No. 89-452 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1990 

GENE AND LESLIE MICHELETTO, 

Plaintiffs and Appellants, 

-TISEP 14 1990 

STATE OF MONTANA, 

Defendant and Respondent. 

&A s:22.4 

CLERK OF SUPREt:'IE COYFIT 

STATE OF lil - . ;'i ',, .,\ 

APPEAL FROM: District Court of the Seventh Judicial District, 

In and for the County of Dawson, 

The Honorable Leonard Langen, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Steven J. Harman, Anderson, Brown, Cebull, Fulton, 

Harmon & Ross, Billings, Montana 

Theodore R. Dunn, Goetz, Madden & Dunn, Bozeman, 

Montana 

For Respondent: 

K. Kent Koolen; Moulton, Bellingham, Longo & Mather; 

Billings, Montana 

Filed: 

Submitted on Briefs: March 16, 1990 

~ecided: September 14, 1990 8 
Justice Fred J. Weber delivered the Opinion of the Court. 

The plaintiffs appeal the grant of summary judgment to the 

State of Montana, acting through the Department of Highways, herein 

referred to as the State. Mountain States Telephone Company 

(Telephone Company) entered into a subcontract with the State. 

Gene Micheletto was seriously injured in the course of his 

employment by the Telephone Company and received workers' 

compensation benefits for that injury. Gene Micheletto and Leslie, 

his wife, then sought recovery in tort from the State in its 

capacity as general contractor. The plaintiffs now appeal the 

summary judgment for the State. We affirm. 

The plaintiffs raise the following issues: 

(1) Was it error for the District Court to conclude that the 

State as general contractor did not have a non-delegable 

contractual duty to supervise the safety of the trenching 

operations by the Telephone Company? 

(2) Was it error for the District Court to conclude that 

trenching is not an inherently dangerous activity under the facts 

of this case? 

(3) Were there disputed issues of material fact demonstrating 

control on the part of the State which prohibited summary judgment 

for the State? 

In 1985 the State widened State Highway 200 between Sidney and 

Fairview as part of a federal aid road project. Such widening 

required the Telephone Company to relocate some of its cables which 

were buried adjacent to the existing roadway. The State and the 

2 
Telephone Company entered into a Utilities Agreement. 

Gene Micheletto was employed as a lineman by the Telephone 

Company and assisted in the relocation of the buried telephone 

cable. The Telephone Company work crew dug a trench in connection 

with the cable relocation. On the afternoon of July 18, 1985, 

Micheletto entered the trench with the aim of digging under a 

culvert to assist in the cable relocation. While he was in the 

trench, a large portion of the trench caved in upon him, resulting 

in severe injury and disability. 

Deposition witnesses testified that prior to the cave in, the 

trench was between six and seven feet deep and no shoring, sloping, 

or other support was used. Additional testimony established it had 

rained the previous day and a cave-in occurred earlier that day at 

a different location. The testimony established that an inspector 

employed by the State had observed the earlier cave-in after it had 

occurred. 

Gene Micheletto received workers' compensation benefits from 

the Telephone Company. The plaintiffs brought suit against the 

State on several tort theories. The State moved for summary 

judgment on several grounds. In granting summary judgment for the 

State, the District Court made the following findings and 

conclusions: 

(2) Under the subcontract, The Telephone Company 

became a subcontractor and assumed the status of an 

independent contractor. 

(3) As a general rule, the State of Montana, as a 

general contractor, would not be liable for injuries 

suffered by an employee of the subcontractor. 

(4) A nondelegatable [sic] duty, based on contract, 

does not apply in this case. 
(5) The State of Montana, as a general contractor, 

had no nondelegatable [sic] duty under the inherent 

danger or peculiar risk exception to nonliability rule. 

(6) Plaintiff failed to establish vicarious 

liability based on breach of duty based on control. 

(7) The duty of the State's project engineer did not 

include safety and did not run to the Plaintiff who was 

The Telephone Companygs employee. 

The plaintiffs appeal the granting of summary judgment to the State 

based upon the foregoing. 

There is no dispute that the Telephone Company was a 

subcontractor of the State, that the Telephone Company was an 

independent contractor, and that the State was the general 

contractor. 

The parties also agree that the general rule was properly 

stated by the District Court. In Kemp v. Bechtel Constr. Co. 

(1986), 221 Mont. 519, 720 P.2d 270, we stated the general rule as 

follows: 

Montana follows the general rule that "absent some form 

of control over the subcontractorls method of operation, 

the general contractor and owner of the construction 

project are not liable for injuries to the 

subcontractorgs employees." Shannon v. Howard S. Wright 

Construction Co. (1979), 181 Mont. 269, 275, 593 P.2d 

438, 441. 

The issues framed by the plaintiffs correspond directly to the 

three exceptions to the foregoing general rule of non-liability on 

the part of the general contractor: (1) the non-delegable duty 

based on a contract exception; (2) the gginherently or intrinsically 

dangerous activityg1 exception; and (3) the negligent exercise of 

control reserved over a subcontractorgs work exception. For 

further discussion of these exceptions, See Shannon v. Howard S. 

Wright Constr. Co. (1979), 181 Mont. 269, 593 P.2d 438; Storrusten 
v. Harrison (1976), 169 Mont. 525, 533, 549 P.2d 464, 469; Wells 

v. Thill, (1969), 153 Mont. 28, 452 P.2d 1015; Kemp v. Bechtel 

Constr. Co. ; and generally, Prosser, Law of Torts ed. 

1984); Restatement (Second) of Torts 85 410-429 (1965). 

I 

Was it error for the District Court to conclude that the State 

as general contractor did not establish a non-delegable contractual 

duty to supervise the safety of the trenching operations by the 

Telephone Company? 

Plaintiffs contend that the contract between the parties 

raised a non-delegable duty with regard to safety in the trenching 

operations as to the State. This contention is primarily based on 

Paragraph 15 of the Utilities Agreement which provides in part: 

15. Work done on Highway right-of-way with respect 

to the location of the facilities and in the manner which 

the facilities are installed or attached within the 

right-of-way must be approved by the District Engineer 

to insure that installation of the facilities will meet 

the "Standard Specifications for Road and Bridge 

Constru~tion~~ as adopted by the Department. 

Plaintiffs contend that this language created a duty on the part 

of the State to supervise the trenching operation and ensure his 

safety. As a part of this argument, the plaintiffs refer to the 

Standard Specifications for Road and Bridge Construction adopted 

by the State and which were in effect at the time. Such Standard 

Specifications contain the following with regard to excavations: 

52.03 CONSTRUCTION REQUIREMENTS: 

All excavated material piled adjacent to the excavation 

or in a roadway or public thoroughfare shall be piled 
and maintained so that the toe of the slope or the pile 

is at least 2 feet from the edge of the excavation. . . The walls and faces of all excavations in which employees 

are exposed to danger from moving ground shall be guarded 

by a shoring system, sloping of the ground, or some other 

equivalent means consistent with the type of excavation. 

Standard Specifications For Road and Bridqe Construction. 1981 ed. 

(adopted bv the Montana Department of Hiqhwavs and the Montana 

Hiqhwav Commission, March 1, 1981.1 In addition, the Standard 

Specifications require that all excavations conform to the 

requirements of the U.S. Department of Labor, Occupational Safety 

and Health Administration [OSHA], and Safety and Health Regulations 

for Construction. The OSHA regulations include provisions 

regarding safety during excavation operations. See 29 C.F.R. 5 

1926.651 (i) (1) (1986) . The regulations require that trenches more 

than five feet deep shall be shored or sloped or otherwise 

supported to prevent cave-ins. 29 C.F.R. 51926.652 (1986). Like 

the Standard Specifications OSHA also requires that nspoilslt (the 

material that is excavated from the trench) are stored at least two 

feet from the edge of the excavation. 

The plaintiffs argue that Stepanek v. Kober Constr. Co. 

(1981), 191 Mont. 430, 434, 625 P.2d 51, 53, establishes the theory 

for non-delegable duty under the contract in this case. In this 

Court Is analysis of Stepanek in Kemp v. Bechtel Constr. Co. , the 

Court stated: 

In Stepanek, the non-delegable duty which subjected the 

general contractor to liability to an employee of a 

subcontractor was created by a provision in the general 

contract between the general contractor and Yellowstone 

County. Specifically, that provision required the 

general contractor to be I1responsible for initiating, 

maintaining, and supervising all safety precautions and 
programsvv connected with construction. We held that this 

provision resulted in a duty that could not be delegated 

to the subcontractor. . . There is no similar provision 

in the general contract between MPC and Bechtel in the 

instant case. . . . 

Kemp v. Bechtel Constr. Co., 720 P.2d at 274. Our present case 

does not contain a similar contractual provision establishing nondelegable duty. 

In Kem~ v. Bechtel Constr. Co., the employee of a 

subcontractor who had been injured in a trench cave-in sought 

recovery from the general contractor claiming that the general 

contractor had contractually assumed safety duties. In Kemp v. 

Bechtel Constr. Co., the subcontractor had agreed to "comply with 

all the applicable laws, regulations, and standards and the project 

safety program." The Court concluded that there was no provision 

in the contract between MPC and Bechtel which was similar to 

Stepanek and that as a result the theory of non-delegable duty 

based on contract did not apply. 

In our case, under the Utilities Agreement, the Telephone 

Company was required to perform the work in accordance with the 

various specifications and safety requirements as previously 

outlined. Clearly the Telephone Company expressly assumed the 

safety responsibilities under the subcontract. The Utilities 

Agreement which constitutes the subcontract in the present case 

does not contain any provision requiring the State to be 

responsible for either initiating, maintaining or supervising 

safety programs as was present in Ste~anek. We agree with the 

conclusion by the District Court that a non-delegable duty, based 
on contract, was not assumed by the State. We hold that the 

District Court correctly concluded that the State as general 

contractor did not have a non-delegable contractual duty to 

supervise the safety of the trenching operations by the Telephone 

Company. 

Was it error for the District Court to conclude that trenching 

is not an inherently dangerous activity under the facts of this 

case? 

As mentioned, the District Court concluded that the State did 

not have a non-delegable duty under the inherent danger or peculiar 

risk exception to the non-liability rule. As pointed out in Kemp 

v. Bechtel Constr. Co., two sections of the Restatement are 

applicable. Section 416 and 427, Restatement 2d of Torts, state: 

Section 416. Work Dangerous in Absence of Special 

Precautions. 

One who employs an independent contractor to do work 

which the employer should recognize as likely to create 

during its progress a peculiar risk of physical harm to 

others unless special precautions are taken, is subject 

to liability for physical harm caused to them by the 

failure of the contractor to exercise reasonable care to 

take such precautions, even though the employer has 

provided for such precautions in the contract or 

otherwise. 

Section 427. Negligence as to danger inherent in the 

work. 

One who employs an independent contractor to do work 

involving a special danger to others which the employer 

knows or has reason to know to be inherent in or normal 

to the work, or which he contemplates or has reason to 

contemplate when making the contract, is subject to 

liability for physical harm caused to such others by the 

contractor's failure to take reasonable precautions 

against such danger. 

On this issue the present case is indistinguishable from Kemp v. 
Bechtel Constr. Co. In its analysis of the claim of vicarious 

liability arising from the collapse of a trench, this Court in Kemp 

v. Bechtel Constr. Co., 720 P.2d at 275, stated: 

The Supreme Court of North Dakota has interpreted 

§ 416 and § 417 with respect to a sewer trench dug to a 

depth of six feet in sandy soil. See Peterson v. City 

of Golden Valley, North Dakota (N.D. 1981), 308 N.W.2d 

550. In Peterson, an employee of a contractor with the 

city was killed when the banks of the trench in which he 

was working caved in. The trench was not dug according 

to Occupational Safety and Health Administration (OSHA) 

regulations or standard protective practices which call 

for sloping or use of a trench box whenever a trench 

exceeds five feet in depth. The court held that 416 

and !j 427 did not operate to make the City vicariously 

liable for the omission of the contractor, because "this 

type of excavation when done with standard precautions, 

presents no extraordinary risk of caving in." Peterson, 

308 N.W. 2d at 554. Peterson is on point with the instant 

case, and we adopt the North Dakota Supreme Court's 

analysis. 

This Court in Kemp v. Bechtel Constr. Co. then concluded: 

In order for 416 to apply the work must present 

"a peculiar risk . . . unless special precautions are 

taken . Section 427 is only applicable to work 

"involving a special danger . . . inherent in . . . the 

work.I1 Here, the type of trenching contemplated in the 

subcontract presented no peculiar risk or inherent 

danger. Rather, the risk or danger arose out of a failure 

to use standard precautions. 

In its holding the Kemp Court then referred to OSHA regulations and 

other elements which are directly comparable to the present case. 

The Court stated: 

The OSHA regulations, project safety manual and 

deposition of the backhoe operator establish that sloping 

or using a trench box during trenching is standard 

procedure. Moreover, the subcontract specifically 

required the subcontractor to use standard precautions 

and follow regulations. The injury occurred after the 

diggers failed to use a trench box that they knew was 

available. Sections 416 and 427 are thus not applicable. 

We hold that the companies had no nondelegable duty under 

the inherent danger or peculiar risk exception to the 
nonliability rule. 

Kemp v. Bechtel Constr. Co., 720 P.2d at 275. As previously 

described, in this case the Standard Specifications required that 

all excavation be guarded by a shoring system, sloping of the 

ground, or some other equivalent means consistent with the type of 

excavation; and also required all excavations conform to OSHA. We 

conclude that the Kemp v. Bechtel Constr. Co. decision is 

controlling on this issue. We hold that trenching is not an 

inherently dangerous activity under the facts of this case. 

Were there disputed issues of material fact demonstrating 

control on the part of the State which prohibited summary judgment 

for the State? 

Plaintiffs contend that summary judgment is inappropriate 

because of genuine issues of material fact as to whether the State 

negligently exercised control over the Telephone Company's 

trenching operation. See Rule 56(c), M.R.Civ.P. The core of the 

plaintiffst contention is that the district engineer of the State 

must approve the manner used by the Telephone Company to relocate 

the cables, which establishes a reservation of control by the State 

over the Telephone Companyts work. 

Paragraph 15 of the Utilities Agreement provides: 

Work done on Highway right-of-way with respect to 

location of the facilities and in the manner which the 

facilities are installed or attached within the rightof-way must be approved by the District Engineer to 

insure that installation of the facilities will meet the 

nStandard Specifications for Road and Bridge 

Constructionm as adopted by the Department. 
The legal basis for the plaintiffs' claim is contained in 

Restatement (Second) of Torts ,§ 414 which provides: 

5 414. Negligence in Exercising Control Retained By 

Employer 

One who entrusts work to an independent contractor, 

but who retains the control of any part of the work, is 

subject to liability for physical harm to others for 

whose safety the employer owes a duty to exercise 

reasonable care, which is caused by his failure to 

exercise his control with reasonable care. 

Before we further analyze the contractual provisions and the 

facts presented, we think it appropriate to discuss some of the 

policy considerations which must be considered and balanced, one 

against the other. The facts establish that the Telephone Company 

clearly was negligent. However, under our workers' compensation 

laws, the employee's recovery against his employer is limited to 

workers1 compensation benefits. The plaintiffs' seek to establish 

the right to recover amounts above the workers' compensation 

benefits from the State on the theory that it was negligent. 

Because of the serious injuries to Gene Micheletto, an argument can 

be made that we should allow recovery against the State in order 

that some additional damages may be paid to this severely injured 

worker. 

As pointed out in Kem~ v. Bechtel Constr. Co., we have the 

Montana Safe Place to Work statute, 5 50-71-201, MCA, which 

requires an employer to furnish a safe place to work and which 

requires the use of safety devices and safeguards. As a part of 

that policy, it is important that general contractors who employ 

independent subcontractors require reasonable and specific safety 
standards on the part of the subcontractor. Clearly it is in the 

best interest of all involved that the State here be required to 

insert safety precautions which must be performed by the Telephone 

Company, its subcontractor. It would result in a contradiction in 

policy if general contractors who employ independent contractors 

were encouraged to omit safety regulations upon a theory that a 

failure to make such provisions would grant greater protection 

against a claim of negligence by the employees of the 

subcontractor. Clearly that would not be sound public policy. 

In general we conclude that before liability is found on the 

basis of control by the general contractor, there must be a 

contractual provision which establishes that the general contractor 

has assumed the responsibility for initiating, maintaining and 

supervising safety precautions as was present in the Stepanek 

contract. conclude that the holding in Kemp v. Bechtel Constr. 

Co., is controlling on this issue. 

In Kemp v. Bechtel Constr. Co. the Court quoted Restatement 

(Second) of Torts, 5 414, and pointed out that a general contractor 

is responsible for his own duty of reasonable care, but is not 

vicariously liable for the subcontractor's negligence under this 

control exception. The Court then pointed out: 

Here, by the subcontract the companies were to establish 

a project safety program. However, no control over the 

day-to-day implementation of the safety program was 

reserved by the companies. The subcontract places the 

responsibility for onsight implementation of the safety 

program and job safety on the subcontractor, COP. Thus, 

the company's duty under 5 414 extended only to the 

establishment of the safety program. There is no 

evidence that this duty was breached. 
Kemp v. Bechtel Constr. Co., 720 P.2d at 275. The Court then 

analyzed 5 50-71-201, MCA, the Montana Safe Place to Work statute 

and concluded that under the statute the general contractors had 

a duty to require the subcontractor to use safe procedures and to 

take reasonable steps to ensure those procedures were followed. 

The Court emphasized that such a duty does not require a general 

contractor to constantly oversee each individual task of the 

subcontractor - and that only constant supervision could have 

prevented this accident. The Court then reached the following 

conclusion: 

The record is clear and undisputed that the companies 

required COP to use safety precautions and comply with 

regulations. The companies utilized daily spot checks 

and monitored injury reports to make sure the 

construction was proceeding safely. We find the 

companies complied with their duty of reasonable care. 

Kemp v. Bechtel Constr. Co., 720 P.2d at 276. In our case, in 

addition to Paragraph 15 of the Utilities Agreement, the 

subcontract included the Standard Specifications which required 

shoring systems, sloping of the ground, or some equivalent means 

in connection with trenching, and also incorporated the OSHA 

requirements which in substance require that trenches more than 

five feet deep shall be shored or sloped or otherwise supported to 

prevent cave-ins. We conclude that the State here had properly 

provided appropriate safety precautions in its contract with the 

Telephone Company in a manner directly comparable to the contract 

provisions in Kem~ v. Bechtel Constr. Co. Notwithstanding that 

comparison, the plaintiffs contend that Paragraph 15 of the 
Utilities Agreement established control. We will restate Paragraph 

15 to emphasize only the key aspects which are applicable to this 

contention: 

Work done . . . with res~ect to the location of 

facilities and in the manner in which the facilities are 

installed or attached within the right-of-way must be 

approved by the district engineer to ensure that 

installation . . will meet the "standard 

specificationsn . . . as adopted by the Department 

[State]. (Emphasis added.) 

In substance, the plaintiffs argue that the requirement of approval 

by the district engineer of the manner in which the facilities are 

installed establishes that the State retained control under 5 414. 

We do not agree with that contention. 

It is true that Paragraph 15 provides that the manner in which 

facilities are installed must be approved by the district engineer. 

It is also true the location of the facilities must be approved by 

the district engineer. Last, it is important to note that the 

requirements of both location and manner of installation are 

followed by the provision that this is done to ensure that 

installation will meet the standard specifications. We conclude 

that the requirements of Paragraph 15 could be met by a review on 

the part of the State district engineer of the detailed plans 

submitted by a subcontractor, without any review of the actual 

construction site. In addition, we emphasize that there is no 

specific provision in the subcontract which obligates the State of 

Montana to be responsible in any manner for initiating, 

maintaining, or supervising safety precautions and programs as 

described in KemD v. Bechtel Constr. Co. and as was contained in 
the Ste~anek contract. As we examine Paragraph 15 we do not find 

provisions which clearly establish additional safety obligations 

on the part of the State. We conclude that the State here complied 

with its duty of reasonable care with regard to safety procedures. 

We further conclude that the making of spot checks by the State 

with regard to construction, including the presence of an inspector 

for the district engineer, do not establish any additional duty on 

the part of the State. 

The dissent concluded that the State retained control over 

methods of work and operative detail, and as a result the Telephone 

Company was not entirely free to perform the work in its own way. 

We do not agree with that conclusion. The essence of Paragraph 15 

is that the district engineer (the State) was required to approve 

the facilities to ensure that the installation met standard 

specifications. As a result, the Telephone Company was limited in 

its installation to the extent that it was required to comply with 

the standard specifications issued by the State. We do not 

conclude that such a limitation qualifies as a control limitation 

under the Restatement. 

As quoted by the dissent, comment (c) to 5 414 of the 

Restatement states that before the employer has retained control, 

there must be such a retention of a right of supervision that the 

contractor is not entirely free to do the work in his own way. 

While the requirement that the Telephone Company comply with the 

standard specifications did mean that the Company was not entirely 

free to do the work in its own way, we do not believe that the 
Restatement intended to suggest that requiring a subcontractor to 

comply with specifications or written plans constitutes a 

sufficient limitation so that control has been retained by the 

employer. In addition, as previously stated, we conclude that 

before liability is found on the basis of control by the general 

contractor, there must be a contractual provision which 

establishes that the general contractor has assumed the 

responsibility for initiating, maintaining and supervising safety 

precautions. We conclude that none of these tests were established 

by Paragraph 15. 

We hold that the State complied with all contractual duties 

of reasonable care required under the contract and statutes, and 

that the State did not negligently exercise control over the 

trenching operation of the Telephone Company. 

Affirmed. 

We Concur: 

. Gulbrandson, Retired 

sitting in place of 

Justice John C. Sheehy 
Justice R. C. McDonough dissenting. Summary judgment is 

inappropriate in this case because genuine issues of material fact 

exist concerning whether the Department of Highways of the 

defendant (Department) negligently exercised control over the 

Telephone Company's operations. See Rule 56(c), M.R.Civ.P. 

According to the wording of paragraph 15 of the Utility 

Agreement, the Department district engineer must approve the manner 

used by the Telephone Company to lay or relocate the cables. 

Paragraph 15 is as follows: 

Work done on Highway right-of-way with respect to the 

location of the facilities and in the manner which the 

facilities are installed or attached within the rightof-way must be approved by the District Ensineer to 

insure that installation of the facilities will meet the 

"Standard Specifications for Road and Bridse 

Construction" as adopted by the Department. (Emphasis 

added. ) 

Under 5 414 of the Restatement (Second) of Torts, this 

language could be construed as a reservation of control over the 

subcontractors which would give rise to a duty on the part of the 

Department: 

5 414. Negligence in Exercising Control Retained 

by Employer. 

One who entrusts work to an independent contractor, 

but who retains the control of any part of the work, is 

subject to liability for physical harm to others for 

whose safety the employer owes a duty to exercise 

reasonable care, which is caused by his failure to 

exercise his control with reasonable care. (Emphasis 

added. ) 

Under this section the Department or general contractor 

(employer) is not vicariously liable for the subcontractor's 

negligence, rather the general contractor has a separate duty of 
reasonable care in exercising control. Kemp v. Bechtel Constr. Co. 

(1986), 221 Mont. 519, 526, 720 P.2d 270, 275. That is, regardless 

of whether the general contractor has assumed safety duties 

contractually, if the general contractor retains control over anv 

part of an independent contractor's work the general contractor has 

a duty of reasonable care to third parties in exercising such 

control. Thus, a general contractor who attempts to delegate 

safety duties to a subcontractor contractually may still be 

directly liable for his own negligence if he retains the requisite 

amount of control over operations and exercises such control 

negligently. This is as it should be. We have here a claim of 

negligence brought by an employee of a subcontractor, which is a 

constitutional right of such employee under Section 16 of Article 

I1 of the 1972 Montana Constitution. It is important to note that 

this duty owed by the general contractor also applies to protect 

other persons not employees and the traveling public from 

negligence by the Department. See e.s. Ulmen v. Schweiger (1932), 

92 Mont. 331, 12 P.2d 856. Public policy is not served by the 

narrow construction of the majority opinion. 

I will now examine the scope of such a duty. In Storrutsen 

v. Harrison (1976), 169 Mont. 525, 534, 549 P.2d 464, 469, this 

Court recognized the rationale of comment (c) to 5 414 which states 

the type of control that must be retained for the exception to be 

applicable: 

In order for the rule stated in this Section to apply, 

the employer must have retained at least some degree of 

control over the manner in which the work is done. It 

is not enough that he has merely a general right to order 
the work stopped or resumed, to inspect its progress or 

to receive reports, to make suggestions or 

recommendations which need not necessarily be followed, 

or to prescribe alterations and deviations. Such a 

general right is usually reserved to employers, but it 

does not mean that the contractor is controlled as to his 

methods of work, or as to operative detail. There must 

be such a retention of a risht of supervision that the 

contractor is not entirely free to do the work in his own 

m. (Emphasis added. ) 

Here, it can be argued that the telephone company was not entirely 

free to perform the work or install the cable in its own way; 

rather, paragraph 15 could be construed as a retention of control 

by the Department over methods of work and operative detail by 

expressly requiring approval by the distinct engineer. Such an 

interpretation involves a specific reservation of control over a 

portion of the construction work, to-wit: the installation. Note 

that the manner in which the work was done was not merely subject 

to the inspection, tests and approval of the Department, rather, 

the use of the word wmusttl seems to make approval of the methods 

of work mandatory. Thus, the contract is somewhat ambiguous 

regarding whether and how much control was actually reserved by the 

Department. It is permissible to look to extrinsic evidence, such 

as the conduct of the parties under the contract to resolve the 

ambiguity. Souders v. Montana Power Co. (1983), 203 Mont. 483, 

486, 662 P.2d 289, 290; Section 28-2-905(2), MCA. Where ambiguity 

exists on the face of the contract, question of parties intent as 

to language involved should be submitted to the trier of fact. SW Co. v. Schwenk (1977), 176 Mont. 546, 550, 568 P.2d 145, 147. 

Here, the evidence suggests that the Department may have been 

exercising control through its inspectors who were present at the 
job site. Thus, there are factual issues to be resolved regarding 

the purpose and duties of these inspectors that would clarify the 

question of whether the Department was in fact exercising retained 

control over the operations and how much control it exercised. If 

there is an exercise of retained control in this case involving 

operative detail, then it does not matter who expressly assumed 

safety duties under the contract, as the general contractor has a 

separate and distinct duty of reasonable care to third persons 

under 5 414 of the Restatement in such cases. 

It is contended that our holding in Kemp regarding the issue 

of control is dispositive of the issue raised here. However, the 

present case is distinguishable from Kemp. In Kemp the companies 

by contract were to establish a safety program. We held that the 

general contractor had a duty to require the subcontractor to take 

reasonable steps to ensure safety procedures were followed. Kemp, 

720 P.2d at 276. Moreover, we held that such a duty does not 

require constant supervision of each individual task of the 

subcontractor. a. It was sufficient in Kemp that the general 

contractor used daily spot checks and inspected injury reports to 

monitor project safety. In the instant case, like in Kemp, spot 

checks were employed by the Department. But here the Department's 

duty may have involved more than merely monitoring safety 

procedures; the Department could be interpreted to have 

specifically retained control over the manner in which the 

installation was done, giving rise to a duty of reasonable care to 

others under the Restatement. Whether the Department exercised 
this control with reasonable care in compliance with the 

requirements of paragraph 15, the Restatement, and a review of the 

detailed plans is a question of fact. 

Furthermore, in Kem~ there was no evidence of a negligent 

exercise of control by the employer's acts as there is in this 

case. In Kem~, we concluded that 't[o]nly constant supervision 

could have prevented . . . [the] accident. I' Kemp, 720 P.2d at 276. 

Here, the evidence suggests that the Department was in fact 

supervising the manner of installation when the accident occurred. 

The district engineer's inspector, Larry Wolf, although not 

inspecting or observing the work taking place in the trench at the 

time of the cave-in, was actually present at the job site when the 

cave-in occurred. He testified in his deposition that he was the 

principal inspector on the cable relocation project, although he 

maintained that he was not a safety inspector. He also testified 

that while at the job site that morning another portion of the 

trench had caved in. Wolf had examined the earlier cave-in. His 

deposition also indicates that he may have been aware that it would 

be necessary for someone to enter the trench to dig beneath a 

culvert in order to run the cable below the culvert. His notes 

regarding the accident indicate that he was aware of the absence 

of a shoring device in the trench. Also, Mr. Victor R. Scheuffle, 

the Department's district utility agent, testified in his 

deposition that on an earlier date he suggested to the telephone 

company that they use a trenching box or cage to alleviate cavein problems associated with saturated ground conditions. In light 
of the language in paragraph 15 of the utility agreement and the 

deposition testimony, there are genuine issues of material fact 

regarding how much control the Department reserved over the 

telephone company's relocation and whether the Department 

negligently exercised that control and proximately caused 

Micheletto's injuries. Without resolving factual issues, one 

cannot simply conclude that paragraph 15 does not constitute a 

reservation of control as a matter of law nor can one conclude that 

the Department complied with its duty of reasonable care. 

Therefore, under Rule 56(c), M.R.Civ.P., the District Court's grant 

of summary judgment was improper. I would reverse and remand on 

this issue. 

~ustiee Diane G. Earz cor~cufs in thz foregoing dissent. 
Justice William E. Hunt, Sr., dissenting: 

I concur in the dissent of Mr. Justice McDonough. In 

addition, for the reasons stated in my dissent in Kemp v. Bechtel 

Constr. Co., 221 Mont. 519, 528-34, 720 P.2d 270, 276-80 (1986), 

I must dissent from the Majority's conclusion that trenching is not 

an inherently dangerous activity. 

Trenching is precisely the type of inherently dangerous 

activity envisioned by the Restatement (Second) of Torts 55 416 

and 427 (1977) . By its very nature, trenching is Itlikely to create 

during its progress a peculiar risk of physical harm to others 

unless special precautions are taken . . . .Iv Restatement 5 416. 

Further, trenching involves I1a special danger to others which the 

employer knows or has reason to know to be inherent in or normal 

to the work . . . .'I Restatement 5 427. The danger inherent in 

or normal to trenching is exactly the type that appears in the 

present case--the risk that an excavation might collapse upon and 

injure an individual inside the trench. 

The Majority apparently believes that trenching is not 

inherently dangerous because "standard" precautions, rather than 

llspecial" precautions, can be taken to prevent or lessen the perils 

of excavating. However, as I noted in my dissent in Kemp, 221 

Mont. at 530-31, 720 P.2d at 278, the special precautions 

contemplated by the Restatement are precautions specially designed 

to counter the peculiar risks inherent in the activity, not 

extraordinary precautions. Indeed, the safeguards that may be 

taken to prevent the dangers inherent in trenching are "ordinary 

in the sense that a reasonably cautious contractor would take 

them." Kemp, 221 Mont. at 531, 720 P.2d at 278. What makes the 

precautions "special" in trenching is that they are needed to 

lessen the dangers inherent in or normal to the activity. 

The Majority confuses the idea of "standardI1 precautions with 

the idea of "standard1' activity, i.e., activity that is not 

inherently dangerous. The fact that "~tandard'~ rather than 

extraordinary safeguards may counter the risks inherent in 
trenching does not mean that trenching itself is "standard" 

activity. 

With or without precautions, the basic character of trenching 

remains inherently dangerous. Therefore, the activity gives rise 

to a nondelegable duty on the part of the contractor to provide for 

the safety of the subcontractorts employe~s.