tor of the that the contractor, general was contractor. that the State agree general properly rule stated parties also (1986), 221 Constr. Co. Mont. the District Court. Bechtel 270, general 519, P.2d stated the rule follows: form ofcontrol general “Montana followsthe rule that ‘absent some operation, the subcontractor’s method of contractor over injuries to the project and owner of the are not liable for construction Wright v. Howard S. Construc employees.’ subcontractor’s Shannon (1979), 269, 275, P.2d 441.” tion Co. 181 Mont. plaintiffs correspond directly three The issues framed non-liability rule of on exceptions foregoing (1) on a contract non-delegable based contractor: (2) intrinsically “inherently dangerous activity” exception; (3) over a negligent exercise of control reserved exception; and exception. further discussion these work For subcontractor’s (1979), Wright Co. See v.Howard S. Constr. exceptions, Shannon (1976), 438; 169 Mont. Storrusten v. Harrison Mont. 593 P.2d *4 Thill, (1969), 28, 469; 525, 533, 153 Mont. 549 P.2d Wellsv. Prosser, Co.; generally, and Law 1015; Kemp Bechtel Constr. P.2d (5th (Second) 1984); 410-429 Torts § ed. Restatement Torts § (1965). I it error the District Was Court conclude that State as a non-delegable contractor did not establish contractual to supervise safety trenching of the operations Company? parties
Plaintiffs contend that the contract between the raised a non-delegable duty regard with the trenching operations as to the This primarily Paragraph State. contention is based on of the Agreement provides part: Utilities Highway right-of-way respect
“15. Work done on with location of the facilities and the manner which the facilities are or installed attached within the right-of-way approved must be Engineer District to insure that of the installation facilities will meet Specifications ‘Standard Bridge Road and Construction’ as adopted Department.” language
Plaintiffs contend that this created State to supervise operation safety. and ensure his As a part argument, of this refer to the Standard Specifications Bridge for Road and adopted by Construction the State and which were in effect at the Specifications time. Such Standard following contain the regard to excavations: REQUIREMENTS: “52.03 CONSTRUCTION piled adjacent “All excavated material or excavation in a roadway public thoroughfare piled shall be so maintained the toe of the slope pile is at least 2 feet edge from the excavation... The walls and faces all employ- excavations in which exposed ees are moving ground from be guarded by shall system, shoring sloping of the ground, or some equivalent other type means consistent with the of excavation.” Specifications Standard Bridge For Road and Construction. 1981 ed. adopted Department the Montana Highways and the Mon- 1981.) Commission, tana Highway addition, March the Stan- Specifications dard all require that excavations conform to the requirements Labor, Occupational of the U.S. Safety [OSHA], and Health Safety Regula- Administration Health tions for regulations provisions Construction. OSHA include regarding safety during operations. excavation See 29 C.F.R. § 1926.651(i)(l) (1986). regulations require that trenches more *5 deep sloped supported shored or or otherwise
than five feet shall be (1986). Like the Standard prevent to cave-ins. 29 C.F.R. 1926.652 (the that is “spoils” also that material Specifications requires OSHA trench) edge at feet the from are stored least two from excavated the of the excavation. (1981), v. argue Stepanek that Kober Constr. Co. theory 430, 434, the non-dele- 625 P.2d establishes
Mont. analysis gable duty in case. In this Court’s under the contract this Co., Stepanek Kemp in v. Bechtel Constr. the Court stated: duty subjected general Stepanek, non-delegable “In was created employee contractor to an a subcontractor to contractor general a in contract between the provision general County. provision required that Specifically, Yellowstone ‘responsible initiating, maintaining, general contractor to be supervising safety precautions programs’ connected all duty a provision that this resulted in could construction. Weheld provision There no similar delegated not be the subcontractor... in the instant case. in MPC and Bechtel general contract between Co., present at case does 720 P.2d 274. Our Kemp Bechtel Constr. establishing non-delega- provision not contractual contain a similar duty. ble a Kemp employee subcontractor
In v. Bechtel Constr. sought recovery in from the injured trench cave-in who had been contractor had contrac- claiming contractor that the Co., the v. Bechtel Constr. safety assumed duties. tually laws, applicable with all the agreed “comply had subcontractor safety project program.” and the regulations, and standards contract between provision there was no Court concluded that Stepanek and that as result was similar MPC and Bechtel which duty apply. on contract did not theory non-delegable based Com- case, Agreement, Telephone In our under Utilities with the various perform the work accordance pany required was outlined. previously safety requirements specifications and safety expressly assumed Clearly Agreement The Utilities responsibilities under the subcontract. present case does not contain which constitutes the subcontract initiat- for either responsible State to be any requiring the provision safety present as was programs ing, maintaining supervising by the District Court that conclusion Stepanek. agree with the We duty, contract, not non-delegable based on assumed State. correctly We hold the District concluded that State as Court non-delegable contractor did not have a contractual supervise trenching operations by Company.
II Was it error for the District Court to conclude that is not an inherently dangerous activity facts of case? under the this mentioned,
As the District Court concluded that the State did non-delegable peculiar have a under the inherent *6 non-liability risk to exception pointed rule. As in Kemp out v. Co., Bechtel two of applicable. Constr. sections the Restatement are Torts, Sections 416 and 2d Restatement state: of Dangerous Special “Section Work in Absence of Precautions. employs independent
“One an who contractor to do which work employer recognize likely should as during progress to create a its peculiar physical risk of special harm to others unless precautions taken, are subject liability is to physical harm to them caused failure of contractor to exercise reasonable care to take such precautions, though employer provided even precau- has for such tions in the contract or otherwise. Negligence
“Section 427. danger inherent in the work. employs independent “One who an involving contractor to do work a special danger to others the employer which knows or has reason to know or work, to be inherent in normal to the which or he contemplates or making has reason to when contemplate the con- tract, subject liability physical harm caused to such others by the contractor’s to take precautions against failure reasonable such danger.”
On the present indistinguishable Kemp this issue case is from v. analysis Bechtel Constr. Co. In its of the claim vicarious arising trench, a collapse from Court in Kemp this Bechtel Constr. 720 P.2d at stated:
“The Supreme interpreted Court of Dakota has 416 and § North § in respect dug depth sandy a sewer trench to a of six feet (N.D. 1981), soil. City Valley, See Peterson v. North Dakota Golden Peterson, employee N.W.2d 550. an a contractor with the city working was killed when the banks ofthe trench which he was Safety according Occupational dug
caved in. The trench was not
(OSHA) regulations
protec-
or standard
Health Administration
a trench
practices
sloping
call for
use of
box whenever
tive
held
416 and
depth.
trench
five feet in
court
that §
exceeds
City vicariously
for the
operate
427 did not
to make the
liable
contractor,
‘this
done
type
ofthe
ofexcavation when
omission
because
extraordinary
caving
no
risk of
precautions, presents
with standard
’Peterson,
point
Peterson is on
with the instant
This Court in Bechtel Co. risk present peculiar “In 416 to the work must ‘a apply order for § only applica- special precautions ... unless are taken.’ Section ’involving danger . inherent . . . the work.’ special ble to work . . Here, contemplated pre- type subcontract Rather, danger. peculiar no risk or inherent risk or sented precautions.” arose out of failure to standard use regulations In its then referred to OSHA holding Court case. directly present comparable other elements which are The Court stated: deposition regulations, project safety
“The OSHA
manual
using a trench box
sloping
operator
backhoe
establish
Moreover,
during trenching
procedure.
is standard
the subcontract
precautions
use standard
specifically required
subcontractor to
failed to
injury
diggers
occurred after
regulations.
and follow
and 427
they knew was
Sections 416
use a trench box that
available.
nondel-
companies
hold that the
had no
applicable.
are thus not
We
*7
exception
risk
egable
peculiar
under the inherent
nonliability
rule.”
described,
Co.,
previously
at
As
Kemp v.
Constr.
III. demonstrating control material fact disputed issues of Were there summary judgment prohibited State which part of the State? summary judgment inappropriate contend that is
Plaintiffs the State genuine issues of material fact as whether because company’strenching negligently Telephone exercised control over the 56(c), plaintiffs’ Rule M.R.Civ.P. The core of the operation. See engineer approve that the district of the State must contention is cables, by to relocate the which manner used Telephone establishes a reservation of control the State over the Company’s work. Agreement provides: 15 of the Utilities
Paragraph Highway right-of-way respect “Workdone on to location ofthe facilities and in the manner which the facilities are installed or right-of-way attached must approved within be the District Engineer to insure that installation of the facilities will meet the ‘Standard Specifications Bridge for Road and Construction’ as adopted Department.” legal plaintiffs’ basis for the claim is contained in Restatement
(Second) provides: Torts 414 which § Negligence Exercising
“Section 414. By Control Retained Employer contractor,
“One who entrusts an independent work to but who work, any part subject retains the control of physical safety employer harm to others for whose owes care, exercise reasonable which is caused his failure to exercise his control with care.” reasonable analyze
Before provisions we further the contractual and the facts presented, appropriate we think it to discuss some of the policy balanced, against considerations which must be considered and one other. The facts establish that the Company clearly However, laws, negligent. compensation under our workers’ employee’srecovery against employer his is limited to com- workers’ pensation right benefits. The seek to establish the to recover amounts compensation above workers’ benefits from the State on theory injuries it negligent. that was Because of the serious Micheletto, argument Gene an can be made that we should allow recovery damages against the State order that some additional may severely injured paid to this worker. have the pointed
As out v.Bechtel Constr. Montana 50-71-201, statute, MCA, an requires Safe Place to Work which employer place requires to furnish a safe to work the use As a of that it safeguards. policy, devices and *8 employ independent
important general contractors who specific safety and standards on require subcontractors reasonable Clearly it is in the best interest of all of the subcontractor. safety precautions insert required that the State here be involved by Telephone Company, its performed which must be general if policy It would result in a contradiction subcontractor. encouraged were employ independent contractors who contractors theory a that a failure to make such safety regulations upon omit greater protection against a claim of provisions grant would Clearly employees of the subcontractor. that would negligence public policy. not be sound general
In conclude that before is found on basis contractor, be a contractual general there must of control general that the contractor has assumed provision which establishes maintaining supervising safety and responsibility initiating, contract. We conclude precautions present Stepanek as was Co., controlling on holding in v. Bechtel Constr. this Kemp that the issue. Restatement quoted v. Bechtel Constr. Co. the Court (Second) Torts, 414, contractor is pointed out that a § care, vicariously but is not
responsible
duty
for his own
of reasonable
exception.
-underthis control
negligence
liable for the subcontractor’s
pointed
then
out:
Court
“Here,
project
were to establish a
companies
the subcontract the
However,
day-to-day implementa-
over the
safety program.
no control
companies.
safety program
was reserved
tion of
onsight implementation of
places
responsibility
subcontract
subcontractor,
Thus,
job safety
COP.
program
only
to the establishment
company’s duty
under
extended
§
duty was
There is no evidence that
this
safety program.
breached.”
analyzed
Kemp v.Bechtel Constr. MCA, statute and 50-71-201, the Montana Safe Place to Work contractors had concluded that under the statute to take procedures to use safe the subcontractor require followed.The Court procedures to ensure those were steps reasonable contractor to require does not emphasized that such - and of the subcontractor constantly each individual task oversee this accident. prevented could have only supervision constant following conclusion: The Court then reached required companies that the undisputed is clear and “The record *9 regulations. safety precautions comply with COP use to injury reports daily checks and monitored to companies spot utilized find the proceeding safely. We com- make the construction was sure reasonable care.” panies complied with their of case, in P.2d at 276. In our addition Kemp Constr. v. Bechtel Agreement, included to 15 of the Utilities the subcontract Paragraph required shoring systems, sloping Specifications the which Standard means in with trench- equivalent or some connection ground, requirements in ing, incorporated the OSHA which sub- and also five shall be shored deep that trenches more than feet require stance prevent to cave-ins. We conclude sloped supported or or otherwise safety appropriate precau- had properly provided that the State here directly in a manner Telephone Company tions in its contract with the in Constr. comparable provisions Kemp to the contract v. Bechtel Co. that that Notwithstanding comparison, contend Para- graph Agreement established control. We 15 of Utilities will Paragraph only key aspects 15 to which are emphasize restate applicable to this contention: . . . with facilities and in respect
“Work done location of in the facilities are installed attached within the manner which right-of-way approved by engineer must be the district to ensure that adopted meet as specifications’... installation . .. will the ‘standard added.) by (Emphasis [State].” substance, In plaintiffs argue requirement approval that the by engineer the district of the manner which the facilities are that State retained under § installed establishes control We agree do not with that contention.
It Paragraph provides is true that that the manner which by engineer. district It approved facilities are installed must be approved the location the facilities also true must Last, important requirements it to note that the engineer. district followed and manner of installation are both location will meet the provision that this is done to ensure installation requirements conclude that the Para- specifications. standard We part met on the of the State district graph 15 could be a review subcontractor, plans by a without engineer of the detailed submitted addition, emphasize site. any ofthe actual construction review obligates which specific provision no subcontract there is initiating, maimer for responsible any Montana to be State of maintaining, supervising safety precautions programs in described v. Bechtel Constr. Co. and as was contained in the Stepanek contract. As we examine Paragraph 15 we do not find provisions clearly safety obligations establish additional on the part of the State. We conclude that the State here complied with its duty of reasonable care regard procedures. We further conclude that the making spot regard checks the State with construction, including presence of an inspector for the district engineer, any do establish additional ofthe State.
The dissent concluded that the State retained control over methods detail, of work and operative and as a result entirely perform was not free to way. the work in its own We do not agree with that conclusion. The essence of Paragraph 15 is that the (the State) engineer district required approve was the facilities to ensure that the result, installation met standard specifications. As a Company was limited in its installation to the extent that it required comply with the specifications standard issued *10 by the State. We do not conclude that such qualifies a limitation as a control limitation under the Restatement. (c) quoted by dissent,
As comment to 414 of the Restatement § states that employer control, before the has retained there must be such a retention of a right supervision that the contractor is not entirely free way. to do the work in his requirement own While the that the Telephone Company comply specifications with the standard did mean that Company entirely was not free to do the work in way, its own we do not believe that the Restatement intended to suggest requiring that comply specifications subcontractor to with plans or written constitutes a sufficient limitation so that control has by addition, been retained employer. previouly stated, conclude that before by is found on the basis of control general contractor, there must be a provision contractual establishes contractor has assumed responsibil- ity initiating, for maintaining supervising safety precautions. We conclude that by none of these tests were established Paragraph 15.
We hold that complied the State with all contractual duties of statutes, reasonable care required under the contract and and that the State did negligently exercise control over the trenching operation of the Telephone Company.
Affirmed.
CHIEF JUSTICE TURNAGE and JUSTICES HARRISON and GULBRANDSON, retired, sitting for JUSTICE SHEEHY concur. McDONOUGH, dissenting: JUSTICE
Summary judgment inappropriate genuine this case because concerning Department exist whether issues of material fact Highways negligently (Department) of the defendant exercised con 56(c), Telephone Company’s operations. trol over the See Rule M.R.Civ.P. Utility
According wording paragraph Agree- to the 15 of the ment, engineer approve district must the manner lay used or relocate the cables. Para- 15 is graph as follows: Highway right-of-way
“Work done respect on the location are of the facilities and manner which installed or facilities right-of-way within the be approved attached must the District Engineer to insure installation will meet the facilities Specifications Bridge ‘Standard Road Construction’ as for added.) adopted by Department.” (Emphasis (Second) Torts, Under 414 of the Restatement this language could construed as reservation of control over the subcontractors give which would rise to a of Department: Negligence Exercising “Section 414. Control Retained Employer. contractor,
“One who work independent entrusts to an but who work, any part subject retains control to liability for harm to physical employer others whose owes a care, exercise reasonable which is caused his failure to exercise added.) (Emphasis his control with reasonable care.” Under the Department this section contractor vicariously (employer) is not liable negligence, subcontractor’s separate duty rather the contractor has a of reasonable care exercising (1986), control. Bechtel Constr. Co. 221 Mont. *11 519, 526, 720 270, 275. is, regardless That general P.2d ofwhether the has assumed duties if the contractually, general contractor any control over independent contractor retains of an has a work the contractor ofreasonable care contractor’s Thus, exercising such control. a parties to third contractor delegate safety duties to a attempts to subcontractor contractu who directly may negligence hable for his own if he ally still be retains the control operations over and exercises such control requisite amount of it should ofnegligence This is as be. Wehave here a claim negligently. 496
brought subcontractor, of by employee an a which is a constitutional right II of employee such under Section 16 of Article the of important Montana It to note that this owed Constitution. is persons not applies protect the contractor also to other employees negligence Depart from the traveling public the 331, 12 (1932), ment. e.g.. Schweiger See Ulmen v. Mont. P.2d majority Public is the narrow construction of the policy not served opinion. scope duty.
I of a In Storrutsen v. will now examine such 469, (1976), 525, 534, P.2d 169 Mont. this Court Harrison (c) recognized type to which states the rationale comment retained exception applicable: to of control that must be be employer “In in this to apply, order for the rule stated Section degree must at of control over the manner have retained least some enough merely not he a in which the work is done. It is that has resumed, general right stopped inspect to to its order work reports, suggestions progress or to receive to make or recommenda- followed, necessarily alter- prescribe tions not be or to which need usually is to general right Such a reserved ations and deviations. is as employers, but it does not mean the contractor controlled work, operative to detail. There must be such to his methods as supervision entirely a that the contractor not right retention of added.) way.” (Emphasis in his own do work free Here, entirely telephone company was not argued it can be rather, way; install the cable its own free to the work or perform by the as a retention of control 15 could be construed paragraph operative expressly work and detail Department over methods of engineer. interpretation Such an requiring approval by distinct portion ofcontrol over ofthe construc- specific reservation involves work, installation. Note that manner which tion to-wit: the subject inspection, tests merely work was done was rather, the use ofthe word “must” seems approval Department, Thus, mandatory. the methods of work approval to make regarding whether how much ambiguous contract somewhat by Department. permissible It is actually reserved control was evidence, parties as the conduct of the under such look to extrinsic v. Montana Power Co. ambiguity. Souders the contract resolve 290; 28-2-905(2), 483, 486, Section 662 P.2d (1983), 203 Mont. contract, question the face of ambiguity exists on MCA.Where trier should submitted to the language involved parties intent *12 546, 550, P.2d (1977), Mont. v. Schwenk of fact. S-W Co. 147. may have been
Here, suggests Department the evidence job at the through inspectors present who were exercising control its regarding the to be resolved Thus, there are factual issues site. clarify question that would inspectors and duties ofthese purpose exercising in fact retained control Department was of whether it If there is an much control exercised. operations over the how detail, involving operative in this case retained control exercise of safety under expressly matter who assumed duties then it does not separate has a and distinct contract, as the contractor persons third under 414 of the duty of reasonable care to in such cases. Restatement holding Kemp regarding that our in the issue of
It is contended
However,
present
the issue raised here.
dispositive
control is
distinguishable
Kemp. Kemp
companies
from
con-
case is
held that
program.
to establish a
We
tract were
duty
require
had a
the subcontractor to take reasonable
contractor
safety procedures
Kemp,
were followed.
720 P.2d at
steps to ensure
Moreover,
require
held that such a
does not
constant
of each individual task of
subcontractor. Id. It was
supervision
daily
spot
that the
contractor used
checks
sufficient
project safety.
In the
inspected injury reports
monitor
instant
case,
Kemp, spot
employed by
Department.
checks were
like
duty may
Department’s
merely
have involved more than
But here
Department
monitoring safety procedures;
interpreted
could be
retained control over the manner in which the
specifically
to have
done,
rise
giving
reasonable care to others
installation was
Department
the Restatement. Whether
exercised this con-
under
compliance
requirements
care in
with the
trol with reasonable
Restatement,
plans
and a review of the detailed
paragraph
fact.
question
Furthermore, Kemp
negligent
there
no evidence of a
was
exer
employer’s
Kemp,
acts as there is in this case. In
by the
cise of control
“[ojnly
supervision
prevented
constant
could have
we concluded
Here,
suggests
JUSTICE concurs dissent. HUNT, dissenting:
JUSTICE McDonough. addition, I concur in the of Justice dissent for the my reasons stated in dissent in v.Bechtel Constr. Mont. 519, 270, (1986), 528-34, 720 P.2d I 276-80 must dissent from the Majority’s trenching inherently that is not an dangerous conclusion activity.
Trenching precisely type inherently dangerous activity is (Second) envisioned (1977). the Restatement Torts 416 and 427 §§ nature, By very trenching “likely during is its create its progress peculiar physical special risk of harm to others unless Further, precautions trenching are taken....” Restatement § special danger employer involves “a to others which knows or has reason to inherent or normal to the work ....” know trenching 427. The inherent or normal to Restatement — exactly appears present case the risk that an type might collapse upon injure excavation an individual inside the trench. Majority apparently trenching believes that inherently
dangerous because “standard” precautions, rather than “special”
precautions, can be taken
prevent
or lessen the perils
excavating.
However,
I
my
as noted in
Kemp,
530-31,
dissent in
221 Mont. at
P.2d at
the special precautions contemplated by the Restatement
precautions
are
specially designed to
peculiar
counter the
risks
inherent in
activity,
not extraordinary precautions. Indeed, the
safeguards
may
be taken
prevent
the dangers inherent
trenching
“ordinary
are
in the sense
reasonably
that a
cautious
contractor would take
Kemp,
them.”
Mont. at
With or precautions, without the basic character remains inherently dangerous. Therefore, activity gives rise to a nondelegable duty provide contractor to for the safety of the subcontractor’s employees.