NO. 89-602 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1990 

WILLIAM E. KEMP, 

Plaintiff and Appellant, 

BIG HORN COUNTY ELECTRIC COOPERATIVE, INC., 

a Montana Corporation, 

Defendant and Respondent. 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Big Horn, 

The Honorable William J. Speare, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Robert C. Kelleher, Sr. ; Kelleher Law Office; Butte, 

Montana 

For Respondent: 

James E. Torske; Kronmiller & Torske; Hardin, 

Montana 

Submitted on Briefs: May 3, 1990 

Decided: September 18, 1990 
Justice Fred J. Weber delivered the Opinion of the Court. 

This appeal arises from an order of the District Court, 

Thirteenth Judicial ~istrict, Yellowstone County, Montana, granting 

defendant's motion for summary judgment. Plaintiff appeals. We 

affirm. 

The sole issue on appeal is whether the District Court erred 

in granting summary judgment in favor of defendant. 

Big Horn County Electric Cooperative Inc. (Big Horn) 

contracted with Swain and Morris Construction Company (S & W) for 

construction of a 69 KV line between Lodge Grass, Montana, and 

Hardin, Montana. 

Plaintiff, ~illiam Kemp, was an employee and foreman for S & 

W on this project. On August 28, 1986, plaintiff was injured when 

the cables broke on a High Ranger bucket lift in which plaintiff 

was riding. The bucket turned upside down and plaintiff fell ten 

to twelve feet to the ground. Plaintiff had a safety belt but was 

not wearing it at the time of the accident. 

Plaintiff filed a complaint against Big Horn alleging breach 

of a duty to furnish a safe place of employment; breach of a duty 

to furnish and require safety practices; and breach of a duty to 

comply with various safety codes. Plaintiff later amended the 

complaint to allege a breach of a non-delegable duty to comply with 

the Montana Scaffolding Act. Defendant filed a motion for summary 

judgment . After consideration of memoranda, depositions and 

exhibits, the District Court granted summary judgment in favor of 
defendant, concluding that Big Horn did not retain control over the 

manner of work performed by S & W and had no duty in respect to 

plaintiff. It is from this order that plaintiff appeals. 

Summary judgment is appropriate only if there are no genuine 

issues of material fact. See, Kelly v. Widner (1989), 236 Mont. 

. . . a summary judgment is proper when it appears "that 

there is no genuine issue as to any material fact and 

that the moving party is entitled to a judgment as a 

matter of law." 10 Wright, Miller and Kane, Federal 

Practice and Procedure, section 2716, P. 643. 

Initially the burden of proof must be carried by the 

moving party seeking summary judgment . . . However, 

where the record discloses no genuine issue of material 

fact, the burden of proof shifts to the party opposing 

the motion . . . Once the burden has shifted in this 

fashion, the party opposing the motion is held to a 

standard of proof about equal to that initially imposed 

upon the moving party under Rule 56 (c) , M.R.Civ.P. . . 

The general rule of contractor liability is that an employer 

is not liable for the negligence of an independent contractor or 

its employees. Micheletto v. State (Mont. 1990), No. 89-452, 

slip.op., - P.2d I , 47 St.Rep. -, ; Kemp v. Bechtel 

Constr. Co. (1986), 221 Mont. 519, 524, 720 P.2d 270, 274; Dvorak 

v. Matador Sew. Inc. (1986), 223 Mont. 98, 102, 727 P.2d 1306, 

1308; Restatement (Second) of Torts 5 409. 

On appeal, plaintiff contends that three exceptions to this 

general rule apply in his case. First, plaintiff contends that Big 

Horn had non-delegable duties in respect to safety. Second, 
plaintiff contends Big Horn retained control over the performance 

of work, creating a duty to S & W employees. Third, plaintiff 

contends the work was inherently dangerous, creating vicarious 

liability on the part of Big Horn. We will discuss each contention 

separately. 

In Stepanek v. Kober Constr. (1981), 191 Mont. 430, 434, 625 

P.2d 51, 53, we recognized that non-delegable duties may be created 

by contract. In addressing plaintiff's contention on this issue, 

we begin by examining relevant contractual language. The District 

Court found, and we agree, that the contract between Big Horn, the 

general contractor, and S & W, the subcontractor, placed no duty 

on ~ig Horn in regard to safety. The relevant sections of the 

contract pursuant to Article IV, "Particular Undertakings of the 

Bidder, 'I provide: 

Section 1, Protection to Persons and Property. The 

Bidder [S & W] shall at all times take all reasonable 

precautions for the safety of employees on the work and 

of the public, and shall comply with all applicable 

provisions of Federal, State, and Municipal safety laws 

and building and construction codes, as well as the 

safety rules and regulations of the Owner [Big Horn]. 

All machinery and equipment and other physical hazards 

shall be guarded in accordance with the "Manual of 

Accident Prevention in Construction1' of the Associated 

General Contractors of American unless such instructions 

are incompatible with Federal, State, or Municipal laws 

or regulations. 

The following provisions shall not limit the generality 

of the above requirements: 

f . The Project , from the commencement 

of work to completion, or to such 

earlier date or dates when the Owner 
[Big Horn] may take possession and 

control in whole or in part as 

hereinafter provided shall be under 

the charge and control of the Bidder 

[S & W] and during such period of 

control by the Bidder [S & W] all 

risks in connection with the 

construction of the Project and the 

materials to be used therein shall 

be borne by the Bidder [S & W]. The 

Bidder [S & W] shall make good and 

fully repair all injuries and 

damages to the Project or any 

portion thereof under the control of 

the Bidder [S & W] by reason of any 

Act of God or other casualty or 

cause whether or not the same shall 

have occurred by reason of the 

Bidder's [S & W] negligence. The 

Bidder [S & W] shall hold the Owner 

[Big Horn] harmless from any and all 

claims for injuries to persons or 

for damage to property happening by 

reason of any negligence on the part 

of the Bidder [S & W] or any of the 

Bidder's [S & W] agents or employees 

during the control by the Bidder [S 

& W] of the Project or any part 

thereof. 

Further, construction Specifications, which were incorporated 

into the Contract at page CS-4, stated: 

4. Construction Safety Procedures 

The Contractor [S & W] will adhere to all 

safety practices as described by O.S.H.A. 

standards. Hard hat protection, eye, and hand 

protection are recommended. Any fines or 

requirements imposed by O.S.H.A.,. Workmen's 

Compensation, or any other authorized safety 

agency will be strictly the responsibility of 

the Contractor [S & W]. Construction safety 

is exclusively the responsibility of the 

Contractor [S & W]. The Contractor [S & 

Wlshall develop and maintain for the duration 

of this contract a safety program that will 

effectively incorporate and implement all 

safety provisions. The Contractor [S & W] 
shall appoint an employee who is qualified and 

authorized to supervise and enforce compliance 

with the safety program. 

Based on the language of the contract, the District Court 

concluded that the contract placed the responsibility for 

implementation of the safety program and job safety on S & W. 

Although plaintiff contends that certain written policies of Big 

Horn imposed safety duties upon Big Horn, we agree with the 

District Court that these policies are irrelevant since they are 

not a part of the contract. Plaintiff's contention that the 

Montana Scaffolding Act placed duties upon Big Horn is likewise 

misplaced since S & W assumed the safety duties. 

Plaintiff also contends that Big Horn had a non-delegable duty 

to provide him a safe place to work, citing the "Safe Place to Work 

Statute,It 5 50-71-201, MCA. This statute requires the general 

contractor to exercise reasonable care in its establishment of the 

safety program. Kemp v. Bechtel Constr. Co, 720 P.2d at 276. In 

the present case the contract provided for safety precautions 

which, pursuant to the above analysis were totally assumed by S & 

W. Further, exhibits and deposition testimony demonstrated that 

at the preconstruction conference S & Wts safety program was 

discussed. Plaintiff has failed to present any facts indicating 

that Big Horn failed in its duty to establish a safety program. 

The contract provisions in the present case are directly 

comparable to the contract provisions regarding safety 

responsibilities in Micheletto. In that case as well as in the 
present case, the contract did not contain any provisions requiring 

the general contractor to be responsible for either initiating, 

maintaining or supervising safety programs as was present in 

Stepanek. As a result, in Micheletto, this Court agreed that a 

non-delegable duty based on contract was not assumed by the State 

and held that the District Court correctly concluded that the State 

as a general contractor did not have a non-delegable contractual 

duty to supervise the safety of the trenching operations by the 

Telephone Company. In a similar manner, in the present case, we 

conclude that the plaintiff has failed to present any genuine 

issues of material fact to support his contention that Big Horn had 

a non-delegable contractual duty to the plaintiff to supervise the 

operation of S & W, or that Big Horn breached a duty under § 50- 

71-201, MCA. 

As a second contention, plaintiff urges that Big Horn retained 

control of the work performed by S & W, triggering an exception to 

the general rule of non-liability. Plaintiff's contention in 

regard to control is premised upon Restatement (Second) of Torts 

414, which provides: 

8 414. 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. 

In support of his contention that Big Horn reserved control of S 
& Wts work, plaintiff relies on a contract provision from Article 

11, "Constr~ction,~~ Section 6, llSupervision and Inspection," which 

provides : 

c. The manner of construction of the Project, and all 

materials and equipment therein, shall be subject to the 

inspection, tests, and approval of the Owner . . . 

However, the contract language stating that the "manner of 

construction is subject to approval by the owner1! does not create 

control of that part of the work. Comment (c) of § 414 describes 

the type of control contemplated by 3 414: 

c. 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 right of supervision 

that the contractor is not entirely free to do the work 

in his own way. 

We conclude that the issue of control on the part of Big Horn is 

actually determined and controlled under our cases of Kemp v. 

Bechtel Constr. Co., and Micheletto. As we pointed out in 

Micheletto, with regard control by the general contractor: 

In general we conclude that before liability is found on 

the basis of control by the general contractor, there 

must be a clear contractual provision which establishes 

that the general contractor has assumed the 

responsibility for initiating, maintaining and 

supervising safety precautions as was present in the 

Ste~anek contract. 
Micheletto, s1ip.o~. at 11. In a manner similar to both Kem~ v. 

Bechtel Constr. Co. and Micheletto, we conclude that in the present 

case, Big Horn had properly provided appropriate safety precautions 

in its contract with S & W. We further emphasize that the 

contractual provisions in this case contain no specific provision 

which obligates Big Horn to be responsible in any manner for 

initiating, maintaining or supervising safety precautions and 

programs as was contained in Stepanek and referred to in both of 

the companion cases. We conclude here that Big Horn complied with 

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

hold that Big Horn complied with all contractual duties of 

reasonable care required under the contract and statutes, and that 

Big Horn did not negligently exercise control over the operations 

of S & W in the course of which the plaintiff was injured. 

Plaintiff next contends that in the present case the work was 

inherently dangerous, creating vicarious liability on the part of 

Big Horn. We discussed the inherently dangerous exception at 

length in Kemp v. Bechtel Constr. Co, noting 5 416 and 5 427, 

Restatement (Second) of Torts, which provide: 

5 416. 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. 

5 427. 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 

contractorfs failure to take reasonable precautions 

against such danger. 

In Kemp v. Bechtel Constr. Co. , trenching was performed 

without the use of a trench box. The trench caved in, resulting 

in serious injury to a digger. In discussing plaintiff's 

contention that trenching is inherently dangerous, we stated: 

In order for § 416 to apply the work must present 

Ifa peculiar risk . . . unless special precautions are 

taken. " Section 427 is only applicable to work 

ffinvolving a special danger . . . inherent in . . . the 

work." 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. 

Kemp, 720 P.2d at 275. 

In the recent case of Micheletto, also a case of a trench 

cave-in, this Court followed the analysis and holding of Kemp v. 

Bechtel Constr. Co. and concluded that trenching is not an 

inherently dangerous activity. Micheletto, 

a similar manner, in the present case, the use of the bucket on 

the High Ranger bucket lift was dangerous to the plaintiff 

because a safety belt was not used. Had this standard 

precaution been used, there would have been no extraordinary risk 

as the result of the use of the High Ranger bucket lift. In 

this case, the failure to attach the safety belt in the use of the 
equipment is comparable to the failure to use trench box or other 

safety precautions in both Kemp v. Bechtel Constr. Co. and 

Micheletto. We conclude that under the facts in the present case, 

the work was not inherently dangerous. 

We conclude that plaintiff failed to present any facts which 

would create a genuine issue of material fact in regard to the 

liability of Big Horn. Accordingly, we affirm the District Court's 

grant of summary judgment in favor of Big Horn. 

Af f irmed. 

We Concur: 3' 

/'/;Lq-IL <- 

Chief Justice // 

SittF for Justice Sheehy 

Justice R. C. McDonough concurs in the result of the foregoing 

opinion. 

Justice , 
Justice William E. Hunt, Sr., concurring in part and dissenting in 

part: 

I concur with the portions of the Majority Opinion dealing 

with nondelegable duties based on contract and control. However, 

I dissent from the Majority's analysis regarding inherently 

dangerous activity. 

The Majority holds t.hat the use of an aerial lift bucket is 

not an inherently dangerous activity because standard precautions 

may be implemented to prevent the risks involved in using the 

bucket. However, for the reasons I pointed out in my dissents to 

Kemp v. Bechtel Constr. Co., 221 Mont. 519, 528-34, 720 P.2d 270, 

276-80 (1986) and Micheletto v. State, No. 89-452, slip op. at 23- 

24 (Mont. Sept. 14, 1990), I disagree. The ability to lessen the 

dangers normally found in inherently dangerous activity through the 

use of ordinary safeguards does not change the basic character of 

the activity. If the nature of the activity is inherently 

dangerous, it remains inherently dangerous whether or not standard 

precautions may be taken to lessen the dangers normal to the 

activity. 

Because the use of the aerial lift bucket constituted an 

inherently dangerous activity, defendant, as employer of the 

contracting firm, retained a nondelegable duty to furnish plaintiff 

with a safe place to work. Restatement (Second) of Torts §§ 416 

and 427 (1977). Plaintiff, in his complaint and in his deposition, 

maintained that defendant failed to provide a safe place to work 

because the aerial lift bucket was not equipped with standard 
safety devices to which he could attach his safety belt. By so 

alleging and testifying, plaintiff raised a material question of 

fact. He should be allowed to take his case to the jury. 

I would reverse the District Court/on this issue. 

Justice