No. 90-589 IN THE SUPREME COURT OF THE STATE OF MONTANA

DEBRA NAVE, Personal Representative of the Estate of Larry E. Nave, Jr., Deceased; and DEBRA NAVE, Surviving Spouse; and BEAU D. NAVE, Surviving Son, through DEBRA NAVE, Conservator, Plaintiffs and Appellants,
-vsHARLAN JONES DRILLING and COP CONSTRUCTION CO., a Montana Corporation, Defendants and Respondents.

APPEAL FROM: District Court of the Sixteenth Judicial District, In and for the County of Powder River, The Honorable Kenneth R. Wilson, Judge presiding.

COUNSEL OF RECORD: For Appellants: Lloyd E. Hartford, Attorney at Law, Billings, Montana. For Respondents: Michael Heringer, Anderson, Brown, Gerbase, Cebull, Fulton, Harman & Ross, Billings, Montana.

Filed: Submitted on Briefs: June 7, 1991 Decided: February 20, 1992

t Clerk~ustice Terry N. Trieweiler delivered the opinion of the Court. Larry Nave, Jr.

### , a construction worker, was employed on a highway construction projectnear Broadus,Montana. He was injured when the crank of a water pump struck him in the face. Nave sued the supplier of the pump (HarlanJones Drilling) and the general contractor on the constructionproject (COPconstruction Co.). In 1989,Nave committed suicide. Hiswife and son were substitutedas plaintiffs. Before trial, the District Court for the Sixteenth Judicial ~istrict, Powder River County, granted COP Construction's motion for summary judgment on the basis that the general contractorhad
no duty to ensure the safety of the workplace for the employee of
a subcontractor. The Naves have appealed from the summary judgment. We reverse. The issuepresented in this appeal iswhether under the terms of its contract COP Constructionhad anondelegableduty,extending to the employee of a subcontractor,tomaintain a safeworkplace on its construction project. Respondent COP Constructionwas the general contractor for a federal aid highway and bridge construction project on Highway 212
near Broadus,Montana. The State of Montana contracted with COP construction to complete most of the project in the spring and
summer of 1985. COP Construction, in turn, subcontracted a major portion of the contract to Byron Construction. Byron Constructioncontracted tomove the earth and build the roads to the new bridge crossing the Powder River. Larry Nave, Jr., was an employee of Byron Construction. Nave
was hired to drive a water wagon on the project. Water was needed
on the job site for dust control and compaction of the foundation of the road. Thiswater was pumped from the Powder River. Harlan Jones Drilling supplied the water pump to Byron Construction. On themorning of July 15, 1985,Nave suffered facialand head injuries. Apparentlyhewas attempting to start the engine on the water pump with a hand crank starter. The pump "kicked back1'and the hand crank struck him in the face. In 1988,Nave filed a complaint against Harlan Jones Drilling and COPConstruction seeking damages forhismedical expenses, lost earnings, and pain and suffering. Nave claimed accrued medical expenses, as of July 1988, of $9134. In August 1989, Nave committed suicide. Debra Nave, his surviving spouse, and Beau Nave, his son, were substituted as plaintiffs. TheNaves filed an amended complaint which included a cause of action for wrongful death. They alleged that Larry Nave suffered back and neck pain from his injuries which continued to increase in severityup to the time of his death, that he suffered from blackout spells caused by his injuries, and that he became depressed and abused alcohol in attempting to deal with his physical ailments. They alleged that these problems were partly responsible for Navels death by suicide.In August 1990, COP Construction filed a motion for summary judgment. COP Constructionargued,among other things, that ithad
no duty to inspect the subcontractorlsequipment and no duty to
ensure safety in the workplace for the subcontractorlsemployees. On October 31, 1990, the District Court granted COP Constructionlsmotion for summary judgment. The District Court concluded that COP Constructiondid not have the duty to ensure a safe workplace forthe subcontractorls employees,and thereforewas not liable for the injuries Nave suffered. The Naves have appealed from this decision. Did COP Construction have a nondelegable duty, extending to the employee of a subcontractor, to maintain the safety of the workplace on its constructionproject? The Naves contend that COP Construction had a nondelegable duty,extending to the employee of a subcontractor,tomaintain the safety of the workplace on its constructionproject. We agree. The outcome in this case is controlled by our decision in Stepanek v. Kober Construction (1981), 191 Mont. 430, 625 P.2d 51. Pursuant to that decision,COP Constructionhad a contractual duty toprovide for the safety of all employees at thework site,and it cannot delegate thatduty to its subcontractor,Byron construction. In Stepanek, the County of Yellowstone contracted with Kober construction to build a recreational facility in Billings. Kober construction subcontractedwith Albert 

### D. Wardell Masonry for the completionof themasonry work on theproject. Stepanek, employedby the subcontractor, was injured when he fell from the subcontractorlsscaffolding. After Stepanek filed an action against Kober Construction, the district court granted summary judgment in favor of the general contractor. On appeal, this Court noted that I1[t]he primary contract between the general contractor and Yellowstone County required the general contractor tobe 'responsible for initiating,maintaining, and supervising all safety precautions and programs*** on the constructionproject. Stepanek, 625 P.2d at 52. This Court further noted that it had previously held that similar contractual arrangements resulted in the creation of a nondelegable duty. Stepanek, 625P.2d at 53 (citingUlmen

### v. Schwieger (1932)

## , 92Mont. 331, 12 P.2d 856). This Court reviewed the important public policy concerns involved,includingpreventing accidents in theworkplace and protecting against the economic costs of injuries. We concluded that the general contractor had a nondelegable duty to provide a safe working environment for the employees of subcontractors. Stepanek, 625 P.2d at 55. We also determined that the duties of the general contractor (llemployerlt) mandated by the Montana Safe Place Statute, 

### 5 50-71-201, MCA, are owed to the employees of a subcontractor if there is a nondelegable duty arising from the contract. Stepanek, 625 P.2d at 55 (citingShannotz

v.HowardS.WrightConstr.Co. (1979), 181Mont. 269, 593 P.2d 438).The District Court granted COP ~onstruction'smotion for summary judgment based on its determination that there was no provision in the primary contract expressly requiring COP Constructionto "initiate,maintain,or supervise safetyprograms." The District Court therefore concluded that a nondelegable duty, based on the contract, had not been created. We note, however, that COP Construction's contract with the State of Montana imposed the following nondelegable duty on the general contractor: VIII. SAFETY;ACCIDENT PREVENTION. In theperformance of this contract, the contractor shall comply with all applicable Federal,Stateand local laws governing safety, health and sanitation. 

### The contractor shall provide all safequards, safety devices and protective equipment and take any other needed actions, on his own responsibility, or as the State hiqhwav department contractins officer may determine, reasonably necessary to protect the life and health of employees on the job and the safety of thepublic and to protect property in connection with the performance of the work covered by the contract. It is a condition of this contract, and shall be made a condition of each subcontract entered into pursuant to this contract, that the contractor and any subcontractor shall not require any laborer or mechanic employed in performance of the contract to work in surroundings or under working conditions which are unsanitary, hazardous, or dangerous to his health or safety, as determined under construction safety and health standards (Title29,Code of FederalRegulations, Part 1926, formerly Part 1518, as revised from time to time), promulgated by the united States Secretary of Labor, in accordance with Section 107 of the Contract Work Hours and Safety Standards Act (83 Stat. 96).

[Emphasis added.] While the language is not identical to the language interpreted and applied in Stepanek, the obligation imposed by thelanguage in this contract is identical to the obligation found to exist in Stepanek. Because the duty imposed on COP Construction by its contract was nondelegable, COP Construction cannot avoid liability by attempting to shift the responsibility to someone else. Regardless of the obligations of Byron Construction or others, COP Construction retained the responsibility to provide Larry Nave with a safe place to work. Micheletto v. State (1990), 244 Mont. 483, 798 P. 2d 989, cited by COP Construction, is inapposite. InMicheletto, the contractbetween the State of Montana as general contractor and the Telephone Companyas subcontractordidnot contain language which established
a nondelegable duty requiring the general contractor to supervise the safety of the construction operations. 

### SeeMicheletto, 798 P.2d at 991-93. The language of COP Construction's contract with the State of Montana is in marked contrast with the contract language inMicheletto

# . We conclude that the District Court erred in granting summary judgment to COP ~onstruction. We reverse the District Court's decision and we remand this matter to the District Court for further proceedings consistent with this opinion.We concur:

chief Justice

JusticesJustice Fred J. Weber specially Concurs as follows: I agreewith themajority opinion which points out that under Ste~anek, the primary contract between the general contractor and Yellowstone County specificallyrequired the general contractor to be responsible for initiating, maintaining, and supervising all safety precautions and programs on theproject. As pointed out in the majority opinion, the key part of the COP Construction's contractwith the State of Montana imposed the following duty: VIII. SAFETY;ACCIDENT PREVENTION.



# . . .The contractor shall provide all safeguards, safety devices and protective equipment and take any otherneeded actionsonhis own responsibility,or as the State Highway Department contracting officer may determine, reasonablynecessary to protect the life and health of the employees on the job 

# . . . I agree that the above contract requirement is equivalent to the obligation found to exist in theSte~anek contract. Although it is difficult tounderstand how COP Constructioncouldbe found tohave failed to take any actionnecessary to reasonably protect Mr. Nave from the injury he received, I do concur in themajority opinion. 

### I find it important to suggest some of the contradictions which arepresent in this result. As stated inMichelettov. State

(1990), 244Mont. 483, 798 P.2d 989,and in earlier Montana cases, Montana follows the general rule that absent some form of control
over the subcontractor~smethod of operation, the general contractor is not liable for injuries to the subcontractor~s employees. While there is no indication in this case that COP Construction retained any control over the subcontractor with regard to work performed by Mr. Nave on the job, COP Construction may be held responsible. The result is that a general contractorunder this specific form of contract could be held responsible for any injury sufferedby an employee of a subcontractor. Inorder to protect himself, this suggests that a general contractor would be required to take all the stepsnecessary toprotect an employee of a subcontractor from injury. This further suggests that a general contractorwould be required to superviseeveryportion of thework performed by an employee of a subcontractor. Such supervisionon the part of the general contractor appears to make it totally impractical to use subcontractors. Our holding in this caseclearlydemandsconsideration of this problem by those who draft and participate in such construction contracts.

Chief Justice J. A. Turnage joins in the foregoing special concurrence.