No. 92-303 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1993 

EDWARD NICHOLS, JR., JULIA A. BRUMMEL, 

NICHOLE A. BRUMMEL, a Minor Child, and * 

JULIA A. BRUMMEL, as Mother and Natural 

Guardian of NICHOLE A. BRUMMEL, 

Plaintiffs and Appellants, 2 i .J 

-vDAVID CORNTASSEL and DAVID BALLOU, 

Defendants and Respondents. 

APPEAL FROM: District Court 

In and for the 

of the Fourth Judicial District, 

County of Missoula, 

The Honorable John S. Henson, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Arthur D. Agnellino, Missoula, Montana 

For Respondent: 

Dan Spoon, Missoula, Montana, for David Ballou; Paul 

Meismer, Missoula, Montana for David Corntassel 

Filed: 

Submitted: March 4, 1993 

Decided: May 6, 1993 
Justice Fred J. Weber delivered the Opinion of the Court. 

Plaintiffs appeal the summary judgment order of the District 

Court ofthe Fourth Judicial District, Missoula County, which ruled 

in favor of defendant David Ballou based on the "accepted work" 

doctrine of contractor nonliability. We reverse and remand to the 

District Court for reconsideration. 

The sole issue for review is whether the District Court erred 

in granting summary judgment to defendant Ballou. 

Appellants Edward Nichols, Jr., Julia A. Brummel and Nichole 

A. Brummel, by Julia A. Brummel as her Mother and Natural Guardian 

(plaintiffs) filed complaints alleging that they suffered carbon 

monoxide poisoning while residing in a rental property located in 

Missoula, Montana. The amended complaint alleged numerous claims 

against several defendants. Plaintiffs have settled their claims 

with and stipulated to dismiss defendants John Schubert, Cole 

MacPherson, Don Beaver Heating and Air Conditioning and Thomas 

Plumbing and Heating. Claims against two defendants remain. 

Plaintiffs' claim against defendant David Corntassel is rooted in 

the Montana Residential Landlord and Tenant Act and is not a part 

of this appeal. This appeal relates solely to the District Court's 

summary judgment dismissal of plaintiffs8 claim against defendant 

David Ballou (Ballou), a Missoula heating and air conditioning 

contractor and owner of Ballou Heating and Air Conditioning. 

In their Second Amended Complaint, plaintiffs alleged the 

following: In 1988, plaintiffs rented a residence located at 2120 

South 14th Street in Missoula owned by David Corntassel. 

2 
Corntassel had purchased the residence in 1986 from John Schubert. 

To meet FHA financing requirements, Schubert raised the foundation 

of the house approximately two feet. When this was done, the vent 

pipes from the furnace had to be modified accordingly. Schubert 

contracted with Ballou to perform the modifications to the furnace 

exhaust system. Ballou performed the work in July or August of 

1986. In April 1988, shortly after plaintiffs moved into the 

house, the exhaust vent pipe leading from the furnace to the 

chimney separated because the vent had never been securely fastened 

by Ballou. 

Plaintiffs alleged that when the vent pipe separated, carbon 

monoxide gas escaped, causing them to suffer carbon monoxide 

poisoning. They further alleged that Ballou negligently 

reconnected the furnace exhaust vent in the residence. 

In his Answer, Ballou denied plaintiffs allegations except as 

follows: He admitted that Schubert was the owner of the premises 

at the time that Ballou Heating and Air Conditioning performed the 

work. He admitted that he was in the business of installing and 

repairing heating and air conditioning systems. He also admitted 

that there are city and county codes relating to the installation 

of furnaces. 

Did the District Court err in granting summary judgment in 

favor of Ballou? 

The District Court determined that sufficient facts were 

presented to grant summary judgment to Ballou on the basis of the 

"accepted workw doctrine as an affirmative defense. The "accepted 
worktt doctrine is a rule of contractor nonliability most recently 

approved by this Court in Harrington v. LaBellef s of Colo. Inc. 

(1988), 235 Mont. 80, 765 P.2d 732. -- See also Olson v. Kayser 

(l973), 161 Mont. 241, 505 P.2d 394; Hannifin v. Cahill-Mooney 

Constr. Co. (1972), 159 Mont. 413, 498 P.2d 1214; and Ulman v. 

Schwieger (1932), 92 Mont. 331, 12 P.2d 856. 

Under the "accepted work" doctrine, the contractor owes no 

duty to a third party who is subsequently injured on the premises. 

The property owner (contractee) is substituted for the contractor 

as the responsible party when the work is accepted. Harrinaton, 

765 P.2d at 734. The primary rationale is that the injured person 

is not in privity of contract with the contractor. Under the 

doctrine, Schubert, as the owner who employed Ballou, would become 

the responsible party after he accepted the work done by Ballou to 

reconnect the exhaust vent, if all five elements of the "accepted 

work" doctrine were met. 

Contractornonliabilityprinciples initiallyparallelledthose 

of product liability. Product liability law, unlike its 

counterpart, has changed significantly over the years as 

exemplified by the landmark case MacPherson v. Buick Motor Co. 

(N.Y. App. 1916), 111 N.E. 1050. MacPherson initiated a shift in 

product liability law subjecting manufacturers or suppliers to 

liability for negligence. Annotation, Nealiaence of buildins or 

construction contractor as around of liability upon his part for 

iniurv or damaae to third person occurrina after completion and 

acceptance of the work. 58 A. L.R. 2d 865, 869-70. The general rule 
of nonliability for contractors did not experience a similar 

metamorphosis. However, a gradual trend away from nonliability for 

negligence developed around a group of exceptions to the general 

rule instead of an outright repudiation of the "accepted workw 

doctrine in those jurisdictions which had previously adopted the 

doctrine. Strakos v. Gehring (Tex. 1962), 360 S.W.2d 787, 790. 

One of the numerous exceptions which evolved is the "latent defect" 

exception which plaintiffs urge this Court to adopt. 

Authors of the Restatement (Second) of Torts at 5 385 

recommended that contractors should be placed on the same footing 

as manufacturers for negligence liability. 58 A.L.R.2d at 871. In 

Strakos, the court completely overruled its prior ruling which had 

approved the "accepted workw doctrine, noting that the effect of 

the decision was to bring the defendant within general rules of 

tort litigation, restoring logic and simplicity to the law. 

Strakos, 360 S.W.2d at 790-91. 

A number of courts have expressed dissatisfaction with the 

rule, favoring a more direct approach such as that of the Texas 

court in Strakos. 13 Am. Jur. 2d Buildina and Construction 

Contracts 5 140 (1964). Instead of applyingthe nonliability rule, 

these courts have established a rule that a contractor is liable 

for injuries to or death of third persons after acceptance by the 

contractee where the work is reasonably certain to endanger third 

persons if negligently completed. - Id. This view adopts a 

rationale that there are no sufficient grounds to differentiate 

between liability of a manufacturer of goods and that of a building 
or construction contractor. Id. The building contractor's 

liability under this reasoning is not absolute, but predicated upon 

negligence. Thus, a contractor following plans or specifications 

given to him will not be liable if a reasonable person would have 

followed them, Id. See, e.s., Menendez v. Paddock Pool Constr. 

Co. (Ariz. App, lggl), 836 P. 2d 968 (nonliability rule applies only 

when contractor has no discretion and is merely following plans and 

specifications provided by the employer) ; and Hanna v. Fletcher 

(D.C.Cir, 19561, 231 F.2d 469 (the leading case rejecting the 

"accepted workw doctrine). 

In this appeal, plaintiffs have asked this Court to review the 

'*accepted work" doctrine and consider whether it is appropriate to 

continue to blindly exempt contractors from liability when the 

elements of the doctrine are present. They do not argue that this 

Court should follow the example of the many jurisdictions which 

have completely abandoned the doctrine as this Court has already 

done for products liability actions against manufacturers and 

others previously exempt from liability. See Brandenburger v. 

Toyota Motor Sales, U. S. A., Inc. (1973), 162 Mont. 506, 513 P.2d 

268. Instead, they urge us to adopt the Iflatent defect" exception 

to the doctrine and argue that the facts of this case clearly 

demonstrate that a latent defect existed when Ballou performed the 

work and turned it over to Schubert some twenty months prior to 

their injury. 

Based on the arguments presented in the briefs, the court 

concluded that it was appropriate to consider the lVaccepted workw 
doctrine and the possible application of the "latent defect" 

exception to that doctrine. Both parties' briefs before this Court 

indicated there were no genuine issues of fact relating to the five 

elements of the 'Iaccepted work" doctrine. Argument was presented 

on that theory. 

This Court has now made a careful review of the entire record 

before the District Court. The record, as submitted to this Court, 

contains no affidavits of any kind, no depositions, no 

interrogatories, and no separate admissions which could be 

considered. The Clerk of the District Court verified that its 

entire record had been submitted to this Court for the appeal. As 

previously pointed out, the defendant Ballou has denied, generally 

and specifically, all of the allegations on the part of the 

plaintiff in the amended complaint with the exception only of an 

admission that Schubert owned the premises at the time when Ballou 

performed work, that Ballou was in the business of repairing 

heating and air conditioning systems and that there are city and 

county codes. As a result, the pleadings themselves fail to 

establish any facts pertinent to the issues before this Court. 

As the party moving for summary judgment, Ballou was required 

to comply with the provisions of Rule 56(c), M.R.Civ.P., which in 

pertinent part provides: 

Motion and proceedings thereon. . . . The judgment 

sought shall be rendered forthwith if the pleadings, 

depositions, answers to interrogatories, and admissions 

on file, together with the affidavits, if any, show 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. . . . 
Rule 56(c) has been the subject of many cases decided by this 

Court. In the great majority of cases, the question raised is 

whether or not the party opposing summary judgment has properly 

submitted facts to demonstrate an issue of material fact. Parties 

continue to argue that facts alleged in the pleadings must be 

accepted as correct. In such cases, we have held as follows: 

. . . Drug Fair argues that the facts alleged in its 

complaint must be accepted as correct. That is not 

correct. As pointed out in Mayer Brothers v. Daniel 

Richard Jewelers, Inc. (1986), [223 Mont. 3971, 726 P.2d 

815, a party opposing a motion for summary judgment may 

not rest upon the mere allegations of pleadings, and has 

an affirmative duty to respond by affidavits or sworn 

testimony with specific facts that show there is genuine 

issue of fact for trial. . . . 

Drug Fair Northwest v. Hooper Enters., Inc. (1987), 226 Mont. 31, 

The essential question here, however, is whether or not 

defendant Ballou has submitted sufficient facts to trigger the 

court's consideration under Rule 56(c), M.R.Civ.P. In describing 

the cases where a summary judgment is proper, this Court stated in 

Gamble Robinson Co. v. Carousel Properties (1984), 212 Mont. 305, 

688 P.2d 283, 286-87, as follows: 

Summary judgment is not a substitute for trial. . . . Rule 56 (c) , M0nt.R.Civ.P. permits summary judgment to 

issue only when there is no genuine issue of material 

fact, and the moving party is entitled to the judgment as 

a matter of law. . . . In Cereck v. Albertson's, Inc. 

(1981), 195 Mont. 409, 637 P.2d 509, we stated the test 

for granting summary judgment: 

"It is well established that a party moving 

for summary judgment has the burden of showing 

a complete absence of any genuine issue as to 

all facts deemed material in light of the 

substantive principles that entitle that party 

to a judgment as a matter of law. [Citations 
omitted.] All reasonable inferences that may 

be drawn from the offered proof are to be 

drawn in favor of the party opposing summary 

judgment. [Citations omitted. ] 

The moving party Is initial burden is two-fold. First, it 

must show the absence of any genuine issue as to material 

fact. Second, that partv must also show that this set of 

facts entitles it to the iudcnnent as a matter of law. 

This necessarily implies the articulation of cosent lesal 

srounds to which the facts apply. (Emphasis supplied.) 

(Citations omitted.) 

The foregoing is the test which must be applied in the present 

case. 

As pointed out above in Gamble Robinson, it was the burden of 

defendant Ballou here to first show the absence of any genuine 

issue of material fact, and second, to show that this set of facts 

entitled Ballou to judgment as a matter of law. Both defendant 

Ballou and plaintiffs have failedto establish facts which entitled 

any of them to judgment as a matter of law. As noted, the 

pleadings fail to establish as matters of fact the key facts 

regarding the furnace, furnace pipe, separation of the pipe, and 

resultant injury. The parties do make reference in their briefs to 

various depositions, but none of those depositions are a part of 

the record before us. We conclude that defendant Ballou has 

completely failed to set forth a set of facts which entitle him to 

judgment as a matter of law. We also emphasize that plaintiffs in 

turn have failed to set forth facts which entitle them to judgment 

as a matter of law. As a result, we hold that defendant Ballou as 

the moving party has failed to establish a set of facts which 

entitled him to judgment as a matter of law under Rule 56(c), 
We, therefore, hold that the District Court erred in granting 

summary judgment to defendant Ballou. We remand this case for 

further consideration in a manner consistent with this opinion. 

Reversed and remanded. 

- 

We Concur: 

Justices 
Justice Terry N. Trieweiler concurring in part and dissenting in 

part. 

I concur with the decision of the majority to reverse the 

judgment of the District Court. However, I would do so for reasons 

different from those of the majority. 

I would reverse the judgment of the District Court because it 

was based on the "accepted work doctrinew which I conclude should 

no longer be followed in Montana. 

I disagree that there is an inadequate record on which to base 

a decision whether to follow this antiquated theory, and believe 

that it is a disservice to the parties and to the District Court to 

require that they jump through further hoops before addressing the 

legal issue raised by this appeal. 

In Haniizgton v. LaBe~lelsof Colorado (1988), 235 Mont. 80, 765 P.2d 

732, this Court held in a five to two decision that it would 

continue to follow the accepted work doctrine first adopted in 

Montana in me?z v. Schwieger (19321, 92 Mont. 331, 12 P.2d 856. 

However, two members of the five person majority are no longer 

members of this Court, and I did not participate in that decision. 

However, 3 agree with the dissenting opinion in that case which was 

authored by Mr. Justice Weber and concurred in by Mr. Justice Hunt. 

The issue of whether the accepted work doctrine bars recovery 

by the plaintiff against the defendant Ballou has been squarely 

framed by the pleadings in this case, by the testimony of the 

parties, and by the stipulations of the parties, as presented in 
their appellate briefs. It makes no sense to consume further time 

and expense of the parties and waste valuable time and resources of 

the District Court to add unnecessary information to the record 

before indicating how the seventh member of this Court would vote 

on the issue of retaining the "accepted work doctrine." 

While it is correct that the record is inadequate for purposes 

of determining whether this is an appropriate case in which to 

apply a "latent defectw exception to the doctrine, it is 

unnecessary to consider the latent defect exception if this Court 

decides to no longer follow the accepted work doctrine. 

I agree with the Circuit Court of Appeals for the District of 

Columbia when it held in Haizna v. Fletcher (D. C. Cir. 1956) , 231 F, 2d 

469, that the antiquated reasons for the accepted work doctrine 

based on lack of privity have no place in modern theories of 

liability, as set forth in MacPherson v. BuickMotorCompany (1916), 217 

N.Y. 382, 111 N.E. 1050. 

I agree with the Supreme Court for the State of Texas when it 

held in Strakos v. Gehring (Tex. 1962), 360 S.W.2d 787, 791, that 

elimination of the accepted work doctrine would restore logic and 

simplicity to the law of liability. 

The accepted work doctrine can only accomplish one of two 

undesirable results. It either shifts liability from the negligent 

party to an innocent property owner who, in most cases, has 

insufficient expertise with which to discover defects, or 

eliminates liability on the part af anyone. In that event, it 
shifts the burden of a negligent party's conduct to the innocent 

victim. Neither of these results are desirable in light of modern 

theories of liability, and this Court should say so. 

The majority avoids discussing the legal issues raised in this 

appeal by concluding that both plaintiffs and defendant Ballou have 

failed to provide this Court with facts which would entitle them to 

judgment as a matter of law. However, I disagree. The parties 

have stipulated to an adequate factual record on which to review 

the issue of whether this Court will. continue to follow the 

accepted work doctrine. 

In Harnhgton, we indicated that five factors were critical in 

our application of the accepted work doctrine in that case. They 

were: 

1. That the work had been turned over to the owner; 

2. That the owner had accepted the work; 

3. That upon completion the owner paid the contractor; 

4. That the contractor completely removed itself from the 

premises prior to the accident; and 

5. That there was no follow-up work or any complaints about 

the contractor's work. 

In his appellate brief, Ballou points out that there was 

deposition testimony from the defendant and from John Schubert, the 

former owner of the premises, establishing each of these five 

elements. He includes references to the pages in those depositions 

at which point those elements were established. While it is true 

that the depositions have not been filed with this Court on appeal, 

13 
their absence is insignificant because in their reply brief, 

plaintiffs concede that all five elements have been established. 

They specifically state that: 

Appellants do not dispute criteria 1 through 4, 

however, addressing separately criteria 5, Appellants 

state that although there was not follow up work 

performed by Respondent Ballou, there was no other person 

in the 20-month period from the time Respondent completed 

his work until the Appellants1 injuries occurred, who 

worked on the unit. 

In other words, the parties stipulate that all five criteria 

which were found necessary in Harriqtan for the application of the 

accepted work doctrine are present in this case. 

To remand this case to the District Court for further factual 

development and to supplement the record without indicating to the 

parties and to the ~istrict Court how the seventh member of this 

Court would vote on the issue of retaining the I1accepted work 

doctrinetv is a complete waste of everyone's time and money. It is 

because of unnecessary academic exercises like this that people 

become frustrated with the judicial process. For these reasons, I 

dissent from that part of the majority opinion which suggests that 

further factual development is necessary before we can address the 

dispositive issue in this case. I would decline to follow the 

accepted work doctrine, and therefore, I would reverse the ~istrict 

Court's summary judgment on that basis. 
~ustice William E. Hunt, Sr., joins in the foregoing 

concurrence and dissent. 
May 6, 1993 

CERTIFICATE OF SERVICE 

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

named: 

Arthur D. Agnellino 

Attorney at Law 

200 East Pine 

Missoula, MT 59802 

Dan L. Spoon 

Reep, Spoon & Gordon 

P.O. Box 9019 

Missoula, MT 59807-9019 

Paul C. Meismer 

Garlington, Lohn & Robinson 

P.O. Box 7909 

Missoula, MT 59807 

ED SMITH 

CLERK OF THE SUPREME COURT 

STAW OF MONTANA