*1 97 J. PIERCE, DOUGLAS Appellant, Plaintiff v. Washington
ALSC
ARCHITECTS, P.S.,
Corporation,
Professional
Service
Respondent.
Defendant
No. 93-541.
August
Submitted
Briefs
1994.
Rehearing
Denied March
1995.
February 23,
Decided
1995.
St.Rep.
93.
For I. James Respondent: Phillips, Kalispell. Heckathorn & Opinion of the Court. TRIEWEILER delivered
JUSTICE a in the District Douglas Pierce, complaint J. filed plaintiff, The County in Flathead in which for Eleventh Judicial District Court to Architects, P.S., sought named the defendant. Pierce as ALSC injuries alleged were caused personal which he damages recover one ALSC’s Hindley, of of Steven professional in favor of trial, jury returned a verdict Following principals. pur- notwithstanding verdict judgment moved for ALSC. Pierce alternative, for new trial 50(b), M.R.Civ.P., or in the to suant Rule However, due Court’s to District Rule M.R.Civ.P. pursuant they days, were deemed motions within to rule on those failure filed Pierce in favor defendant. was entered Judgment denied. of the District Court judgment We appeal. a notice reverse proceedings. further remand for following issues are raised appeal: Pierce’s
1. Was the defendant negligent as a matter of law? 2. the plaintiff contributory Was free from negligence as a matter of law? plaintiff
3. Is the entitled to an order dismissing the defendant’s affirmative defense which was based on the accepted work doctrine?
FACTUAL BACKGROUND Architects, P.S., In March ALSC entered into a written agreement with Rosauers Supermarkets, Inc., provide architec- tural services related to a remodeling project at Supermar- Rosauers in Kalispell, ket Montana. In services, addition to other agreed ALSC to act as the representative during owner’s phase the construction the project for the purpose communicating instructions contractor. The architect agreed also project assure that the pro- gressed in a manner consistent with the contract plans and other end, documents. Toward that agreed ALSC that its representative periodically visit the site of the construction work and “en- guard deavor to against owner defects and deficiencies in the work of the contractor.” *3 Salsbury
Richard is the president vice of Rosauers and acted as the representative owner’s for remodeling project. the He is also a licensed architect. Hindley partner Architects,
Steven is a in ALSC and served as project ALSC’s during architect the remodeling of Rosauers’ Kalispell store. Meredith, Inc.,
Stewart and was the contractor performed which remodeling the Kalispell Roy services on Rosauers’ store. Beekman was their foreman and supervisor construction for the project. manager’s
The store office is located on the second floor of Kalispell remodeling project, Rosauers’ store. Prior to the there was manager’s a door in the office provided which access to an observation storage security walkway, and room. The room included a windows observed, from which the store could be and areas surplus where material and decorations were stored. remodeling project,
Prior to the the store also had a walk-in cooler immediately located on the main floor the below observation and storage security room. The roof of the cooler was even with the walkway provided room, and a floor for the a storage place and for storage displays of seasonal used in the store.
During remodeling project, large the the walk-in cooler re- was replaced and with a smaller walk-in A suspended moved freezer. in the ceiling space was installed the between new walk-in freezer walkway. plans The which to changes and the observation led these developed Hindley were and ALSC. of part remodeling project,
As the closed circuit televisions were installed, walkway longer and the and observation windows were no necessary. redesigned security The observation room was as a room the closed which housed circuit televisions. Salsbury these the changes, Hindley
As a result of discussed with options walkway of the developing space, abandoning as accessible They going accessible, it that if it was to be sealing agreed and it off. satisfy requirements to it of the Uniform in order make safe and the they Code, necessary guardrails install in Building it would be provide lighting, improve and the walk- drop ceiling, the area the However, agreed necessary not be to way they surface. that would therefore, drop ceiling by to seal off access to the space, use the covering drywall, and removing door, opening the with the access manager’s in the store moving the access door to another location security new room. provide office to access to the agreed the step accomplishing changes upon The first toward a order which illustrated relocation preparation change agreed change to make the the access door. contractor to $1647, in fact the contrac- paid amount of which was Rosauers However, change never made. tor. security did work on the
Roy Beekman testified that when he door, than relocate the door room, he extra and that rather had an area, place and used the extra simply he left it storage from not testified he did security room. Beekman door for new area door storage access Salsbury’s authorization leave have Hindley. did it with He was not advised but that he discuss place, space and that by Hindley abandon wanted removed; he if the door to be nor was advised supposed door was installed, and remain, have to be guardrail going to be provided. have walking surface would improved and an lighting in the past door had been used the access was aware that He *4 the future. be used in assumed would Salsbury during which removal with a discussion
Hindley recalled discussion, Pursuant to was discussed. access door the required change a order which 1987, he prepared November During a off with sheetrock. storage be sealed area the access subsequent inspection, visit to the store for he became aware that the door, of the as required change order, removal had not been did not inform accomplished, Salsbury but that the door had been left fact, place. prior payment by in In to final contractor, Rosauers to the Hindley conveyed drawings which indicated that door, required by of the access as 18, 1987, removal the November order, had in fact change accomplished. been Doug working Pierce was as a May stock clerk at Rosauers on 1988, when a customer asked to borrow some of the store’s Hawaiian Pierce Day posters. conveyed request supervisor, Lynn his Sterling, approved request who and advised Pierce that posters would either be security located the new room or the old storage area. date,
Prior to that Pierce’s duties required that he occasionally visit the storeroom to retrieve store decorations. He estimated that he had been there once or twice a year and at a least dozen times altogether. He testified the door to the store manager’s office normally and that to open recover the displays normally he would enter the area storage through door; the access proceed walkway down a feet; several make a turn left; and then step down on the roof of the freezer where items were often stored, or from where access gained could be to another area where items were stored. There was light switch accessible from the roof of the freezer which illuminated storage area. accident, On the date of his opened Pierce the door to the storage area, light noticed there was no switch in the area doorway, proceeded down the walkway. He turned to his left to step down thought freezer, on what he instead, but stepped onto drop ceiling crashed to the floor ten feet below. As a result of fall, physical injuries. his Pierce sustained serious
Although Pierce had often storage entered the area prior to the remodeling project, injury the date of his was the first occasion he had to enter that area after remodeling project completed. He stated that there was nothing appearance different about the the access door on the date of his accident. Neither did the plywood walkway any different, look and because there was no light area, way there no to tell drop ceiling that a had been substituted warning for the former walk-in cooler. No had been placed outside the there door and was no lock on the door.
Sterling grocery department is the manager Kalispell at the Rosauers and was supervisor injury. Pierce’s on the date of his He *5 102 likely Pierce that the decorations were most the one who advised
was office that is manager’s room behind the because where storage in the past. Sterling in the testified that he had they had been located year prior himself as often as six times a storage the area entered okay remodeling project presumed and he was still to use the the expressed because the door was still there. He his storage area explained, of Pierce’s fall. He “The door was still learning at surprise mean, have me.” there, I it could been against ALSC 8, 1989, complaint Pierce filed this September
On Hindley negligently guard failed to allegation on his based by suspended ceiling by the danger presented inherent against the hazard, area, in the provide adequate lighting to warn of failing by denying negligence, ALSC answered and guardrail. provide or contributorily negli- that Pierce was as affirmative defenses alleged by accepted work doctrine. that his claim was barred gent and trial, summary judgment on the basis ALSC moved for Prior to substantially by complete was that, remodeling project since injury May 21, did not occur until January 15, 1988, and Pierce’s by accepted work doctrine. 1988, his claim was barred striking ALSC’s affirmative defense moved for an order Pierce also doctrine, holding that ALSC was work accepted on the based of the Uniform matter of law based on violations as a Building Code. to the work regard accepted denied. With
Both motions were issues of fact related doctrine, Court held that there were the District actually at the time of Pierce’s complete the work was to whether defect, regard hidden. With to the any, if injury, and whether there Code, Court held that were Building the District Uniform violated, and further- the code had been issues about whether factual only negligence. more, were evidence that violations 1991, 1 28, and on November on October juryA trial commenced negligent. that ALSC was not returned its verdict jury deliberations, instructed that an architect jury’s it was Prior has injuries which occur after work parties third not liable to for whom the work was accepted by the owner completed been Building a violation of the Uniform instructed that It was also done. per se. Code is notwithstanding judgment 7,1991, Pierce moved for
On November 17,1992, January On alternative, for a new trial. verdict, in the notwithstand- judgment granting issued an order the District Court a retrial negligence, and ordered the issue ofALSC’s the verdict on ing
103 However, issues. we held in Pierce v. ALSC Architects remaining 969, (1993), Mont. 856 P.2d that because the S. P. days had not been entered within 45 after District Court’s order motion, by had denied operation by motion been law Pierce’s also held that because to Rule M.R.Civ.P. We of this pursuant history, plaintiff was not to blame for unique procedural case’s withdrawing appeal, plaintiff his notice of and the previously days appeal within which to file a notice of after have an additional remanded to the District Court. case was Court, judgment received the District After remittitur was filed appeal for ALSC and a notice of Pierce. entered *6 ISSUE 1 negligent the defendant as a matter of law? Was judgment The standard of review of a denial of a motion for pursuant 50(b), M.R.Civ.P, the verdict made to Rule notwithstanding verdict, as that review of a motion is the same for a directed may only as a granted appears and... be when matter of law that non-moving party upon any the could not recover view of the evidence, including legitimate the inferences to be drawn from it. (1991), 497, 500, 1363, 1365 247 Mont. 807 P.2d (citing Hash v. State 15, County (1985), v. School District No. Glacier 216 Mont. Wilkerson 622). 211, 617, 203, 700 P.2d that there insufficient argues support
Pierce evidence to jury’s because, undisputed evidence, the verdict based on the ALSC Code, therefore, the Building violated Uniform as a matter of law. (1992),
In Herbst v. Miller 252 Mont. 830 P.2d we held ordinance, Code Building adopted that when Uniform is local comply city ordinance, failure to with the U.B.C. is a violation of a therefore, negligence per undisputed se. It is that on March 17,1986, City adopted the 1985 edition ofthe Uniform Kalispell Kalispell City as Ordinance No. 1078 and that Building Code Hindley’s of the code were in effect at the time that services provisions remodeling appli- and were project, on the Rosauers performed were the code Pierce provisions upon which project. cable to following: relies are
Sec. 104.....
(b) Additions, Additions, or alterations Repairs. Alterations may any building made to or structure without repairs comply with all the requiring existing building or structure code, addition, provided of this alteration or requirements required building to that for a new or structure. repair conforms an existing building or alterations shall not be made to Additions existing building cause the or structure to which will or structure provisions of the of this code nor shall such be in violation building existing alterations cause the or structure to additions or shall be deemed to have been An unsafe condition become unsafe. existing building or alteration will cause the created if an addition structurally unsafe or overloaded ... or will to become or structure to human life. dangerous create conditions otherwise Guardrails openings floor and roof ... which are 1711. All unenclosed
Sec. protected or floor below... shall be grade than 30 inches above more not be less than 42 inches in Guardrails shall guardrail. height. (1985) added). 104(b) (emphasis and 1711
U.B.C. §§ architect, he himself an testified that first learned Salsbury, who is discussed, removed, not been door, we have had that the access which off, sealed when he storage to the area had not been and that access Hindley’s testified that it had been injury. Pierce’s He also learned of to assure that the door was project as the architect responsibility specifications, or to advise conformity project with removed that, to do so. He testified because the contractor’s failure owner of remodeling project, door changes during made had not previously access to a hazard which provided room storage inside the injured because of a condition existed, and that Pierce was *7 life” in of U.B.C. “unsafe to human violation area which was storage 104(b) (1985). following that if the area was accessible agreed He § necessary to U.B.C. guardrails pursuant were remodeling project, walkway would also lighting improved and an (1985), and that 1711 § acceptable architectural comply added to with to have been have standards. injury the time of Pierce’s sum, Salsbury conceded that at
In of the requirements not conform to the injured did area where he was only mini- requirements were and that those Building Code Uniform mum standards. Llewellyn is a Llewellyn as a witness. called Clark
Pierce also University and practices at Montana State of architecture professor on his review of area. Based in the Three Forks architecture standards, and the relevant he accident scene concluded that it applicable required U.B.C. was and that that the access door to the opening sealed, area either be removed and the or in storage alternative, storage brought by area be to code up installation improved walkway, lighting, of an and guardrails. He ceiling through described the area which Pierce fell as a hidden defect person top cannot be seen until a is on of it. which allowed, He testified that if a door is to an area provided and access used, an architect cannot assume that the area will not be and that accessible, if then Building applicable. the area is the Uniform Code is In response attorney, specifically cross-examination ALSC’s he only that the U.B.C. is if the applicable expresses denied owner an intention to use the area. only testimony witness called ALSC to controvert Llewellyn Hindley. and agreed He on re- based of the walk-in cooler and changes during
moval made the remodeling project, manager’s office, the area behind the store which had for- merly used for storage, longer been was no safe for use without the lighting, improved walking surface, installation of an guardrails. agreed duty He also that it was his to assure the store owner that the performance contractor’s conformed to the contract documents, and change that the order requiring storage removal of the room access door was one of those documents.
However, Hindley contended that because he had been told the storage used, room would not be it neither necessary to make improvements area, inside the nor eliminate access to the area. used,
He admitted that if the area going to be it was in violation requirements, of the U.B.C. nothing but did to assure that it would not He acknowledged be used. also that because the door was allowed remain, apparent would not have been to Doug Pierce, Lynn Sterling, other employee, that the room had no obvious use.
During inspection building January an following accident, Hindley Pierce’s when observed that the room was still being storage, used for he recommended that a lock and hasp be prevent installed to access to the area. conclude, record, thorough
We after a review of the trial court jury’s verdict, support there was not substantial evidence to perform- that the uncontroverted evidence established ALSC’s remodeling project Kalispell, ance related to the of Rosauers in 104(b) the 1985 violated and 1711 of edition of Uniform Build- §§ ing Code. *8 clearly
The area Pierce fell an through which was unenclosed floor than 30 opening below, which was more inches above the floor guardrail. exception provided a There is no in unprotected used, the area not 1711 based on an architect’s belief that will be or § Furthermore, the record only infrequently. will be used establishes Hindley performance that when certified that the contractor’s always door remained as it had complete, the access been with no access, provided hazard to which it and no lock warning of the with presume access. It was unreasonable preclude which to frequently past who had used this area in the would not employees future, any or preventative protective continue to do so absent measures. storage conclude that the second floor area which had been
We which, in the but because frequently by employees past, used alterations, a ten feet now included of false floor above remodeling below, lighting, was without form of was an the floor which dangerous to human life” in violation of U.B.C. “unsafe condition ... (1985). 104(b) § that, condition, storage altered
Hindley admitted if used its Yet, nothing to that it not room was unsafe. he did assure used, users of the hazard which existed. As potential nor did he warn out, provided, a functional door is Llewellyn pointed when Professor presumed. has to be future use Hindley advised the door could be
The fact planned sealed because future use was not entryway removed and the either make the area as the excuse for failure to cannot now serve danger unaware of the safe, access those who were prevent posed. that it as a reasons, negligent conclude that ALSC was these we
For when, passage Court erred due to the matter of law and the District judgment notwithstanding for a the verdict time, Pierce’s motion deemed denied. ISSUE 2 matter contributory negligence as a free from plaintiff Was of law? above, he was set forth that based on evidence
Pierce contends affirmative defense dismissing ALSC’s to a directed verdict entitled on our decision Pierce contends based contributory negligence. he had a (1979), 182 Mont. 595 P.2d Hagele v. in Green care and was act with reasonable that others would right to assume injury only that could failing anticipate an have not negligence. another’s resulted from using that Pierce entered a dark room without responds
ALSC *9 going, he was and if attempting or otherwise to see where flashlight attention, changes storage noted in the he would have paid he had ALSC possibility danger. have alerted him to the area which would the walk-in cooler had been that Pierce was aware that also contends accident, and that he should to the date of his have prior removed changed cooler’s removal with the condition of floor associated the storage in the area. only proper held that a motion for a directed verdict is
We have
justify
submitting
absence of
evidence which would
complete
jury,
to the
and all inferences which can be drawn from
an issue
light
in the
most favorable to the
evidence must be considered
(1982),
Jacques v. Montana National Guard
199
opposing party.
493,
held that even
Mont.
ISSUE 3
dismissing
order
the defendant’s
plaintiff
Is the
entitled to an
doctrine?
accepted
was based on the
work
affirmative defense which
summary judgment
entitled to
dis-
Pierce contends that he was
accepted
affirmative
on the
work
defense based
missing ALSC’s
for sum-
disposition of motions
review a district court’s
doctrine. We
Ranch,
(1994),
Inc. v. West
Spain-Morrow
de
mary judgment
novo.
City
Minnie v.
330,
(citing
441, 444, 872 P.2d
264 Mont.
214). Summary
212,
(1993),
429, 431, 849 P.2d
257 Mont.
Roundup
of material
issue
only
genuine
there is no
proper
when
judgment
matter of law.
judgment as a
is entitled to
moving party
fact and the
331-32.
Second, Pierce contends that we should follow the lead of the
Supreme Court of Arizona and conclude that
the accepted work
applies only
doctrine
contractors,
and not to architects. See L. H.
(Ariz.
Assoc.,
Bell &
Granger
Inc. v.
1975),
Third, Pierce contends that this based on the undisputed facts in case, there was insufficient justify evidence to instructing jury this defense because the construction project was not complete at the time of injury Pierce’s and the defect which caused his injury was hidden.
Finally, Pierce contends that the accepted work doctrine is incon- sistent with the principles of modern tort law and should no longer be followed. agree, Because we we will not address the previous issues, but conclude that the District Court erred when it denied Pierce’s motion to dismiss ALSC’s affirmative defense based on the accepted work doctrine.
The accepted work
discussed,
doctrine was first
although not
applied, in
Schwieger (1932),
Ulmen v.
331,
92 Mont.
are of that class wherein an owner or contractor employs an
independent contractor to work upon premises the possession of,
over,
and control
which is
him,
surrendered to
and consequently
independent
the
contractor is not relieved of responsibility until
his work has been accepted and the premises revert to the control
original
owner or
contractor.
Ulmen,
We held that in that
general
case the
contractor had never surren-
project,
dered control of the
therefore,
and
the subcontractor had
any liability
never assumed
from which to be
relieved based
the
accepted
However,
work doctrine.
we did not
accepted
discuss the
work doctrine in that case under circumstances where a contractor
or a subcontractor
seeking
was
relief
liability
from
for a condition
actually
by
created
the
negligence.
contractor’s act of
Cahill-Mooney
v.
applied
and
Ulmen in
We affirmed
Hannifin
However,
Co.,
(1972),
413, 498
Mont.
P.2d 1214.
Inc.
Construction
damages
sought
were
worked
case, the contractor from whom
in that
regarding
the
the nature
property
of the owner of
under the direction
the contractor had
to be done. We held that where
extent of work
and
two months
premises
no control over the
for some
job
left the
and had
accident,
the
days
that was
owner of
twenty
preceding
and
contractor,
responsible
who was
for main
rather than the
property,
the issue
reasonably
Again, Hannifin,
in a
safe condition.
taining it
reasonably
condition,
safe
maintaining premises in a
related to
actively creating
through
a hazard
responsibility
than
rather
acts or omissions.
(1973),
Kayser
cited Ulmen in Olson v.
161 Mont.
again
We
defendant,
contractor,
case,
plumbing
In that
a
had
Hannah v. Fletcher
The also rule, expressed A number of courts have dissatisfaction with such as that of the Texas court in favoring approach a more direct Contracts Building 13 Am.Jur.2d and Construction § Strakos. (1964). rule, nonliability these courts have applying Instead of injuries to or death a rule that a contractor is liable for established contractee where the work acceptance after persons of third negligently if endanger persons third reasonably certain to rationale there are no adopts This view completed. Id. liability differentiate of a manufac- between grounds sufficient contractor. Id. building that of a or construction goods turer of is not liability reasoning under this building contractor’s
111
absolute,
Thus,
predicated upon negligence.
but
a contractor fol-
given to him
if
lowing plans
specifications
or
will not be liable
See,
would have followed them. Id.
person
e.g.,
reasonable
Menen-
(Ariz.App.1991),
Pool Const. Co.
dez v. Paddock
P.2d 968
only
rule
when contractor has no
(nonliability
applies
discretion
merely following plans
specifications provided by
and
the
and is
(D.C.Cir.1956),
and Hannah v. Fletcher
However, Nichols, in majority after a review of record that there an insufficient factual concluded record with which to exceptions, therefore, the doctrine or its and apply summary reversed judgment in favor of defendant and remanded that case to the district development court for further of the record. Justice Trieweiler, how- ever, joined by Hunt, in a dissent Justice stated that the doctrine had liability modem place among no theories of and stated that no in longer applied defense should be Montana. declined squarely
We are now faced with the issue which we to Nichols, consideration, upon consider in and further conclude accepted longer work doctrine should no be followed in Montana. defense, previously as has the applied, This undesirable effect of omissions shifting for acts or responsibility negli- from gent party person paid negligent party’s to an innocent who for the Furthermore, the shifting responsibility services. is based on the work, legal accepting fiction that a contractor’s the owner of fully appreciates dangerous the nature of defect or property responsibility reality, opposite condition and assumes for it. In is Contractors, they contractors, true. whether usually building or architects, expertise knowledge. are hired for their and The reason they average property for their services is that the owner paid are knowledge expertise design does not have sufficient or construct improvements safely soundly. and The mere fact that property real testimony professional negligence expert required establish recognizing substan- nonexperts incapable it clear that are makes logically their How then can we conclude dard own. performance completed has his or her services simply professional because the services, liability those for the con- paid contractee has and the and uninformed shift to the innocent tractor’s should for the why Supreme That is Court State We cannot. contractee? (Tex. 1962), 787, 791, Gehring 360 S.W.2d Texas held in Strakos v. the accepted that elimination of work doctrine would logic restore liability. to the law of simplicity that, for the
We conclude reasons first noted in Justice Weber’s opinion Harrington, dissent for those further reasons set forth, applied, by majority Nichols, but not and for the addi- opinion, reasons set forth in this tional elimination of the accepted work doctrine is more consistent with modern principles of tort is more liability likely place liability for negligent conduct on To the extent appropriate party. prior opinions discussed conclusion, they herein are inconsistent with this are reversed. *13 Therefore, we conclude that the District Court erred when it denied to dismiss that by summary judgment, Pierce’s motion defense and jury the District Court erred when instructed the that the accepted claim. work doctrine was a defense to Pierce’s judgment We reverse the for ALSC. We remand this case to the entry judgment Court for in favor of District Pierce on the issue of for further negligence, proceedings ALSC’s and consistent with this opinion. TURNAGE, JUSTICE HARRISON,
CHIEF JUSTICES HUNT and NELSON concur.
JUSTICE WEBER dissents as follows: in majority opinion I concur on Issues II and III and dissent I the majority’s opinion. agree from Issue I do not with the 104(b) (UBC) Building conclusion of the Uniform Code applies § negligence per se in this case and the establish conclusion that 104(b) as a matter of negligence was established law. Section of the provides pertinent part: UBC or shall not made to an existing building
Additions alterations be existing building or structure which will cause the or structure to any provisions of this code nor be violation shall such or alterations cause the or existing building additions structure to An become unsafe. unsafe condition shall be deemed to have been created if an addition or alteration will cause the existing building structurally to become unsafe or overloaded or structure ... or will dangerous create conditions to human life. otherwise 1711, provides: Section openings, open glazed unenclosed floor and roof sides of
All or which are more than 30” landings ramps, porches, balconies below, floor and roofs used for other than service of grade above by guardrail.... building protected shall be agree I do not 1711 mandates that the § area where Pierce fell through ceiling tile to the floor below an was area for which a guardrail required according was to the agree UBC. Nor do I with the majority’s that, law, conclusion as a matter of a condition was created dangerous to human life.
The question whether ALSC violated the UBC presented jury by means of the following instruction: City
Kalispell Ordinance No. adopted as law the 1985 edition of the If find you [UBC]. that the defendant violated provision of the relating [UBC] to human safety, such violation is negligence. You should then determine whether was a cause of the plaintiff’s injury.
According instruction, to this the jury could find that ALSC violated and, event, the UBC in that negligence is established. The court refused jury to instruct that ALSC as a matter of law, leaving question of whether ALSC violated and, the UBC— therefore, was negligent determined the jury pursuant —to expert testimony presented at jury trial. The heard the evidence presented by the experts and had the opportunity to observe the witnesses and determine credibility their firsthand.
The correctly District Court presented question whether the UBC was violated jury. jury listened to the evidence presented and determined that there was no violation of the UBC. The evidence on this issue consisted of expert testimony from archi- Hindley, tects Salsbury and Llewellyn. Whether the UBC had been properly *14 violated was question a to determined by be the trier of fact based expert testimony. on
Some of that expert testimony, emphasized as in the majority opinion, presented by was plaintiff’s expert, Professor Clark Llewellyn. Llewellyn the only was architect who testified unequivo- cally that the area where through Pierce fell had to be brought up to by code installing surface, a new walking lighting guardrails even if it was not going to be used and even if the owner insisted upon leaving the area improvements. accessible without There was testi- mony from the other architects that such an area up is to code without improvements if no planned use is for the area. Hindley
Architect testified that the use to be made of a room determines how the requirements UBC for improvements are to applied, specifically stating that “it up to code if it’s not being used.” He testified that his understanding was that the use of space was to be discontinued and people would not be allowed in the space. ceiling space, He considered it as dead which does not require he improvement. manager Roy After learned that store place in agreed Beekman to leave door and that access was area, possible again to the he was assured that the area was not going assurance, any purpose. upon to be used for Based he determined space require improvement that the did not nor did it need to be closed by sheetrock. space part to close offthe was of a order plan change primarily security access to the new room. off provide Sealing intended to over the by sheetrocking opening planned access door was so that the security Hindley used for the new room. and Salsbury door could be security to the new room in order agreed to move the door to save on if the area where Pierce later fell They agreed through costs. was Rosauer’s, going by improvements, including to be used it would need Salsbury in order to conform to the UBC. guardrail, a assured going any for Hindley purpose. that the area was not be used concern; never a main it planned Removal of the door was was room, provide primarily order to access to the new not to conform to Salsbury’s any area, the UBC. Based on decision to abandon use ofthe Hindley closing off the with sheetrock space did not insist when that, room, off a closing he learned instead of new door was the contractor for the new room at no extra cost provided by Rosauer’s. Salsbury, owner-representative
Richard for Rosauer’s and an ar- himself, extensively for requirements chitect testified about by majority, of emphasized abandoned area. As some his testi- mony to the effect that the area did not conform to UBC. was However, testimony equivocated space also testified that the his —he space improvements like attic and did not need unless was Hindley be used. He told that Rosauer’s intended to abandon going to states, concede, majority opinion did not as the the area. injured Pierce did not conform to the UBC. that the area where the statement that the area were to Salsbury agreed What if it did not UBC. purpose, be used humans conform Hindley regulations had violated the thought that he He testified (American Architects), professional organiza- a the ALA Institute regulation an ALA or ideal of conduct architects. Violation of tion for of the UBC. The significance as a violation does not have the same city ordinance adopted minimum standards as UBC is a set of City Kalispell. *15 He testified that the area was to be abandoned. Salsbury also it, if there an door to attic even is access space, that unused testified comply off access to with the UBC. He further sealing require does not requirement space there is no UBC that a has that, although testified decided, time improved, he at the of his initial be sealed off or Hindley space, about the that it be sealed off because discussion with any purpose. not used for Instead to be abandoned and going it was sheetrocking it, of over the door could closing the area means prohibit access. kept nailed shut or locked have been Hindley justified under the circumstances in ac- testified that Furthermore, that it would not be used. if cepting his statement security at had not decided to have a room built the last Rosauer’s the area would have been left as was with no stages project, only by going through This area was accessible improvements. manager’s office. testimony above, there an
According to the as discussed actual among the architects as to whether the facts dispute demonstrated a Llewellyn of the UBC. testified that access to the area violation had usage off if was to be purpose to be closed even abandoned. Hindley the UBC it be closed off required testified only space. Salsbury’s if there was an intent to use the improved examination testimony direct was that the UBC was violated if used; was to be on cross-examination he testified the area area need space improvements. like unused attic which did not All improved that the area had to be to conform agreed three architects used; only Llewellyn testified going to the UBC if it was to be require- that the area here did not conform to the UBC unequivocally Although Salsbury testified that ments even if all use was abandoned. place, if he had known the door was left in he would have insisted it off, testify not it did be locked or otherwise closed he did not testimony comply to UBC standards. His was that it did not conform standards, exacting from and more with ALA which are different of the UBC. requirements the minimal testimony required is expert have held in numerous cases that We professionals of care for because in order to establish standard experience care are outside the common such standards of testimony required to assist lay jurors expert knowledge requirement cases. That resolving professional negligence them in against in Montana veteri- negligence actions extended to has been orthodontists, dentists, manufac- doctors, lawyers, narians, medical Zimmerman v. of title. and abstractors pharmaceuticals, turers of (1993), 105, 107, Robertson 259 Mont. 854 P.2d 339. Most *16 recently, expert testimony we held that was required to establish the care of professional standard of counselors. See Newville v. Depart- Family (1994), 237], [267 ment Services Mont. 883 P.2d 805. of Architects are included in the group professional of fields requiring testimony expert to establish the standard of care. See Prosser and (5th Keeton, Torts, 1984); Zimmerman, The Law 32 ed: 854 P.2d § of at 339. admitting testimony
After evidence of expert lay to assist jurors in this case in their making determination on the issue of the professional negligence, architect’s the District Court submitted the jury. majority disregarded issue of ALSC’s has expert testimony Hindley Salsbury from architects and and has there support concluded that was not substantial evidence to jury’s and that the verdict uncontroverted evidence established that 104(b) performance ALSC’s of the Rosauer’s contract violated and §§ Building the 1985 edition of the Uniform I emphasize Code. that the evidence was not uncontroverted and there was substantial jury determine evidence from which could either that the UBC majority was violated or that the UBC was not violated. The has jury’s role and made that determination as a matter usurped assuming Hindley’s testimony self-serving, law. Even how- ever, following expert testimony that does not from explain Salsbury, which I conclude constitutes substantial evidence that the not violated: UBC was
Q. [by lighting guard improvements Sullivan] Mr. Would Uniform if the required Building rail have been under the Code left, door, going area accessed which was to be continued any purposes? to be used for
A. Yes. used did not have to conform to testified that an area not space for a and likened the to unused requirement guardrail the UBC testimony space. attic His was as follows: Q. [by space going Heckathorn] Mr. And if attic or if an attic abandoned, used, not no under the requirement, there is something attic, is there? [UBC] do with A. No.
Q. if an access door to that problem, you And there is no even have you it, you? don’t do do space, anything unused still have to A. No.
Q. you If don’t use it?
A. That is true.
Q. But, say what does the [UBC] as to when something like that space attic must be developed and— A. When there ais use?
Q. Well, what kind of a use?
A. Use humans. Q. you ... Under the facts that given us, you have had told space Steve that the attic going abandoned, to be you don’t contend duty there was some part on the of Steve to do something to comply [UBC], you? with the do not, A. I long do as as the space was sealed off.
Q. Well, long you Yeah. no—As as had told him that it was going to be abandoned and not used? Well,
A. the alternatives that I discussed with Steve were that we *17 either had improve to that area where the accident happened, so safe, that it would be or that we would have to seal it off. Q. I think you, that Steve asked not, did he you whether would like that developed have for storage? Yes, A. that’s true.
Q. you And you not, told him that you were going to abandon it?
A. That’s true.
Q. Now, [UBC] does not think require, and I that we have already that, said does not require work to be done in an unused attic space, even if there is an access door to it?
A. That’s true.
Q. so, And it requirement isn’t a that it be sealed off? my decision,
A. That however, and direction.
Q. That was direction of the UBC now?
A. Yes.
Q. There requirement is no UBC that a space off, has to be sealed and if it isn’t sealed it off has to have work done on it?
A. That’s true.
Q. only knowledge And the that Steve again, you had was that had going said it was to be abandoned?
A. Yes.
Q. And not used?
A. Not used.
Q. justified And he was under those circumstances in accepting your statement that wouldn’t be used?
A. That’s true.
Q. [by Now, Salsbury, Heckathom] Mr. Mr. we saw lot of exhibits the ALAand a lot requirements about of and those are some of the more, there I requirements are a lot aren’t there? mean there requirements architect, you is a lot of on an have a profes- lot of responsibilities you go long sional school for a time to learn them, you? don’t Yes,
A. that’s trae. Q. relevance, you did think that all of What what these exhibits to do the issues have had with that we defined? Well, these my thinking roles,
A. exhibits define define communication, of obligations. define authorities and paths Q. you ideals, Do think that Steve violated those regulation AIA in this contract? A. Of the AIA?
Q. Yes. Yes.
A. requirement Hindley of the AIA which thought The recognize was the failure to there was a contract violated completed removing that had not been the door and requirement — sealing requirement off the That one which the contrac- opening. manager should be left as agreed tor and store is with providing security a new door for room for the same contractor the AIA to violation the UBC. price. equivalent Violation of is not evi- majority has concluded that there was not substantial support jury’s verdict and that uncontroverted evidence dence performance remodeling pro- that ALSC’s related to established *18 104(b) agree and the I do not the ject violated 1711 of UBC. §§ agree perform- was and I do not that ALSC’s evidence uncontroverted Moreover, the UBC sections. there substantial ance violated on jury’s finding negligence part. the of no ALSC’s support to evidence there is reweigh role is not to the evidence when substantial Our jury This the sort ofunenclosed to the verdict. is not support evidence needed to contemplated by protected 1711 which be opening floor § through space only an accessible guardrail. a It was abandoned Hindley Salsbury and testified did not manager’s fice which the improvement according Clearly need to the UBC. this is substantial testimony provided by Llewellyn. evidence to controvert other addition, agree In I do not this was an unsafe condition 104(b). according and, such, to This was an unused area as needed § improvements, according testimony Salsbury no and Hin- dley. testimony many The indicated that there changes were within area, including the installation of conduit and other ductwork which to some extent blocked access to the area where cooler had previously provided the floor and that this should have alerted Pierce changes space. Although within the access door remained always been, space where had the area inside the behind the door substantially changed. I do agree not with the statement of the majority that provided, “when a functional door is future use has to presumed.” evidence,
Because of the conflicts in the I conclude the District properly Court submitted the issue of architectural jury. clearly I further conclude there was substantial evidence pre- upon jury sented which the could finding base its that ALSC was not negligent.
I would affirm the District Court on this issue. GRAY,specially concurring. JUSTICE opinion regards I concur in the Court’s in all specially concur respond here on issue 1 in order to to the dissent’s presentation of Mr. Salsbury’s testimony in this case.
Issue 1 is whether defendant was as a matter of law Uniform virtue of its violation of the Building Code. The Court clear including recounts the and uncontroverted that of evidence — Salsbury determines, Mr. the UBC was violated and —that basis, granting plaintiff’s that the District Court erred in not motion judgment notwithstanding presents the verdict. dissent Salsbury’s testimony of Mr. picture suggesting Mr. and, thus, equivocated jury question regarding created a whether the my UBC Because it is that the was violated. view dissent takes here, Salsbury testimony out of the context which is relevant I set Salsbury’s testimony that the unequivocal portion forth Mr. altered the UBC: of the store at issue here violated Q. Doug injured, At the time that did area accessed door, office, through manager’s particular off of store Doug through suspended ceiling, the area where Pierce fell *19 conform to the minimum safety standards ofthe Uniform Building Code?
A. No.
Q. If the door would have been removed and the opening patched studs, over with sheet rock and as was called for in the clarification R17, drawing would the building point at that have conformed to provisions Building of the Uniform Code? would, A. I believe that it space that would have been made non-accessible.
Q. youDo door, itself, consider this in and hazard, to be a Mr. Salsbury, it gain or does access to a hazard?
A. It to a gains access hazard.
Q. So the real —Let you this, me ask did the same hazard exist that claimed Mr. Pierce as its first victim prior to the remodelling project?
A. No.
Q. As the owner’s representative, what is the owner’s attitude being as to that door left there? preferred
A. We that it be sealed off.
Q. Because it creates a dangerous situation? Yes.
A. Q. case, The real part Salsbury, you agree, of this Mr. is storage that there was a condition inside of this area which was using unsafe to human life at the time that Mr. Pierce was space injured May 21, and at the time that he was 1988?
A. Yes. 104(B)
Q. Let’s assume for a minute that under section leaving accident, unlocked, the door here asitwas at the time ofthe area, warning signs, warning signs no no inside the no barricade area, accident, around the but as it existed at the time of the 104(B), under section did that constitute a condition which was a safety? hazard to human health Yes, my did. opinion
A. Q. So, words, in other under of the scenarios we have time discussed, area, accident, had to conform to at the requirements Building the minimum of the Uniform Code? so, yes. A. I believe
Q. words, In other the real hazard that this whole lawsuit simply isn’t the fact that a door was left in the about contravention and the your documents, order contravention of contract duty, gut contravention of the architect’s but the real of the lawsuit is, hidden is that door allowed access to a hazard that claimed Mr. victim, Pierce as its first correct?
A. Yes. Nothing testimony equivocates in this require- whether the Salsbury’s testimony ments of the UBC were met. Mr. establishes question 104(b), a violation of section prohibits without which altera- existing building causing tions to an from the building to become human dangerous unsafe or life.
JUSTICE NELSON: join
I in the special concurring opinion Gray. of Justice