*1 INC., ENTERPRISES, PATTERSON Appellant, Plaintiff and v. JOHNSON, d/b/a ARCHIE
ARCHIE CONTRACTING, JOHNSON Appellee. Defendant DA 11-0049. No. Argued December 13, 2011. Submitted December February Decided MT 43.
364 Mont.197.
JUSTICE Opinion NELSON delivered the of the Court. (Patterson) Enterprises, Patterson appeals ¶1 Inc. District, Court District for the Fourth Judicial County, Missoula
denying Patterson’s motion for summaryjudgment its strict claim. We affirm. Patterson raises appeal:
¶2
two issues on
1.Whether the
Court
permitted
District
erred when it
the defense
go
of the
to
2. If
proper
this Court determines it was
to instruct
risk,
regarding assumption of the
whether the District Court abused
its discretion in
to
failing
jury regarding
instruct the
knowledge requirement set forth in Lutz v.
Corp.,
National Crane
(1994).
FACTUAL AND PROCEDURAL BACKGROUND fall Patterson by Doug was hired Dan Ferraro and Vanderzwaag to property construct road on owned Ferraro and Vanderzwaag approximately located 20 miles west of Missoula. Because the road was be terrain, to constructed mountainous it was significant determined that a of blasting amount would required. any personnel Patterson did not have knowledgeable trained or (AJC) blasting techniques, so he hired Contracting Archie Johnson perform necessary blasting project. all on the January 2, 2007, On Patterson AJC entered into an they referred as project on the which agreement for the AJC drill and blast required This Project. agreement Mile Nine main cliff section which as well as a outcroppings small rock various project Pummill was length. 400 feet in Adam approximately job His operаtor. as well the excavator for Patterson superintendent the project material as to remove blasted to work with crews building performing his roads progressed. Despite experience background in work, any have general Pummill did not excavation Thus, charge of the geology. or AJC was drilling, blasting excavating. charge Patterson was while following sequence standard at trial indicated Testimony equipment use its to clear during project. Patterson would events drilling on. equipment a flat for AJC’s sit pad build its drill a series holes placе drilling equipment pad, then rock, explosives. detonating and fill the holes with Before personnel equipment. clear the area of explosives, AJC would sufficiently for Patterson explosion was intended fracture rock to remove the material. AJC use its excavators blasted repeated process this basic numerous times as worked to construct the road. 26,2007, pounds explosives February On AJC detonated This yards holes of rock. created a rock along blast *3 to the caused both Patterson’s and AJC’s crews be conсerned. On
that evening February Archie and owners of the Johnson the overhang. met how to deal the One idea project on site discuss with using and ropes was for AJC’s crews to come in from drills so above safely get overhang bring that could and it down without having days, to be Since the underneath it. this would take several were idea. opposed owners blasting Trial AJC in the testimony differed on whether continued However, overhang of the it down. Pummill try bring
area 1, morning that he for work of March testified when arrived 2007, overhang apparent was him had been altеred. into near overhang Pummill moved his excavator an area and excavating rock. crew sometime later began blasted AJC’s arrived driller, Bentley, progress. Henry and checked on Pummill’s dangerous not advise or warn Pummill that was still because, already that it according Bentley, Pummill knew was Bentley by more stopped again When the area than dangerous. later, working directly hour he noticed that Pummill was below Almost overhang, signaled so he for Pummill to exit excavator. excavator, immediately Pummill exited the an entire section of after it. Pummill not collapsed crushing rock above excavator injured. accident, consequently AJC liability denied for Patterson filed 11, September complaint,
suit on 2007. In its second amended contract, negligence, breach of asserted claims breach liability. fair implied good dealing, covenant of faith and and strict allegations AJC denied all of the and asserted various affirmative including contributory negligence defenses ofthe risk. also money AJC asserted counterclaim for breach of contract for still performed project. owed to AJC for work on the Summary 11 Patterson filed a for Judgment Motion on November arguing constitutes an abnormally activity thereby subjecting liability AJC to strict for Patterson’s damages. Thereafter, summary AJC filed a cross-motion for partial (1) grounds that governed by the case should damages strict because the claimed Patterson did not occur days any blasting until after done AJC and after Patterson’s (2) operator overhang, had excavated under the if the court found that governed by the case negligence, then Patterson was (3) contributorily negligent law, as matter if court found governed by that the case liability, then Patterson assumed the risk as a matter of law. The Opinion District Court entered an Order on October
2009, finding inherently is an abnormally dangerous activity subjecting However, liability. to strict pointed court out that, in damage to the excavator occurred more than 24 hours after the blasting process had occurred and after spent Pummill removing at least three hours rock from underneath the court stated that engages “someonewho an abnormally dangеrous activity legal does not have to in duty essence damages ‘insure’ any all may harm that result following at some time in the future performance ....’’Thus, activity court determined when AJC’s strict and stopped started were factual questions jury’s for the determination. The court further ordinary noted that this case primarily
negligence “plenty action and that there was upon of evidence which could parties find the contributorally negligent [sic] at trial.” *4 addition, In the court stated that “the causal question under [Patterson’s] claim of under the activity legal theory question jury is a for the to determine because of intervening the work of the excavator more than hours after the findings, activities occurred.”Based on these the court denied also denied The court summary judgment. for motion Patterson’s there were summary stating that partial motion AJC’s contributory defenses of regarding of AJC’s affirmative fact questions the assumption risk. negligence trial, During began Trial of this case on December assumption arguing trial brief that supplemental filed a
Patterson a to jury to the as defense should not be submitted of risk defense argued in its brief that Patterson Patterson’s strict claims. satisfy to ofthe defense enunciated AJC failed elements addition, during settling at at 460. 884 P.2d wording instructions, to jury objected Patterson that to properly on the basis it failed assumption ofthe instruction knowledge forth subjective standard set jury regarding instruct the at Lutz, 267 P.2d evidence, that it determined would Following the close the court liability case, jury to the as a strict submit case The assumption of risk defense. permit jury to be instructed contract to the counterclaim for breaсh of court also submitted AJC’s jury- jury finding On December returned verdict by Patterson and that damages caused the sustained jury the risk of harm. The employees
Patterson and its assumed Patterson, fault and awarded 51% of the to AJC 49% allocated $50,000. jury also returned damages Patterson the amount and awarded favor of AJC on its breach of contract claim verdict $19,255.16. damages AJC in amount District to allow the appeals Patterson Court’s decision go as the jury of the risk to to the as well court’s defense knowledge jury regarding failure to instruct forth in Lutz. requirement set
Issuе 1. permitted Whether the District Court erred when defense of jury. go the risk to incorrectly appeal Patterson contends on that the District Court applicable of the risk was concluded that the defense of case, permitting the facts of this thus court erred in under focus go argues jury’s Patterson should condition, not on the conduct of the have been on the Thus, allowing maintains that injured party. conduct, obviously in the face of an to focus on Pummill’s assess, dangerous condition which he lacked *5 a impermissibly questions contributory negligenсe inserted of into purely case. argues strictly the other hand that hold it for on liable
¶20 here, days at blasting activities that occurred before incident issue yet only employees find Patterson and its assumed the risk of met, harm if the set out be stringent standards in Lutz are contrary fundamentally unfair and to the intent of the Restatement (Second) Torts. AJC contends that there was sufficient evidence of
presented
jury
overhangs
show that Pummill knew that
are
unstable,
dangerous and
and
place
that was unsafe to
excavator
under the
AJC further contends thаt there was sufficient
presented
jury
evidence
that Pummill
that digging
knew
overhang
support
overhang,
underneath the
would undercut
yet
Pummill did
resulting
falling
so
on the excavator.
trial
Whether the
court erred in
of
permitting
the defense
assumption of the risk to
jury
be submitted to the
is a question of law
Co.,
248,
which
novo.
we review de
Jacobsen v. Allstate Ins.
2009 MT
17, 26,
464,
(citing
351
Mackrill,
Crane designed unreasonably defectively crane alleging raised the an insulated link. National because lacked misuse. statutory affirmative defenses 372-73, Mont. at 884 P.2d at Lori, reduced the jury a verdict favor but returned percentage responsibility percent, of her award amount from the verdict and appealed allocated to Lutz. National ofrisk on the issues cross-appealed while Lori misuse, full determination of seeking jury’s to recover Lutz, Mont. 884 P.2d at damages. *6 risk in assumption product ofthe a We stated in Lutz that analyzed a rather than under the subjective
case is under standard standard, we set forth that standard objective person” "reasonable and as sees, knows, understands and particular plaintiff
what objective from which is appreciates. In this differs standard negligence.... by age, If reason of or lack of applied contributory information, intelligence, judgment, plaintiff experience, or situation, not in a he does understand the risk involved known risk, may although not taken to be found will be assume contributory his because [comparative] negligence conduct community it does conform to the standard of the reasonable not man.
Lutz,
378,
(citing
at
Krueger
267 Mont. at
P.2d
v. General
(1989)).
1340,
Corp.,
Motors
240 Mont.
783 P.2d
objective
Lutz;
in
Despite the fact that there was known
hazard
Lutz
associated with
a crane
recognized
operating
hazards
lines;
power
next to livе
and that Lutz knew he could
killed if the
lines, this
power
came
contact with those
Court determined
cable
into
that the
of the risk defense was not available
that case
lines
and the power
because
contact between
cable
was
voluntary
by
operator
not a
act
either
crane
or
inadvertent. It was
Lutz,
380,
at
P.2d
462. We ruled in Lutz that
Lutz.
267 Mont.
at
product
defense in a
case is
inapplicable as a matter of law without evidence that
victim
result,
actually
knowing
or
would
and
injury
knew that serious
death
Lutz,
that,
danger.
to a
voluntarily exposed
the victim
himself
known
379-80,
created the and should be held dangerous condition liable damages all resulted therefrom. Patterson maintains that AJC’s and, were the rock employees experts project such, they recognized the Pummill on the hand danger. other was not expert rely geology, upon hence he had to employees to determine whether situation was safe. Patterson may maintains that while Pummill have understood that there was danger, taking some he did understand that the excavator into the Patterson, According area result its destruction. this falls knowledge of the subjective requirement short set forth Lutz. apply We decline to requirement ofLutz facts in case because unlike in where the contact with inadvertent, line power actions in Pummill’s the instant case excavating Furthermore, beneath the were intentional. Pummill knew dangers associated with excavating there. Patterson also relies on our recent decision in v. Patch Hillerich Bradsby Co., & 2011 MT 257 P.3d to support its claim that the of risk gone defense should not have Patch, eighteen-year-old Brandon Patch was struck the head during a batted ball Legion American baseball game. The ball by player using was hit an aluminum bat manufactured Hillerich (H&B). Bradsby & Co. injuries. Brandon died from his parents His his estate sued H&B in strict products liability asserting defect, manufacturing design failure warn claims. Plaintiffs claimed the bat in a defective condition because of enhanced risks associated its velocity with use. The aluminum bat increased the *7 of a batted ball when struck decreasing the bat thus infielders’ times, reaction in resulting greater high number of energy Patch, batted balls the infield. 8-9. ¶¶ trial, Before the District Court granted H&B’s motion for summary judgment on manufacturing claim, Plaintiffs defect but summary judgment design denied on Plaintiffs defect and failure to granted warn claims. The court excluding Plaintiffs motion in limine Patch, H&B’s of the risk defense. 10. The court ¶ concluded that voluntary Brandon’s participation game in the did not Patch, make the risk applicable. ¶ trial, At design Plaintiff s defect and failure to warn claims were submitted to jury The concluded that bat was not condition due it was in a defective defectively, but that designed use. associated with its of the enhanced risks failure to warn H&B’s claim. $850,000 their failure to warn on awarded Plaintiffs Patch, 27-l-719(5)(a), MCA, the both appeal, we examined § On statute, holding Lutz. We concluded and our
assumption of the risk applicable the risk defense was Patch, knew actually that Brandon there was no evidence that case because to a batter seriously injured pitching or killed while he would be Patch, 33-34. aluminum bats. using ¶¶ one of H&B’s instant case distinguishable from the hold that Patch is We that, Patch who here unlike Brandon the evidence indicates because bat, H&B’s aluminum danger balls hit from unaware of the from from the danger Pummill aware Pummill testified trial as follows. any the blasters ever
Q. Okay, counsel]. and did [Plaintiffs know, that we you overhang, about this express any concern to now, your excavator? eventually, came down They did, yes. [Pummill].
A.
Q. they you? What did tell it, very felt it was They-we A. discussed condition, presented, also, there, and I up hazardous that was I, also, expressed my very concerns that felt was hazardous. Q. you large overhang? you reach this When Okay, and could your ramр, top crawled excavator on of that and extended arm, you could, you could reach the high as with excavator? No, it, that,
A. I able to completely couldn’t reach to be do only position, that very it would have been because the in, right it, have I could have been would been underneath to be it, anything it with the able reach do with machine. Thus, rather than Lutz in this we will follow our apply (1985). Co., P.2d 2
holding in Matkovic v. Shell Oil response questions posed to certified to this Court United Montana, States District Court of the District of we stated Matkoviс liability apply saw reason to a different standard to strict we no conducting which arises as the result of in the of a
activity
than
which arises
case
defective
Matkovic,
product. Consequently,
we extended
abnormally
based on
assumption of the
to strict
*8
Matkovic,
dangerous
Mont. at
P.2d at
activities.
addition,
while
we stated Matkovic that
of the risk is a
products liability
defense to both strict
and strict
activities,
may
only
used
rare
Matkovic,
160, 707
(citing Zahrte
circumstances.
218 Mont. at
P.2d at 4
(1983)).
Sturm,
Co.,&
Ruger
v.
The plaintiffs assumption of the risk of harm from an abnormally dangerous activity recovery bars his for the harm. In particular, urges adopt us to comment d to 523 which § provides: commonly risk assumed part one who takes in the himself,
activity servant, a an contractor, independent a a joint member of group carrying enterprise or as the employer independent carry contractor hired to activity to do necessarily work that must involve it. Thus a plaintiff accepts employment who driving tank truck full of nitroglycerin, with knowledge danger must be taken to assume injured by when he is explosion. We conclude that in this the District Court right reached the
result, but wrong for the reason. In respect, there although argument effectively below, was not raised we §523 conclude that currently comment d of sets forth the that applies §523 law to these Here, types cases. joint and AJC entered into a enterprise regarding an abnormally dangerous activity. Under the Restatement (Second) (cmt. d) Torts Patterson and employees §523 his assumed the risk of harm. Accordingly, we hold that the District Court did err not when permitted the defense of go jury. the risk to to the
Issue 2. Whether the District Court failing abused its discretion in requirement set jury regarding instruct the Lutz. forth instructions, counsel Patterson’s settling During of the risk defense objection allowing his renewed specific wording objected also go Counsel *9 counsel’s District Court overruled jury proposed instruction. jury the as follows: objections and instructed s claims. In order to plaintiff risk is a to Assumption of risk, prove: the defendant must assumption of establish damage and First, open caused was that the condition which condition; discovered such plaintiffs employee obvious the obvious, Second, open condition though that even the condition, plaintiff the the plaintiffs employee or the discovered danger; in the face the unreasonably proceeded Third, as a of its plaintiff damaged the result danger. in employee proceeding the face Assumption by does not bar its plaintiffs employee of risk the damage greater the is than recovery responsibility its unless However, any damages you award will be the defendant’s. by s according percentage plaintiff reduced the Court you. responsibility by as determined appeal improperly on that the District Court argues jury regarding the the ofrisk defense. The court
instructed MCA, 27-1-719(5), enacted or determined that had been § this decision in substantively subsequent amended Court’s Lutz result, As a the court plain language thus the statute controlled. jury subjective knowledge did regarding not instruct requirement set Patterson maintains forth Lutz. §27-1-719(5),MCA, not not were substantive and did amendments analytical Consequently, set forth in Lutz. alter the basic framework determining Court erred in Patterson contends that District §27-1-719(5), MCA, in Lutz. superseded guidance given by the District Court on AJC contends that instruction substantially language tracked the in Montana (MPI) correctly states on Sеcond 7.06 and the law Pattern Instruction court assumption of risk in Montana. In this modified product. than a defective instruction refer to a condition rather Supreme Court by MPI2d 7.06 written the Montana Commission) (the Jury Guidelines Commission on Civil Instruction 7.06, MPI2d listed its source promulgating 2003. In the Commission as §27-l-719(5)(a), MCA, it language and noted that “considered 455, (1994), 267 884 P.2d Corp., v. National Crane Mont. Lutz subject instruction.”Although ofrisk drafting did consider adopt Commission its model language regarding subjective knowledge instruction the from Lutz urged that Patterson the District Court to jury include instruction at issue this case. regarding A district decision jury court’s instructions is reviewed Neumann,
for an abuse of discretion. v. Goles MT ¶ (citing Christiansen, Mont. P.3d State v. 2010 MT 949). 7, 357 379, 239 P.3d Although district court’s discretion broad, overriding is is restricted principle jury fully fairly jury instructions must instruct regarding the Thus, applicable error, law. to constitute reversible instructions prejudicially Goles, must affect the defendant’s rights. substantial 9.¶ purpose jury ‘The guarantee instructions decisions consistent law, with the evidence and the which can be accomplished when the clear, concise, Goles, instructions are plain, and brief as possible.” 9.¶ find prejudice We no in the court’s language refusal include the
proposed jury Patterson in this instruction. Accordingly, we hold that the District Court did not its abuse discretion in failing instruct regarding *10 knowledge requirement set forth Lutz. Dissent, §27-1-719(5), As for the MCA,
¶50 Lutz and both deal with products liability, strict not with activities. While Patterson and the Dissent apply legal would have us principles governing latter, the former to resolve the we conclude is that Foremost, unwarranted here. no product defective is involved in the Rather, abnormally instant case. this case concerns an dangerous activity involving participants. Accordingly, two we have determined (Second) that, the on facts of the instant Restatement § Torts (cmt. d) legal best expresses the that principles govern. should Applying principles those and based us, record before we persuaded are not that Pummill failed recognize danger operating his excavator under the rock overhang as the Dissent Dissent, contends. was, all, 57. Pummill experienced ¶ after contractorJndeed, charge he was in of the construction project for his emрloyer, as far as the excavation engaged went. He was with inAJC a road construction project blasting that involved excavating rock. expressed The blasters had concern to Pummill about the rock overhang eventually excavator; fell on the told him ‘It very “also, hazardous” condition and Pummill testified that he felt it fact, placing In Pummill testified that very hazardous.” ‘Very have been ‘bight overhang underneath” excavator dangerous.” operating knew Pummill was persuaded are also not that AJC We the Dissent contends. overhang
the еxcavator underneath driller, Pummill’s first checked on Dissent, Bentley, When ¶ working one accident, Pummill morning progress However, time Bentley when returned some side of directly Pummill below later, had moved the excavator he noticed that Bentley for Pummill exit overhang signaled that is when Opinion, excavator. circumstances, satisfied that Pummill Under these we are overhang danger that the
possessed that, knowledge, face The trial in the posed. evidence showed ‘Very operated ‘bight his excavator underneath” Pummill he, himself, ‘Very overhang felt was hazardous.” dangerous” rock doing, very risk that what so is clear Pummill assumed collapsed Pummill was happen, happen. while could excavating correctly it. The District Court instructed underneath supported by the jury, fully and the fact-finder’s decision was evidence before it. Affirmed. COTTER, MORRIS, McGRATH,
CHIEF JUSTICE JUSTICES BAKER RICE concur.
JUSTICE WHEAT dissents.
correctly
The District Court
concluded that
is
abnormally
activity,
Archie
dangerous
subjecting
thus
Johnson
(AJC)
Contracting
liability.
liability arising
from an
Strict
abnormally
activity,
blasting,
such as
is confined to the
activity
itself.
damages
danger
that arise from the abnormal
(Second)
(1977).
danger
Restatement
Torts
cmt. e
One obvious
§519
falling
with
the chance that
rock will cause
associated
injury
person
property,
exactly
happened
to a
what
here.
which is
However,
I
the District Court erred when
allowed
believe
go
To
the risk defense
establish
(1)
defense,
assumption of the risk
the defendant must establish
injured party
defect,
open
or the defect was
*11
discovered
(2)
obvious;
injured party unreasonably
that the
made use of
(or condition).
27-1-719(5), MCA. This Court
product
applied
Section
abnormally dangerous activity
for an
these standards to strict
(1994).
267
P.2d 455
Corp.,
Lutz v. National Crane
§27-1-719(5),MCA,
As
must prove
to the first element of
defendant
result,
that the victim knew that
death
injury
serious
would
knowing that,
victim voluntarily
himself to a
exposed
known
Mont,
Lutz,
danger.
at
found the inapplicable the risk defense applied had it holding Court’s Lutz. In this Patterson could not have (1) assumed the the excavator be destroyed because Pummill lacked the danger the overhang (2) posed, and it was foreseeable to could while collapse Pummill was operating the excavator beneath it. For these I reasons believe that the District Court erred in allowing the
assumption of the risk to go jury, and I would modify to reinstate the against AJC, full verdict less offset for breach of contract claim.