*1
PAULL,
JAYDON
Appellant,
Plaintiff
MONTANA,
COUNTY,
PARK
MONTANA,
OF
STATE
Appellees.
Defendants
DA 07-0751.
No.
January
Argued
2009.
24, 2009.
on Briefs March
Submitted
September
2009.
Decided
Rehearing
2009.
Denied November
MT 321.
For Thomas Bowe (argued), Attorney G. Assistant General; Agency (for
Legal Bureau, Montana); Services Helena State of Steven R. (argued), Milch (argued); Matthew S. Brahana Crowley, Haughey, (for Hanson, Dietrich, P.L.L.P., Toole & Billings Park County, Montana).
CHIEF JUSTICE Opinion McGRATHdelivered the of the Court. appeal by Jaydon This is an Pauli ¶1 from the November District, order of the District County, Court of the Sixth Judicial Park granting summary judgment County to Park and the State ofMontana. We reverse. as follows: review that we restate presents Pauli issues for
¶2 holding erred in the District Court Issue One: Whether transport as a duty concerning to Pauli his County did not have a probation to a revocation. respond Florida to Montana to prisoner from holding erred in that the the District Court Issue Two: Whether a duty concerning toPauli his as State did not have a probation revocation. respond to Montana to Florida AND FACTUAL BACKGROUND PROCEDURAL burglary and theft in 2000 Pauli received a deferred sentence Court, County, placed Park and was from the Sixth Judicial District and traveled to report probation He failed to to his officer probation. probation In 2001 the State commenced permission. Florida without Montana proceedings transported Pauli from Florida to revocation transportation service called Extraditions using private prisoner complained Pauli arrived in Park he International. When had “torture” and that he had trip Sheriff that the from Florida been poorly treated. been probation proceeding The result of the 2001 revocation Department
Pauli to the Montana of Corrections for six was sentenced *3 probation on under years, suspended, placed all and was supervision ofthe Adult Probation and Parole Division ofthe Montana (DOC). permission of Corrections Pauli obtained Department Florida, Adult and Parole to move to where he was Montana Probation subject by officials of the State of Florida supervision probation pursuant Compact Supervision, to the Interstate for Adult Offender § 46-23-1115, MCA. probation In December Pauli’s Florida officer informed
¶7 Adult and Parole that Pauli had violated the Montana Probation report, Based this the Montana DOC probation. conditions of his violation, report probation a a recommendation that Pauli’s prepared revoked, request and a that a warrant issue for his arrest. The DOC be County Attorney, and filed a report prepared was sent to the Park who The petition probation. in the District Court to revoke Pauli’s District arrest, a for Pauli’s and it was executed Court issued warrant February, custody held in authorities in Florida in 2003. Pauli was without bond ‘for Montana” Florida authorities. arranging The Park Sheriff s officethen became involved in
¶8 private The officecontacted a Pauli to Montana. Sheriffs (AEI), American Extraditions a prisoner transportation service called Pauli transported International that had successor Extraditions s receiving price quote trip, in 2001. After a Sheriff Montana required procedure office followed State contacted the Montana approval expenditure. Governor’s officeto obtain of the The State Montana a Transportation maintains Prisoner Fund for the costs oftransporting prisoners. Beginning reimburse counties Racicot, cost-cutting measure, Marc as a required Gov. prior approval counties for the use of state prisoner obtain transportation funds. Aletter from the announcing policy Governor only prisoners charged cautioned that with more serious offenses and higher should considered transportation. bonds for interstate encouraged The policy private prisoner transportation the use of long-distance transport. services interstate AEI employees picked up Pauli from Florida authorities in February, 2003. He placed was shackled at the wrists and ankles and large passenger prisoners. van with other The van had two by AEI, uniformed employed charge drivers who were in prisoners during nine-day trip from Florida to Montana. The van equipped with a divider prisoners between the and the drivers that prisoners. allowed the drivers to observe the prisoners were shackled but the van did not have seatbelts and did not have toilet facilities for their use. complaint alleged Pauli’s that he and the prisoners other were during trip primarily by
mistreated being denied sufficient toilet stops. He alleges themselves, that the drivers stop would to relieve but so, would not prisoners allow the to do and that this resulted in the prisoners defecating urinating and in during themselves the van trip. On March highway van was on the interstate near Dillon, Montana. complaint alleges Pauli’s that the prisoners had not provided hours, been many bathroom break in and that the drivers had told them to plastic urinate into cups alleges or water bottles. Pauli that as the urinating plastic were into containers the AEI watching driver was them laughing, swerving while trying the van spill to cause them to urine on themselves. In doing, so the driver lost times, control of the van and it rolled coming several to rest on top. The other AEI driver was killed in the accident and alleges Pauli injured. he was *4 AEI had accident, no insurance and dissolved after leaving
¶13 persons with practical against claims with no AEI recourse for loss or injury. Taking at face value the defendants’ they assertions that had no knowledge practices, of AEI’s it is clear that neither undertook ascertain AEI operation, whether had a safe AEI whether was bonded insured, or whether AEI adhered to minimum standards for the care adamantly County State and the Both the custody prisoners. and knowledge practices of the control, oversight, or even any disclaim devices, entirely left own AEI. AEI was therefore procedures County were concerned. as far as the State least State, alleging County against Park brought suit Pauli ¶14 County and State injuries. for his The they responsible were allowing Pauli a summary judgment. After and moved for answered briefing and oral discovery and after to conduct period which County summary judgment to the granted Court argument, the District appeals. Pauli and State. they no owed argued and the State each below County The
¶15 inflicted AEI or its injuries his were duty to Pauli because actionable AEI connection to that it had no The State contended employees. Pauli. transporting County agent AEI was its that neither nor that it and further contended County arguments, made similar injury to him foreseeable that duty to Pauli because it was not owed no seeking approval AEI and might hiring result from transportation costs. duty no to Pauli held that the State owed The District Court relationship with any agency contractual or it did not have
because a contractor- County, the District Court held that AEI. As to the County and relationship existed between the independent contractor AEI, duty had no either. and therefore the
STANDARD OF REVIEW novo, de rulings summary judgment court’s We review a district M. R. Civ. P. 56. criteria as the district court under applying the same MT County, Butte-Silver Bow Beckman v.
389,
DISCUSSION holding erred in that the One: the District Court Issue Whether duty concerning to Pauli his County did not have respond probation to a revocation. Florida to Montana by that was employed company In plaintiff Beckman for Butte-Silver Bow constructing pipe a water line excavating and working he was Comity. injured when the trench where Beckman was not County, contended that was collapsed. Beckman sued the which are injuries general under the rule contractors liable for Beckman’s noted contractors. This Court not liable for torts of their (1) rule, include where general which exceptions that there are (2) contract; activity duty on a where nondelegable there is a based *5 470 (3) inherently intrinsically dangerous; general or where the negligently right
contractor exercises a reserved of control over a Beckman, subcontractor’s work. 12. ¶ The primary issue Beckman was whether the work was
inherently dangerous so as to come the second exception within (Second) rule, general applying and 427 of the Restatement §416 general Torts. Those sections allow a contractor to be liable for the acts independent or omissions of an contractor when work involves a “peculiar danger risk of harm” or a “special to others.” This Court held every by that contractors are not an independent liable for tort engaged inherently dangerous work, subcontractor in such but those “torts which arise from the by unreasonable risks caused engaging Beckman, activity.” in that 22. We abandoned distinctions ¶ made earlier cases based dangers by whether could be avoided precautions required special precautions. Instead, standard we adopted a rule that a vicariously injuries contractor ‘is' for liable by others caused a subcontractor’s failure to take precautions to reduce risks engaging inherently unreasonable associated with in an dangerous activity.” trenching We concluded that operations are inherently dangerous Beckman, Therefore, as matter of law. County Butte-Silver Bow could be liable for torts by committed independent contractor. Other activities have been considered under Montana law and held inherently
to be
dangerous.
Schwieger,
331, 12
Ulmen v.
92 Mont.
P.2d
(1932) (highway construction);
856
Stepanek Kober,
430,
191 Mont.
(1981) (construction
P.2d
625
51
scaffolding);
Elevator,
Cash v. Otis
(1984)
319,
(elevators);
Mont.
whether was in a contractor-independent contractor relationship County AEI.1The does not contest the District Court’s determination parties appeal why County responsible None of the discusses was for arranging transportation of Pauli from Florida to Montana. The Sheriff did not warrant, execute the District Court’s arrest the law enforcement authorities in Florida did, part appeal. and the warrant itself was not made of the record on There are provide conveying persons statutes for reimbursement to sheriffs for to a Rather, AEI. it and relationship between a contractual there was applies and exceptions Beckman that none of the County argues The District any torts of AEI. vicariously for it is not liable therefore AEI activity undertaken held, concluding that so Court inherently not activity which is driving is a common “driving” and that prisoners transportation disagree and hold dangerous. We activity. inherently dangerous driving and is an just than is more entity that Beckman, county governmental or other Therefore, under vicariously held liable transported may be to have contracts provides contractor that injuries caused still established under Any claim must services. such *6 legal the existence of a requiring proof of ordinary negligence, rules of part of the damages, and on the duty, of causation duty, breach 221, 21, 296 Mortensen, MT Causenbary v. contractor.
Beckman, inherently dangerous as is an typical as a result of the injury plaintiff did not occur while the transport-such as inherent in unique risks unreasonable in this by arguably occurred escape prisoners-it or assault attempted any to take failure of the State or as a result of the case and humane for the safe precaution provide whatsoever the accident Furthermore, alleged complaint, as in the prisoners. transported unacceptable being were occurred because could alleged conditions have It was foreseeable that those conditions. guard conflictswith the drivers among prisoners, caused unrest because, situation, in this unlike It foreseeable a of the van. was crash (e.g., inherently dangerous previously activities deemed other factions of log transport) there are two trenching, scaffolding, space in a small uncomfortable persons-eaptors captives-eonfined In such a animosity mutual one toward other. that can foster environment, by one it is foreseeable that an action potentially hostile dangerous reaction from the trigger quick potentially can group antagonistic forces is a material potentially The mix of these other. inherently dangerous. prisoner transport factor that makes is not holding affirm in Beckman that a contractor We our engaged in every an subcontractor liable for tort work, torts which arise from risks inherently dangerous but those activity. Considering the in such engaging caused case, conclude that the risk of driver singular circumstances of this we danger transportation prisoners, misconduct was an inherent work, peculiar ofthe inherently dangerous part and that it is which is Beckman, activity. in that See engaging harm which arose from risk of Thus, alleged by Pauli falls within the tortious conduct may not be held liable to the rule that a contractor exception *8 Beckman, County may Under independent torts ofan subcontractor. subject liability therefore be to vicarious for the acts or omissions ofits contractor, AEI. holding Issue Two: Whether the District Court erred in that the duty concerning transport
State did not have a to Pauli his as a respond probation Florida to Montana to to a revocation. alleges the State in Pauli The situation of this case is different. negligence agency relationship. emphasizes and asserts an The State that there was no direct contact between and AEI. Under the facts as alleged summary to the District presented judgment Court proceedings, the State’s connection to AEI was to constrain and approve County’s AEI and agree County selection of to reimburse the for However, AEI, private longer exists, the cost. enterprise no had authority transport no to confine Pauli and him in authority shackles from Florida to Montana absent from the State of Montana to do so. When Pauli was arrested in Florida and held ‘for Montana,” power responsibility and transport confine him arose from the apparent State of Montana. Without some actual or authority State, shackling Pauli, derived from the AEI had no basis for him, confining and transporting country. him across the rejected The District Court considered but argument Pauli’s a-duty safely State had him and humanely. Pauli asserted, for example Prediscovery his Disclosures filed in the District Court on June that the State could not avoid the consequences duty by delegating ofthat responsibility transporting him to or AEI. The State duty concedes that it owes a ordinary care to prisoners custody. disagree its actual We duty State’s ends when the are not in the State’s actual custody. Pauli person was a convicted and sentenced under the authority granted ofthe State ofMontana. He was probationary status and ordered to live under a set of imposed by restrictions the State Court, supervised by District and was employees. State He was required permission to obtain from the State of Montana to travel to Florida. When Florida authorities informed the State that Pauli had probation, violated conditions of the State of Montana commenced a proceeding probation to revoke his and to him have arrested Florida purpose bringing authorities. The Pauli back from Florida awas probation court, proceeding revocation State the consequences of could supervision which be to either extend the State’s over him or incarcerate him in prison. the State supervised When Pauli was in Florida he probation by
Florida pursuant Compact authorities to the Interstate for Adult 46-23-1115, purpose MCA. The Section Supervision. Offender through safety, protect rights of victims promote public Compact *9 offenders, provide to of interstate movement regulation control and states, equitably in the member and “to of offenders supervision for the the compact among the costs, obligations the benefits distribute 1(2), 46-23-1115, Compact Article MCA. The compacting states.”Section provides: also recognize they are entering compact into this
The states of offenders who are authorized responsible supervision for the across state lines to and pursuant compact to this to travel states, states are compacting compacting and that offenders, transferring tracking for the location of responsible manner, and authority orderly in an and efficient supervision originating an offender necessary, returning when jurisdiction. 1(1), 46-23-1115, Compact, Article MCA. This subsection of the
Section law, for recognizes responsibility of Montana the State’s part which is Moreover, necessary. returning and for offenders when probationers, its any apprehend at time to may officers of this State enter another state 1(4), 46-23-1115, there. Section Article supervision an offender under MCA. court, grace” by sentencing “act State v. Probation is an
Boulton,
170,
15,
538,
482,
MT
332 Mont.
140 P.3d
that results
2006
sentencing
court and the
in a “form of contract” between
254,
Burke,
165, 171,
P.2d
probationer. State v.
235 Mont.
(1988).
incarceration, probation
Like
is a restrictive criminal sanction
possible punishments.
a continuum of
represents
point
one
on
(1987).
Wisconsin,
868, 874, 107
3164,
v.
483 U.S.
S. Ct.
3168-69
Griffin
imposed
are
to insure
placed
probationers
Restrictions
community
and that
is not
probation
period
is a
of rehabilitation
875, 107
large. Griffin,
at
probationer’s being
harmed
483 U.S.
liberty depending
a status of conditional
S. Ct. at 3169. Probation is
special
adherence to the state’s
restrictions and conditions. State
(1994).
814,
Boston,
The State’s
269 Mont.
889 P.2d
likely
more
probation supervision system
probationers
assumes that
are
commit
community.
Moody,
State v.
average
than
to
crimes
Contrary
the State’s
MT
under the operated as State Montana, holding prisoner. for whom Florida was (Second) Agency provides liability by principal Restatement who duty protect agent. has another from harm caused A master or other principal duty provide who is under a protection protect for or to have care used to others or their property and performance duty who confides the of such to a person subject liability servant or other to such others from *10 by agent harm caused to them the failure of such perform to duty. (Second) (Second) Agency, adopt
Restatement We Restatement §214. §214, Agency, as an appropriate statement of the law in Montana. duty hold that the ordinary We State had to exercise care in ¶38 returning Pauli to Montana to answer its probation revocation proceeding. may private This does not mean that the State not use a contractor or transport prisoners other means to like Pauli. It does not mean that the strictly any injury State is liable for that results from prisoner transportation regardless mean, however, It offault. does if the transport prisoners by allowing State chooses to other entities to work, may do the be held liable for the tortious acts or omissions of agents undertaking the transportation. See Nazareth v. Herndon (Fla. 1985). Service, Ambulance App. So.2d 1076 Whether there injury were acts or omissions ofAEI that caused to Pauli for County may which State or be liable will have to be by determined further proceedings in the District Court. For the above, reasons discussed we reverse the District Court’s decision to grant summary judgment for the defendants and remand for further proceedings opinion. consistent with this NELSON, WARNER,
JUSTICES COTTER and MORRIS concur. JUSTICE NELSON concurs. agree I that prisoner transport inherently dangerous
reasons set forth in 23-25 of the Court’s Opinion. Importantly, this ¶¶ activity is made all the government more when the which transporter retains the duty fails its of due diligence investigate contractor hiring. duty before This diligence, view, of due in my encompasses government’s obligation to make sure that insured, contractor is operates compliance applicable with federal rules, and state laws and good record, has a service and utilizes employees are competent, who trained and professional-employees who are not burdened personality traits or mental deficits that predispose cruelty them to government, and torture. The in fulfilling its duty own transport prisoners, must not permitted any fly- to hire by-night or unqualified otherwise contractor for that purpose. Absolving government liability doing so guarantees that, almost point, some a prisoner or an innocent member public will be injured or by killed the incompetence, gross neglect or misconduct ofthe employees contractor and its in discharging their duties. I agree that, case, cannot dealing we are simple with a
automobile accident for which there was no fault or for simple which negligence was the agree cause. Nor do I dealing we are with an accident caused horseplay, however it might be characterized. Rather, this case involves a contractor employees, whose arguably, intentionally tortured prisoners in their custody and care. It is alleged that guards, the AEI over an extended cross-country trip, refused provide their charges with basic including needs adequate bathroom breaks. It is also alleged that the driver ofAEI’s transporting vehicle intentionally swerved the vehicle so as to cause the prisoners spill urine on they themselves when were guards forced their relieve themselves in whatever containers happened to be available in the back of the Opinion, (which van. 25-26. tragic That the ¶¶ crash resulted in fatal and non-fatal injuries) occurred apparent as an consequence of the van conduct, driver’s torturous removes this case from the realm negligence and horseplay. If the facts of this case are alleged, as then the conduct of AEI’s
employees was little different than the treatment that some of war subjected have been to over If, the last decade. as a civilized *11 society, reject we the torture ofprisoners war, of then certainly most we reject should the torture prisoners of who are placed custody in as a result ofthe criminal processes of this State. prisoners Montana retain right their to human dignity1 once taken into custody under the right guaranteed II, (‘The 1 A under Article Section 4 ofthe Montana Constitution inviolable.”). dignity being of the human is governmental The State and its
authority of the State. power and dealing Montana high to a standard with held subdivisions must be State, 2003 MT Indeed, in Walker prisoners. (a dignity case), that the clause prisoner rights we determined
P.3d 872 protection government from greater with prisoners Montana provided example, For we the United States Constitution. than does intrusion TTjreatment persons, degrades or demeans which stated Walker: persons, the of and is, deliberately reduces value treatment which directly acknowledge persons, as violates fails to their worth which Walker, O. & Thomas P. (quoting Mathew Clifford dignity.” their ¶ and Huff, Meaning Scope on the Montana Thoughts Some of L. Applications, with Possible ‘Dignity”Clause Constitution’s 2000)). (Summer We also determined Walker Rev. that the intrinsic meaning dignity of the clause commands plain “[t]he Walker, humanity may violated.” persons and the of not be worth basic right dignity right The is the ‘inviolable” in the Montana right self-executing and is absolute. The Constitution. The blithely its hands of its government permitted must not be wash due-diligence investigation prisoner-transport of a perform failure to inherently retaining dangerous it task ofinter- contractor before Here, County cannot prisoner transport. simply the State state appalling treatment ofa under allegedly disavow Montana County set in when hired circumstances the State and motion which investigation. due-diligence prior AEI with little or no I concur. RICE, dissenting. JUSTICE opinion today The results a fundamental Court’s ‘inherently dangerous”
misunderstanding misapplication or of the activity exception. opinion principles The disturbs well-settled tort conclusions, law, authority simply no defies has foundational for State, Moreover, regard to sees fit to redraft logic. Court nor plaintiffs complaint address issues neither raised addressed disregard Court. in either the District Court before this Such dissent, I affirm appellate rules should not be countenanced. would County by Court in judgment entered District favor the State. Liability ‘Inherently I. Vicarious
Dangerous”Activities transportation The Court declares ‘the ... makes inherently activity.” 22. The Court Opinion, This citing any precedential authority. is so pronouncement without only disregards not settled there is none. Court’s decision because *12 principles of Restatement, Montana law based but is in conflict every jurisdiction other which has considered this issue. As consequence, Montana now becomes the first and state in the United impose States to liability activity vicarious of human And, transport. disconcertingly, the expansion Court’s broad of the exception any is done without clear test for determining whether an activity inherently dangerous. attempt This dissent will succinctly point out the analytical Court’s errors. “Inherently The Dangerous”Activity Exception It is well-established that employers are generally not liable forthe independent
torts oftheir contractors. Co., Beckman v.Butte-Silver Bow 112, 12, (citations 2000 MT 389, omitted). ¶ P.3d 348 However, employers may be liable for the negligent intentional or actions of an independent contractor if the activity is inherently or intrinsically dangerous. Beckman, 12. This is so because the employer aware, at the time ofcontracting, of dangers which are “inherent” work, in the and the law therefore requires him to oversee implementation “specialprecautions” necessary “protect workers unreasonable, from the extraordinary, and unusual risks associated with” an inherently dangerous activity. Beckman, 15-26; Restatement (Second) (1965). Torts 416 cmt. a Critically, § the ‘inherently dangerous” exception applies only when the work itself is dangerous skillfully when performed. The Court’s decision to the contrary-that work can be “dangerous” considered by assuming it will be negligently performed-is contrary to the purpose of the exception and the reasons underlying the rule. (coined ‘Inherently The dangerous” exception ‘intrinsically dangerous”) recognized was first in Montana in Shope City
Billings,
(1929)
826,
278 P.
(citing Dillon on
(5th
Municipal
4,
947).
Corporations vol.
ed.);
§1722
43 C.J.
In Shope,
defendant,
an independent
city
contractor hired
to install a
tank,
metal oil
negligently permitted a
sag
cable to
across a street while
he attempted to hoist and set the
plaintiff,
tank. The
driving on the
street,
same
struck the cable and was seriously injured.
Court,
recognizing
‘inherently
dangerous” activity exception, stated that
the “rule that
the municipality is not liable for the negligence or
wrongful acts of a
contractor
agreed
execution of the work
to be
performed ‘does
apply
not
where
directly
the contract
requires the
performance of a work intrinsically dangerous, however skillfully
”
performed.’
Shope, 85 Mont. at
added,
vicariously plaintiffs because the liable the work. negligent performance contractor’s at 309-10, 278 P. Shope, 85 Mont. important further distinction explained This Court Schwieger, 92 Mont.
inherently dangerous context in Ulmen v. injury (1932), highway personal construction 345-48, 12 859-60 P.2d she Ulmén, injury when drove plaintiff In sustained serious case. *13 Ulmen, 92 against a concrete culvert. excavation and open into held 342-43, 12 The Ulmén Court the at P.2d at 857-58. special precautions failing oversee employing party liable for ‘inherently dangerous the and hazardous” nature place, given were the difference” activity. again recognized The Court “obvious of the “committing to contractor and one work between this case where executed, which, done, injurious consequences can no properly from if added) 348, 12 Ulmen, (emphasis at 860 ....” 92 Mont. at P.2d arise (1876)). Peate, 321, Q.B. 1 326 (citing Bower v. Thus, beginning jurisprudence, of our the critical dangerous exception clear: that
component inherently has been of ‘intrinsically” where ‘inherently” dangerous or a task can be deemed by performance of the task. danger cannot be alleviated skillful inherently a task does not turn into an Negligent performance of City v. Bd. dangerous See Chainani Chainani task. of of Educ. of 1995) (“the (N.Y. 283, N.Y., activity 663 287 involved is N.E.2d ” ‘ al., (citing all W. Keeton et dangerous spite Page of reasonable care’ (5th ed., §71, Keeton on the Law Torts at 513 West Prosser and of 1984)). Thus, the reliance the Court and the Concurrence transport activity driver to find that sadistic misconduct van clearly ‘inherently dangerous” is flawed. demolition, exception has of applied been “cases
excavation,
dangerous
v.
clearly
Holy
and other
activities.” Arthur
(N.H. 1995)
Union,
Rosary
(citing Carr v.
Credit
656 A.2d
Exch.,
(1958));
Page
Farmers
146 A.2d
see W.
Merrimack
(5th
al.,
§71,
et
Torts
512-16
Keeton
Prosser and Keeton
the Law of
1984)
ed.,
(identifying inherently dangerous activities
West
as:
excavation, construction,
fireworks,
blasting,
crop dusting,
clearing
chimneys,
by fire, tearing
high
the construction
of land
down
walls
dam)
Airlines, Inc.,
cases);
Supp.
F.
2d
(collecting
of a
Waite Am.
1999)
(S.D.N.Y.
349, 357
dangerous
typically
(‘inherently
n.
activities
excavations, fumigation
blasting,
certain
of
pile driving,
types
include:
cyanide,
dangerous gasses such as
the emission of
buildings
with
areas,
gasses
densely
large
into
collection
populated
noxious
area”)
liquids
populous
in a
quantities
explosives
or inflammable
(citations
(Tfjamiliar
omitted); Chainani,
narrow exception to a broader range
activities,
of
including the
transport ofhumans. The New York Court Appeals
of
declined to extend
the exception to
activity
“the
transporting
of
by
children
bus to and
from
Chainani,
school.”
482 the dangerousness dependent upon is activity to an whose exception
the concern give the Court about should of human behavior vagaries here. ruling Danger Advance Notice the Requirement of of dangerous, exception requires the inherently being In addition at the time of dangers the inherent to be of employer aware
the (Second) Torts, of §416 The crux the Restatement contracting. of advance,’ i.e., in ‘recognizable must be danger the risk or 427, is ‘that made, the to be invoked.” Bosak for doctrine time the contract is the 1985) (citations omitted). (Mich. Hutchinson, 333, 375 340 v. N.W.2d way, inherently dangerous exception cannot be the ‘Stated another procedures the is in nature unless risk inherent applied Rosenberg Eq. v. contemplated by employer.” the apparent Life 840, (1992);seealso McDonald Socy.of U.S., 595 N.E.2d 844 Assurance (N.Y. 1967); Co., McCall v. Ala. 901-02 Oil N.E.2d Shell (Fla. (It 1994) 177-79, Bruno’s, Inc., n. 12 is 647 So.2d advance, risk, recognizable any of kind involves sufficient that work ....”) is in the work itself harm to others which inherent physical (‘The added, cases); Arthur, A.2d at collecting (emphasis alleged danger the danger applies doctrine where inherent time by engages the at the ‘naturally apprehended’ to be defendant work.”)(citations omitted). perform independent contractor recognized concept. We said in Ulmén cases have likewise Our inherently dangerous and hazardous to the that ‘the work was fact contracting parties, properly unless public, and known be so Ulmen, added, (emphasis at 859 guarded.” Mont. at P.2d omitted). notice, course, concept satisfies citations Advance liability employer, foreseeability purposes imposing for why an cannot be for an employer held liable demonstrates duties, performance ofhis even negligence contractor’s collateral dangerous-precisely employer activity inherently if because held negligence, such collateral and cannot be liable cannot foresee provided it. the illustration we Beckman principle undergirds This inherently dangerous activity could be arising which liabilities vicariously imposed employer: logs giant over the employed
If a contractor is for torts caused highway, employer the contractor’s is not liable Speeding limit. is not driving speed contractor in excess of the *15 logs, an transporting to but is particular an unreasonable risk ordinary community of is in the and negligence form which usual precautions. requires ordinary of or standard prevention the which However, vicariously for the contractor’s employer an will be liable
483 special precautions logs failure to take to anchor the logs transporting giant contractor’s truck. This is because creates logs disengaged, an uncommon that the will hazard become ordinarily community hazard not encountered the which calls particular for to precautions prevent occurrence. (Second)
Beckman,
22
the
(citing
Restatement
Torts
cmt. d
¶
§416
(1965)). The
is
employer
negligence
not liable for the
or recklessness of
contractor, i.e.,
independent
inspect
the
or
to
speeding
failing
brakes,
dangers
because he was not aware of those
the time he
away. Beckman,
cannot
contracted the work
22-26. Employers
¶¶
reckless,
expected
negligent,
know the
wanton
unforeseeable
or
intentional tortious
at the
independent
conduct
contractors
time of
Rather,
contracting.
employer
is liable
for those torts which
from the
or
“peculiar”
by”
arise
risks” which are “caused
“unreasonable
dangerous activity,
because
he
aware
them when he
22;
away
Beckman,
contracted
see Shope,
work.
exception, beginning Shope recently Beckman and Fabich, rejects years Bower, jurisprudence, over of national Q.B. (1876), including rules Restatement and the many decisions of who courts have considered this issue. Under these authorities, the Court’s conclusion risk of misconduct driver an inherent danger arising from the enterprise prisoner transportation for the employer which should have known and taken precautions is simply untenable. First, prisoner transportation construction, does not involve
destruction or some form of dangerous inherent volatile or instrumentality, dynamite trenching. like or It involves control over beings. human It is axiomatic that dynamite the nature of is to up, blow special precautions necessary and that are people, protect to evacuate workers, etc. The nature of trenching ground collapse after giant dug earth, holes have special been precautions, like trench, “sloping mechanically bank, the banks of a shoring a trench or Beckman, a trench using necessary. box”are Court 23. The believes likely that the nature of a is that he will be ‘inore to become aggressive and likely attempt escape engage hostile more Opinion, However, other dynamite activities.” is not *16 beings human do point is that likely” just to blow it does. up;
“more predict, can unlike employer that an absolute nature not have an required assume either that a not be to dynamite. employer An should in employee engage will the contractor’s prisoner will act out or that horseplay. sadistic the possibly have foreseen driver’s Here, County the could not
¶62 AEI. it contracted with the when alleged misconduct toward it could not have County knowing for what The Court faults the engage a who would employ AEI would driver possibly known-that Concurrence, “burdened misconduct, or, in the of the was with words predispose cruelty [him] that to personality traits or mental deficits precautions” the “special 1. There were no torture.” Concurrence ¶ case, except what in this County prevent could have taken to occurred not employ did sadistic drivers-and hiring a different contractor who Opinion the the error of the Court’s point underscores Concurrence. properly other hold the Pauli could well have asserted claims County have responsible. Pauli could asserted
County
Gurnsey
hired AEI
contractor. See
negligently
as
Co., Inc.,
(1988);
and little to no for future In holding cases. transportation inherently dangerous, arguably any activity can now inherently dangerous, long as as some possibilities can be conjured up “special precautions” imagined. This holding will expose contracting employers liability virtually every negligent intentional tort committed the independent contractor. The exception-ence promised to be “narrow”-hasnow swallowed the rule. Gray’s special Justice Beckman, concurrence in warning that we not exceptions “allow the rule,” to swallow the general has now been Beckman, realized. (Gray, J., concurring). I would affirm the judgment County.1 II. The Ostensible Agency Against Claim the State *17 I would summary also affirm judgment in favor of the State. The
Court states Tt]he District Court rejected considered but Pauli’s argument duty State had a him safely and humanely.” Opinion, 33. only Not true. Pauli not ¶ failed to argue to the Court, District in either written arguments, or oral that the State had a non-delegable duty, he, importantly, more did not allege it in his complaint. complaint His did not “duty”or“contract,’’let mention either alone state a claim that the State had entered an independent contractor relationship with AEI creating contractual duties of the State which should be declared non-delegable. The Court offersthat the issue was discovery referenced in a disclosure, discovery but a answer cannot preserve theory a claim pled or not or otherwise presented to the district court. general ‘The rule in Montana is that this Court will not address
either an issue raised for the first time on appeal party’s or a change in legal theory.” Indus., Easley, 145, Inc. v. 15, 1998 MT 289 ¶ Unified 1 guidance (Second) position provided Clear for the dissent’s the Restatement Torts, 427, interchangeably, §§416 used proposition which stand for the employer injuries “the contemplate contractor the resulting dangers remains liable for which he should contract, at the time that he enters into the and cannot shift to the responsibility dangers, taking precautions against for such or for them.” (Second) Restatement Torts cmt. a. explain §416 The Restatement comments further commonly applied §416 that for some while is more employer anticipate “where the should the need specific precaution, railing sidewalk,” such as a around an excavation in a commonly applied danger “§427 is more where the in involved the work calls for precautions, a hazards, number of possible or involves a number of inas the case of blasting, painting highway.” carried on a scaffold above the Section 427 makes employer employs clear that independent complete who an contractor to work involving danger employer inherent to others “which the knows or has reason to work, know to be inherent to contemplates or normal to the the or which he or has reason contemplate contract,” making when shall be liable for the harm caused (Second) independent contractor. Restatement §427. Torts
486 276, 273, 929 280 Mont. Day Payne, v. (citing 255, P.2d 100 961 205, Wetering, 197 Mont. de (1996)); Akhtar v. Van 864, see 866
P.2d (1982) (‘Ta]n presented issue which 149, 209, 152 642 P.2d cannot be considered untimely and Court is Supreme time to first procedural substantive to both “applies This rule appeal”). on case.” Day,280 theory of the party’s matters, change as well as to Day explained The Court 276, P.2d at 866. 929 Mont. at principle: failing to trial court for to fault the fundamentally unfair
[I]t is opportunity given it was never correctly on an issue rule choose to party allow a Furthermore, it is unfair to consider. error, chance taking a in the face of in the trial court silent remain appeal error on outcome, assert subsequently on a favorable unfavorable. trial court is if the outcome Appellate 2d (citing 5 Am. Jur. P.2d at 866 Mont. at 929 Day, 280 (1995)). Review §690 appellate ofan issue for regarding preservation cases The Montana 507, 445 Robertson, P.2d 48 v. legion. Spencer See
review are (1968) questions those for review will consider (Supreme Court 195, 20, Mont. 54 court); T.E., MT ¶ In re in trial raised (the issues that it will not consider consistently held Court has P.3d 38 cases); (collecting Anderson appeal) time on the first raised for (‘Since 460, 125 310, 30, 329Mont. P.3d MT Monforton, address it.” appeal, we do not for the first time argument is raised 274, 16, Mont. 989 P.2d MT Weaselboy,1999 (citing State v. 836)). non-delegable State had a a claim that the failure to assert Pauli’s AEI relationship with contractor of an
duty arising out *18 Court deprived the District ability respond, to the State ofits deprived issue, accordingly preserve failed to ability to consider the of its rules are of no appellate appeal. Apparently, such a claim to the Court. consequence to set complaint the Plaintiffs essentially rewritten The Court has make for Plaintiff did not which the against claim State
forth a
“[I]t
review.
is not
appellate
tenets of
himself,
long-held
a
violation
behalf,
legal
appellant’s
research on
obligation to conduct
this Court’s
may
analysis that
develop legal
to
position, or
guess
precise
to
as to his
Farms,
Pankratz, 2004
Inc. v.
position.”
his
Pankratz
support
lend
In
Estate
133,
(quoting
re
complaint’s all,3 premised intentions could be discerned at vague agency theory, as set forth in a single sentence: ‘the defendant County, Park acting Montana was as the agent for and on behalf of and at the request ofthe State of accepting arguendo Montana.” Even sufficiently pled a claim upon agency, based the Plaintiff decided, appeal, nonetheless on to make a non-delegable duty argument instead, argue and failed to agency theory his briefing his to this party may Court. “A arguments not raise new change legal theory appeal fundamentally because it is unfair to fault the trial court for failing to rule on an issue it given was never the opportunity to Morrison, 16, 10, 341 consider.” State v. MT 147, 176 P.3d (citations omitted). The Plaintiff ultimately preserved no claim against However, whatsoever the State in this case. import this is ofno Court, to the which issues, doesn’t even mention despite these explanation of given by them during State’s counsel oral argument. The message given here is that rules of appellate review do not apply if the Court strongly enough feels reaching about an issue. If necessary, the Court will even plaintiffs rewrite the complaint to do so. Because I believe the Court’s error, decision to reach these issues is analyze
I will not length the substance holding of the Court’s AEI was an agent ostensible of the State as to Pauli. I note that ruling regard Court’s in this law, is made aas matter of without regard to the factual issues that we have held must be resolved in order to establish agency. ostensible ‘TO]ur agency ostensible statute focus[es] on the action or inaction putative of the principal which caused the person third employment believe an existed, relationship and the person’s reasonableness of the third corresponding belief.” Butler v. Domin, 2000 MT 452, 15 P.3d 1189. I would affirm the District Court’s judgment in favor of both the
County and the I State. dissent. LEAPHART,
JUSTICE concurring in part dissenting in part. appeal, non-delegable duty On. the Plaintiff argument offers for the first time a against State, premised upon “special relationship” theory. argued trying Defense counsel figure District Court that “wewere out theory complaint [] against what puzzle made the State of Montana .... It awas complaint try look at that allegations to find a connection between the complaint 5, (Nov. ....”Hrg. and the conduct of the State of Montana Transcr. 22:24-23:3 2007). *19 one, As to issue of issue two. the Court’s resolution with I concur transportation conclusion the Court’s
I concur with To the extent activity. Opinion, inherently is an however, not, one ofthe misconduct is that driver Rice concludes Justice his agree I prisoners, transportation dangers ‘inherent” dissent.