Steichen v. Talcott Properties, LLC
292 P.3d 458
Mont.
2013
Check Treatment

*1 CRAIG STEICHEN, Appellant, Plaintiff and TALCOTT PROPERTIES, LLC; COMMUNICATIONS, LLC, BRESNAN Appellees. Defendants No. DA 11-0778. September Submitted on Briefs 2012. January 8, Decided 2013. 2013 MT 2. 368 Mont. 169.

292 P.3d 458. *2 Appellant: Anderson; Attorney Law, P.C., A. For Lawrence Great Falls. Meek, Crosby; Ugrin, Kevin C. Jordan Y. Appellees:

For (for Alexander, P.C., Properties). & Great Talcott Higgins, Zadick Falls Opinion delivered the of the Court. CHIEF JUSTICE McGRATH Steichen from the District Court’s December Craig appeals summary Properties. Talcott We granting judgment 2011 order reverse. and we the issues for review stated Steichen We consolidate

consider the following issue to be dispositive: whether Talcott as a property owner had a duty of care to Steichen.

PROCEDURAL AND FACTUAL BACKGROUND building Talcott owned a Great Falls and space leased in the to Bresnan Communications. Steichen worked as an Bresnan, contractor for providing office cleaning services nights three a week. He had no contractual relationship with Talcott. The incident gave rise to July this action occurred on when slipped in water on a restroom during floor his cleaning duties in Talcott’s building, and sustained a personal injury. Under lease, Talcott-Bresnan required Talcott was

“maintain the building structurally, water, including roof and the gas, sewage, electrical, heating cooling systems therein, together with the interior and exterior surfaces of building.” Bresnan was responsible for “routine painting, cleaning and care of the interior of premises” leased including the lights. interior According to the order, District Court there problem chronic with water that leaked from the plumbing onto the restroom floor where Steichen fell. periodically Bresnan called report leak, and Taclott somebody would “send over” to problem. address the Despite Talcott’s *3 responses occasions, on these the plumbing in the men’s room continued to leak water onto the floor. practice Talcott’s was to address maintenance of the building when Bresnan notified it problem. of a Talcott did not have an inspection schedule or a written maintenance policy for the building. alleged

¶5 Steichen also that there was a chronic problem with the in lighting the building, the including lighting in the men’s room. lease, Pursuant Bresnan assumed responsibility for maintaining the lighting. Plaintiff alleges that when he fell and sustained injury the lighting in the men’s room was dim and puddle there was a of water on the floor. Steichen sued Bresnan

¶6 and Talcott. He settled with Bresnan and Steichen appeals the District granted Court summary judgment to Talcott.

STANDARD OF REVIEW This Court reviews a district court’s rulings on summary novo, judgment de using the same criteria as the district court under M. R. Krajacich Civ. P. 56. Clinic, v. 82, 8, Great Falls 2012 MT ¶ 455, Mont. 276 P.3d 922. Summary judgment may granted be when there are no genuine issues of material fact moving and the party is 56(c); & M. R. Civ. P. Town of law. as a matter judgment

entitled to 12, 453, 349 Mont. Bozeman, MT City ¶ Country Foods v. of the cause the elements facts involve P.3d 1283. Material requires resolution an extent that of defenses to or the elements action Center, MT Edwards Jet Air v. Corporate a trier of fact. summary moving for party The 190 P.3d 1111. 345 Mont. ¶ the establishing absence initial burden of bears the judgment judgment as and entitlement of material fact genuine issues so, opposing party to establish shifts to the oflaw. If the burden matter Air, 25. The Corporate exist. ¶ of material fact genuine issues party is entitled as to whether court’s determination district reviews to that this Court a conclusion oflaw on the facts is judgment 2007 MT Hughes Lynch, whether it is correct. determine 164 P.3d 913.

DISCUSSION had a of care to owner property whether Talcott as Issue: Steichen. legal Talcott did not owe a Court concluded that The District summary judgment Steichen, granted injury to prevent principles premises the The District Court noted

Talcott. Montana, leading case ofRichardson v. Corvallis citing in applied Richardson District, P.2d 748 Public School ordinary to use care property rule that a owner has adopted the reasonably safe condition and to warn premises in a maintaining in “Whether a lurking dangers. of hidden or others property what use the reasonably depends large to a extent on safe characteristics, location, type to, physical and other setting, its put visit, premises, foreseeably occupy use or person who would alleged.” condition type of hazard or unsafe specific Mont. at 950 P.2d at 755-756. that the clear statement of The District Court determined Accordingly, case. applied to this Richardson maintaining care in exercise Talcott had a argument condition. Steichen’s building safe inspections of the condition periodic should have conducted there was a determining whether only one factor *4 of the of care. breach the rules from Nonetheless, applied Court the District Gaub, 12, 2007 MT Cunnington v. industry cases such as

construction PPL, 258, Montana, MT 339 1; 2007 P.3d Fabich v. Bow, MT 2000 943; v. Butte-Silver 170 P.3d and Beckman Mont. P.3d and determined that Talcott owed no Mont. independent of care because Steichen was an to Steichen that for Bresnan. The crucial factors were Steichen working contractor Bresnan; working for that Talcott did independent was contractor Steichen; perform any any retain control over that Steichen did not not work; inherently contractually Talcott did dangerous and that not for responsibility implementing safety precautions. assume Finally, Court that Talcott the District determined even if were subject premises liability duty explained of care in was still liable to The District noted that Talcott not Steichen. Court obvious; the danger-water open the restroom floor-was that water; to clean job up Steichen’s was and that Talcott had responded requests. upon to each of repair Bresnan’s Based these facts, jury” Court District concluded that “no reasonable could requirement conclude that Talcott violated that it exercise ordinary in building reasonably care to maintain the safe condition. The District Court determined correctly had a use in maintaining Steichen to care condition, explained safe as The District Richardson. erred, however, industry in applying Court the construction case, standards to and in determining this that Talcott owed no Steichen because was an contractor. This is anot construction case and any duty site there no reason to make upon decision based Steichen’s as an independent status contractor Independent with Bresnan. contractor status relevant is cases, industry in ordinary premises liability construction but not cases. proj 14 In layers construction ects there are often with involvement owner, contractor, subcontractors, project general

contractors and of each employees ofthem. One ofthe rules oflaw that applied projects prime general is to construction is that a or contractor not liable injuries is of an contractor (9th Morrison-Knudsen, working job, on the West v. 451 F.2d 1971) (applying law), Cir. Montana general unless the contractor work, Sherrodd, employee’s Inc., exerts control over the Umbs v. exceptions There are three general this liability: rule no there a nondelegable duty where contract; upon activity based where inherently dangerous; the general where contractor negligently exercises retained control over subcontractor’s work. 13. Cunnington, ¶ While the Court sought apply exceptions District the rules and regarding general it is clear do liability, apply not

174 not in project, any Talcott was sense There was no construction here.1 contractor, as an and Steichen’s status general as oflaw. Such Bresnan is not relevant a matter status contractor with distinctions-invitee, licensee, formerly applied to the trespasser-were injured premises liability in cases to determine whether party have been abandoned duty. had These distinctions property owner by the ordinary the exercise of care owner. emphasis upon in favor of Richardson, 317, 753; P.2d Limberhand Big 286 Mont. at 950 at 132, Co., Mont. 706 P.2d 491 Ditch 218 (Second) 343A(1) Richardson, Torts relying § In on Restatement of (1965), holding our in Limberhand that status of the we reiterated care, duty not injured property general does affect a owner’s of party ordinary “the on exercise of care in the circumstances depends which Richardson, 286 Mont. at at 753 the landowner.” 496). Limberhand, at 218 Mont. at 706 P.2d We also (quoting of prior overruled a series cases extent absolved property liability dangerous upon owner of “because condition Richardson, and at premises open obvious[.]” 286 Mont. “Rather,” concluded, premises “the of the possessor P.2d at 756. we injuries resulting absolved from for from and may only open be That, if dangers anticipated obvious he should not have harm to occur.” turn, on “depends degree ordinary ‘the care which reasonable ” persons would use under the same or circumstances.’ similar Richardson, (emphasis 286 Mont. 950 P.2d at in original). at case, may to this Richardson that Talcott not applied ¶17 As instructs be found liable to Steichen for a “condition on the whose [him], known or to unless should danger anticipate [Talcott] obvious Richardson, despite knowledge the harm such or obviousness.” added). (emphasis Despite P.2d at 755-756 Steichen’s knowledge leaking frequent presence ofthe urinal and of water on floor, anticipated whether Talcott nonetheless should have harm is a ordinary it jury question, depends degree since care that or persons reasonable would use under the same similar circumstances. 286 Mont. at P.2d at 755-756. suggests duty provide workplace. Talcott had a him with a safe However, duty provide workplace applies employers, 50-71-201, MCA, § a safe relationship. employer-employee and Steichen not in an and Talcott were Sections 39- -118, MCA, defining employer purposes employee workplace 71-117 (1985) Stevenson, safety responsibilities. Cain v. 706 P.2d 128 safety general (workplace duties can in favor of extend contractors cases). industry contractors certain situations in construction Therefore, in analysis this case it is not material to an contractor, or whether Steichen was an or a customer, employee, Bresnan or a Bresnan or a person delivering mail packages to Bresnan. any persons Talcott’s of these is to use ordinary care to maintain the safe condition lurking dangers. Richardson, and to warn of hidden or 286 Mont. at 318, 950P.2d at 754. The District Court’s conclusion oflaw that Talcott owed no of care to Steichen was incorrect. The District Court further erred in granting summary

judgment to Talcott based upon the determination that “noreasonable jury” could find that Talcott had breached care under the facts of the case. question The of whether Talcott breached *6 its to use care in maintaining the reasonably safe condition is an issue of fact properly jury left for a Lucas, 202, 208, 940 112, 115-116 determine. Weltonv. 283 Mont. P.2d (1997). There was evidence that specifically assumed responsibilities maintenance Bresnan, under the lease with and that Talcott understood that it had responsibilities, those example, sending plumber to work on the water leak when Bresnan called. The fact that Steichen and may others have known that water could be may on the floor be jury consider, evidence for the but it was not determinative of whether Talcott maintained the premises. Welton, 283 Mont. at 940 P.2d at 116. In Welton we

¶20 determined that the defendant property owner was not entitled to summary judgment on a store employee’s premises Despite claim. employee’s knowledge pipe of a on the floor tripped fell, on which she given and dimly its existence “in a lit traffic area where it is known that workers will be carrying shelving and products, there is a question of fact as to whether the possessor of the land should anticipate harm despite the pipe obviousness of the despite knowledge Welton, Welton’s pipe.” of the 283 Mont. at P.2d at 116. We cited Welton in Richardson in determining that the 343A(1) principles of Restatement would best serve § “the interests of possessors premises both the persons and those foreseeably on the Richardson, premises[.]” 286 Mont. at 950 P.2d at 755. This is not a workplace safety case but a premises liability Thus,

case. despite Steichen’s status as an independent contractor for lessee, Talcott’s he may seek damages premises liability under a theory danger, for a known prove but must that Talcott “should anticipate the harm despite knowledge such or obviousness.” (citation omitted). 950 P.2d at 756 Whether Talcott had or should have conducted regular maintenance inspections are matters fact to duty is a question breached its jury. Whether Talcott

for the by jury. be determined summary granting erred in Court therefore The District case is is reversed and this The District Court

judgment to Talcott. proceedings. further remanded for WHEAT, and BAKER concur. COTTER

JUSTICES RICE, dissenting. JUSTICE liability precedent to a extends our I believe the Court abandoned the ill-conceived. When this Court

point licensee, invitee, “trichotomy” categories traditional entrant done, standard, it was not single, in favor of a uniform trespasser view, landowners a universal purpose imposing with the my entrant, circumstances. every regardless of the facts or of care to founded, and is I the Court’s decision in this case is so Because believe duties for hazards policy imposing of not contrary public sound do, I was hired to in the inherent work dissent. case, premises liability plaintiff must prove negligence To (2) (3) (4) (1) causation, duty, damages. duty, breach of

establish: 309, 313, Pub. Sch. Dist. No. 286 Mont. Richardson v. Corvallis legal duty question of a is a oflaw The “existence Co., MT Transp. Fisher v. to be determined court.” Swift Usually, determining 181 P.3d 601. when ¶ exists, whether the of that imposition whether a we “consider and whether the defendant could duty comports public policy, with injury that his conduct could have resulted in have foreseen However, Fisher, in the we plaintiff.” 17. context and, task, very broad rule that imposed have eschewed this instead *7 “ duty maintaining a owner ‘has a to use care in his any safe condition and to warn of hidden or ” P.2d at 751 lurking dangers.’ 950 Demaree, (quoting Brown v. 282 Mont cases)). (1995) (collecting imposes upon Montana This rule duty everyone, regardless Although ofcare to ofthe facts. landowner acknowledges exception the an to this rule for construction Court cases, here, holding it that “it is not material to permits exception no duty liability independent Streichen was an analysis an of or whether customer, contractor, person or a employee, or a Bresnan or Bresnan 16. I believe this delivering packages Opinion mail or to Bresnan.” f of duty everyone of care to is an overbroad statement one-size-fits-all duty simplify premises haste to product the law of and of law. and have Courts commentators noted that courts have been trichotomy of precisely possibility

reluctant abolish the because the detrimentally oversimplify premises liability it could law: specific recent shift toward may [The rules] back entrant reflect developments a more fundamental dissatisfaction with certain of during accident law that accelerated the 1960s-the reduction systems legal principles single perhaps simplistic, whole to a care, standard of the sometimes blind reasonable subordination legitimate objectives goals the of other social of accident prevention compensation, shifting and the commensurate of power jury judge. the decisional balance from the Keeton, (West, W.P. Prosser & on the Law 433-32 5th Keeton Torts 1995) (Mo. ed., 1984); Kinney, see also Carter S.W.2d (en banc) (quoting passage reasoning abandoning the above questions all based the situation of entrant for the ‘reasonable care under the “amorphous circumstances’ standard put it kindly-improvident.”). seems-to While this one-size-fits-all rule admittedly it is simple, illogically is broad. There are where the specific situations hazard and relationship between finding the landowner and the entrant warrant a duty as a practical exception by of no matter of law. One recognized injured by courts when the entrant is hazards attendant with the very for which job the landowner asked the entrant to enter premises:

Landowner does employees not extend of an independent injuries whose very contractor result from the risks are which inherent in the work which are hired to perform. injury performance Where individual’s arises out of the work which an employed and while activity is being conducted and under the control of the contractor, protect the independent employees contractor’s is that ofthe contractor and not the owner occupier. or Liability: Independent Premises Their Employees Contractors and § (West ed., 2002); Chevron, (Wyo.

39:7 3d Jones v. 718 P.2d 1986) (“An obligated owner protect is not anof to, contractor from hazards part which are incidental of, very work the perform.”); contractor was hired to Baum v. (1953) Rowland, 281 A.D. (“Plaintiff, 120 N.Y.S.2d 620 having repair undertaken to on the plaster ceiling, assumed the risk that fall, him, it so that might there was no owed to as would have case types upon premises.”); been the toward other of invitees *8 1988) (N.J. (noting that Super. 543 A.2d Aschoff, Cassano liability does that “landowner to rule to adhere Jersey New continues injury whose contractor to not extend they were the work inherent to are very risks which from results for an Cassano, worked plaintiff In perform.”). to hired business. in the tree-removal engaged he property, trees from removing Cassano, A.2d at 974. While the landowner He sued injured. limb and by falling tree struck “a landowner owed liability theory that the general premises under against protect to invitees reasonable care duty to use non-delegable Cassano, 543 A.2d at dangers[.]” reasonably discoverable known or rule, held it did general but this was the acknowledged court 975. The because of the case circumstances specific not extend contractors from protect to do not owe landowners Cassano, 543 perform. were hired to job inherent in the dangers the case here. A.2d at 975. Such is to clean “independent contractor” Steichen as an Bresnan hired duties, garbage, emptied part 3. As ofhis Opinion,

its office. ¶ men’s and vacuumed, floors, and cleaned the tables, buffed cleaned him required cleaning ofthe bathroom bathrooms. Part ofhis women’s with the experience had extensive the floors. Steichen mop to and wax noted, Steichen the District Court in the bathroom. As plumbing leaks that the toilet was always dripping,” that “the urinal was asserted it would flood he “could almost assume “constantly leaking,” and that up the water from job routinely mop every day.” It was his leaking that floor, allegation and there is no bathroom ordinary. his fall was out of the allegedly caused above, be a matter of law for supposed As noted decide, public policy taking into consideration court Fisher, courts to determine foreseeability. requires 17. This task duty upon landowners impose it proper whether circumstances, relationships. including parties’ consideration ofthe policy illogical poor I no. It is inquiry, would answer Under hazards contractors from protect independent a landowner to require perform. hired to very job in the the contractor was inherent Court. I would affirm the District

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