No. DA 06-0035 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

 

2007 MT 12 

RAYMOND M. CUNNINGTON, 

 Plaintiff and Appellant, 

 v. 

MIKE GAUB, d/b/a ZEBRA CONSTRUCTION, 

and ALRICK HALE, 

 Defendants and Respondents. 

APPEAL FROM: The District Court of the Eleventh Judicial District, 

In and For the County of Flathead, Cause No. DV-03-249C, 

Honorable Stewart E. Stadler, Presiding Judge 

COUNSEL OF RECORD: 

For Appellant: 

 Stephen C. Pohl, Attorney at Law, Bozeman, Montana 

For Respondents: 

 John E. Bohyer and Fred Simpson, Phillips & Bohyer, P.C., 

 Missoula, Montana 

 Mike Gaub, pro se, Missoula, Montana 

 

 Submitted on Briefs: November 22, 2006 

 Decided: January 23, 2007 

Filed: 

__________________________________________ 

Clerk
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Justice W. William Leaphart delivered the Opinion of the Court. 

¶1 Plaintiff Raymond M. Cunnington was injured when he fell from makeshift 

scaffolding while putting up siding on a house under construction in Flathead County. 

Cunnington sued Defendant Mike Gaub, his direct employer, and Defendant and Respondent 

Alrick Hale, the owner of the house which was under construction. The District Court 

granted Hale’s motion for summary judgment on the basis that Hale owed no duty to 

Cunnington. Cunnington appeals the grant of summary judgment for Hale. We affirm in 

part, reverse in part, and remand for further proceedings.

¶2 We restate the issues as follows:

¶3 1. Did the District Court err in concluding that Cunnington’s work on the makeshift 

scaffolding was not an inherently dangerous activity when Cunnington admitted that no 

special precautions were necessary to render the activity safe? 

¶4 2. Did the District court err in concluding that there is no genuine issue of material 

fact as to whether Hale exercised sufficient control over the project to establish potential 

liability?

BACKGROUND 

¶5 Hale, since 1984, has worked as an estimator and manager of a construction company 

which builds roads, provides ready-mix concrete, and performs asphalt paving, gravel 

crushing, and other similar work. Hale lived with his family in Missoula until 2001, when 

they moved to Kalispell. A few years before building the home at issue here, Hale had built 

a second home in Whitefish. He acted as the general contractor on that house, and he and his 
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father, Martin Hale, dug the foundation, poured the concrete, and were in charge of the 

electrical, plumbing and painting work. Hale hired subcontractors to do the framing, roofing, 

siding and sheet rocking for the Whitefish house. 

¶6 In June 2002, Hale and Gaub entered into a construction contract whereby Gaub 

agreed to build a home for Hale in Flathead County on the shore of Bitterroot Lake. 

Although Gaub was apparently responsible for building the structure of the 4,400 square foot 

home, Hale again undertook responsibility for the excavation, concrete, plumbing and 

electrical work. The contract is silent as to who was responsible for safety on the project. 

During construction, Hale was on site almost every day. 

¶7 On September 12, 2002, Gaub erected a makeshift scaffold that he and Cunnington 

used to nail siding to the house. The scaffold consisted of a scaffolding plank laid over a 

sawhorse and a eight foot stepladder, which was folded and leaned against the wall with the 

bottom resting in a pit in front of the basement window. Gaub had apparently asked Hale 

three or four times to complete the backfilling so that he could finish the siding. Hale’s 

response, according to Gaub, was that he had other projects he needed to finish first. 

¶8 Gaub instructed Cunnington to stand on the scaffolding plank. When Cunnington was 

unable to reach the top piece of siding, Gaub suggested that he place a three-foot stepladder 

on top of the scaffolding plank. Cunnington did as he was instructed but, as soon as he 

stepped onto the three-foot ladder, the apparatus kicked out from under him and he fell into 

the window pit. Cunnington sustained a severe fracture/dislocation of his right foot and 

ankle in the fall. 
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¶9 When Cunnington was injured, Hale and his father were on site, installing the drain 

tile in the septic system. For a while after the accident, Gaub continued to work on the 

house. However, in early October, Gaub presented Hale with an invoice for about $15,000 

which Hale refused to pay until Gaub obtained a release from Cunnington discharging Hale 

from any liability regarding Cunnington’s accident. Gaub was unable or unwilling to obtain 

the release, and soon thereafter packed up his supplies and left the worksite. Hale then hired 

out the remaining work to subcontractors who completed the siding, finish work, closets and 

doors. 

¶10 Cunnington later filed a complaint alleging that both Gaub and Hale were negligent 

and had violated the Montana Safety Act, and claiming that Gaub violated the Montana 

Scaffolding Act. Cunnington later amended the complaint to allege that Hale is vicariously 

liable for Gaub’s negligence. Hale eventually filed a motion for summary judgment claiming 

he had no liability for Cunnington’s injuries. Cunnington opposed Hale’s motion and filed 

his own motion for partial summary judgment.

¶11 On March 28, 2005, the District Court granted Hale’s motion as against Cunnington, 

denied Cunnington’s motion as to Hale, and granted Cunnington’s motion for partial 

summary judgment on the issue of liability as to Gaub. The court determined that summary 

judgment for Hale was appropriate because Cunnington failed to show the existence of a 

legal duty on the part of Hale. Specifically, the court concluded that, as to Hale, 

Cunnington’s accident was not foreseeable, and that Hale did not exercise any control over 

the project or Cunnington. Further, the court concluded that Cunnington was not engaged in 
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an inherently dangerous activity because Cunnington admitted that no special precautions 

were necessary to render the activity safe. From the court’s order, Cunnington appeals. 

STANDARD OF REVIEW 

¶12 We review a district court’s grant of summary judgment de novo applying the same 

standards as the trial court pursuant to M. R. Civ. P. 56. Montana Mountain Products v. 

Curl, 2005 MT 102, ¶ 8, 327 Mont. 7, ¶ 8, 112 P.3d 979, ¶ 8 (citations omitted). The district 

court must decide, while viewing the offered proof in the light most favorable to the nonmoving party, whether there exists any genuine issue of material fact. Montana Mountain 

Products, ¶ 8 (citations omitted). If none exists, the district court must then decide whether 

to grant the motion as a matter of law. Montana Mountain Products, ¶ 8 (citations omitted).

DISCUSSION 

¶13 We have long recognized the general rule that absent some form of control over the 

subcontractor’s method of operation, the general contractor and owner of a construction 

project are not liable for injuries to the subcontractor’s employees. Shannon v. Wright, 181 

Mont. 269, 275, 593 P.2d 438, 441 (1979) (citations omitted). There are, however, three 

exceptions to the general rule: (1) where there is a nondelegable duty based on a contract; (2) 

where the activity is “inherently or intrinsically dangerous;” and (3) where the general 

contractor negligently exercises control reserved over a subcontractor’s work. Umbs v. 

Sherrodd, Inc., 246 Mont. 373, 376, 805 P.2d 519, 520 (1991) (citations omitted).

¶14 Both parties agree that the construction contract did not impose upon Hale a 

nondelegable duty concerning workplace safety. Therefore, the only issues to be resolved 
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are whether the scaffolding work was inherently dangerous and whether Hale exercised 

sufficient control over the project to be subjected to liability. 

¶15 1. Did the District Court err in concluding that Cunnington’s work on the 

makeshift scaffolding was not an inherently dangerous activity when Cunnington 

admitted that no special precautions were necessary to render the activity safe? 

¶16 An inherently dangerous activity is one, like large-scale trenching, that requires 

“special precautions” to prevent injury or death. See Beckman v. Butte-Silver Bow County, 

2000 MT 112, ¶¶ 24-25, 299 Mont. 389, ¶¶ 24-25, 1 P.3d 348, ¶¶ 24-25. The District Court 

concluded that the scaffolding work was not an inherently dangerous activity primarily 

because, in the court’s words, Cunnington “[admitted] that no special precautions were 

necessary to render the activity in this case safe, therefore, the activity could not be 

inherently dangerous.” Though the court does not cite to a particular part of the record, its 

conclusion that Cunnington admitted no special precautions were necessary is presumably 

based on language in Cunnington’s summary judgment reply brief, where he notes that “[i]n 

the present action, the precautions need not even have been special. The use of an actual 

scaffold . . . would have been sufficient to prevent Cunnington’s injury.” 

¶17 On appeal, other than generally claiming that the scaffolding work was inherently 

dangerous, Cunnington does not directly contest the court’s conclusion that he admitted no 

special precautions were necessary, nor does he point to any part of the record to contradict 

the court’s conclusion. We therefore affirm the District Court.
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¶18 2. Did the District court err in concluding that there is no genuine issue of 

material fact as to whether Hale exercised sufficient control over the project to establish 

potential liability? 

¶19 An owner-contractee may be liable for injuries sustained by a subcontractor’s 

employee if the owner retains sufficient control over the property on which the work is 

performed, though the owner need not retain control over the specific manner in which the 

worker himself performs. See Shannon, 181 Mont. at 277, 593 P.2d at 442. In Shannon, the 

employee was injured when he fell from a ladder while trying to gain access to the upper 

level of a condominium that was under construction. Shannon, 181 Mont. at 271, 593 P.2d at 

439. On appeal, Big Sky, the owner, argued that it owed no duty to the employees of its 

subcontractors. We affirmed the verdict for the employee, holding that, because Big Sky 

exercised sufficient control over the project, it had a duty to the employee and was thus liable 

for the employee’s injuries. Shannon, 181 Mont. at 283, 593 P.2d at 446. 

¶20 As evidence of control, we noted that Big Sky demanded that work at another section 

of the project proceed first, and that Big Sky would not allow stairs to be built until certain 

pipes were in place, actions which led to the use of the ladder on which plaintiff was injured. 

Shannon, 181 Mont. at 277-79, 593 P.2d at 442-43. Further, Big Sky instructed the 

subcontractor to proceed with the work on the second floor, even though the stairs were not 

in place, because the condos were already sold and purchasers had been promised completion 

dates. Shannon, 181 Mont. at 278, 593 P.2d at 443. Thus the evidence showed that Big Sky 

had more than “a general right to inspect the work of the subcontractor. Specifically it 
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show[ed] that Big Sky . . . could and did exercise control over” how the employees reached 

the upper levels of the condos. Thus, “[t]he extra hazards created by the need to use 

extension ladders [could] be attributed directly to . . . Big Sky.” Shannon, 181 Mont. at 279, 

593 P.2d at 443. 

¶21 In Beckman, we considered not only whether the trenching operation commissioned 

by the county was inherently dangerous, but also whether there were issues of material fact 

concerning whether the county retained sufficient control such that it owed a duty to the 

plaintiff. Beckman, ¶ 29. We looked to the Restatement (Second) of Torts § 414 for 

guidance in defining the control necessary to establish this duty:

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 [the employer’s] failure to exercise [its] control with 

reasonable care. Restatement (Second) of Torts § 414. 

¶22 We further considered the comments to § 414, which discuss two factors relevant to 

whether the employer retained sufficient control: (1) if the employer knows or should know

that the independent contractor is performing work in an unreasonably dangerous manner; 

and (2) if the employer retains the authority to direct the manner in which work is to be 

performed. Beckman, ¶ 33. Given that the county was experienced in trenching operations, 

that county employees were present, and that there was language of control in the Water 

Main Extensions document, we concluded that there were genuine issues of material fact 

concerning whether the county negligently exercised control it retained over the work. 

Beckman, ¶¶ 38-39.
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¶23 Reading Shannon and Beckman together, an owner may be held liable for the injuries 

sustained by the employee of a subcontractor if the owner exercised control in such a way as 

to create the dangerous condition, per Shannon, or if the owner knew or should have known 

of the dangerous condition and retained sufficient authority to direct how the work was 

performed, per Beckman.

¶24 The facts of the case before us, when considered in the light most favorable to 

Cunnington, show genuine issues of material fact concerning whether Hale negligently 

exercised control it retained over Gaub’s work. Hale, like the representatives for Big Sky in 

Shannon, was at the construction site almost every day and, additionally, unlike Big Sky, was 

responsible for a large portion of the work, including the excavation, plumbing, electrical, 

and concrete work. Specifically, Hale was in charge of backfilling the area surrounding the 

accident site, including the window pit which Cunnington fell into. Gaub testified that he 

asked Hale three or four times to backfill around the windows so that he could complete the 

siding. Also, as in Shannon, there was an approaching deadline (the contract called for the 

house to be completed in 120 days) and Hale may have been pushing Gaub to work faster as 

Gaub was behind schedule to finish the house on time. 

¶25 Additionally, Hale testified in his deposition that he acted as “general contractor” for 

the Whitefish house, and admitted that he built the house himself, with his father. Hale 

performed the same jobs (excavation, plumbing, electrical, and concrete) during construction 

of the house at issue here, which is evidence not only of control, but also of Hale’s general 
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house building experience. As further evidence of control and general knowledge of 

construction, Hale took over after Gaub quit and subcontracted what work remained.

¶26 Hale contends that he did not know Gaub was requiring Cunnington to use the 

makeshift scaffolding and did not see Cunnington use the scaffolding when he was hurt. 

However, Hale is not required to have knowledge of the specific manner in which 

Cunnington was performing the work, but only of the general dangerous condition. Here, 

although Hale was apparently aware that the area around the window pits needed backfilling, 

he put off doing so because he wished to complete other projects first. While scaffolding still 

would have been necessary even if Hale had completed the backfilling, backfilling might 

have leveled the surface so that normal scaffolding could have been used instead of the 

contraption that apparently caused Cunnington’s injuries. Hale’s actions, or more properly 

his inaction, thus may have led to the use of the makeshift scaffolding on which Cunnington 

was injured.

¶27 It is clear from our review of the record that there are genuine issues of material fact 

as to whether Hale retained sufficient control over the work to subject himself to liability. 

Accordingly, we conclude that the District Court erred in granting summary judgment on the 

issue of control.

CONCLUSION 

¶28 We affirm the District Court’s conclusion, based on Cunnington’s admission that no 

special precautions were necessary, that the scaffolding work was not an inherently 

dangerous activity, reverse the court’s grant of summary judgment concerning whether Hale 
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exercised sufficient control over the project to establish potential liability, and remand for 

further proceedings consistent with this Opinion. 

 /S/ W. WILLIAM LEAPHART 

We concur: 

/S/ KARLA M. GRAY 

/S/ JAMES C. NELSON 

/S/ JOHN WARNER 

/S/ BRIAN MORRIS 
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