No. 88-57 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1988 

RICHARD HARRINGTON, 

Plaintiff and Appellant, 

-vsLaBELLEIS OF COLORADO, INC., d/b/a 

LaBELLEIS CATALOG SHOWROOMS, a Colorado 

corp., and DAVID HEINE, d/b/a BILLINGS 

SWEEPING SERVICE, 

Defendants and Respondents. 

LaBELLEIS OF COLORADO, INC., d/b/a 

LaBELLE'S CATALOG SHOWROOMS, a Colorado 

corp. , Third-Party Plaintiff and Appellant, 

-vsBILLINGS SWEEPING SERVICE, 

Third-Party Defendant. 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, 

The Honorable Robert W. Holmstrom, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Datsopoulos, MacDonald & Lind; Ronald B. MacDonald, 

Missoula, Montana (Harrington) 

Herndon, Harper & Munro; Rodney T. Hartman, Billings, 

Montana (LaBellel s) 

For Respondent: 

L- Anderson, Brown, Gerbase, Cebull, Fulton, Harman & 

P- . + L - o : 3 Ross; Steven J. Harman, Billings, Montana 

Submitted on Briefs: Aug. 4, 1988 

Decided: December 6, 1988 

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Clerk 
Mr. Justice L. C. Gulbrandson delivered the Opinion of the 

Court. 

Richard Harrington and third-party plaintiff LaBelle's 

appeal from a summary judgment granted in favor of Billings 

Sweeping Service (the Service) in the District Court for the 

Thirteenth Judicial District, Yellowstone County, Montana. 

We affirm. 

The issues are: 

1. Did the District Court err in granting summary 

judgment in favor of the Service on the issue of negligence 

based on the rule of contractor nonliability? 

2. Did the District Court err in granting summary 

judgment in favor of the Service on the issue of strict 

products liability under 5 402A, Restatement 2d of Torts? 

3. Was the dismissal of LaBellels third-party complaint 

proper? 

This action arises out of a bicycle accident which 

occurred in the parking lot of LaBellels in Billings on July 

21, 1984. Richard Harrington was riding his bicycle through 

the lot at approximately 9:00 p.m. when he struck a speed 

bump, was thrown from the bike, and suffered severe head 

injuries. Harrington sued LaBellels alleging that the speed 

bumps were improperly designed, negligently maintained, and 

inadequately marked to warn of their inherent latent danger. 

LaBelle's filed a third-party complaint against the 

contractor who had installed the bumps, alleging that the 

contractor was solely responsible for the design, 

construction and installation of the speed bumps. The 

third-party complaint did not allege the parties had 

contracted for painting the speed bumps. LaBellels sought 

contrihution or indemnity jn the event that it was found to 
be liable. Harrington then filed an amended complaint to 

include the contractor, Billings Sweeping Service, seeking 

recovery on theories of negligence and strict products 

liability. On motion, the District Court granted summary 

judgment to the Service and dismissed LaBelle ' s third-party 

complaint. 

As to the negligence claim, the District Court found the 

Service not liable based upon the rule of contractor 

nonliability also known as the "Accepted Work Rule Doctrine," 

which has been adopted by this Court. Also, no cause of 

action would lie under the products liability claim since the 

court found speed bumps are not a "product" for purposes of 

S 402A, Restatement 2d of Torts. Mr. Harrington and 

LaBelle's appeal from this order. 

I 

Did the District Court err in granting summary judgment 

in favor of the Service on the issue of negligence based on 

the accepted work rule doctrine? 

Montana has adopted the rule that an independent contractor will not be liable to third-parties for injuries 

which occur after the contractor has completed the work and 

the work has been turned over to and accepted by the employer. The accepted work rule doctrine was first recognized in 

Montana in Ulmen v. Schwieger (1932), 92 Mont. 331, 12 P.2d 

856. The rule is based on the lack of any duty owing by the 

contractor to the injured third-party at the time of the 

injury. Instead, the person employing the contractor is 

substituted as the responsible party. The accepted work rule 

doctrine established in Ulmen has been upheld and applied in 

related Montana cases since then. See Olson v. Kayser 

(19731, 161 Mont. 241, 505 P.2d 394; ~annifin 17. 
Cahill-Mooney Construction (1972), 159 Mont. 413, 498 P.2d 

1214. 

On appeal Mr. Harrington asks this Court to reconsider 

the rule. He argues that the facts and equity of this case 

compel us to revise the long-standing rule of Ulmen or to 

carve out exceptions to that rule. He contends that Ulmen 

does not represent the modern view and cites cases from 

jurisdictions which have extended contractor liability to 

foreseeable injury caused by negligent construction. This is 

not the rule in Montana, however, and we decline to depart 

from the line of cases which have established otherwise. In 

doing so, we direct our attention to the "facts" and "equity" 

of this case. 

LaBellels is located at a busy intersection in Billings. 

To avoid the traffic signal at that intersection, traffic 

frequently cuts across LaBellels parking lot between 24th and 

Central. To slow and discourage this traffic, LaBelle's 

manager contracted with Billings Sweeping Service to install 

two speed bumps in the parking lot. The record conflicts as 

to who solicited whom, but a work order was processed on May 

3, 1984, and construction was completed on or about that 

date. 

The bumps were made of asphalt, the same material as the 

parking lot, and were not marked or painted in any way so as 

to distinguish them from the parking lot's smooth surface. 

There is disagreement in the depositions about who was responsible for the design and placement of the bumps and why 

the speed bumps did not get striped, painted, or otherwise 

marked. 

Despite the conflict in facts surrounding the speed bump 

construction, there is no doubt that the Service had turned 
over, and LaBelle's had accepted, the contracted work. Upon 

completion, LaBelle's paid the Service for the job, and the 

Service completely removed itself from the premises prior to 

the accident, which occurred approximately 70 days 

thereafter. There is no evidence that LaBellefs requested 

any follow-up work or made any complaints to the Service 

prior to the accident. These facts substantiate the District 

Court's findings that the Service had turned over and 

LaRellels had accepted the work on the speed bumps, so as to 

satisfy the accepted work rule doctrine. 

Regarding Mr. Harrington's plea in equity, we note that 

he has settled with LaBelle's for $125,000. We find little 

merit in his argument that he will be left "without recovery" 

unless this Court revises or finds exceptions to the accepted 

work rule doctrine as established in Ulmen. For these 

reasons, we hold that the District Court did not err in 

granting summary judgment to the Service on the issue of 

negligence. 

Did the District Court err in granting summary judgment 

in favor of the Service on the issue of strict products liability under 5 402A, Restatement 2d of Torts? 

Mr. Harrington contends that the Service should be held 

strictly liable as the manufacturer of a defective and unreasonably dangerous product. He argues that a speed bump 

should be recognized as a "product" for purposes of S 402A 

Restatement 2d of Torts. 

To date, there are no Montana cases which discuss the 

meaning of "product" for a strict products liability case. 

In refusing to recognize a speed bump as a product, the 

District Court relied on policy considerations set forth in 
the case in which Montana adopted the doctrine of strict 

labilit. See Brandenburger v. Toyota Motor Sales (1973) , 

162 Mont. 506, 513 P.7d 268. In that case, this Court said: 

Inherent in these pol-icy considerations 

is not the nature of the transaction . . . hut the character of the defect 

itself . . . and the unavailability of an 

adequate remedy on behalf of the injured 

plaintiff. 

Rrandenburger, 513 P.2d at 273 (quoting Escola v. Coca Cola 

Bottling Company of Fresno (Cal. 1944), 150 P.2d 436). 

Based on our review of these policy considerations, we 

agree with the District Court that a speed bump is not a 

"product" for purposes of S 402A strict liability. A major 

goal of the doctrine was to afford the plaintiff a remedy in 

the face of an extremely complicated manufacturing industry, 

where the inability of the plaintiff to pinpoint a negligent 

act or a negligent party could preclude recovery altogether. 

As was pointed out by the District Court, there is no problem 

of a remote manufacturer or the inability to trace a specific 

negligent act in this case. Our determination in no way 

affects Mr. Harrington's existing settlement agreement with 

LaBellels, so he is not left without adequate remedy. We 

hold that the District Court did not err in granting summary 

judgment on the issue of strict products liability. 

Was the dismissal of LaBelle's third-party complaint 

proper? 

Montana law does not allow a claim for contribution or 

indemnity to be asserted by a defendant against a 

co-defendant who is not liable to the plaintiff. Section 

27-1-703, MCA. See State ex rel. Deere and Company v. District Court (Mont. 1986), 730 P.2d 396, 400, 43 St.Rep. 2270, 
2274. Since we have affirmed the District Court's granting 

of summary judgment in favor of the Service, it follows that 

LaBelle's claim for contribution or indemnity must fail. We 

conclude that the District Court properly dismissed LaRellels 

claim. We affirm. 

Justicg ', 

&PSH~ Justices 
Mr. Justice Fred J. Weber dissents as follows: 

The majority relies upon a longstanding legal doctrine 

to bar recovery from Billings Sweeping Service without justifying its application to this particular case or to modern 

theories of liability in qeneral. While it is generally 

appropriate to follow the rulings of past decisions, I believe that this Court should examine the reasoning behind the 

rule of contractor nonliability before applving it to this 

case. 

Historically, the "accepted work doctrine" has been 

justified on several grounds. These include: (1) a lack of 

contractual privity between a building or construction contractor and injured third parties; (2) that there would be no 

end to a contractor's litigation unless liability ceased 

after the work was accepted; (3) the true proximate cause of 

a third party's injury is the owner's negligence in maintaining the property; and (4) public policy confines liability 

for negligent construction of a complicated structure to the 

owner or contractee. 58 Annat., A.L.R.2d 869, 870 (1958). 

These justifications are incorporated into Montana law in the 

case of Ulmen v. Schwieger (1932), 92 Mont. 331, 12 P.2d 856, 

which is cited by the majority as support for its holding 

that a contractor may not be held liable to an iniured third 

party. I question whether these are adequate grounds for the 

majority's holding in light of our general rules of negligence in Montana. 

Other jurisdictions have held that the principles supporting the rule of contractor nonliability do not mesh with 

modern theories of negligence. The leading case in which the 

District of Columbia Circuit refuted these justifications for 

contractor nonliability is Hanna v. Fletcher (D.C.Cir. 1956), 

231 F.2d 469. The court reasoned that the antiquated 
justifications based on lack of privity had no place in 

modern theories of liability as set forth in MacPherson v. 

Auick Motor Co. (1916), 217 N.Y. 382, 111 N.E. 1050. In 

MacPherson, the question was whether an automobile manufacturer could be held liable to a consumer for injuries resulting from a sudden collapse of the car due to defective wood 

used in one of its wheels. Judge Cardozo responded that: 

If the nature of a thing is such that it is reasonably certain to place life and limb in peril when 

negligently made, it is then a thing of danger. 

Its nature gives warning of the consequences to be 

expected. If to the element of danger there is 

added knowledge that the thing will be used by 

persons other than the purchaser, and used without 

new tests, then, irrespective of contract, the 

manufacturer of this thing of danger is under a 

duty to make it carefully. 

111 N.E. at 1053. 

In Hanna v. Fletcher, the court considered a claim for 

personal injury by a plaintiff who sued a construction contractor for negligent repair of a stair railing on an existing building. Several years after the repair work was 

completed and paid for, the railing collapsed during use and 

caused the plaintiff to fall into the stairwell, which resulted in serious injuries. The court concluded there was no 

reason to differentiate between the manufacturer of goods and 

a building contractor "for in each case negligent conduct 

often may be expected to result in injury to one reasonably 

foreseen as a possible user." Hanna, 231 F. 2d at 474. The 

court applied Judge Cardozo's analysis and held the construction contractor liable for his negligent repair of the 

railing. 

This Court has followed MacPherson and allowed recovery 

for negliqence asserted against the manufacturers of automobiles [see Rix 17. General Motors Corp. (Mont. 1986), 723 P.?d 
195, 43 St.Rep. 12961 and manufacturers of farm machinery 

[see Brown v. North American Manufacturing Co. (1978), 176 

Mont. 98, 576 P.2d 7111. We concluded in those cases that it 

was no longer appropriate to bar recovery on theories such as 

those identified in connection with the accepted work doctrine, that is a lack of contractual privity, or that there 

would be excessive litigation, or similar theories. Given 

our rules of liability in cases where negligent construction 

by a manufacturer may cause injury, I see no reason why we 

should not extend that reasoning to applv to negligent construction by a contractor. Certainly the potential for 

injury due to negligent construction by a contractor is just 

as great as with the negligent manufacturing of a consumer 

good. I conclude that this Court should have revj-ewed the 

reasoning upon which the denial of liability is founded. 

While the facts presently before us may indicate a rather 

weak claim on the part of Mr. Harrington with regard to the 

proving of elements of negligence against Billings Sweeping 

Service, there is a proper legal theory which should allow 

him to continue with his cause of action. 

I recognize there may be limitations which should be 

placed upon a theory of recovery against a building contractor. But an absolute bar to liability is not appropriate. 

The majority has failed to explain why a contractor should 

not be responsible for its own negligence. For this reason, 

I believe that this Court should have evaluated what I see as 

an outmoded concept to redefine our rules of liability in a 

case such as this. Thus, liability would more appropriately 

be predicated on the presence or absence of negligence on the 

part of the various parties involved, including the construction contractor. 

I concur in the foregoing dissenp.