*1
MYDLARZ,
Appellant,
JOHANN
J.
Plaintiff
and
v.
CONSTRUCTION COMPANY
PALMER/DUNCAN
Respondents.
MOTORS,
RICE
Defendants
No. 82-98.
10,
Submitted Jan.
1984.
Decided Jan.
1984.
May
Rehearing Denied
1984.
Jardine, Blewett argued Thompson Falls, III, Blewett, Great Alexander and plaintiff appellant. and for Baillie Walsh, and William
Smith, & Clarke Baillie Dennis argued respondents Falls, Palmer/Duncan, Cure Great for argued Falls, for defend- Borer, Borer, & Edward W. Great respondent Rice Motors. ant and Opinion delivered
MR. CHIEF JUSTICE HASWELL the Court. County Mydlarz appeals District a Cascade Johann J. special upon jury’s judgment, verdict, in Court based (respondent) and Construction favor Palmer/Duncan damages (respondent) recover action to an Rice Motors injuries at the con- fall from a ladder he received building. reverse We Rice Motors struction site of a new trial. and remand for a new dealership, let bids and Motors, an automobile
Rice facility building in Great a new sales awarded contracts for portion Falls, Rice awarded a substantial Montana. electrical, mechani- It awarded contract to Palmer/Duncan. system sprinkler plumbing cal, of the and installation general Palmer/Duncan, as the several other contractors. painting Bidwell, to Don contractor, subcontracted the Mydlarz’s employer. specific Rice, em- from Bidwell’s instructions
Pursuant to prior sprinkler ployees nozzles the overhead covered scaffolding They painting ceiling. owned used they the nozzles covered electrical subcontractor when important painted ceiling. Rice con- note that It system sprinkler independently in- to have the tracted part contract of the stalled. It was not Rice-Palmer/Duncan part subcon- and, thus, not Palmer/Duncan-Bidwell independent painting sprinkler pipes tract. The of the of the installation contract. scaffolding during con- allowed use of its
Palmer/Duncan scaffolding building struction all of its but removed July August 29,1977. 3, 1977, re- before On completion ceived a none of certificate of substantial employees its were at the after that date. site painting completed, apparently After the Bidwell or- employee, coverings dered an Ron Lins to remove the from sprinkler July nozzles. Rice Lins arrived at Motors on scaffolding 29, 1977, and found no was available. He used *6 present ladder that was at the work site to remove the noz- against sprinkler zle covers. The ladder was leaned pipes slipped and when Lins was on it. He fell and sus- injuries. tained August Mydlarz by 1, 1977,
On was ordered Bidwell to complete scaffolding the removal of the nozzle covers. The by owned use; the electrical subcontractor was the scaf- folding by owned had been removed. Bid- Palmer/Duncan Mydlarz well directed to use a ladder to remove the covers. Mydlarz removed several nozzle covers near the horizontal sprinkler pipe removing east-west covering the fifth or sixth before point pipe. removing
at a narrower in the While covering, Mydlarz fell from the sixteen-foot ladder. As a inju- result of this fall he sustained serious knee and elbow ries and was unable to work. sprinkler pipes pressure
The moved under from the lad- They der. had a lateral movement of five inches and a verti- resting against cal movement of two inches before concrete beams.
Mydlarz given specific instructions Bidwell how to place placed ladder, i.e., if the ladder was several inches pipe, pipe above the the lateral-vertical movement of the Mydlarz fell, would not cause the ladder to fall. Pe- Before attempted ter Rice of Rice Motors to contact Bidwell or request scaffolding Mydlarz Palmer to for but was unable accident, to reach them in time. After the Bidwell removed Peter Rice testi- the nozzle with the use of a ladder. covers Mydlarz where point fied he the same ladder at climbed showing difficulty. presented fell with no Evidence was only one inch above the placed had the ladder pipe. contract,
Under the Palmer/Duncan Rice-Palmer/Duncan responsible scaffolding: for Scaffolds, Staging and Devices. “Temporary Safety “Provide, erect, platforms, scaffolding staging, maintain all etc., stairs, as temporary guards, railings, required flooring, laws, protection for of work- local and state codes or construction, main- inspection men and The and public. safety all comply shall with tenance the above items project.” to the applicable codes and as regulations would provided contract further responsible of all workmen: safety for the AND “PROTECTION OF PERSONS PROPERTY “10.1 SAFETY AND PROGRAMS PRECAUTIONS initiating, responsible 10.1.1. The for contractor shall be pro- safety maintaining supervising precautions all with grams connection the work.” addition, In provided this contract that Palmer/Duncan safety for of all work- specifically responsible would be men and on property project: precautions
“The shall take all reasonable contractor *7 protection to safety of, provide shall all reasonable prevent to: damage, injury or loss persons
“.1 All who employees on work and all other may thereby; be affected incorpo- All to equipment
“.2 the work materials and site, therein, under storage on off the rated whether or care, his any or custody or control of the contractor sub-subcontractors; subcontractors or thereto, includ- adjacent “.3 Other at the site or property roadways, struc- trees, shrubs, lawns, walks, pavements, ing relocation, removal, or designated tures and utilities not replacement in the of construction.” course
Under protect the contract was to work by and materials covering painting suitable while progress. Rice work. right perform cleanup retained the to
Before trial Mydlarz pre- in limine to filed two motions respondents vent from introducing evidence workers’ compensation benefits he received from the accident and prior fall. This admitted, evidence was but the trial court jury instructed the not to use the evidence of com- workers’ pensation benefits any to reduce damages awarded Mydlarz. The court jury allowed the to consider evidence Mydlarz’s problem. drinking
Mydlarz attempted to introduce evidence that would show grounds compensation for the workers’ benefits and that he would have to pay the state subrogation fund its interest any recovery from in the This lawsuit. evidence was excluded.
By special verdict, jury found that neither Palmer/ Duncan nor Rice had to duty provide breached a scaffold- to ing Mydlarz, finding thus Scaffolding Act had application. no jury respondent also found the neither was negligent in failing provide place or safe work equipment safe Mydlarz. Finally, jury found that Mydlarz was 100 percent contributorily such negligent and negligence proximate was the injuries. cause of his Based upon special verdict, judgment was entered against appeals. from which he He asserts numerous issues for review:
1. Does the apply Montana Act to the facts of this case?
2. Did the by District Court allowing err evidence of Mydlarz’s receipt compensation of workers’ benefits?
3. Did the District err by refusing Court to allow evidence explaining receipt such benefits?
4. Did the District allowing Court err evidence of Mydlarz’s alleged drinking problem?
5. Did the District Court err of a admitting evidence prior fall by Mydlarz taken project? on another *8 opinion by excluding tes- 6. Did the District Court err timony Mydlarz’s employee had a similar of fellow who accident? by excluding of evidence
7. Did District Court err outstanding repay to an debt a offer to Palmer/Duncan’s prior testimony? giving his witness to striking Mydlarz’s claim 8. Did the District Court err punitive damages? for jury following
9. it to to instruct the that Was error fail contributory employer is not directions an negligence? negligent Company
10. Was Construction Palmer/Duncan comple- removing scaffolding before as a matter of law for project? tion improperly
11. on Were instructions OSHA violations refused? allowing in
12. Did certain costs the District Court err disbursements?
Respondent two issues not has raised Palmer/Duncan by appellant. issues consider such addressed We will not complied not with Montana because has specifically, Appellate Procedure; Civil Rules Palmer/ perfected Although cross-appeal. Rule has Duncan not App. provides P., cross- for review of matters M.R. Civ. necessity assignment errors, not eliminate the this does by respondent cross-appeal mat for who seeks review of sought separate ters those to reviewed and distinct from (Mont. 1981), by appellant. [195 Johnson v. Tindall Rep. 1763; v. Mont.165,] 266, 268, Francisco 38 St. 635 P.2d 468, 470, 191 P2d 319. Francisco 120 Mont. applicability Scaf- of Montana’s We will first consider the obligation provide folding Mydlarz argues to Act. that project safety man- of all workers on a construction Liability application on Act. falls dates according entity obligation, the Mydlarz. who assumed “scaffolding” Furthermore, term that the asserts high any must include work device utilized allow places. light in- The Act must of evils it is be construed prevent. tended Since Act was to increase intended *9 safety (i.e., places high in in ultrahazardous work work from “scaffolding” injury), which a fall could cause or death any protect should be device that would a from that worker peril.
Mydlarz alternatively argues or that where the contractor agrees provide scaffolding so, owner to to and fails do such Scaffolding failure constitutes a violation of the Act. Respondent it contends that had not as- project indepen- full sumed dently control of the as Rice Motors particular por- subcontracted with other entities for Second, tions of the work. form absent some of control over operation, general the subcontractor’s of method con- injuries employ- tractor is not liable for to subcontractors’ only applies Third, ees. the Act to those who have direct building control of construction of a more than three with building only Finally, Here, the had one floor. floors. applies scaffolding. Act to This term must be construed ac- cording ordinary meaning. appellant using to its was apply. ladder so the Act should not Respondent applies Rice Motors asserts that the Act to scaffolding appellant using Thus, and the a ladder. apply. Act Further, should not the Illinois cases cited appellant were decided under the Act Structural Work which includes “all mechanical of contrivances” instead scaffolding specifically, Scaffolding as in the Montana Act. Finally, impose duty provide the Act does not to scaffold- ing, only place scaffolding, a safe If to work. that includes applies. place then bar, the Act In the case to at a safe work provided; scaffolding appellant was not needed perform his duties.
I Applicability of the Act to the at case bar depends upon proper interpretation of the term “scaffold- ing” the Act is codified within the Act. The essence of 50-77-101, Section MCA: in this erected “Construction All scaffolds scaffolds. repair, alteration, erection, or removal
state for use buildings safely supported, sufficient shall be well and safety properly width, to ensure the secured so as persons passing working under them or them on them or any prevent prevent falling from or to material and to them deposited may placed, from used, or on them falling.” purpose of the Act is
This Court has stated that by provid- “supplement protection common law statutory ing imposing criminal sanctions and an absolute duty upon protect of real workmen the owners estate extraordinary with scaf- from the hazards associated others 171, 179, P.2d v. Pollard Todd 148 Mont. folds.” *10 869, 873. particular ac
A
term in a
must
construed
statute
cording
approved usage
the lan
to the context
the
of
and
according
guage,
to
but technical terms are to be construed
peculiar
appropriate meaning.
1-2-106,
their
Section
construing
whole,
MCA.
as a
the intent
When
a statute
legislature
pursued.
1-2-102,
Section
MCA.
should be
require
together,
that deter
When
these two statutes
read
phrase
meaning
be made ac
mination
of a
or word
Chicago,
purpose
cording
Gannon v.
to
statute.
(1961),
Ry.
305,
Milwaukee,
22
Paul & Pac.
Co.
Ill.2d
St.
Therefore, must construe the term we protect light purpose workmen of the Act which is extraordinary with from hazards associated and others scaffolding supra. Pollard, include These hazards scaffolds. performed high places a fall could cause work in where injury. is Hence, of the term or liberal construction death any scaffolding required device which to establish that designed hazard the Act was would reduce or eliminate the (1981), Ill.App.3d 660, 418 L.B.C., Inc. 94 Quinn v. to avoid.
337 v. Rocha State (1974), 1011; N.E.2d A.D.2d 360 45 v. Fischer 484; (1914), 172, 104 N.Y.S.2d 210 N.Y. Bohnhoff N.E. 130.
Webster’s Century Dictionary New Twentieth defines “scaffolding” as “a in support frame or structure for an ele- (1979). .” place vated . . Addressing 2nd Ed. at 1614 what constitutes scaffolding, Jurisprudence American 2d states:
“. . . courts have permitted employer seldom an dis- liability claim for his servant’s oc- injury when the accident any structure intended curred connection with the use of provide footing or support ground above the or floor. On hand, the other when the injury is the result of use workman, for purposes personal support, of a device which has not been constructed with the it intention that used, should be so the courts have been reluctant to hold that such devices Master . .” are scaffolds. . Am.Jur.2d Servant, added.) Section 207 262. (Emphasis at
An appellate court in Illinois has that temporary found apparatus provide intended to footing ground above the floor for workmen is a scaffold and' within the purview of its Spiezio v. Commonwealth Edison Co. Act. (1968), v. Ill.App.2d 392, Frick O’Hare- 323; 235 N.E.2d Chicago Corp. 70 Ill.App.2d 217 .E.2d 552. The Illinois Scaffolding Act phrase includes the “all mechanical contrivances” rather than “scaffolding” in Montana’s Act. However, purposes of the two acts are identical. State, supra, Rocha v.
In Court, Supreme the New York Appellate Division, recognized tempo scaffold is a rary platform elevated working supporting and its struc ture, designed to Caddy v. support a workman his work. *11 Interborough Rapid Co. (1909), 415, Transit 195 88 N.Y. N.E. 747.
Other jurisdictions
recognized
have
an apparatus
not
technically
is
scaffolding
contemplated by that state’s scaf-
Co.,
act: Hoult v. Kunhe-Simmons
Inc.
folding
(1978),
64
476,
Ill.App.3d
294,
(steel
21 Ill.Dec.
“scaffolding”
v. NAB
Evans
work
under structural
(1981),
Corp.
841,
2d
N.Y.S.
80 A.D.2d
436
Construction
four-by-fours
(plank resting
con-
on structural steel
774
act); Carpenter
scaffolding
v.
sidered “scaffold” under state
(sheath-
(1925), Mo.App. 104, 273
418
217
S.W.
Burmeister
building
ing
temporarily
joists inside
laid on floor
boards
act);
scaffolding
scaffolding according
v. Goebel
Most
(platform
(1918), Mo.App. 336, 203
474
Const. Co.
199
S.W.
sup-
by
supported
swinging
roof,
other end
from
the
chains
scaffold);
by
buildings
ported
poles running along
side of
(2nd
Contracting
Reilly
Masonry
v.
Cir.
Co.
Steel
1913),
permanent
(plank
loosely
steel
210 F.
laid
across
437
having slope
inches
of
one and one-half
roof trusses
a
about
scaffolding
foot,
labor law of New
to the
York).
is considered
under
supra;
Spiezio,
supra;
Frick,
v. Dela-
also,
Ross
See
(1921),
335,
“Undisputedly,
part
permanent
a
itself
a
structure
contemplation of the Act
the
constitute a ‘scaffold’within
(Louis
(1968),
Barenfanger
724;
445,
v.
Ill.2d
236 N.E.2d
39
(1972),
Savings Bank
7
Halberstadt v.
&
Harris Trust
90.)
Ill.App.3d
making
In
N.E.2d
this determina
289
object
identity
inquiry
tion, our
to the
is not limited
support
how was
scaffold,
claimed
be a
or
but rather
it
(Kenworthy
being
injury.
v.
utilized at
time Young
Ill.App.3d 144,
26
N.E.2d
Ill.Dec.
added.)
217)
(Emphasis
. .”
.
According above, to the discussed by purpose larly statutory mandated construction “scaffolding” Act, includes find term we planks tubing, only unique not steel device constructed any additionally plywood, bolts, device or and nuts and but fall utilized workmen to allow them work where accomplish might injury. This would result serious
339 Pollard, purpose in supra. Following of the act stated Quinn analysis, we need not applicability determine exclusively by Act identity of the device used how but such device being was utilized at injury. the time of the Mydlarz was using the ladder sprinkler and the flexible pipe regular as a substitute for scaffolding which un- was available. This combination was used as a to raise device him approximately building sixteen feet to the ceiling of the sprinkler remove coverings. height head This is sufficient to cause serious injury by Mydlarz’s as evidenced injuries due to the fall. Pollard, supra,
It is important to note that this Court found applied Act though injury even occurred from a jack device, ladder scaffolding which is not Pollard cited with approval Hall v. Paul per Further, se. Bunyan Lumber CO. (1960), 761, Cal.App.2d 177 2 Cal.Rptr. where the Appeals Court, California an inter- court, mediate applied scaffolding act to a case where an employee of a injured subcontractor was in a fall from a platform that was pallet built on a and attached to a “hyster.” platform The specifically built to raise mater- ials and equipment, not workers.
Respondent contends that 50-77- Section 102, MCA, limits the applicability Act’s to the construction of a building with more than re- three floors. This statute quires temporary flooring in buildings under construction. It does not address the scaffolding construction therefore does not application affect the of Section 50-77- 101, MCA.
Thus the Scaffolding
applicable
Act is
where
used the ladder-pipe
scaffolding.
device as
substitute for
There is an additional basis for holding
applies
that the Act
to these facts. Arguably both
as
acting
defendants were
general contractors
control
the work area and had a
nondelegable duty to furnish
place
workers a safe
to work.
Clearly
present
in the
provide
case there was a failure to
adequate
scaffolding.
reaching
question
Without
failure,
immediately responsible we
party
this
which
applicability.
the Act’s
do hold the failure invokes
in
scaffolding
provide
obligations
breach of contractual
providing
same extent
Scaffolding Act to the
vokes the
v. Barenfanger
Louis
See
scaffolding
deficient
would.
N.E.2d 724.
39 Ill.2d
to the
and remand
Finding
applies,
the Act
we reverse
liability
cause and
proximate
Court
District
determine
*13
Nat’l
ex rel. Great Falls
forth in State
under
rules set
336,
Bank v.
Court
(1969),
II He Mydlarz’s evidentiary challenges. next consider We er- prejudicial contends that the District Court committed com- by receipt ror of his of workers’ admitting evidence is pensation such evidence argues benefits. He that before work, return to actual allowed to show of incentive to lack malingering must be shown. this evidence admissible
Respondents assert that Respon- to return to work. Mydlarz’s show lack of motive Mydlarz made an years, point dents out that his two best However, approxi- $4,400 year. he received average per $60,000 benefits. mately compensation in workers’ of mo- question of lack court limited the instruction to the re- the evidence to tive not to use admonishing jury damages. duce personal in a
This determined that specifically Court has re- jury injury impact allowing prejudicial action the plaintiff’s pending compensation ceive evidence of workers’ vastly outweighs probative claim value of such evidence. (Mont. 1982), Allers v. Willis [197 499,] Mont. 643 P.2d St.Rep. 592, 39 745. The Court in Alters ruled that evidence compensation clearly of the workers’ claim was inadmissi quoting following passage ble, from an annotation: “Generally, requiring it has been error, held to constitute bring jury’s trial, reversal or new to the attention the plaintiff personal injury fact that the in a or death action is compensation entitled to workmen’s benefits. The courts have reasoned that such information would tend to prejudice jury verdict, and influence their either as to liability damages, ordinarily or as such information is im- material and irrelevant.” 77 ALR2d at 1156.
Admission of this evidence was reversible error and re quires holding Mydlarz’s a new trial. This renders conten tion preventing that the District Court erred him from presenting explanatory evidence moot. argues also that the District Court erred in ad-
mitting alleged problem. drinking points evidence of an He out drinking that there is no evidence that he was at the drinking time of the accident or was the cause of the *14 person In fact, accident. the first who rendered aid to Mydlarz after the accident testified there was no indication drinking. that he had been
Respondents Mydlarz “opened contend the door” for drinking cross-examination on his when he testified about it and this evidence is relevant to the cause of the accident. Mydlarz “got admitted that while on the ladder he the jumped Respondents shakes and off.” in- contend that this drinking problem arguably dicates a that is a cause of the accident. nothing indicating Mydlarz
There is in the record drinking day was on or before the of the accident. The evi general drinking problem unfairly prejudi dence of a prejudicial cial. Mont.R.Evid., Rule addresses evi dence. It reads: grounds prejudice,
“Exclusion relevant evidence on of Although relevant, evidence confusion, or waste time. substantially may probative is out- if value be excluded its weighed by prejudice, danger confusion of unfair by jury, misleading undue issues, delay, or considerations of or presentation time, of cumulative waste of or needless evidence.” Mydlarz might when have been an alcoholic
Evidence that may probative value re- the accident occurred have some garding However, indirect rel- of the accident. cause proba- requires us to find that evance this evidence outweighed by clearly tive is value the evidence jury prejudicial Mydlarz. could on We find that effect indicating Mydlarz anwas al- have evidence been misled erroneously presume accident was caused coholic and Therefore, was inadmissible such the evidence disease. error. and its introduction constitutes reversible contends that the District Court also by admitting prior of a fall he took on an erred evidence present project. other This is irrelevant to the ac evidence Mydlarz. prejudicial and tion The fall occurred one question prior under one-half months to the accident contributory negli Furthermore, different circumstances. damages gence action for as a defense in an foreclosed supra. Todd, Pollard v. under the Act. Mydlarz opened
Respondents for this the door assert that testimony he it on direct examination. We will when raised ground challenge on because Rice Mo- not dismiss the this opening initially in its tors mentioned the incident statement. improperly admitted. Rule
We this hold that evidence 406, Mont.R.Evid., which is de- evidence of habit allows repeated specific regular response situation. fined as a may 406(a), Moreover, of habit Rule evidence Mont.R.Evid. proven by specific conduct sufficient instances of *15 finding or that habit existed that the number warrant 406(c), practice In Mont.R.Evid. our was routine. Rule
343 alleged view one instance of not indicate carelessness does habitual carelessness.
Additionally, this Court has held that evidence of prior prove apart negligence accidents is inadmissible to Burlington from the Runkle v. Northern Act. (Mont. 1980), St.Rep. 982, 986, 995, 613 P.2d 37 997.
Mydlarz opinion lay next asserts that of one Ron Lins improperly Mydlarz’s was excluded. Prior to accident Lins performed job Mydlarz’s the same that caused accident. injured. fell -Lins under the same circumstances and was Mydlarz argues opinion concerning safety that Lins’s the device should have been allowed.
Respondent testimony contends the properly opinion excluded since it was an on the ultimate issue of Further, the action. Lins was never identified as an expert interrogatories qualify witness in and would not as such.
Respondent argues Rice Motors that since Lins did not perceive Mydlarz’s give opinion accident, he could not an on it. opinion
We hold that Lins’s should have been admit Lay opinion pursuant ted into evidence. is admissible opinion 701, Rule The on Mont.R.Evid. must based ac perceptions helpful jury tual of the witness and to the (Mont. Fitzpatrick v. understand the State facts issue. 1980), Rep. 186 Mont. P.2d 194. In 37 St. layman opinion case, this Lins’s as a should have been al opinion safety workplace lowed. His of the was based perceptions Mydlarz. working job on his from the same as testimony help jury Further, his would understand Finally, Mydlarz working. conditions under which respondents’ objections testimony generally to Lins’s were expert testimony require based on the failure to meet the opinion rejected ments, and the on that basis. court question testimony lay opinion was not addressed. argues by refusing Court further that the erred possi- repayment regarding longstanding, evidence aof *16 debt, by to one of Palmer’s for- bly unacknowledged Palmer a testify that once sub- employees. mer The witness would sprinklers, on the placed protective the covers contractor Ac- ordinarily remove them. general the contractor would its counsel did not Mydlarz, cording to Palmer/Duncan to testi- evening prior the such testimony like this and on made. mony repay offer the old debt was the to repay- simply the contends that this was Palmer/Duncan testimony. the ment of an old debt and unconnected to While testimony properly excluded. We hold the was surrounding the recognize we the circumstances transaction repay more than questionable, were the record shows no to is irrelevant Consequently, ment of a debt. such evidence testimony, and the to witness’s issues of the action and the excluding by the did not abuse its discretion District Court it.
Further, bias or not to show this evidence is admissible repaying for prejudice part on the of Palmer/Duncan substantially unfa- simply testimony debt because the to vorable Palmer/Duncan. abused
Mydlarz also contends that the District Court a di by respondent’s motion for granting its discretion punitive as there was sufficient damages rected verdict on get Prior to the accident jury. evidence to this issue to the Fur fell same circumstances. employee another under the ther, still knew of this fall and removed Palmer/Duncan Motors in violation of the law. Rice scaffolding arguably — failed scaffolding also but knew this fall and the need This, contends, indicates remedy Mydlarz the situation. safety of the workers disregard a willful and for the wanton law, thereby punitive warranting and a violation of the damages. ev- produce failed asserts that
Palmer/Duncan something could fact that idence of Ron Lins’s fall and the Further, an prevent have such accident. been done to prior when the job off the employees were negli- no jury found happened. Finally, since accident
345 gence Palmer/Duncan, committed punitive damages Therefore, could not be awarded. error in strik- no occurred ing request.
Rice argues Motors there was no evidence that its employees ladder; thus, saw Ron Lins fall off Mo- Rice knowledge tors had no of the accident.
We hold the District Court in striking punitive erred damage claim.
When deciding for directed verdict motion defendants, the trial judge must view the evidence light most plaintiff. favorable Weber v. Blue Cross of (Mont. 1982), Montana 454,] Mont. 643 P.2d [196 St.Rep. 245; Ferguson Pump, v. Town Inc. *17 122,
Mont.
Exemplary damages can pursuant be awarded to Section 27-1-221, MCA, which reads:
“When exemplary damages any allowed. In action for a breach of an obligation not arising from contract where the defendant has guilty fraud, malice, been oppression, or actual or presumed, jury, the in addition to dam- the actual ages, may give damages example for by way the sake and of punishing the defendant.” statute,
As in stated the above jury the can award exemplary damages where defendant has been found guilty of implied Furthermore, either actual or malice. im plied may malice proof be shown that en a defendant in gaged a course knowing of conduct it harmful or (Mont. 1981), 830, Lauman unlawful. v. Lee 626 P.2d 38 499; St.Rep. (1978), Ferguson v. Town Pump, Inc. 177 915, Mont. 580 P.2d grounds, overruled on other Bohrer v. Clark Mont. 117. 590 P.2d We find viewing light the evidence in a most favorable Mydlarz reasonable men as or could differ to whether not respondent either guilty implied was of actual or malice. punitive damages have been taken The should not issue indicating jury. in the record from the There is evidence scaffolding before the that painting removed the Palmer/Duncan may complete. This been viola- work was have tion of between the law or the contract Palmer/Duncan may Further, have known Rice Motors. Palmer/Duncan working persons on harm to that this conduct could cause ceiling paint ceiling scaffolding since was used sprinkler pipes. allowing arguably guilty Rice harmful conduct Mydlarz injured from to continue. the work which attempted to locate scaf- record Peter Rice indicates that began working folding Mydlarz ladder; on the when he arguably danger potential acknowledged thus, or he harm of such device.
Mydlarz erred fail that the District Court asserts jury following ing of an the directions instruct the that employer contributory negligence. held that is We have not contributory negligence be raised the defense of cannot applicable. Todd, v. Pollard when the Act is supra. applies, that Act such de Since we have found is moot. fense cannot be raised and this issue notwithstanding that, the Scaf contends guilty folding Act, of law for is as matter scaffolding removing 50-71-203, MCA. under Section negligence law re This as a matter of Court has held that proxi statutory quires showing violation *18 injuries Kudrna v. Comet mate sustained. cause (1977), Corp. 29, P.2d 183. While 175 Mont. 572 Palmer/ may question, issue Duncan have violated the statute proximate hold, This, not we best of cause was addressed. upon left to the trial court remand. respect
Mydlarz’s challenges instruc to OSHA with merit. The are tions and costs and disbursements without question was never addressed of OSHA violations with re citations were issued District Court and no OSHA part alleged spect project. are not to this violations
347 the evidence properly and instructions thereon were denied. This Court has held that instructions not supported Adams v. evidence brought out trial given. at need not be Cheney (Mont. 1983), 187,] 434, Mont. 661 P.2d 40 [203 Payne 383; (Mont. v. Sorenson St.Rep. 1979), 362, 599 P.2d St.Rep. 36 1610. depositions
Costs for certain and witness fees were properly Mydlarz awarded to and Rice. used the depositions in question and the witnesses testified.
The judgment is vacated and the cause remanded to the District Court trial. new
MR. JUSTICES SHEA and SHEEHY concur. MR. JUSTICE in part concurs MORRISON and dissents in part as follows:
I concur in the resolution of all issues discussed in the ma- jority opinion with the I exception of the issue. first do agree that applies Montana Act to the facts of this case. This dissent question addresses the of “con- trol”; position discusses the relative Motors; Rice comes to a regarding different conclusion dis- position first issue.
The majority opinion states:
“Finding applies, Act we reverse and remand to the District Court to determine proximate liability cause and ex forth in State rel. Great Falls Nat’l under rules set Bank v. District Court (1969), 336, 154 Mont. 463 P.2d 326.”
The holding of Great Falls National Bank insulates owner liability from absent evidence of actual control. This holding in the Great Falls Bank case was modified in Stepanek v. Kober Construction St.Rep. 38 625 P.2d 51. The Stepanek the resolu- changes modification tion this issue. v. Schwieger, Ulman (1932)
In Mont. P.2d 856 we inherently held that one who perform undertakes an dangerous activity nondelegable duty has a cannot be *19 con- independent of an by engaging immunized the services Falls Bank case addressed Great subject the of tractor. The a owner did not have stated that an nondelegable duty but of a subcontractor. duty running employees nondelegable case, would If Rice Motors applied rule in this that were here. duty plaintiff that ran the nondelegable not have a Stepanek However, the 1972 constitution in we held that be treated employees of subcontractors mandated that nondelegable Therefore, we held that equally with others. If do, fact, employees of subcontractors. in run to duties perform- of the nondelegable duty arising out Rice has a activities, non- then that inherently ance of work dangerous in this plaintiff case. delegable duty Mydlarz, runs to the has opinion I that agree majority with the Palmer/Duncan as- responsibility nondelegable duty a on the basis in holding the This in line with our sumed contract. is Stepanek Motors, al- Rice I further hold that case. would contract, nevertheless has duty by though it assumed no dangerous work- duty inherently to see nondelegable that duty such safely performed and that related activities are insulate so as to delegated cannot be to comports with holding I liability. Rice from believe such a Schwieger, supra. v. the law of Ulman the have identify not those who Act does Scaffolding is duty the I hold that imposed by duties the Act. would a gen- engages If owner imposed upon first the owner. the responsi- contractor, also assumes eral that contractor previously For the reasons imposed by the Act. bilities effectively dele- mentioned, parties can neither of these two liability escape thereby gate responsibilities their provisions violation of the of Act. the facts this applied Scaffolding Act
Once unquestionably case, necessarily There liability attaches. Act, Under the injury. causing plaintiff’s awas failure Therefore, I would is not a defense. contributory negligence remand plaintiff liability favor of direct a verdict on damages. for a new trial on WEBER,
MR. JUSTICE dissenting: I respectfully majority dissent from conclusion applies Montana to the facts Act pointed this case. As opinion, out in the essen- majority portion 50-77-101, tial the Act is codified Section *20 MCA, which, pertinent case, as this to states:
“All scaffolds in in erected this state for the erection use ... of shall buildings safely supported, be well and of sufficient width, properly safety and secured so as to ensure the of persons working on them . . to prevent . and them from falling . . .”
The statute was in general enacted 1909. is There no legislative statement of purpose for this chapter, which also refers to temporary floors in certain buildings, guarding of toilets, scaffolds and stair temporary in- openings, building spector enforcement, penalties for $100 to each $200 offense.
The majority the in Pol- purpose cites of the Act as stated lard v. Todd Pol- 148 Mont. 418 P.2d 873. lard states that purpose the of the Act is impose absolute statutory liability protect workmen and others from the “extraordinary Pollard hazards associated with scaffolds.” was a in case which placed ladders were on both sides of a door at a apart, distance about feet each ladder was fitted with metal jacks hooks called ladder which are de- commonly vices building used in support the trades to a plank, a plank and wooden 18 to long positioned 20 feet on the jacks. ladder While on standing plank platform, this plaintiff the fell 12 ground plank feet to the after the broke in Pollard near the agree center. I with the conclusion ladders, plank combination of jacks ladder consti- tutes a scaffold under the Act.
That question In presented a different than is es- here. sence, question our is: Is a ladder a scaffold under Act? this Pollard case, From majority the background of the opinion moves to the conclusion that a scaffold is a struc- place, support in Web- ture for in an as defined elevated any temporary apparatus providing footing ster’s, and that ground held above workmen is a scaffold as for point majority Illi- of Illinois. The does out that the courts phrase nois in- Act uses the “all mechanical contrivances” suggests The then that because stead of “scaffolds.” Court appropriate purposes identical, it is of the two acts are any I mechanical contrivance is scaffold. conclude that find conclusion. no reasoned basis for that majority jurisdictions describ-
The cites cases from other ing types been which have structures or devices A indicate a classed as scaffolds. review of these cases does types variety been structures which have broad However, have con- as none of the cases classed scaffolds. equivalent I of a scaffold. cluded that a mere ladder is majority support find little those cases conclusion. analysis adopts majority opinion Illi- then *21 inquiry is not limited to
nois Court which has held that the being identity object, uti- it was but rather “how appropriate analysis injury.” at time of That lized include all is intended to under the Illinois Act which prop- Obviously phrase can that mechanical contrivances. erly However, I find it of no or include a ladder a footstool. legislature determining meant us- what our assistance in opinion Finally, majority ing con- the term “scaffolds.” “any utilized device cludes that “scaffolds” includes might in result where a fall workmen allow them to work injury,” ladder that 16-foot and then concludes serious meets that definition. analysis,
Notwithstanding a 16-foot ladder that extended statutory provision appear relat- not to fall within does ing If ladder meets in state.” “all scaffolds erected this step-ladder, statutory saw-horse, definition, then a anything could fall chair, a workman or else from which I that cannot conclude the definition. hurt also meets legislature to be devices are all these intended that classed as in scaffolds erected Montana. may
It well be that our statute should be modernized after years so it covers all in mechanical contrivances as Illinois. That legislature. amendment should be left to our
MR. JUSTICE GULBRANDSON in foregoing concurs dissent.
MR. JUSTICE HARRISON concurs with MR. JUSTICE dissent, WEBER’S but finds addition no factual or legal to keep lawsuit, reason Rice Motors and I would dis- miss the same in this lawsuit.