NO. 94-176

IN THE SUPREME COURT OF THE STATE OF MONTANA

1995

JANICE WETCH,

Plaintiff and Respondent,

v.

UNIQUE CONCRETE CO.

a Montana Corporation,

Defendant and Appellant.

APPEAL FROM: District Court of the Sixteenth Judicial District,

In and for the County of Custer,

The Honorable Kenneth R. Wilson, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Calvin J. Stacey, Stacey & Walen, Billings, Montana

For Respondent:

Thomas M. Monaghan, Lucas & Monaghan, Miles City,

Montana

,.

Fil

1994

1995
Justice James C. Nelson delivered the Opinion of the Court

Unique Concrete, Co., (Unique) appeals from a special jury

verdict in favor of Janice Wetch (Janice) finding that Janice's

personal injuries were caused 51% by Unique's negligence and 49% by

Janice's own negligence and awarding total damages of $~OO,OOO.

Unique contends that the District Court erred in granting Janice's

Motion in Limine restricting evidence of negligence attributable to

Janice's employer, Dr. William Wallick (Dr. Wallick). We affirm.

ISSUE

The issue on appeal is whether the District Court properly

applied 5 27-l-703(4), MCA, (1987), in granting Janice's Motion in

Limine.

FACTUAL AND PROCEDURAL BACKGROUND

At the time she was injured, Janice was the full time

receptionist, office worker and assistant to Dr. Wallick, a Miles

City chiropractor. Janice had worked for Dr. Wallick, first on a

part-time basis and later, full time, since August 1984. She and

Dr. Wallick were the only two persons who worked in his small, Main

Street office building.

In 1989, desiring to add space to his offices, Dr. Wallick

hired a local Miles City contractor to remodel the building. Prior

to the remodeling, the office building had two doors, one at the

front of the building facing Main Street, primarily used by

patients, and another door at the rear leading to the parking lot.

The rear door was routinely used by Dr. Wallick and Janice. As

part of the remodeling project, Unique was hired as one of the

2
subcontractors and was responsible for removing the concrete steps

outside the rear door of the building.

Before Unique began work, Larry Kuchynka (Larry), Unique's

president, had a conversation with Dr. Wallick, in Janice's

presence, in which Larry expressed his concern about the safety

hazard posed by the removal of the steps outside the rear door.

Larry suggested various measures that could be taken to mitigate

the danger, including barricading the door. Dr. Wallick did not

want to barricade the door because of the need for ventilation.

However, he assured Larry that a warning sign would be placed on

the door, that the door would be dead-bolted during regular

business hours and that he (Dr. Wallick) "would take care of it."

Relying on Dr. Wallick's statements, Unique did nothing to secure

the door and proceeded to remove the concrete steps leaving a

vacant hole five to six feet deep under the door where the steps

had been.

Janice testified that she recalled discussing the door

situation with Dr. Wallick and that she tried to keep the door

locked. Moreover, knowing that the steps had been removed, during

the week before her accident, Janice changed her routine and began

using the front door to enter and leave work. Nonetheless, at

about noon on September 25, 1989, out of forgetfulness or force of

habit, Janice opened outward the rear door of the office, stepped

into the five to six feet hole where the steps had been, and was

seriously injured. Janice subsequently received benefits through

workers' compensation insurance carried by Dr. Wallick.

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In November 1991, Janice filed her complaint against Unique

alleging negligence and seeking special and general damages for her

injuries. Prior to trial, in its motion for summary judgment,

Unique argued that Dr. Wallick's failure to secure the door was

negligence and was an independent, superseding, intervening cause

which absolved Unique from liability for Janice's injuries. In

response, based on 5 27-l-703(4), MCA, (19871, Janice filed her

Motion in Limine to exclude from consideration by the jury argument

or evidence of any conversation between Larry and Dr. Wallick that

Wallick would keep the rear door locked during construction; that

Dr. Wallick forgot to lock the door approximately one and one-half

hours before Janice's fall; and that Dr. Wallick was solely or

partially at fault with regard to Janice's fall. Janice's motion

was briefed and argued, and, on the first day of trial was granted

by the District Court.

Trial began in February 1994. Janice's attorney called Larry

and elicited testimony to the effect that he (Larry) was concerned

about the hazardous condition posed by the removal of the steps,

that he discussed those concerns with Dr. Wallick in Janice's

presence, that various measures could be taken to mitigate the

danger, but that he (Larry) did nothing to secure the door.

Pursuant to the District Court's order granting Janice's Motion in

Limine, however, and despite Unique's offer of proof, neither Larry

nor Wallick were allowed to detail their conversation about the

necessity to barricade the rear door; that Dr. Wallick had refused

to have the door barricaded; that Dr. Wallick had agreed to lock

4
the door; and that Larry had relied on Dr. Wallick's statements in

that regard as the reason why Unique did not take any measures to

secure the door.

DISCUSSION

On appeal, Unique contends that because the District Court

granted Janice's Motion in Limine, it was denied its right to a

fair trial. Unique argues that the jury was precluded from hearing

all of the facts as to how and why Janice's accident occurred and

that it was unable to present factual support for its defenses that

it was not negligent and that, even if it was, its negligence was

not the proximate cause of Janice's injuries, Dr. Wallick's

negligence being an independent, superseding and intervening cause.

Janice maintains that the District Court correctly granted her

Motion in Limine and kept the offered argument and evidence from

the jury because amendments to § 27-l-703, MCA, made by the 1987

legislature, specifically removed from consideration and

determination by the fact finder any amount of negligence on the

part of the injured person's employer to the extent that such

employer had tort immunity under Montana's Workers' Compensation

Act. We conclude that the District Court's application of § 21-I703(4), MCA, to prohibit the offered testimony and evidence from

being considered by the jury was correct.

The issue raised in this case is one of first impression.

While this Court recently held certain portions of § 27-l-703(4),

MCA, (1987) unconstitutional, Newville v. State of Montana (1994),

Mont. _, 883 P.2d 793, our decision in that case did not

5
address the language of the statute at issue here, nor is there any

constitutional issue raised in this appeal with respect to that

part of the statute. Rather, the issue here involves one of merely

applying the clear and unambiguous requirements of the statute to

the facts before the court.

In pertinent part, § 27-l-703(4), MCA, (1987), provides:

(4) . . . However, in attributing negligence among

persons, the trier of fact may not consider or determine

any amount of negligence on the part of any injured

person's employer or coemployee to the extent that such

employer or coemployee has tort immunity under the

Workers' Compensation Act or the Occupational Disease Act

of this state, of any other state, or of the federal

government.

That language, along with other provisions, was added to 5 27-l703, MCA, by the 1987 Legislature as a part of its tort reform

legislation. See Newville, 883 P.2d at 799.

There is nothing ambiguous or unclear about the statutory

language at issue. The legislature has provided that the fact

finder may not "consider or determine any amount of negligence" on

the part of the injured person's employer to the extent the

employer has tort immunity under the Workers' Compensation Act.

It is undisputed that Dr. Wallick was Janice's employer and

that he is immune from tort liability for her injuries because she

was covered by and received benefits under his workers'

compensation insurance. See, Article II, Section 16, Constitution

of the State of Montana and § 39-71-411, MCA. Unique,

nevertheless, argues that it should be able to completely absolve

its own liability by offering evidence, argument and instruction to

the jury that it did not secure the rear door because Dr. Wallick

6
said he would take care of it; because Dr. Wallick refused to allow

Unique to barricade the door; because Dr. Wallick negligently

failed to secure the rear door himself; and because Dr. Wallick's

negligence was the proximate cause of Janice's injuries.

Obviously, Unique can only prevail in that defense if the

trier of fact is, first, allowed to "consider" evidence of Dr.

Wallick's alleged negligent acts and omissions from testimony of

what Dr. Wallick said he would do and from what he then actually

did or failed to do, and, second, if the trier of fact is then

allowed to "determine" from that evidence that it was Dr. Wallick's

negligence, and not Unique's, that proximately caused Janice's

injuries. That, of course, is precisely the sort of evidence that

the statute expressly prohibits from going to the jury. Because

Dr. Wallick is absolutely immune from tort liability for her

injuries, any amount of his negligence which caused or contributed

to Janice's injuries cannot be considered or determined by the

jury. Dr. Wallick's negligence is simply not a part of the

liability or damages equation.

While the parties argue for and against the fairness of the

statute and the rationale underlying its adoption, that is not the

issue. Moreover, we have considered the authorities cited by

Unique and do not find them persuasive. While Judge Battin's

interpretation of the statutory language in Weaselboy v. IngersollRand (April 10, 1991) 10 Mont. Fed. Rpt. 41, differs from ours, we

are not constrained to follow the interpretations of Montana's

statutes by the federal judiciary, especially where the statutory
language at issue has not been previously interpreted by this

court. The statutory prohibition is clear and unambiguous, and no

argument has been advanced that the portion of the statute at issue

is unconstitutional.

Absent such a challenge, it is not the prerogative of this or

of any other court to construe a clear and unambiguous legislative

enactment so as to defeat its obvious mandate. Accordingly, we are

compelled to hold that the District Court correctly applied § 27-P

703(4), MCA, (1987), in granting Janice's Motion in Limine.

AFFIRMED.

We Concur:
January 18, 1995

CERTIFICATE OF SERVICE

I hereby certify that the following certified order was sent by United States mail, prepaid, to the

following named:

Calvin J. Stacey, Esq.

Stace.y & Walen

P.O. Box 7157

Billings, MT 59103

Thomas M. Monaghan, Esq.

Lucas & Monaghan

P.O. Box 728

Miles City, MT 59301

ED SMITH

CLERK OF THE SUPREME COURT

STATE! OF MONTANA