*1 PEYATT, KERRY Appellant, Plaintiff v. LLC, ENTERPRISES, and J. MOORE MOORE,
JIM Third-Party Plaintiffs Defendants,
Respondents,
v. I-X, DOES and JOHN REUTER DON Third-Party Defendants. No. 03-714. March 2004. on Briefs
Submitted 3, 2004. Decided December
For Respondents: Funyak, Stacey Kevin M. Funyak, Billings; & Firm, Brenda L. Blazer and Monte Rogneby, Vogel L. Law Defendants). Bismarck, (Third-Party North Dakota Opinion JUSTICE RICE delivered the the Court. Kerry Peyatt (Peyatt) Plaintiff appeals
¶1 the October Court, bench ruling the Thirteenth Judicial District Yellowstone County, granting summary judgment in favor of Defendants Jim J. Enterprises (collectively, Moore), Moore and Moore Peyatt’s employer, on claim breach of under Montana the (Act). Safety Act We reverse and remand. The following presented issue is on appeal:
¶2 summary Did the District Court err in granting judgment holding statutory that the injured? did not extend to the out-of-state Peyatt location which was FACTUAL AND PROCEDURAL BACKGROUND 3, 2001, Bismarck, Peyatt February severely injured was Dakota, spinning power North when his arm was tom offin the takeoff (PTO) by Moore time, employed was At that of a tractor. shaft as a truck driver. adversely the of Montana the State During summer Particularly ranchers in hard hit were drought.
affected fires Racicot indicated Marc hay need for their cattle. Then-Governor hay affected help tons of need over one million Montana would received winter. Montana coming over the ranchers feed their livestock ranchers, emergency hay which $300,000 grant federal program. relief of the “I Care a Ton” resulted in the creation the Agriculture contracted Department The Montana (MFBF) to handle Montana Farm Bureau Foundation “I grant day-to-day activities the federal administration of Department Ton” The contract between program. Care a “organize, purpose program MFBF stated that ship coordinate, supervise, purchase transportation services” to drought. To hay affected fire and emergency producers to Montana placed MFBF program, locate be donated to surrounding of Montana and states. advertisements within media MFBF, requested parties Those ads that interested call specifics of the donation. Once would then work with the donor on *3 donor, MFBF this the details were worked out with the would forward up transportation provider pick information to a to and deliver hay. they The MFBF to make would advise donors that would need loading hay transport of the on the trucks. arrangements for the this Many willing help North were to Montana in Dakotans lent North emergency light help in of the Montana ranchers to Dakota 100,000 in over head years three earlier 1997 when North Dakota lost by responded blizzard. Montana ranchers during spring of livestock to donating through program the “One Good Cow” hundreds cows help North Dakota ranchers rebuild their herds. (Reuter), farmer, contacted the MFBF Don Reuter a North Dakota “I Ton” through program. the Care a
regarding hay his desire to donate agreement the donated The MFBF reached an with Reuter wherein and then hay property at Reuter’s in North Dakota picked up would be agreement, in facilitate that to a destination Montana. To be delivered transportation Moore to services. the MFBF contracted with to MFBF and stated that Moore was The contract between the Moore short, hay.” In to haul transportation commercial services “provide truck, and equipment, trailer and supply Moore was to gave MFBF Moore hay. arrange Reuter was to then North Dakota. Moore property to Reuter’s in directions dispatched Peyatt, employed by driver, who was Moore as a truck to pick up and hay load donated deliver it to back Montana. Peyatt farm, Peyatt When positioned arrived at Reuter’s
trailer prepared hay and for the to be loaded Reuter. Reuter was using machinery a neighbor borrowed from to load the onto truck. In the process hay, one of the bales the tractor being snow, used Reuter in according became stuck some to Peyatt’s testimony, thirty from away some feet the truck and trailer. left Reuter tractor, which was running still with the PTO and engaged spinning, personal his get pickup pull the tractor out. Reuter pickup backed his close to the tractor and a chain pulled out to hook Reuter, between the tractor pickup. attempt and his to assist Peyatt took one end ofthe and bent chain down to hook that end tow bar at the As Peyatt attempted back tractor. to hook the bar, chain to the his in the entangled tow coat became PTO shaft. arm was maimed when his was torn off in the spinning mechanism. litigation, For reasons unstated in was Moore deemed not insurance, compensation and,
have workers’ as an uninsured employer, subjected injuries pursuant to suit to 39-§ 71-508, MCA, defenses, from prohibited raising and certain such 39-71-509, Thus, as the employee’s negligence, pursuant MCA. in of a injury issues herein arise the context work-related for which there compensation coverage. was no workers’ 19,2001, Moore, 11 On Peyatt brought against raising ¶ December suit (Act), 50-71-101,MCA, etseq., claims under the “Montana Act” asserting and as a scope while course of his Moore, injuries truck severe as a driver for he suffered direct result (1) (2) work; adopt Moore’s failure to: with a him means, methods, practices, operations processes use that were (3) safe; to render do adequate his life, health, reasonably necessary thing responded filing a third-party complaint against Reuter have potentially parties and other unknown liable Peyatt’s injury. caused or contributed *4 summary judgment, arguing Moore then moved for that because Peyatt’s injury control the location lacked over where is, occurred-that Reuter’s farm-that location did not constitute a Act, therefore, Peyatt’s claims work or under the summary ruling hearing of law. In at the on failed as matter a bench summary for judgment, granted the District Court Moore’s motion
253 Act does not although The District Court stated judgment. by is controlled be one which it must define control. right to exercise has or over which employer, The District Court stated District farm. The
truck, environment at Reuter’s and not the Peyatt’s “workplace,” farm was not Court ruled that since Reuter’s upon employers imposed not have breached the duties Moore could employees. Peyatt for 50-71-201, appeals. REVIEW
STANDARD OF summary judgment de appeal from is Our standard of review district based on novo, the same criteria as the court apply and we Link, Inc., 76, 56, 2003 MT ¶ Fisch v. Montana Rail Rule M.R.Civ.P. 267, for 6, inquiry 6. We forth our 6, 13, Mont. 67 P.3d set 315 ¶ ¶ judgment in Bruner (1995),272 Mont. County v. Yellowstone summary 261, 264-65, 901, 903, as 900 P.2d follows: genuine that no issues of material
The movant must demonstrate accomplished, the burden then fact exist. Once this has been denial non-moving party prove, by to the more than mere shifts Having genuine issue does exist. speculation, that a exist, must genuine issues offact do not the court determined that judgment whether the is entitled moving party then determine legal determinations made as matter of law. We review omitted.] erred. [Citations a district court as whether the court summary must be viewed judgment proceeding, In a the evidence non-moving LaTray City v. light party. most favorable to the 15, 999 1010, Havre, 119, 15, 299 449, P.2d 15. ¶ 2000 MT Mont. ¶ ¶ record, in favor reviewing the all inferences will be drawn reasonable LaTray, summary judgment. 15. party opposing ¶ summary routinely purpose stated that the This Court has trials, summary but that unnecessary eliminate judgment a trial if a material adjudication should “never be substituted Eddie, MT 292 controversy 1998 Boyes ¶ exists.” v. factual 152, 16, Ordinarily, questions negligence 16. Mont. ¶ ¶ summary and are judgment adjudication are situated to poorly v. LaTray, (citing 15 Scott jury left determination at trial. ¶ better 709, 13; 489, 13, Henrich, 118, 13, P.2d Mont. 958 ¶ 1998 MT 288 ¶ ¶ 262, 266, 867, 869; (1996), Wiley P.2d Bergo v. 929 v. Kolar (1995), 213, 216, 900 310, 312;Pappas P.2d City Glendive Mont. 347, 350, P.2d Express, Motor Inc. v. Midwest *5 (1992), 920; 379, 382, Dillard v. Doe 251 Mont. 824 P.2d Pierce, Smith, 1018; Lynch, (1982), and Brown v. Merrill Fenner & Inc. 458). 1, 10,
DISCUSSION Peyatt asserts that Moore to inquire failed of Reuter about the hay operation, nature of the equipment to insure that any used by Reuter would be and to that Peyatt safe insure would be safe (1) He Reuter’s farm. further asserts Moore: provide that failed to him any safety training related to with loading hazards associated onto working machinery, although flatbed trucks or with around farm Moore knew that he would be around working type machinery (2) during performance job; give of his failed any him aid, information on accident and hazard reporting procedures, first or (3) hazards; work site and never instructed him assist a not to farmer in the loading operation reasonably not to do else anything necessary accomplish task. by asserts failures these Moore constituted breach of the 50-71-201, MCA, imposed by 50-71-201, Moore MCA. Section §
states:
Employer to provide purchase, safe and to furnish, and require safety use of health and items- practices. Each employer shall:
(1) furnish a employment that is safe for each of his employees;
(2) footwear, furnish, exception purchase, with the and devices, require safety the use health and safeguards, items, health protective safety clothing, safety or other and masks, hardhats, including but protective not limited to air and law, gloves, required be or federal employer, state contract, or the terms of an the terms unless otherwise; agreement bargaining collective (3) means, methods, adopt practices, operations, and use and processes reasonably adequate that are render employment safe; and
(4) life, any thing reasonably necessary protect other do health, safety employees. and of his Peyatt’s argument, focus of both before the District Court primary Court, imposed and this is that Moore breached the duties (3) use requires employer “adopt practices, subsection which an means, methods, reasonably operations, processes that are safe,” subsection to render the adequate (4) thing employer an to “do requires health, employees.” of his 50-71-201(3) and MCA. Section to the facts 50-71-201, apply does not responds that Moore references Focusing on Act’s Peyatt’s injury. primarily
surrounding 50-71-201, MCA, agrees workplace and to otherwise a safe requires ensuring that the in the context of and other items equipment furnish *6 Further, Moore even concedes that for employees. is safe its including Peyatt, duty employees, a to his general he owed 50-71-201, MCA. a under place safe work However, duty extend to the location Moore asserts this did not “place of work” or argues occurred. Moore injury where case, necessarily this would “place under the facts of Reuter, defendant where property by third-party be the owned have to right over injury place. argues that he had no control or the took therefore, “place be a property, to control Reuter’s cannot a a is under employment” triggered work” or such that “place 50-71-201, MCA. The District Court focused agreed The District Court with Moore. the not a question property on of whether or Reuter’s 50-71-201, MCA. The District Court indicated employment” under § Act, that, is the it must although “place employment” not defined place is the or over which the employer be a which controlled Court held employer has the to exercise control. The District right control to Reuter’s right because Moore had neither control nor farm, truck Peyatt’s “place employment” was limited to Moore’s farm, loading to the and did not extend which drove at the environment farm: to, either to work? It’s get [w]hat
And we down a if truck that the or it’s extended operated; limited to the Plaintiff environment, the tractor and the to the included takeoff, a as to whether that power question then we have safe or not. environment was environment, I
... Defendant Reuter’s farm and conclude, meaning a of work within the must was not Act. Safe Place to Work under several decisions 50-§ This has rendered previously Court of his
71-201,
support
cited Moore in
MCA. Four of these decisions
Court
which the District
summary judgment,
upon
for
motion
its
granting
based
decision
motion
summary
Moore’s
for
judgment,
(1966),
171, 418
include:
v. Todd
869,
Pollard
148Mont.
P.2d
overruled
grounds by
on other
State ex rel. Great Falls Nat’l Bank v. District
(1969),
344,
326,
336,
Court
154 Mont.
463 P.2d
330; Shannon v.
(1979),
269,
Howard S. Wright
438;
Const. Co.
181 Mont.
593 P.2d
Hackley
(1967),
286,
v.
Paper Products Co.
149 Mont.
Waldorf-Hoerner
712,
grounds
(1997),
425 P.2d
overruled on
byLynch
v. Reed
321, 328-29,
223;1
P.2d
v.
Cain Stevenson
Court
noted
under
contractor had
obligation
provide
a safe
to
of
employees
extended
job
the general
safety
subcontractors “when
contractor controls
or has
non-delegable duty safety arising
Cain,
of
out of contract.”
Mont.
218
Shannon).
However,
(citing
at
at 130
the Court
P.2d
Act
individually
concluded that the
extended to subcontractors
without
issue,
the
reasoning only
further consideration of the control
1Hackley
longer applicable
Legislature
repealed
the
has since
and
is no
because
safety
“employer”
replaced
decided.
of
under which the case
the
statute
the definition
Shannon,
282-83,
See
at
employment” to persons extended of duty place a safe Court that the District He reasons therefrom employer. other than the However, defining not although relying these decisions. erred in demonstrate that the nonetheless of these cases “place control, injury over, right to the location employer’s control or injured party’s is the determining whether that location essential to by the Act. imposed of duties purposes employment” location, employer cannot right to control a Obviously, without the (the at 446 Shannon, 181 make safe. See duty “had a contractor both general owner work because a safe of their subcontractors with at the Stillwater working over the conditions each retained control site”). arguments regarding offer Although parties condominium here is not scope Peyatt’s question employment, the course and but injured employment, while in his engaged whether duty the Act to “furnish” and whether Moore violated his under which necessitate employment, requirements “render” safe 50-71-201(1) and MCA. workplace. control Section over right control or control regard The facts in to Moore’s had no involvement in the dispute. farm are not in Moore Reuter’s responsibility, had hay. as a donor of Moore no selection Reuter MFBF, truck, hay upon under his contract with thereof, or the choice and was not involved in the method condition, not operation present, Moore was its equipment, and, short, in the loading, participate did not did not observe the conclude, Peyatt’s injury. We on Reuter’s farm which led events law, no to control that therefore, right as had a matter circumstances, not, under did under these violate location and (1) (3) of subsections the Act furnish safe to work under 50-71-201, MCA. However, employer’s that Moore violated the Peyatt also claims (4) 50-71-201, MCA, safety required to ensure subsection thing reasonably employer “do which mandates that an health, employees.” of his *8 for the Peyatt argues provision that this creates agree. We upon workplace location. dependent not 258 We initially note that a clarification is needed in the nomenclature to 50-71-201, MCA,
used
refer
which states: “Short
title. This
”
chapter may be
Safety
cited as
‘Montana
Act.’ Moore makes the
referring
common
of
error
to this
as
statute
the “Safe Place to Work”
statute, asserting in his
briefing
control,
“absent the exercise of
or
at
right
least the
specific
exercise control over the
alleged
location
of employment,
be
Place to Work Act does not
Safe
added.)
apply.” (Emphasis
quoted above,
ruling
As
in its bench
granting Moore’s
summary
motion for
judgment,
District Court
likewise
environment
stated
not
“was
of
place work
added.)
within the meaning of the
Place
(Emphasis
to WorkAct.”
Safe
Moreover, at
50-71-201, MCA,
various times since
enacted in
1969, this
provision
Court has also referred to this
as the “Safe Place
statute, although, technically,
to Work”
always
the title of the Act has
been the
e.g.,
“Montana
Act.” See
Dept. Military
Trankel v.
(1997),
348, 364,
614, 624;
282
Stratemeyer
938 P.2d
v.
Affairs
County (1996),
67, 79,
175, 182;
Lincoln
276 Mont.
Gibby
P.2d
v.
(1995),
126,
Corp.
427-28,
Noranda Minerals
273 Mont.
905 P.2d
130-31;
Steiner v.Department Highways
270, 276,
269 Mont.
Cain,
1288, 1232;
130;
the error to obscure Although the breadth of the Act. Moore narrowly, i.e., frames the issue whether Reuter’s farm can properly employment” Act,” constitute a under the “Safe Place to Work Peyatt argues Peyatt correctly that the statute is broader. asserts that imposes duty upon any the statute also thing to “do other life, protect health, safety of his 50-71-201(4), employees.” Section MCA. his affidavit filed in opposition summary judgment, Peyatt to Moore’s motion for averred Moore did he not advise him that could not assist a donor did hay, safety training safety not him with instructions related the loading and did not information related farm machinery, although was known to working machinery. Moore that would be around such Supreme concept The Wisconsin Court has held that the “safe employment” in scope employment” is broader than a “safe explained has that inclusion into the Wisconsin statute of the every “do thing reasonably necessary words health, safety, scope and welfare” broadens the statute mean rather than a mere which shall *9 be safe: every “do employer Legislature] required [the
[W]hen life, health, safety and necessary protect thing reasonably even the doctrine of frequenters,” welfare of such meaning such words to the restrain the of a sociis cannot noscitur alone, because the employment of aspects place of the physical used, are such words in connection with which subject, dominant of than a mere be safe rather which shall employment is which shall be safe. employment (Wis. 702, To 1930), 703. 230 N.W. Paine Lumber Co.
Miller v. something may require employment point illustrate the that “safe sense,” the physical in a employment besides a job it is to employee of an whose example court invoked the Wisconsin noted that switching yard. in a railroad The court repair track employee, an be employment render safe the of such engines and train approach switching a of the require warning illustration, myriad The that in this of others cars. court noted of, something in calls for which one could think “safe Miller, sense.” 230 physical addition to a safe in N.W. at 703. one Stratemeyer, In we addressed a similar issue to the raised whether, 50-71-201, MCA, for
Peyatt:
employer
an
was liable
under §
train or
injuries
employer’s
failure to
employee’s
as
result of the
job.
Stratemeyer,
hazards inherent in the
employee
warn the
county
for mental
County sheriffs officer sued the
and others
Lincoln
disorder)
when he
injuries
allegedly received
(post-traumatic stress
that the
teenage girl’s
grounds
of a
suicide on
witnessed the aftermath
train, counsel,
the incident.
county
following
and debrief him
failed to
district
Stratemeyer,
Although
at
P.2d at 176.
915
harm,
MCA,
50-71-201,
excluding emotional
interpreted
court
as
§
50-71-201,
Stratemeyer
agreed
plain language
that the
of §
Court
MCA,
Stratemeyer,
only
harm.
application
physical
did not limit its
(4)
80, 915
of 50-
P.2d at 182. We stated that subsection
§
JUSTICES LEAPHART, WARNER and *10 REGNIER concur. GRAY,
CHIEF JUSTICE dissenting. I respectfully from ¶32 dissent the Court’s that determination §50-71- MCA, 201(4), of the duty Montana Act imposed on Moore to any reasonably life, health, “do other thing necessary protect to the safety presented of’ under the circumstances here. I would affirm the grant judgment District Court’s of summary to Moore. - 50-71-201(1) agree I with the Court’s that conclusion §§ MCA, 201(3), impose duty provide Peyatt did not on Moore to with a safe at Reuter’s farm in North Dakota because Moorehad no contr ol-or right to control-the existing conditions at that agree 50-71-201(4), location. I MCA, also that imposes duty upon an employer scope which is duty provide broader than the to a safe however, ofemployment. my opinion, the interprets Court duty I expansively. too duty would conclude that this broader did not arise under the facts this case. 50-71-201(4), Section requires any to “do
thing health, life, to the necessary protect safety ofhis employees.” observes, As the the Supreme Court Wisconsin Court has nearly language safety held that identical in their work statutes duty creates a to provide something “safe which calls for in addition to a physically “safe of employment.” See Miller v. (Wis. 1930), 702,703. Paine Lumber Co. Notably N.W. absent from Miller, however, the Court’s discussion of is the Wisconsin court’s holding actual in that case: upon
We therefore hold that this impose employers statute does duty dangers the to employees warn incident to their employment, absolutely, “reasonably not but when it is necessary employees.” of such health, and welfare the protect added). Thus, the Miller, 703 (emphasis 230 N.W. at “incident dangers from upon, “[dependent defined as “Incident” is employment.” to their (something of, connected to, out or otherwise arising subordinate importance)....” else, greater usu. of (8th BLACK’S LAW DICTIONARY 2004). ed. opinion and in the Court’s facts are set forth following The provided the MFBF Moore’s contract with parties. undisputed haul services to transportation commercial that Moore was must make hay that donor hay. The MFBF would advise donors trucks, and the hay transport loading the onto arrangements for hay donated arrange loading Reuter he was to MFBF informed words, supply Moore was to truck. In other onto the loading arrange Reuter was truck, equipment, and trailer and MFBF, Moore had no Moore and hay. Under the contract between was not loading hay onto the truck and responsibility for the method, loading the choice of loading with the choice of involved condition, operation or loading equipment equipment’s hay Dakota and employed Peyatt pick up the load of in North it back to Montana. deliver hay employed hay. loading task of onto Peyatt was haul performance job
the truck was not within the that his tasks arising dangers I hauling hay required. would conclude were “incident to” loading hay dangers were not from the I further conclude Peyatt’sjob ofhaulingthehay. Consequently, would “reasonably or train necessary” for Moore warn that was not Peyatt regarding using the hazards *11 life, health protect Peyatt’s Reuter in order to equipment provided exists, to no necessity no warn or train Where reasonable 50-71-201(4), MCA. duty arises under § County Stratemeyer v. Lincoln The Court cites duty owed a in of its conclusion support outset, 50-71-201(4), disagree. I At the Peyatt pursuant MCA. to § the Montana Stratemeyer was whether pertinent issue in duty anything the broad to do
Act-and 50-71-201(4),MCA-is under § health alleges only mental/psychological, plaintiff where a applicable in cases 50-71- § Court did not address injuries. opposed physical, as Stratemeyer 201(4), MCA, To the extent the context raised here. in however, supports the conclusion any way, applicable be 50-71-201(4),MCA, no duty arose § in this case. Stratemeyer, Stratemeyer Deputy Sheriff County sued Lincoln
for damages psychological injuries he suffered aas result of witnessing the of young girl’s aftermath Stratemeyer, suicide. 70-71, 915 P.2d at Clearly, responding 176-77. to the scene of the suicide requirements Stratemeyer’s was within the as a sheriff s deputy. Consequently, psychological trauma resulting from responding dispatch to the call and witnessing scene resulted from danger “incident to” and, his as a deputy as a result, 50-71-201(4),MCA, a duty arose under County § for Lincoln do anything reasonably necessary to provide him with safe train, employment-e.g., supervise, Stratemeyer treat and debrief regard job requirement his responding to the scene of suicide. case, present In the employment did not include the requirement therefore, of loading and, onto the truck dangers of loading were not to” employment. “incident that, 50-71-201(4), I ¶39 would conclude while does impose broad on an provide employees with “safe only arises the degree that is “reasonably necessary” in relation to the actual requirements employment. case, I would further conclude in this acting outside range of his employment requirements at the time he injured 50-71-201(4), MCA, apply. does not I grant would affirm the summary judgment District Court’s Moore and I dissent from the Court’s failure to do so.