No. 82-98 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1984 

JOHANN J. PIYDLARZ , 

Plaintiff and Appellant, 

PAL~R/DUTJCAN CONSTRUCTION COMPANY 

AND RICE MOTORS, 

Defendants and Respondents. 

APPEAL FROM: ~istrict Court of the Eighth Judicial ~istrict, 

In and for the County of Cascade, 

The Honorable Joel G. Roth, Presiding 

COUNSEL OF RECORD: 

For Appellant: 

Jardine, Stephenson, Blewett & Weaver; Curtis G. 

Thompson and Alexander Blewett I11 argued, 

Great Falls, Montana 

For Respondents: 

Smith, Baillie & Walsh; Dennis Clarke and William 

Baillie argued for Respondents Palmer/Duncan, Great 

Falls, Montana 

Cure & Borer; Edward W. Borer argued for Respondent 

Rice Motors, Great Falls, Montana 

Filed: 

Submitted: January 10, 1984 

~ecided: April 30, 1934 

.- 

Clerk 
Mr. Chief Justice Frank I. Haswell delivered the Opinion of 

the Court. 

Johann J. Mydlarz a.ppeals a Cascade County District 

Court judgment, based upon the jur~'s special verdict, in 

favor of Palmer/Duncan Construction (respondent) and Rice 

Motors (respondent) in an action to recover damages for 

injuries he received in a fall from a ladder at the construction site of a new Rice Motors building. We reverse and 

remand for a new trial. 

Rice Motors, an automobile dealership, let bids and 

awarded contracts for building a new saies facility in Great 

Falls, Montana. Rice awarded a substantial portion of the 

contract to Palmer/Duncan. It awarded electrical, mechanical-, 

plumbing and installation of the sprinkler system to several 

other contractors. Palmer/Duncan, as the general contra.ctor, 

subcontracted the painting to Don Bidwe1.1, Mydlarz's 

employer. 

Pursuant to specific instructions from Rice, Bidwell's 

employees covered the overhead sprinkler nozzles prior to 

painting the ceiling. They used scaffolding owned by the 

electrical subcontractor when they covered the nozzles and 

painted the ceiling. It is important to note tha.t Rice 

contracted independently to have the sprinkler system installed. It was not part of the Rice-Palmer/Duncan contract 

and, thus, not part of the Palmer/Duncan-Bidwell subcontract. 

The painting of the sprinkler pipes was independent of the 

installation contract. 

Palmer/Duncan allowed use of its scaffolding during 

construction of the building but removed a.11 of its scaffolding before July 29, 1977. On August 3, 1977, Palmer/Duncan 
received a certificate of substantial completion and none of 

its employees were at the site after that date. 

After the painting was completed, Bjdwell apparently 

ordered an employee, Ron Lins, to remove the coverings from 

the sprinkler nozzles. Lins arrived at Rice Motors on July 

29, 1977, and found no scaffolding was available. He used a 

ladder that was present at the work site to remove the nozzle 

covers. The ladder was leaned against the sprinkler pipes 

and sI-ipped when Lins was on it. He fell and sustained 

injuries. 

On August 1, 1977, Mydlarz was ordered by Bidwell to 

compl-ete the removal of the nozzle covers. The scaffolding 

owned by the electrical subcontractor was in use; the scaffolding owned by Palmer/Duncan had been removed. Bidwell 

directed Mydlarz to use a ladder to remove the covers. 

Mydlarz removed several nozzle covers near the horizontal east-west sprinkler pipe before removing the fifth or 

sixth covering at a narrower point in the pipe. While removing the covering, Mydlarz fell from the sixteen-foot ladder. 

As a result of this fall he sustained serious knee and elbow 

injuries and was unable to work. 

The sprinkler pipes moved under pressure from the 

ladder. They had a lateral movement of five inches and a 

vertical movement of two inches before resting against concrete beams. 

Mydlarz was given specific instructions by Bidwell how 

to place the ladder, i.e., if the ladder was placed several 

inches above the pipe, the lateral-vertical movement of the 

pipe would not cause the ladder to fall. Before Mydlarz 

fell, Peter Rice of Rice Motors attempted. to contact Bidwell 

or Palmer to request scaffolding for Mydlarz but was unable 
to reach them in time. After the accident, Bidwell removed 

the nozzle covers with the use of a ladder. Peter Rice 

testified he climbed the same ladder at the point where 

My6larz fell with no difficulty. Evidence was presented 

showing Mydlarz had placed the ].adder only one inch above the 

pipe. 

Under the Rice-Palmer/Duncan contract, ~almer/~uncan 

was responsible for scaffolding: 

"Temporary Scaffolds, Staging and Safety 

Devices. 

"Provide, erect, maintain all scaffold.- 

ing staging, platforms, temporary floor- . ing, guards, ra.ilings, sta.irs, etc., as 

required by local and state codes or laws, 

for the protection of workmen and the 

public. The construction, inspection and 

maintenance of the above items shall 

comply with all safety codes a.nd regulations as applicable to the project." 

The contract further provided that Palmer/Duncan woul-d 

he responsible for the safety of all workmen: 

"PROTECTION - OF PERSONS AND PROPERTY 

"10.1 SAFETY PRECAUTIONS AND PROGRAMS 

10.1.1. The contractor sha.11 be responsible for initiating, maintaining and 

supervising all safety precautions and 

programs in connection with the work." 

In a.ddition, this contract provided that Palmer/~uncan would 

be specifically responsible for the safety of all workmen and 

property on the project: 

"The contractor shall take all reasonable 

precautions for the safety of, and shall 

provide all reasonable protection to 

prevent damage, injury or loss to: 

" .1 All employees on the work and al-L 

other persons who may be affected 

thereby; 

".2 All the work materials and equipment 

to be incorpora-ted therein, whether in 

storage on or off the site, under the 

care, custody or control of the contrac- 
tor or any of his subcontractors or 

sub-subcontractors; and 

".3 Other property at the site or adjacent thereto, including trees, shrubs, 

lawns, walks, pavements, roadways, structures and utilities not designated for 

removal, relocation, or replacement in 

the course of construction." 

Under the contract PalmerlDuncan was to protect work 

and materials by suitable covering while paintins was in 

progress. Rice retained the right to perform cleanup work. 

Before trial Mydlarz filed two motions - in limine to 

prevent respondents from introducing evidence of workers1 

compensation benefits he received from the accident and a 

prior fall. This evidence was admitted, but the trial court 

instructed the jury not to use the evidence of workers1 

compensation benefits to reduce any damages awarded Mydlarz. 

The court allowed the jury to consider evidence of Mydlarz's 

drinking problem. 

Mydlarz attempted to introduce evidence tha-t would show 

grounds for the workers1 compensation benefits and that he 

would have to pay the state fund its subrogation interest 

from any recovery in the lawsuit. This evidence was 

excluded. 

By special verdict, the jury found that neither 

Palmer/Duncan nor Rice had breached a duty to provide scaffolding to Mydlarz, thus finding that the Scaffolding Act had 

no application. The jury also found that neither respondent 

was negligent in failing to provide a safe place to work or 

safe equipment to Mydlarz. Finally, the jury found that 

Mydlarz was 100 percent contributorily negligent and such 

negligence was the proximate cause of his injuries. Based 

upon the special verd-ict, judgment was entered against 
Mydlarz from which he appeals. He asserts numerous issues 

for review: 

1. Does the Montana Scaffolding Act apply to the facts 

of this case? 

2. Did the District Court err by al-lowing evidence of 

Mydlarz's receipt of workers' compensation benefits? 

3. Did the District Court err by refusing to allow 

evidence explaining receipt of such benefits? 

4. Did the District Court err by allowing evidence of 

Mydlarz's alleged drinking problem? 

5. Did the District Court err by admitting evidence of 

a prior fall taken by Mydlarz on another project? 

6. Did the District Court err by excluding the opinion 

testimony of Mydlarz's fellow employee who had a similar 

accident? 

7. Did the District Court err by excluding evidence of 

Palmer/Duncanls offer to repay an outstandinq debt to a 

witness prior to giving his testimony? 

8. Did the District Court err by striking ~ydlarz's 

claim for punitive damages? 

9. Was it error to fail to instruct the jury that 

following the directions of an employer is not contributory 

negligence? 

10. Was Palmer/Duncan Construction Company negligent 

as a matter of law for removing scaffolding before completion 

of the project? 

11. Were instructions on OSHA viol-ations improperly 

refused? 

12. Did the District Court err in allowing certain 

costs and disbursements? 
Respondent Palmer/Duncan has raised two issues not . addressed by appellant. We will not consider such issues 

because Palmer/Duncan has not complied with Montana Rules of 

Appellate Civil Procedure; specifically, ~almer/~uncan has 

not perfected a cross-appeal. Although Rule 14, 

M.R.App.Civ.P., provides for review of matters by 

cross-assignment of errors, this does not eliminate the 

necessity for cross-appeal by a respondent who seeks review 

of matters separate and distinct from those sought to be 

reviewed by appellant. Johnson v. Tindall (Mont. 1981) , 635 

P.2d 266, 268, 38 St.Rep. 1763; Francisco v. Francisco 

(1948), 120 Mont. 468, 470, 191 P.2d 317, 319. 

We will first consider the applicability of Montana's 

Scaffolding Act. Mydlarz argues that the obligation to 

provide for the safety of all workers on a construction 

project mandates applicati-on of the Scaffolding Act. Liability falls on the entity who assumed that obligation, according to Mydlarz. 

Furthermore, Mydlarz asserts that the term "scaffoldinq" must include any device utilized to allow work in high 

places. The Act must he construed in light of evils it is 

intended to prevent. Since the Act was intended to increase 

safety in ultrahazardous work (i.e., work in high places from 

which a fall could cause death or injury), "scaffolding" 

should be any device that would protect a worker from that 

peril. 

Mydlarz alternatively argues that where the contractor 

or owner agrees to provide scaffolding and fails to do so, 

such failure constitutes a violation of the Scaffolding Act. 

Respondent Palmer/Duncan contends that it had not 

assumed full control of the project as Rtce Motors 
ind-ependently subcontracted with other entities for particular portions of the work. Second, absent some form of control over the subcontractor's method of operation, the 

general contractor is not liable for injuries to subcontractors' employees. Third, the Act only applies to those who 

have direct control of construction of a building with more 

than three floors. Here, the building had only one floor. 

Final-ly, the Act applies to scaffol-ding. This term must be 

construed according to its ordinary meaning. The appellant 

was using a ladder so the Act should not apply. 

Respondent Rice Motors asserts that the Act applies to 

scaffolding and the appellant was using a ladder. Thus, the 

Act should not apply. Further, the Illinois cases cited by 

appellant were decided under the Structural Work Act which 

includes "all mechanical contrivances" instead of scaffolding 

specifically, as in the Montana Scaffolding Act. Finally, 

the Act does not impose a duty to provide scaffolding, only a 

safe place to work. If that includes scaffoldj.ng, then the 

Act applies. In the case at bar, a safe place to work was 

provided; scaffolding was not needed for appellant to perform 

his duties. 

Applicability of the Scaffolding Act to the case at bar 

depends upon proper interpretation of the term "scaffolding" 

within the Act. The essence of the Act is codified in section 50-77-101, MCA: 

"Construction of scaffolds. All scaffolds erected Tn this state for use in 

the erection, repair, alteration, or 

removal of buildings shall be well and 

safely supported, of sufficient width, 

and properly secured so as to ensure the 

safety of persons working on them or 
passing under them or by them and to 

prevent them from falling or to prevent 

any material that may be used, placed, or 

deposited on them from falling." 

This Court has stated that the purpose of the Act is to 

"supplement the protection of the common law by providing 

criminal sanctions and imposing an absolute statutory duty 

upon the owners of real estate to protect workmen and others 

from the extraordinary hazards associated with scaffolds." 

Pollard v. Todd (1966), 148 Mont. 171, 179, 418 P.2d 869, 

873. 

A particular term in a statute must he construed according to the context and the approved usage of the language, but technical terms are to be construed according to 

their peculiar and appropriate meaning. Section 1-2-106, 

MCA. When construing a statute as a whole, the intent of the 

legislature should be pursued. Section 1-2-102, MCA. When 

read together, these two statutes require that determination 

of the meaning of a phrase' or word be made according to the 

purpose of the statute. Gannon v. Chicago, Milwaukee, St. 

Paul & Pac. Ry. Co. (1961), 22 I11.2d 305, 175 N.E.2d 785. 

Therefore, we must construe the term "scaffolding" in 

light of the purpose of the Act which is to protect workmen 

and others from the extraordinary hazards associated with 

scaffolds. Pollard, supra. These hazards include scaffolding work performed in high places where a fall could cause 

death or injury. Hence, liberal construction of the term is 

required to establish that scaffolding is any device which 

would reduce or eliminate the hazard the Act wa-s designed to 

avoid. Quinn v. L.B.C., Inc. (1981), 94 Ill.App.3d 660, 418 

N.E.2d 1011; Rocha v. State (1974), 45 A.D.2d 633, 360 
N.Y.S.2d 484; Bohnhoff v. Fischer (1914), 210 N.Y. 172, 104 

N.E. 130. 

Webster's New Twentieth Century Dictionary defines 

"scaffol.ding" as "a frame or structure for support in an 

elevated place . . . " 2nd Ed. at 1614 (1979). Addressing 

what constitutes scaffolding, American Jurisprudence 2d 

states: 

". . . courts have seldom permitted an 

employer to disclaim liability for his 

servant's injury when the accident occurred in connection with the use of any 

structure intended to provide footing - or 

support above the - ground or floor. On 

the other hand, when the injury is the 

result of the use hy the workman, for 

purposes of personal support, of a device 

which has not been constructed with the 

intention that it should be so used, the 

courts have been reluctant to hold that 

such devices are scaffolds. . . . " 53 

Am.Jur.2d Priaster and Servant, 5 207 at 

262. (Emphasis added.) 

An appellate court in Illinois has found that a temporary apparatus intended to provide footing above the ground 

floor for workmen is a sca.ffold and within the purview of its 

Scaffolding Act. Spiezio v. Commonwealth Edison Co. (1968) , 

91 111.App.2d 392, 235 N.E.2d 323; Frick v. O'Hare-Chicago 

Corp. (1966), 70 Ill.App.2d 303, 217 N.E.2d 552. The Illinois Scaffolding Act includes the phrase "all mechanical. 

contrivances" rather than "scaffolding" in Montana's Act. 

However, the purposes of the two acts are identical. 

In Rocha v. State, supra, the New York Supreme Court, 

Appellate Division, recognized that a scaffold is a temporary 

elevated working platform and its supporting structure, 

designed to support a workman in his work. Caddy v. 

~~terborough Rapid Transit Co. (1909), 195 N.Y. 415, 88 N.E. 
Other jurisdictions have recognized that an apparatus 

not technically scaffolding is contemplated by that state's 

scaffolding act: Hoult v. Kunhe-Simmons Go., Inc. (1978), 64 

Ill.App.3d 476, 381 N.E.2d 403 (steel columns from which 

employee was working may be considered "scaffolding" und-er 

structural work act); Evans v. NAB Construction Corp. (1981), 

80 A.D.2d 841, 436 N.Y.S.2d 774 (plank resting on structural 

steel and four-by-fours considered "scaffold" under state 

scaffolding act); Carpenter v. Burmeister (1925), 217 Mo.App. 

104, 273 S.W. 418 (sheathing hoards temporarily laid on floor 

joists inside building was scaffolding according to scaffolding act); Most v. Goebel Const. Co. (1918), 199 Mo.App. 336, 

203 S.W. 474 (platform supported by chains swinging from 

roof, the other end supported by poles running along side of 

buildings, is scaffold); Steel and Masonry Contracting Co. v. 

Reilly (2nd Cir. 1913), 210 F. 437 (plank laid loosely across 

permanent steel roof trusses having a slope of about one and 

one-half inches to the foot, is considered scaffolding under 

labor law of New York). See also, Spiezio, supra; Frick, 

supra; Ross v. Delaware L. and W.R. Co. (1921), 231 N.Y. 335, 

132 N.E. 108. 

We adopt the analysis of the appellate court in Illinois t.hat focuses on the nature of the device in question. 

N.E.2d 1011, the court said: 

"Undisputedly, a part of a permanent 

structure may itself constitute a 'scaffold' within the contemplation of the Act 

(Louis v. Barenfanger (1968), 39 111.2d 

445, 236 N.E.2d 724; Halberstadt v. 

Harris Trust & Savings Bank (1972), 7 

Ill.App.36 991, 289 N.E.2d 90.) In 

making-this determination, our inquiry is 

not limited -- to the identity -- of the object 

claimed --- to be a su~~ort or scaffold. but 

rather --- how it wasg Ttilized -- at 
time of the injury. (Kenworthy v. Young 

(1979) , IlI.App.3d 144, 26 Il1.Dec. 

593, 388 N.E.2d 217). . . ." 418 N.E.2d 

at 1014. (Emphasis added.) 

According to the authority discussed above, particularly the statutory construction mandated by the purpose of the 

Scaffolding Act, we find the term "scaffolding" includes not 

only a unique device constructed by steel tubing, planks or 

plywood, and nuts and bolts, but additionally any device 

utilized by workmen to allow them to work where a fall might 

result in serious injury. This would accomplish the purpose 

of the act stated in Pollard, supra. Following the Quinn 

analysis, we need not determine appli.cability of the Act 

exclusively by the identity of the device used but how such 

device was beinq u.tilized at the time of the injury. Mydlarz 

was using the ladder and the flexible sprinkler pipe as a 

substitute for regular scaffolding which was unavailable. 

This combination was used as a d.evice to raise him approximately sixteen feet to the ceiling of the building to remove 

sprinkler head coverings. This height is sufficient to cause 

serious injury as evidenced by Mydlarz's injuries due to the 

fall. 

It is important to note that in Pollard, supra, this 

Court found the Scaffolding Act applied even though the 

injury occurred from a ladder jack device, which is not 

scaffolding per se. Further, Pollard cited with approval 

Hall v. Paul Bunyan Lumber Co. (1960), 177 Cal..App. 2d 761, 2 

Cal.Rptr. 519, where the California Appeals Court, an intermediate court, applied the scaffolding act to a ca.se where an 

employee of a subcontractor was injured in a fall from a 

platform that was built on a pallet and attached to a 
"hyster." The platform was specifically built to raise 

materials and equipment, not workers. 

Respondent Palmer/Duncan contends that section 

50-77-102, MCA, limits the Act's applicability to the construction of a building with more than three floors. This 

statute requires temporary flooring in buildings under construction. It does not address the construction of scaffolding and therefore does not affect the application of section 

50-77-101, MCA. 

Thus the Scaffolding Act is applicable where Mydlarz 

used the 1-adder-pipe device as a substitute for scaffolding. 

There is an additional basis for holding that the Act applies 

to these facts. Arguably both defendants were actin9 as 

general contractors in control of the work area and had a 

nondelegable duty to furnish workers a safe place to work. 

Clearly in the present case there was a failure to provide 

adequate scaffolding. Without reaching the question of which 

party was immediately responsible for this failure, we do 

hold the failure invokes the Act's applicability. The breach 

of contractual obligations to provide scaffolding invokes the 

Scaffolding Act to the same extent that providing deficient 

scaffolding would. See Louis v. Rarenfanger (1968), 39 

111.2d 445, 236 N.E.2d 724. 

Finding the Act applies, we reverse and remand to the 

District Court to determine proximate cause and liability 

under rules set forth in State ex rel. Great Falls Nat'l Bank 

v. District Court (1969) , 154 Mont. 336, 463 P.2d 326. Upon 

remand certain questions must he ].eft to the province of the 

jury. Liability does not become fixed upon the showing of a 

scaffolding-associated injury. A directed verdict is inappropriate to decide if the Scaffolding Act was violated--that 
is, did t.he ladder-pipe device fail? A directed verdict is 

also inappropriate to determine whether the violation was the 

proximate cause of the injury. Pol-lard v. Todd, 148 Mont. at 

180, 418 P.2d at 873; Joki v. McBri.de (1967), 150 Mont. 378, 

386, 436 P.2d 78, 82. 

We next consider Mydlarz's evidentiary challenges. He 

contends that the District Court committed prejudicial error 

by admitting evidence of hi.s receipt of workers' compensation 

benefits. He argues that before such evidence Is allowed to 

show lack of incentive to return to work, actual. ma-lingering 

must be shown. 

Respondents assert that this evidence is admissible to 

show Nydlarz's la.ck of motive to return to work. Respondents 

point out that in his two best years, Mydlarz ma.de an average 

of $4,400 per year. However, he received approximately 

$60,000 in workers' compensation benefits. The court limited 

the instruction to the question of lack of motive by admonishing the jury not to use the evidence to reduce d-amages. 

This Court has specifically determined that in a personal injury action the prejudicial. impact of allowing a jury 

to receive evid-ence of plaintiff's pending workers' compensation claim vastly outweighs the proba.tive value of such 

evidence. All.ers v. Willis (Mont. 1982), 643 P.2d 592, 39 

St.Rep. 745. The Court ruled in Allers that evidence of the 

workers' compensation claim was clearly inad.missible, quoting 

the following passage from an annotation: 

"Generally, it has been held to constitute error, requiring a reversal or new 

trial, to bring to the jury's attention 

the fact that the plaintiff in a personal 

injury or death action is entitled to 
workmen's compensation benefits. The 

courts have reasoned that such information would tend to prejudice the jury and 

influence their verdict, either as to 

liability or damages, as such information 

is ordinarily immaterial and irrelevant." 

77 ALR2d at 1156. 

Admission of thi.s evidence was reversible error and 

requires a new trial. This holding renders Mydlarz's contention that the District Court erred by preventing him from 

presenting expl.anatory evidence moot. 

Mydlarz also argues that the District Court. erred in 

admitting evidence of an alleged drinking problem. He points 

out that there is no evidence that he was drinking at the 

time of the accident or that drinking was the cause of the 

accident. In fact, the first person. who rendered aid to 

Mydlarz after the accident testified. there was no indication 

that he had been drinking. 

Respondents contend that MydLarz "opened the door" for 

cross-examination on his drinking when he testified about it 

and this evidence is relevant to the cause of the accident. 

Mydlarz admitted that while on the ladder he "got the shakes 

and jumped off." Respondents contend that this indicates a 

drinking problem that is arguably a cause of the accident. 

There is nothing in the record indica.ting Mydlarz was 

drinking on or before the day of the accident. The evidence 

of a general drinking problem was unfairly prejudicial. Rule 

403, Mont.R.Evid., addresses prejudicial evidence. It reads: 

"Exclusion of relevant evidence on 

grounds - prsudice, confusion, or waste 

-- of ti-me. Although relevant, evidence may 

be excluded if its probative va.lue is 

substantially outweighred by the danger of 

unfair prejudice, confusi-on of the issues, or misleading the jury, or by 

consj.derations of undue delay, waste of 

time, or needless presentation of cumulative evidence." 
Evidence that Mydlarz might have been an alcoholic when 

the accident occurred may have some probative value regarding 

the cause of the accident. However, the indirect relevance 

of this evidence requires us to find that the probative value 

of the evidence is clearly outweighed by the prejudicial 

effect on Mydlarz. We find that the jury could have been 

misled by evidence indicating Mydlarz was an alcoholic and 

erroneously presume the accident was caused by such disease. 

Therefore, the evidence was inadmissible and its introduction 

constitutes reversible error. 

Mydlarz also contends that the District Court erred by 

admitting evidence of a prior fall he took on another progect. This evidence is irrelevant to the present action and 

prejudicial to Mydlarz. The fall occurred one and one-half 

months prior to the accident in question and under different 

circumstances. Furthermore, contributory negligence is 

foreclosed as a defense in an action for damages under the 

Scaffolding Act. Pollard v. Todd, supra. 

Respondents assert that Mydlarz opened the door for 

this testimony when he raised j.t on direct examination. We 

will not dismiss the challenge on this ground because Rice 

Motors initially mentioned the incident in its opening 

statement. 

We hold that this evidence was improperly admitted. 

Rule 406, Mont.R.Evid., allows evidence of habit which is 

defined as a regular response to a repeated specific situation. Rule 406(a), Mont.R.Evid. Moreover, evidence of habit 

may be proven by specific instances of conduct sufficient in 

number to warrant a finding that the habit existed or that 

the practice was routine. Rule 406(c), M0nt.R.Evi.d. In our 
view one instance of alleged carel.essness does not indicate 

habitual carelessness. 

Addl.itionally, this Court has held that evid.ence of 

prior accidents is inadmissible to prove negligence apart 

from the Scaffolding Act. Runkle v. Burlington Northern - 

(Mont. 1980), 613 P.2d 982, 986, 37 St.Rep. 995, 997. 

Mydlarz next asserts that the lay opinion of one Ron 

TAins was improperly excluded. Prior to Mydlarz's accident 

Lins performed the same job that caused Mydlarz's accident. 

Lins fell under the same circumstances and was injured. 

Mydlarz argues tha.t Lins's opinion concerning the safety of 

the device should have been allowed. 

Respondent Pal-mer/Duncan contends the testimony was 

properly excluded since it was an opinion on the ul-timate 

issue of the action. Further, Lins was never identified as 

an expert witness in interrogatories and would not. qualify as 

such. 

Respondent Rice Motors argues that since Lins did not 

perceive Mydlarz's accident, he could not give an opinion on 

it. 

We hold that Lins's opinion should have been admitted 

into evidence. Lay opinion is admissible pursuant to Rule 

701, M.ont.R.Evid. The opinion must be based on actual perceptions of the witness and. helpful to the jury to understand 

the facts in issue. State v. Fitzpatrick (Mont. 1980), 606 

P.2d 1343, 37 St.Rep. 1.94. In this case, Lins's opinion as a 

layman should have been allowed. His opinion of the safety 

of the workplace was based. on his perceptions from working 

the same job as Mydlarz. Further, his testimony would help 

the jury understand the conditions under which Mydlarz was 

working. Finally, the respondents' objections to Lins's 
testimony were generally based on the failure to meet the 

expert testimony requirements, and the court rejected the 

opinion on that basis. The question of lay opinion testimony 

was not addressed. 

Mydlarz further argues that the Court erred by refusing 

evidence regarding the repayment of a longstanding, possibly 

unacknowledged debt, by Palmer to one of Palmer's former 

employees. The witness would testify that once a subcontractor placed the protective covers on the sprinklers, the 

general contractor would ordinarily remove them. According 

to Mydlarz, Palmer/Duncan and its counsel did not like this 

testimony and on the evening prior to such testimony the 

offer to repay the old debt was made. 

Palmer/Duncan contends that this was simply the repayment of an old debt and unconnected to the testimony. 

We hold the testimony was properly excluded. While we 

recognize the circumstances surrounding the transaction were 

questionable, the record shows no more than repayment of a 

debt. Consequently, such evidence is irrelevant to the 

issues of the action and to the witness's testimony, and the 

District Court did not abuse its discretion by excluding it. 

Further, this evidence is not admissible to show bias 

or prejudice on the part of Palmer/~uncan for repaying the 

debt simply because the testimony was substantially unfavorah1 e to Pa lmer/Duncan. 

Mydlarz also contends that the District Court abused 

its discretion by granting respondents' motion for a directed 

verdict on punitive damages as there was sufficient evidence 

to get this issue to the jury. Prior to the accident another 

employee fell under the same circumstances. Further, 

Palmer/Duncan knew of this fall and still removed the 
scaffolding--arguably in violation of the law. Rice Motors 

also knew of this fall and the need for scaffolding but 

failed to remed-y the situation. This, Mydlarz contends, 

indicates a willful and wanton disregard for the safety of 

the workers and a violation of the law, thereby warranting 

punitive damages. 

Palmer/Duncan asserts that Mydlarz failed to produce 

evidence of Ron Lins's fall and the fact that something could 

have been done to prevent such an accident. Further, 

Palmer/Duncan employees were off the job when the prior 

accident happened. Finally, since the jury found no negliqence was committed by Palmer/Duncan, punitive damages could 

not be awarded. Therefore, no error occurred in striking the 

request. 

Rice Motors argues that there was no evidence that its 

employees saw Ron Lins fall off the ladder; thus, Rice Motors 

had no knowledge of the accident. 

We hold the District Court erred in striking the punitive damage claim. 

When deciding a motion for directed verdict by the 

defendants, the trial judge must view the evidence in a light 

most favorable to the plaintiff. Weber v. Blue Cross of 

Montana (Mont. 1982), 643 P.2d 198, 39 St.Rep. 245; Ferguson 

v. Town Pump, Inc. (1978), 177 Mont. 122, 580 P.2d 915. No 

case should be withdrawn from the iury if reasonable men may 

differ as to the conclusions drawn from the evidence. Weber, 

supra; Solich v. Hale (1967), 150 Mont. 358, 435 P.2d 883. 

Exemplary damages can be awarded pursuant to section 

27-1-221, MCA, which reads: 

"When exemplary damages allowed. In any 

actionfor a breach of an obligation not 

arising from contract where the defendant 
has been guilty of oppression, fraud, or 

mali-ce, actual or presumed, the jury, in 

addition to the actual damages, may give 

damages for the sake of example and by 

way of punishing the defendant." 

As stated in the above statute, the jury can award 

exemplary damages where the defendant has been found guilty 

of either actual or implied malice. Furthermore, implied 

malice may he shown by proof that a defendant engaged in a 

course of conduct knowing it to be harmful or unlawful. 

Lauman v. Lee (Mont. 1981), 626 P.2d 830, 38 St.Rep. 499; 

Ferguson v. Town Pump, Inc. f1978), 177 Mont. 122, 580 P.2d 

915, overruled on other grounds, Bohrer v. Clark (1978), 180 

Mont. 233, 590 P.2d 117. 

We find viewing the evidence in a liqht most favorahle 

Mydlarz reasonable men could differ as to whether or not 

either respondent was guilty of actual or implied malice. 

The issue of punitive damages should not have been taken from 

the jury. There is evidence in the record indicating that 

Palmer/Duncan removed the scaffolding before the painting 

work was complete. This may have been in violation of the 

law or the contract between Palmer/Duncan and Rice Motors. 

Further, Palmer/Duncan may have known that this conduct could 

cause harm to persons working on the ceiling since scaffolding was used to paint the ceiling and sprinkler pipes. 

Rice was arguably guilty of harmful conduct in allowing 

the work from which Mydlarz was injured to continue. The 

record indicates that Peter Rice attempted to locate scaffolding for Mydlarz when he began working on the ladder; 

thus, he arguably acknowledged the danger or potential harm 

of such device. 

Mydlarz asserts that the District Court erred by failing to instruct the jury that following the directions of an 
employer is not contributory negligence. We have held that 

the defense of contributory negligence cannot be raised when 

the Scaffolding Act is applicable. Pollard v. Todd, supra. 

Since we have found that the Act applies, such defense cannot 

be raised and this issue is moot. 

Mydlarz contends that, notwithstanding the Scaffolding 

Act, Palmer/Duncan is guilty as a matter of law for removing 

the scaffol-ding under section 50-71-203, MCA. This Court has 

held that negligence as a matter of law requires a showing 

that the statutory violation is the proximate cause of the 

injuries sustained. Kudrna v. Comet Corp. (1977), 175 Mont. 

29, 572 P.2d 183. While Palmer/Duncan may have violated the 

statute in question, the issue of proximate cause was not 

addressed. This, we hold, is best left to the trial court 

upon remand. 

Mydlarz 's challenges with respect to OSHA instructions 

and costs and disbursements are without merit. The question 

of OSHA violations was never addressed by the District Court 

and no OSHA citations were issued with respect to this project. The alleged violations are not part of the evidence 

and instructions thereon were properly denied. This Court 

has held that instructions not supported by the evidence 

brought out at trial need not be given. Adams v. Cheney 

(Mont. 1983), 661 P.2d 434, 40 St.Rep. 383; Payne v. Sorenson 

(Mont. 19791, 599 P.2d 362, 36 St.Rep. 1610. 

Costs for certain depositions and witness fees were 

properly awarded to Mydlarz and Rice. Mydlarz used the 

depositions in question and the witnesses testified. 

The judgment is vacated and the cause remanded to the 

District Court for a new trial. 

Chie! Justice 
We concur : 

Justices 
Hon. Frank B. Morrison 

Justice, Supreme Court 

Room 414 Justice Building 

215 North Sanders 

Helena, Montana 59620 

. 1 

CORRECTION. In preparing this opinion for publication, we noted in our verification of titles and 

citations the matters listed below. Corrections have 

been made on our copy of the opinion. 

Date: 

Re: July 10, 1984 

Mydlarz v. ~almer/~uncan Const. Co., No. 82-98, April 30, 1984, 

concurs in part and dissents in part 

Page 23, line 13 from bottom --- Ulman v. Schwieger should read Ulmen 

v. Schwieger. 

WEST PUBLISHING COMPANY 

Box 3526 

St. Paul, MN 55165 
Mr. Justice Frank B. Morrison, Jr. concurs in part and 

dissents in part as follows. 

I concur in the resolution of all issues discussed in 

the majority opinion with the exception of the first issue. I 

do agree that the Montana Scaffolding Act applies to the 

facts of this case. This dissent addresses the question of 

"control"; discusses the relative position of Palmer/Duncan 

and Rice Motors; comes to a different conclusion regarding 

disposition of the first issue. 

The majority opinion states: 

"Finding the Act applies, we reverse and remand to 

the District Court to determine proximate cause and 

liabil-ity under rules set forth in State ex rel. 

Great Falls Nat'l Bank v. District Court (1969), 

154 Mont. 336, 463 P.2d 326." 

The holding of Great Falls National Bank insulates the owner 

from liability absent evidence of actual control. This 

holding in the Great Falls Bank case was modified in Stepanek 

v. Kober Construction, (1981) 38 St.Rep. 385, P.2d 

. The modification in Stepanek changes the resolution 

of this issue. 

In ~lm$n v. Schwieger, (1932) 92 Mont. 331, 12 P.2d 856 

we held that one who undertakes to perform an inherently 

dangerous activity has a nondelegable duty and cannot be 

immunized by engaging the services of an independent 

contractor. The Great Falls Bank case addressed the subject 

of nondelegable duty but stated that an owner did not have a 

nondelegable duty running to employees of a subcontractor. 

If that rule were applied in this case, Rice Motors would not 

have a nondelegable duty that ran to the plaintiff here. 

However, in Stepanek we held that the 1972 constitution 

mandated that employees of subcontractors be treated equally 

with others. Therefore, we held that nondelegable duties do, 

in fact, run to employees of subcontractors. If Rice has a 
nondelegable duty arising out of the performance of 

inherently dangerous work activities, then that nondelegable 

duty runs to Mydlarz, the plaintiff in this case. 

I agree with the majority opinion that Palmer/Duncan has 

a nondelegable duty on the basis of the responsibility 

assumed by contract. This is in line with our holding in the 

Stepanek case. I would further hold that Rice motors, 

although it assumed no duty by contract, nevertheless has a 

nondelegable duty to see that inherently dangerous 

work-related activities are safely performed a.nd that such a 

duty cannot be delegated to Palmer/Duncan so as to insulate 

Rice from liability. I believe such a holding comports with 

the law of Ulman v. Schwieger, supra. 

The Scaffolding Act does not identify those who have the 

duties imposed by the Act. I would hold that the duty is 

first imposed upon the owner. If the owner engages a general 

contractor, that contractor also assumes the responsibilities 

imposed by the Act. For the reasons previously mentioned, 

neither of these, two parties can effectively delegate their 

responsibilities and thereby escape liability for violation 

of the provisions of the Act. 

Once the Scaffolding Act is applied to the facts of this 

case, liability necessarily attaches. There unquestionably 

was a failure causing the plaintiff's injury. Under the Act, 

contributory negligence is not a defense. Therefore, I would 

direct a verdict on liability in favor of plaintiff and 

remand for a new trial on damages. 

//'\/ 
Mr. Justice Fred J. Weber dissents: 

I respectfully dissent from the conclusion of the 

majority that the Montana Scaffolding Act applies to the 

facts of this case. As pointed out in the majority opinion, 

the essential portion of the Act is codified in section 

50-77-101, MCA which, as pertinent to this case, states: 

"All scaffolds erected in this state for use in the 

erection . . . of buildings shall be well and 

safely supported, of sufficient width, and properly 

secured so as to ensure the safety of persons 

working on them . . . and to prevent them from 

falling . . . " 

The statute was enacted in 1909. There is no general 

statement of legislative purpose for this chapter, which also 

refers to temporary floors in certain buildings, guarding of 

scaffolds and stair openings, temporary toilets, building 

inspector enforcement, and penalties of $100 to $200 for each 

offense. 

The majority cites the purpose of the Act as stated in 

Pollard v. Todd (1966), 148 Mont. 171, 179, 418 P.2d 869, 

873. Pollard states that the purpose of the Act is to impose 

absolute statutory liability to protect workmen and others 

from the "extraordinary hazards associated with scaffolds. " 

Pollard was a case in which ladders were placed on both sides 

of a door at a distance of about 15 feet apart, each ladder 

was fitted with metal hooks called ladder jacks which are 

devices commonly used in the building trades to support a 

plank, and a wooden plank 18 to 20 feet long was positioned 

on the ladder jacks. While standing on this plank platform, 

the plaintiff fell 12 feet to the ground after the plank 

broke near the center. I agree with the conclusion in 

Pollard that a combination of ladders, ladder jacks and plank 

constitutes a scaffold under the Act. 
That is a different question than is presented here. In 

essence, our question is: Is a ladder a scaffold under this 

Act? From the background of the Pollard case, the majority 

opinion moves to the conclusion that a scaffold is a 

structure for support in an elevated place, as defined in 

Webster's, and that any temporary apparatus providing footing 

above ground for workmen is a scaffold as held by the courts 

of Illinois. The majority does point out that the Illinois 

Act uses the phrase "all mechanical contrivances" instead of 

"scaffolds. " The Court then suggests that because the 

purposes of the two acts are identical, it is appropriate to 

conclude that any mechanical contrivance is a scaffold. I 

find no reasoned basis for that conclusion. 

The majority cites cases from other jurisdictions 

describing the types of structures or devices which have been 

classed as scaffolds. A review of these cases does indicate 

a broad variety in the types of structures which have been 

classed as scaffolds. However, none of the cases have 

concluded that a mere ladder is the equivalent of a scaffold. 

I find little support in those cases for the majority 

conclusion. 

The majority opinion then adopts the analysis of the 

Illinois Court which has held that the inquiry is not limited 

to the identity of the object, but rather "how it was being 

utilized at the time of injury." That analysis is 

appropriate under the Illinois Act which is intended to 

include all mechanical contrivances. Obviously that phrase 

can properly include a ladder or a footstool. However, I 

find it of no assistance in determining what our legislature 

meant by using the term "scaffolds." Finally, the majority 

opinion concludes that "scaffolds" includes "any device 

utilized by workmen to allow them to work where a fall might 
result in serious injury," and then concludes that a 16-foot 

ladder meets that definition. 

Notwithstanding that extended analysis, a 16-foot ladder 

does not appear to fall within the statutory provision 

relating to "all scaffolds erected in this state." If a 

ladder meets the statutory definition, then a step-ladder, 

saw-horse, chair, or anything else from which a workman could 

fall and be hurt also meets the definition. I cannot 

conclude that the legislature intended that all these devices 

are to be classed as scaffolds erected in Montana. 

It may well be that our statute should be modernized 

after 75 years so that it covers all mechanical contrivances 

as in Illinois. That amendment should be left to our 

legislature. 

I concur in the foregoing dissent. 

Justice k 

I concur with Justice Weber's dissent, but find in addition 

no factual or legal reason to keep Rice Motors in the lawsuit, and I would dismiss the same in this lawsuit.