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 project near Broadus, Montana. He was injured 

when the crank of a water pump struck him in the face. Nave sued 

the supplier of the pump (Harlan Jones Drilling) and the general 

contractor on the construction project (COP construction Co.). In 

1989, Nave committed suicide. His wife and son were substituted as 

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 contractor had 

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 issue presented in this appeal is whether under the terms 

of its contract COP Construction had a nondelegable duty, extending 

to the employee of a subcontractor, to maintain a safe workplace on 

its construction project. 

Respondent COP Construction was 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 Construction 
contracted to move 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. This water was pumped from the Powder River. Harlan 

Jones Drilling supplied the water pump to Byron Construction. 

On the morning of July 15, 1985, Nave suffered facial and head 

injuries. Apparently he was 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 COP Construction seeking damages for his medical 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. The Naves 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 severity up 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 Construction argued, among other things, that it had 

no duty to inspect the subcontractorls equipment and no duty to 

ensure safety in the workplace for the subcontractorls employees. 

On October 31, 1990, the District Court granted COP 

Constructionls motion for summary judgment. The District Court 

concluded that COP Construction did not have the duty to ensure a 

safe workplace for the subcontractorls employees, and therefore was 

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 construction project? 

The Naves contend that COP Construction had a nondelegable 

duty, extending to the employee of a subcontractor, to maintain the 

safety of the workplace on its construction project. 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 Construction had a contractual duty 

to provide for the safety of all employees at the work site, and it 

cannot delegate that duty to its subcontractor, Byron construction. 

In Stepanek, the County of Yellowstone contracted with Kober 

construction to build a recreational facility in Billings. Kober 

construction subcontracted with Albert D. Wardell Masonry for the 

completion of the masonry work on the project. Stepanek, employed 
by the subcontractor, was injured when he fell from the 

subcontractorls scaffolding. 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 to be 'responsible for initiating, maintaining, 

and supervising all safety precautions and programs*** on the 

construction project. 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, 625 P. 2d at 53 (citing Ulmen v. Schwieger (1932) , 92 Mont. 331, 

12 P.2d 856). This Court reviewed the important public policy 

concerns involved, including preventing accidents in the workplace 

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 (citing Shannotz 

v. HowardS. Wright Constr. Co. (1979), 181 Mont. 269, 593 P.2d 438). 
The District Court granted COP ~onstruction's motion for 

summary judgment based on its determination that there was no 

provision in the primary contract expressly requiring COP 

Construction to "initiate, maintain, or supervise safety programs." 

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 the performance of this contract, the contractor 

shall comply with all applicable Federal, State and 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 the public 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 (Title 29, Code of Federal Regulations, 

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 the 
language 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. In Micheletto, the contract between 

the State of Montana as general contractor and the Telephone 

Company as subcontractor did not contain language which established 

a nondelegable duty requiring the general contractor to supervise 

the safety of the construction operations. See Micheletto, 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 

in Micheletto . 

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 

Justices 
Justice Fred J. Weber specially Concurs as follows: 

I agree with the majority opinion which points out that under 

Ste~anek, the primary contract between the general contractor and 

Yellowstone County specifically required the general contractor to 

be responsible for initiating, maintaining, and supervising all 

safety precautions and programs on the project. As pointed out in 

the majority opinion, the key part of the COP Construction's 

contract with 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 

other needed actions on his own responsibility, or as the 

State Highway Department contracting officer may 

determine, reasonably necessary 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 the Ste~anek contract. Although it is 

difficult to understand how COP Construction could be found to have 

failed to take any action necessary to reasonably protect Mr. Nave 

from the injury he received, I do concur in the majority opinion. 

I find it important to suggest some of the contradictions 

which are present in this result. As stated in Micheletto v. State 

(1990), 244 Mont. 483, 798 P.2d 989, and in earlier Montana cases, 

Montana follows the general rule that absent some form of control 

over the subcontractor~s method 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 contractor 
under this specific form of contract could be held responsible for 

any injury suffered by an employee of a subcontractor. In order to 

protect himself, this suggests that a general contractor would be 

required to take all the steps necessary to protect an employee of 

a subcontractor from injury. This further suggests that a general 

contractor would be required to supervise every portion of the work 

performed by an employee of a subcontractor. Such supervision on 

the part of the general contractor appears to make it totally 

impractical to use subcontractors. 

Our holding in this case clearly demands consideration of this 

problem by those who draft and participate in such construction 

contracts. 

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

concurrence.