No. 93-537 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

DOUGLAS E. STEINER, 

Plantiff and Appellant, 

-vDEPARTMENT OF HIGHWAYS of the 

STATE OF MONTANA, 

Defendant and Respondent. 

APPEAL FROM: District Court of the Nineteenth Judicial District, 

In and for the County of Lincoln, 

The Honorable Robert S. Keller, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Roger M. Sullivan and Allan M. McGarvey, McGarvey, 

Heberling, Sullivan & McGarvey, Kalispell, Montana 

For Respondent: 

Dana L. Christensen and Debra D. Parker, Murphy, 

Robinson, Heckathorn & Phillips, Kalispell, Montana 

Submitted on Briefs: October 27, 1994 

Decided: December 23, 1994 

Filed: 
Justice Fred J. Weber delivered the opinion of the Court. 

This is an appeal from the District Court of the Nineteenth 

Judicial District, Lincoln County, which granted judgment for the 

defendant, Montana Department of Highways, following a nonjury 

trial. Plaintiff appeals the District Courtls Findings of Fact, 

Conclusions of Law, and Judgment and also the denial of his Motion 

for Summary Judgment, both concluding that defendant did not owe a 

duty to plaintiff. We reverse and remand. 

The following issues are presented for review: 

I. Did the contract between the Federal Highway 

Administration and the Montana Department of Highways create a 

nondelegable duty on the part of the Montana Department of Highways 

to assure that safe scaffolding was used on the Fisher River Bridge 

Project? 

11. Does failure to assure compliance with contractuallyimposed safety standards and the Montana Scaffolding Act constitute 

a breach of duty as a matter of law? 

Douglas E. Steiner (Steiner) worked as a laborer on the Fisher 

River Bridge highway reconstruction project on U.S. Highway 2 

between Kalispell and Libby, Montana. He was employed by Frontier 

West, Inc., a contractor doing bridge construction on the project. 

On May 15, 1987, Steiner injured his back when he fell from a 

scaffold structure which was attached to the outside of the bridge 

being constructed. 

The scaffold structure consisted of a series of metal overhang 

brackets upon which a working "deckM was constructed. The surface 
of the deck was used to anchor forms for the concrete parapet 

(retainer wall); it also functioned as a work surface and walkway. 

In particular it was used as follows: (1) by the laborers in 

constructing and removing the forms for pouring the concrete 

retainer wall; (2) as a walkway and work surface during the pouring 

of the concrete deck; (3) as a work surface to enable the laborers 

to perform concrete finishing work and repairs to the outside 

surface of the concrete retaining wall; and (4) as a work surface 

by both laborers and supervisory personnel from the Montana 

Department of Highways (MDOH) . 

The deck extended between 17% to 24 inches outward from the 

edge of the parapet and ran for the entire length of the bridge. 

It was over nine feet above ground for most of its length. There 

was no guardrail at the outer edge of this narrow deck overhang at 

any time during the construction project. Steiner fell backwards 

to the ground from the deck overhang while he was attempting to go 

around another worker to get a hose. The other worker was kneeling 

on the working surface outside the parapet wall with his upper body 

parallel to the parapet and his head near its base as he smoothed 

out the newly poured concrete retaining wall--a process called 

"sacking. Steiner claims that he reached for a 2 x 4 piece of 

wood which he believed to be part of the deck overhang structure, 

but instead was a loose piece of wood which was not anchored to the 

structure. He lost his balance and fell backwards to the ground 

approximately nine feet below the overhang. 

The Fisher River Bridge was part of a federally funded highway 
construction project, governed by an agreement between MDOH and the 

Federal Highway Administration (FHWA) . It was designated as a 

"Certification Acceptance" project, a classification which applied 

to this project but does not apply to all such construction 

projects receiving federal funding. Because it was a Certification 

Acceptance project, it had to be performed pursuant to the terms of 

the Certification Acceptance Agreement, which is a complex contract 

incorporating, among other things, the MDOH Construction Manual and 

a document entitled Standard Specifications for Road and Bridse 

Construction. 

For purposes of our review, it is undisputed that there was no 

guardrail on the outside of the overhang work surface and that MDOH 

did not issue any verbal or written notice, stop-work order, or 

take any other action to assure that a guardrail was installed on 

the deck overhang. 

Issue I 

Did the contract between FHWA and MDOH create a nondelegable 

duty on the part of MDOH to assure that safe scaffolding was 

used on the Fisher River Bridge Project? 

Steiner contends that the contract between FHWA and MDOH 

imposed a nondelegable duty upon MDOH concerning the Fisher River 

Bridge project. This duty on the part of MDOH, according to 

Steiner, required MDOH to assure the use of appropriate safety 

devices on the project, including safe scaffolding. Steiner 

contends that the District Court committed reversible error by not 

granting his summary judgment motion recognizing MDOHVs 

nondelegable safety duties arising from contract and also by not 
recognizing these nondelegable safety duties in its Conclusions of 

Law and Judgment. 

The contract between FHWA and MDOH, which was applicable to 

the Fisher River Bridge construction project, required that the 

construction be performed pursuant to the terms of the 

Certification Acceptance Agreement. As stated above, the 

Certification Acceptance Agreement incorporates by reference the 

MDOH Construction Manual and a document entitled Standard 

S~ecifications for Road and Bridse Construction (1981 ed. adopted 

by MDOH) . It also incorporates by reference certain other state 

and federal safety regulations. Not all highway contracts are 

governed by the Certification Acceptance Agreement; its terms apply 

only to highway contracts undertaken pursuant to a process referred 

to as "Certification Acceptance. 23 C. F.R. § 640.101-640.117 

(1994) . As a contract which must be performed pursuant to the 

Certification Acceptance Agreement, the contract between FHWA and 

MDOH therefore incorporates language from the MDOH Construction 

Manual, including the following quote from § 14.03, providing in 

pertinent part: 

. [The Montana] Department of Highways would be 

responsible, as contracting agency, to monitor the 

Construction Safetv Act on all ~roiects in order to assure 

that correct requirements are met. 

The Department of Highways policy in regard to OSHA monitoring 

and violation reporting is as listed: 

1. The contractor has direct responsibility for 

compliance by law and also as a contractual obligation 

under Section VIII of PR 1273 included in all federal aid 

contracts. 

2. Department of Highways' field personnel have 
responsibilitv to monitor the contractor's compliance. 

The basic guide for monitoring is the orange booklet 

titled NConstruction Industry - OSHA Safety and Health 

Regulation Digest." Department field personnel do not 

have the authority to enforce, direct the contractor to 

perform specific actions, or to report violations 

directly to enforcement agencies except in cases of 

extreme emergency. 

3. Procedures for reporting apparent violations are (a) 

Verbal notification to contractor' s field supervisor, (b) 

Written notification if not corrected within reasonable 

time, (c) Notification of higher department authority if 

written notice does not produce correction in a 

reasonable time. (Emphasis supplied.) 

In the Standard Specifications for Road and Bridse Construction, 

incorporated by reference as stated above, the project engineer is 

given authority to suspend the work wholly or in part if the 

contractor fails to correct unsafe conditions. 

All Certification Acceptance projects for which the State of 

Montana negotiates a contract with a subcontractor must include a 

provision specifically permitting MDOH to determine the reasonably 

necessary safety devices and protective equipment. Therefore, the 

Fisher River Bridge Contract and Bond, the contract between MDOH 

and Frontier West, Inc., included the following contract provision: 

The contractor shall provide all safeguards, safety devices 

and protective equipment and take any other needed actions, on 

his own responsibility, or as the State hishwav department 

contractins officer may determine, reasonably necessary to 

protect the life and health of employees on the iob and the 

safety of the public and to protect property in connection 

with the performance of the work covered by the contract. 

(Emphasis supplied.) 

Form PR-1273, FHWA Required Contract Provisions Federal-Aid 

Construction Contracts 1 VIII. The guide used by MDOH for 

monitoring the contractor's compliance with applicable laws is a 

booklet entitled Construction Industry Disest (OSHA 2202 (Revised) 
1991), otherwise referred to as the "orange booklet.'I The orange 

booklet at § 56 includes the following pertinent safety standards 

for scaffolds: 

c. Guardrails and toeboards shall be installed on all open 

sides and ends of platforms more than 10 feet above the ground 

or floor . . . . Scaffolds 4 feet to 10 feet in height, having 

a minimum dimension in either direction of less than 45 

inches, shall have standard guardrails installed on all open 

sides and ends of the platform. 

Steiner argues that, although contracts governed by the 

Certification Acceptance Agreement impose some safety-related 

nondelegable duties upon MDOH, the Certification Acceptance 

Agreement did not require MDOH to be responsible for all safetyrelated activity on the Fisher River Bridge project. Specific 

duties imposed by the Certification Acceptance Agreement include 

the responsibility to inspect, monitor and take corrective action 

to assure the presence of "safeguards, safety devices, and 

protective equipment reasonably necessary to protect the life and 

health of employees on the job. " Thus, although the contractor 

must provide safeguards, safety devices and equipment that are 

reasonably necessary for employee safety, according to the contract 

between MDOH and Frontier West, Inc . , MDOH must monitor the project 

and assure the subcontractor's compliance. 

Montana law has long recognized that contractual obligations 

are nondelegable. See, e.s., Ulmen v. Schwieger (19321, 92 Mont. 

321, 345, 12 P.2d 856, 859. Prior to the 1972 Montana Constitution 

revisions, however, the benefits of that doctrine applied only to 

third persons and did not apply to employees of subcontractors. 

Stepanek v. Kober Construction (1981), 191 Mont. 430, 434, 625 P. 2d 

7 
51, 53. See also Nave v. Harlan Jones Drilling (1992), 252 Mont. 

199, 827 P.2d 1239. As discussed in Stepanek, 625 P.2d at 54-55, 

Art. 11, Section 16 of the Montana Constitution now provides in 

pertinant part: 

Courts of justice shall be open to every person, and speedy 

remedy afforded for every injury of person, property, or 

character. No person shall be deprived of this full legal 

redress for injury incurred in employment for which another 

person may be liable except as to fellow employees and his 

immediate employer who hired him if such immediate employer 

provided coverage under the Workmen's Compensation Laws of 

this state. . . . 

Thus, the distinction discussed in Stepanek between third parties 

and employees of subcontractors no longer applies in Montana and 

employees of subcontractors may sue the general contractor for 

injuries received on the job if the general contractor has a 

nondelegable duty to the subcontractorls employees, notwithstanding 

the fact that the employee's exclusive remedies against the 

employer are covered under the Workers' Compensation Act. Because 

the duties imposed on MDOH by its contract with FHWA are t 

nondelegable, it cannot avoid liability by attempting to shift 

responsibility for those duties to someone else. Nave, 827 P.2d at 

MDOH contends that it had the duty to monitor safety, 

including the requirements of the Montana Scaffolding Act, but the 

primary responsibility for assuring safety on the project was with 

Steinerls employer as transferred to the employer pursuant to the 

contract between MDOH and Frontier West, Inc. The District Court 

concluded that the contract between FHWA and MDOH contained no 

specific provision which obligated MDOH for initiating, maintaining 
and supervising safety precautions and programs. The court further 

concluded that absent such a provision, there was no nondelegable 

duty assumed by the State to provide Steiner with a safe place to 

work, or to assume the safety duties under the Montana Scaffolding 

Act and the Safe Place to Work Act. We disagree. 

We review the trial court's conclusions of law to determine if 

they are correct. Steer, Inc. v. Department of Revenue (1990) , 245 

Mont. 470, 474-75, 803 P.2d 601, 603. Under the terms of the 

Certification Acceptance Agreement signed in 1976 by MDOH and 

applicable to the Fisher River Bridge construction project , MDOH 

assumed certain nondelegable duties, including the duty to monitor 

and to assure compliance with certain state and federal laws. 

Although MDOH1s field personnel cannot enforce safety compliance 

except in emergency situations, its duty to monitor is not a duty 

without a means of enforcement. Procedures for enforcement are 

specifically set forth in the Construction Manual. These 

procedures do not allow MDOH as general contractor to specify the 

manner of compliance, however, except in limited circumstances. 

This decision is generally left to the subcontractor. 

Regardless of the duties owed by Frontier West, Inc. or others 

to Steiner, however, MDOH retained the duty to provide Steiner with 

a safe place to work. We conclude that MDOH had a nondelegable 

duty based on its contract with FHWA whereby it assumed 

nondelegable safety responsibilities. We further conclude that the 

duties assumed by MDOH included both monitoring the construction 

project to determine whether the subcontractor complied with safety 
laws and also assuring that Frontier West, Inc. complied with such 

laws. 

We hold the District Court erred in concluding MDOH owed no 

nondelegable duty to Steiner to assure that safe scaffolding was 

used on the Fisher River Bridge project. 

Issue I1 

Do the undisputed facts establish a breach of contractuallyimposed duty to monitor and assure safety compliance as a 

matter of law? 

According to our conclusion in Issue I above, MDOH was 

required to monitor the Fisher River Bridge project and assure that 

it complied with safety laws. MDOH was thus obligated to inspect 

the scaffolding structure, note that it was being used as a work 

surface and to determine whether it needed a guardrail in order to 

comply with the Montana Scaffolding Act and the Construction Manual 

incorporated by reference in the FHWA-MDOH contract, which required 

guardrails for all scaffolding less than 45 inches wide and 4 feet 

or more above ground. If the scaffolding structure did not comply, 

as the undisputed facts demonstrate it did not, MDOH was obligated 

to take the procedures as outlined in the Construction Manual to 

assure compliance on the part of the subcontractor, Frontier West, 

Inc . If Frontier West, Inc. failed to correct the unsafe 

condition, then the project engineer had the authority to suspend 

the work wholly or in part until Frontier West, Inc. Is scaffolding 

met the requirements of the Montana Scaffolding Act and the 

Construction Manual incorporated by reference into the 

Certification Acceptance Agreement. 
The District Court also concluded that the absence of a 

guardrail on the outer edge of the scaffolding on the Fisher River 

Bridge project did not proximately cause Steiner Is injuries. We 

have previously stated that the deck overhang constituting the 

scaffolding on the Fisher River Bridge construction project did not 

meet the requirements of the Certification Acceptance Agreement, 

which incorporated by reference the Construction Manual and state 

and federal laws, including the Montana Scaffolding Act. Steiner 

contends that this failure to comply with the Montana Scaffolding 

Act is reversible error and that the District Court should have 

recognized MDOH1 s safety duties and awarded summary judgment in his 

favor because the Act precludes the affirmative defenses of 

comparative negligence and assumption of the risk. We agree. 

The term llscaffoldingll includes any device utilized by workmen 

to allow them to work where a fall might result in serious injury. 

Mydlarz v. ~almer/Duncan Construction Co. (1984)~ 209'Mont. 325, 

338, 682 P.2d 695, 702. Clearly, the deck on the outer side of the 

parapet in this case constitutes scaffolding according to the 

liberal construction to be given that definition as set forth in 

Mvdlarz. Thus, the breach of a contractual duty to assure that the 

subcontractor has provided appropriate scaffolding invokes the 

provisions of the Scaffolding Act. 

In Pollard v. Todd (1966), 148 Mont. 171, 179-80, 418 ~.2d 

869, 873, this Court held as follows: 

We hold that the purpose of [the Scaffolding Act] is to 

supplement the protection of the common law by providing 

criminal sanctions and imposing an absolute statutory duty 

upon the owners of real estate to protect workmen and others 
from the extraordinary hazards associated with scaffolds. The 

mandatory nature of the statute forecloses the common-law 

defenses of assumption of the risk, contributory negligence, 

and negligence of a fellow servant. We have not decided that 

liability becomes fixed upon the showing of a scaffoldassociated injury. A defendant may escape liability upon 

proof that there was no violation of statute or that the 

violation was not the proximate cause of the injury. 

A breach of the absolute duty to provide proper scaffolding is 

negligence per se. Pollard, 418 P.2d at 873. In this case, the 

District Court determined that Steiner was contributorily 

negligent, that his negligence was gross negligence and that his 

gross negligence was more than 50 percent of the total negligence. 

According to this Court's decision in Pollard, the contributory 

negligence defense is not available to MDOH. We conclude that 

failure to comply with the provisions of the Montana Scaffolding 

Act was negligence per se on the part of MDOH. 

However, liability does not become fixed upon a showing of 

negligence per se; there must be a determination of whether the 

violation was the proximate cause of Steiner's injuries. The 

District Court concluded that the acts or omissions of MDOH were 

not the proximate cause of Steiner's injuries, based on the 

following findings and conclusions: 

[Finding of Fact No.] 20. The Plaintiff could have gone off 

the bridge and down the bank to get the pump; all witnesses 

who were asked testified that William Phelan, the FrontierWest superintendent on the Fisher River Bridge project, would 

not tolerate delay, and as Carranza put it, if Plaintiff had 

gone down to the river, . . . by the time he got back up to 

the top of the bridge, he would have been fired. 

Nevertheless, once Plaintiff saw where the hose was, he could 

have easily climbed back over the parapet to the bridge, gone 

down below his brother and Carranza, climbed back over the 

parapet to the overhang and gotten the hose; as it was, he 

could not have attempted to perform a relatively simp1 [el task 

in a more complicated or dangerous manner than he did. 
[Finding of Fact No.] 22. The overhang extended the entire 

length of the bridge, on both sides, so there were places 

where the overhang may have been higher than ten feet above 

the ground; all who testified were comfortable with the 

height, and the Court finds that at no point did the height 

present any peculiar risk or unusual danger. 

[Finding of Fact No. I 25. There was no evidence that a 

guardrail would have made any difference in this instance; 

there was no evidence that the lack of a guardrail was a 

proximate cause of the Plaintiff's injury. 

[Conclusion of Law No. I 1. . . . [A] nondelegable duty based 

on contract was not assumed by the State, to provide the 

Plaintiff with a safe place to work, or to assume the safety 

duties under the Montana Scaffolding Act. Such a contractual 

provision is also a prerequisite to finding liability on the 

basis of control by the general contractor. . . . 

[Conclusion of Law No. I 2. There was nothing inherently or 

intrinsically dangerous about getting the pump and hose, 

certainly not by walking around, and not even if he had leaned 

over the overhang to get the hose. Attempting to walk around 

Gus Steiner and Leo Carranza, unnecessarily, was negligence, 

and the manner in which Plaintiff got around Leo Carranza was 

gross negligence; and going off that overhang backwards in the 

manner that Plaintiff did would constitute a "dangerous 

activity," but not one that gives him an exception with 

respect to the Defendant. 

[Conclusion of Law No.] 3. There was a guardrail there, the 

parapet. If a guardrail had been erected at the edge of the 

overhang, as Plaintiff suggests, Carranza would have filled 

the space, causing Plaintiff to go around. 

[Conclusion of Law No.] 4. That disposes of the Scaffolding 

Act, the Safe Place to Work Act and the Non-delegable Duties. 

Plaintiff also sued on the basis of negligence. Apart from a 

lack of duty, the negligence of Plaintiff was more than 50% of 

any other negligence. 

The guardrail referred to by the District Court in Conclusion 

No. 3 is not a guardrail at the outside of the overhang, as 

contemplated and required by the documents incorporated into the 

Certification Acceptance Agreement between FHWA and MDOH. The 

overhang, which was less than 45 inches wide, was located on the 

outer side of the parapet and did not have a guardrail to protect 
workers from falling off the edge of the deck. To assure safety 

compliance, the only time it is not necessary to erect a guardrail 

is when the overhang is 45 inches or more wide or the drop to the 

surface below is less than four feet. 

We conclude that a guardrail was required on the deck overhang 

under the Montana Scaffolding Act. We further conclude that a 

review of the District Court findings and conclusions establishes 

the presence of proximate cause. 

We hold the District Court erred in concluding there was no 

breach of duty and that MDOH1s acts or omissions did not constitute 

proximate cause. 

Reversed and remanded to the District Court for a 

determination of damages. 

We Concur: 7