NO. 93-541 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1994 

DOUGLAS J. PIERCE, 

Plaintiff and Appellant, 

v. 

ALSC ARCHITECTS, P.S., a Washington 

Professional Service Corporation, 

Defendant and Respondent. 

APPEAL FROM: District Court of the Eleventh Judicial District, 

In and for the County of Flathead, 

The Honorable Michael H. Keedy, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Roger M. Sullivan, McGarvey, Heberling, 

Sullivan & McGarvey, Kalispell, Montana 

For Respondent: 

I. James Heckathorn, Murphy, Robinson, 

Heckathorn & Phillips, Kalispell, Montana 

Filed: 

Submitted on Briefs: August 12, 1994 

Decided: February 23, 1995 

Clelfk 
Justice Terry N. Trieweiler delivered the opinion of the Court. 

The plaintiff, Douglas J. Pierce, filed a complaint in the 

District Court for the Eleventh Judicial District in Flathead 

County in which ALSC Architects, P.S., was named as the defendant. 

Pierce sought to recover damages for personal injuries which he 

alleged were caused by the professional negligence of Steven 

Hindley, one of ALSC's principles. Following trial, the jury 

returned a verdict in favor of ALSC. Pierce moved for judgment 

notwithstanding the verdict pursuant to Rule 50(b), M.R.Civ.P., or 

in the alternative, for a new trial pursuant to Rule 59, M.R.Civ.P. 

However, due to the District Court's failure to rule on those 

motions within 45 days, they were deemed denied. Judgment was 

entered in favor of the defendant. Pierce filed a notice of 

appeal. We reverse the judgment of the District Court and remand 

for further proceedings. 

The following issues are raised by Pierce's appeal: 

1. Was the defendant negligent as a matter of law? 

2. Was the plaintiff free from contributory negligence as a 

matter of law? 

3. Is the plaintiff entitled to an order dismissing the 

defendant's affirmative defense which was based on the accepted 

work doctrine? 

FACTUAL BACKGROUND 

In March 1987, ALSC Architects, P.S., entered into a written 

agreement with Rosauers Supermarkets, Inc., to provide 

architectural services related to a remodeling project at Rosauers 

2 
Supermarket in Kalispell, Montana. In addition to other services, 

ALSC agreed to act as the owner's representative during the 

construction phase of the project for the purpose of communicating 

instructions to the contractor. The architect also agreed to 

assure that the project progressed in a manner consistent with the 

contract plans and other documents. Toward that end, ALSC agreed 

that its representative would periodically visit the site of the 

construction work and "endeavor to guard the owner against defects 

and deficiencies in the work of the contractor." 

Richard Salsbury is the vice president of Rosauers and acted 

as the owner's representative for the remodeling project. He is 

also a licensed architect. 

Steven Hindley is a partner in ALSC Architects, and served as 

ALSC's project architect during the remodeling of Rosauers' 

Kalispell store. 

Stewart and Meredith, Inc., was the contractor which performed 

the remodeling services on Rosauers' Kalispell store. Roy Beckman 

was their foreman and construction supervisor for the project. 

The store manager's office is located on the second floor of 

Rosauers' Kalispell store. Prior to the remodeling project, there 

was a door in the manager's office which provided access to an 

observation and storage room. The room included a security 

walkway, windows from which the store could be observed, and areas 

where surplus material and decorations were stored. 

Prior to the remodeling project, the store also had a walk-in 

cooler located on the main floor immediately below the observation 

3 
and storage room. The roof of the cooler was even with the 

security walkway and provided a floor for the storage room, and a 

place for storage of seasonal displays used in the store. 

During the remodeling project, the large walk-in cooler was 

removed and replaced with a smaller walk-in freezer. A suspended 

ceiling was installed in the space between the new walk-in freezer 

and the observation walkway. The plans which led to these changes 

were developed by Hindley and ALSC. 

As part of the remodeling project, closed circuit televisions 

were installed, and the walkway and observation windows were no 

longer necessary. The observation room was redesigned as a 

security room which housed the closed circuit televisions. 

As a result of these changes, Salsbury discussed with Hindley 

the options of developing the walkway as accessible space, or 

abandoning it and sealing it off. They agreed that if it was going 

to be accessible, in order to make it safe and satisfy the 

requirements of the Uniform Building Code, it would be necessary 

that they install guardrails in the area of the drop ceiling, 

provide lighting, and improve the walkway surface. However, they 

agreed that it would not be necessary to use the space, and 

therefore, to seal off access to the drop ceiling by removing the 

access door, covering the opening with drywall, and moving the 

access door to another location in the store manager's office to 

provide access to the new security room. 

The first step toward accomplishing the changes agreed upon 

was the preparation of a change order which illustrated the 

4 
relocation of the access door. The contractor agreed to make the 

change for the amount of $1647, which was in fact paid by Rosauers 

to the contractor. However, the change was never made. 

Roy Beekman testified that when he did the work on the 

security room, he had an extra door, and that rather than relocate 

the door from the storage area, he simply left it in place and used 

the extra door for the new security room. Beekman testified that 

he did not have Salsbury's authorization to leave the storage area 

access door in place, but that he did discuss it with Hindley. He 

was not advised by Hindley that Salsbury wanted to abandon the 

space and that the door was supposed to be removed; nor was he 

advised that if the door was going to remain, a guardrail would 

have to be installed, and lighting and an improved walking surface 

would have to be provided. He was aware that the access door had 

been used in the past and assumed it would be used in the future. 

Hindley recalled a discussion with Salsbury during which 

removal of the access door was discussed. Pursuant to that 

discussion, on November 18, 1987, he prepared a change order which 

required that the access to the storage area be sealed off with 

sheetrock. During a subsequent visit to the store for inspection, 

he became aware that the removal of the door, as required by that 

change order, had not been accomplished, but did not inform 

Salsbury that the door had been left in place. In fact, prior to 

final payment by Rosauers to the contractor, Hindley conveyed 

drawings to Salsbury which indicated that the removal of the access 

5 
door, as required by the November 18, 1987, change order, had in 

fact been accomplished. 

Doug Pierce was working as a stock clerk at Rosauers on 

May 21, 1988, when a customer asked to borrow some of the store's 

Hawaiian Day posters. Pierce conveyed the request to his 

supervisor, Lynn Sterling, who approved the request and advised 

Pierce that the posters would either be located in the new security 

room or the old storage area. 

Prior to that date, Pierce's duties required that he 

occasionally visit the storeroom to retrieve store decorations. He 

estimated that he had been there once or twice a year and at least 

a dozen times altogether. He testified that the door to the store 

manager's office was normally open and that to recover the displays 

he would normally enter the storage area through the access door; 

proceed down a walkway for several feet; make a turn to the left; 

and then step down on the roof of the freezer where items were 

often stored, or from where access could be gained to another area 

where items were stored. There was a light switch accessible from 

the roof of the freezer which illuminated the storage area. 

On the date of his accident, Pierce opened the door to the 

storage area, noticed there was no light switch in the area of the 

doorway, and proceeded down the walkway. He turned to his left to 

step down on what he thought would be the freezer, but instead, 

stepped onto the drop ceiling and crashed to the floor ten feet 

below. As a result of his fall, Pierce sustained serious physical 

injuries. 

6 
Although Pierce had often entered the storage area prior to 

the remodeling project, the date of his injury was the first 

occasion he had to enter that area after the remodeling project was 

completed. He stated that there was nothing different about the 

appearance of the access door on the date of his accident. Neither 

did the plywood walkway look any different, and because there was 

no light in the area, there was no way to tell that a drop ceiling 

had been substituted for the former walk-in cooler. No warning had 

been placed outside the door and there was no lock on the door. 

Sterling is the grocery department manager at the Kalispell 

Rosauers and was Pierce's supervisor on the date of his injury. He 

was the one who advised Pierce that the decorations were most 

likely in the storage room behind the manager's office because that 

is where they had been located in the past. Sterling testified 

that he had entered the storage area himself as often as six times 

a year prior to the remodeling project and he presumed it was still 

okay to use the storage area because the door was still there. He 

expressed his surprise at learning of Pierce's fall. He explained, 

"The door was still there, I mean, it could have been me." 

On September 8, 1989, Pierce filed this complaint against ALSC 

based on his allegation that Hindley negligently failed to guard 

against the inherent danger presented by the suspended ceiling by 

failing to warn of the hazard, provide adequate lighting in the 

area, or provide a guardrail. ALSC answered by denying negligence, 

and alleged as affirmative defenses that Pierce was contributorily 
negligent and that his claim was barred by the accepted work 

doctrine. 

Prior to trial, ALSC moved for summary judgment on the basis 

that, since the remodeling project was substantially complete by 

January 15, 1988, and Pierce's injury did not occur until May 21, 

1988, his claim was barred by the accepted work doctrine. 

Pierce also moved for an order striking ALSC's affirmative 

defense based on the accepted work doctrine, and holding that ALSC 

was negligent as a matter of law based on violations of the Uniform 

Building Code. 

Both motions were denied. With regard to the accepted work 

doctrine, the District Court held that there were issues of fact 

related to whether the work was actually complete at the time of 

Pierce's injury, and whether the defect, if any, was hidden. With 

regard to the Uniform Building Code, the District Court held that 

there were factual issues about whether the code had been violated, 

and furthermore, that violations were only evidence of negligence. 

A jury trial commenced on October 28, 1991, and on November 1 

the jury returned its verdict that ALSC was not negligent. 

Prior to the jury's deliberations, it was instructed that an 

architect is not liable to third parties for injuries which occur 

after work has been completed and accepted by the owner for whom 

the work was done. It was also instructed that a violation of the 

Uniform Building Code is negligence per se. 

On November 7, 1991, Pierce moved for judgment notwithstanding 

the verdict, or in the alternative, for a new trial. On 

8 
January 17, 1992, the District Court issued an order granting 

judgment notwithstanding the verdict on the issue of ALSC's 

negligence, and ordered a retrial of the remaining issues. 

However, we held in Pierce v. ALSCArchitects (1993), 259 Mont. 379, 856 

P.2d 969, that because the District Court's order had not been 

entered within 45 days after Pierce's motion, the motion had been 

denied by operation by law pursuant to Rule 59, M.R.Civ.P. We also 

held that because of this case's unique procedural history, the 

plaintiff was not to blame for previously withdrawing his notice of 

appeal, and the plaintiff would have an additional 30 days within 

which to file a notice of appeal after the case was remanded to the 

District Court. 

After remittitur was received by the District Court, judgment 

was entered for ALSC and a notice of appeal was filed by Pierce. 

ISSUE 1 

Was the defendant negligent as a matter of law? 

The standard of review of a denial of a motion for judgment 

notwithstanding the verdict made pursuant to Rule 50 (b) , 

M.R.Civ.P., 

is the same as that for review of a motion for a directed 

verdict, and . . _ may be granted only when it appears as 

a matter of law that the non-moving party could not 

recover upon any view of the evidence, including the 

legitimate inferences to be drawn from it. 

Hashv. State (1991), 247 Mont. 497, 500, 807 P.2d 1363, 1365 (citing 

Wilkerson v. School District No. 1.5, Glacier County ( 198 5 ) , 2 16 Mont 2 03 , 2 11, 

700 P.2d 617, 622). 

9 
Pierce argues that there was insufficient evidence to support 

the jury's verdict because, based on the undisputed evidence, ALSC 

violated the Uniform Building Code, and therefore, was negligent as 

a matter of law. 

In Herbstv. Miller (19921, 252 Mont. 503, 830 P.2d 1268, we held 

that when the Uniform Building Code is adopted by local ordinance, 

failure to comply with the U.B.C. is a violation of a city 

ordinance, and therefore, is negligent per se. It is undisputed 

that on March 17, 1986, the City of Kalispell adopted the 1985 

edition of the Uniform Building Code as Kalispell City Ordinance 

No. 1078 and that the provisions of the code were in effect at the 

time that Hindley's services were performed on the Rosauers 

remodeling project, and were applicable to that project. The 

provisions of the code upon which Pierce relies are the following: 

sec. 104. . . . . 

(b) Additions, Alterations or Repairs. Additions, 

alterations or repairs may be made to any building or 

structure without requiring the existing building or 

structure to comply with all the requirements of this 

code, provided the addition, alteration or repair 

conforms to that required for a new building or 

structure. Additions or alterations shall not be made to 

an existing building or structure which will cause the 

existing building or structure to be in violation of any 

of the provisions of this code nor shall such additions 

or alterations cause the existing buildins or structure 

to become unsafe. An unsafe condition shall be deemed to 

have been created if an addition or alteration will cause 

the existing building or structure to become structurally 

unsafe or overloaded . . . or will otherwise create 

conditions dangerous to human life. 

. . 

10 
Guardrails 

Sec. 1711. All unenclosed floor and roof openings 

which are more than 30 inches above grade or floor 

bei0k . . shall be protected by a guardrail. 

Guardrails shall not be less than 42 inches in height. 

U.B.C. §§ 104(b) and 1711 (1985) (emphasis added). 

Salsbury, who is himself an architect, testified that he first 

learned that the access door, which we have discussed, had not been 

removed, and that access to the storage area had not been sealed 

off, when he learned of Pierce's injury. He also testified that it 

had been Hindley's responsibility as the project architect to 

assure that the door was removed in conformity with the project 

specifications, or to advise the owner of the contractor's failure 

to do so. He testified that, because of the changes made during 

the remodeling project, the door to the storage room provided 

access to a hazard which had not previously existed, and that 

Pierce was injured because of a condition inside the storage area 

which was "unsafe to human life" in violation of U.B.C. 5 104(b) 

(1985). He agreed that if the area was accessible following the 

remodeling project, guardrails were necessary pursuant to U.B.C. 

§ 1711 (19851, and that lighting and an improved walkway would also 

have to have been added to comply with acceptable architectural 

standards. 

In sum, Salsbury conceded that at the time of Pierce's injury 

the area where he was injured did not conform to the requirements 

of the Uniform Building Code and that those requirements were only 

minimum standards. 

11 
Pierce also called Clark Llewellyn as a witness. Llewellyn is 

a professor of architecture at Montana State University and 

practices architecture in the Three Forks area. Based on his 

review of the accident scene and the relevant standards, he 

concluded that the U.B.C. was applicable and that it required that 

the access door to the storage area either be removed and the 

opening sealed, or in the alternative, that the storage area be 

brought up to code by the installation of an improved walkway, 

lighting, and guardrails. He described the ceiling area through 

which Pierce fell as a hidden defect which cannot be seen until a 

person is on top of it. 

He testified that if a door is provided to an area and access 

allowed, an architect cannot assume that the area will not be used, 

and that if the area is accessible, then the Uniform Building Code 

is applicable. In response to cross-examination by ALSC's 

attorney, he specifically denied that the U.B.C. is only applicable 

if the owner expresses an intention to use the area. 

The only witness called by ALSC to controvert the testimony of 

Salsbury and Llewellyn was Hindley. He agreed that based on 

removal of the walk-in cooler and changes made during the 

remodeling project, the area behind the store manager's office, 

which had formerly been used for storage, was no longer safe for 

use without the installation of lighting, an improved walking 

surface, and guardrails. He also agreed that it was his duty to 

assure the store owner that the contractor's performance conformed 

12 
to the contract documents, and that the change order requiring 

removal of the storage room access door was one of those documents. 

However, Hindley contended that because he had been told the 

storage room would not be used, it was neither necessary to make 

improvements inside the area, nor eliminate access to the area. 

He admitted that if the area was going to be used, it was in 

violation of the U.E.C. requirements, but did nothing to assure 

that it would not be used. He also acknowledged that because the 

door was allowed to remain, it would not have been apparent to Doug 

Pierce, Lynn Sterling, or any other employee, that the room had no 

obvious use. 

During an inspection of the building in January 1989 following 

Pierce's accident, when Hindley observed that the room was still 

being used for storage, he recommended that a lock and hasp be 

installed to prevent access to the area. 

We conclude, after a thorough review of the trial court 

record, that there was not substantial evidence to support the 

jury's verdict, and that the uncontroverted evidence established 

that ALSC's performance related to the remodeling project of 

Rosauers in Kalispell, violated §§ 104(b) and 1711 of the 1985 

edition of the Uniform Building Code. 

The area through which Pierce fell was clearly an unenclosed 

floor opening which was more than 30 inches above the floor below, 

and was unprotected by a guardrail. There is no exception provided 

in § 1711 based on an architect's belief that the area will not be 

used, or will only be used infrequently. Furthermore, the record 

13 
establishes that when Hindley certified that the contractor's 

performance was complete, the access door remained as it had always 

been with no warning of the hazard to which it provided access, and 

no lock with which to preclude access. It was unreasonable to 

presume that employees who had frequently used this area in the 

past would not continue to do so in the future, absent any 

preventative or protective measures. 

We conclude that the second floor storage area which had been 

frequently used by employees in the past, but which, because of 

remodeling alterations, now included of a false floor ten feet 

above the floor below, and which was without any form of lighting, 

was an "unsafe condition . . dangerous to human life" in 

violation of U.B.C. 5 104(b) (1985). 

Hindley admitted that, if used in its altered condition, the 

storage room was unsafe. Yet, he did nothing to assure that it 

would not be used, nor did he warn potential users of the hazard 

which existed. As Professor Llewellyn pointed out, when a 

functional door is provided, future use has to be presumed. 

The fact that Salsbury advised Hindley that the door could be 

removed and the entryway sealed because future use was not planned 

cannot now serve as the excuse for failure to either make the area 

safe, or to prevent access by those who were unaware of the danger 

that it posed. 

For these reasons, we conclude that ALSC was negligent as a 

matter of law and the District Court erred when, due to the passage 

14 
of time, Pierce's motion for a judgment notwithstanding the verdict 

was deemed denied. 

ISSUE 2 

Was the plaintiff free from contributory negligence as a 

matter of law? 

Pierce contends that based on the evidence set forth above, he 

was entitled to a directed verdict dismissing ALSC's affirmative 

defense of contributory negligence. Pierce contends that based on 

our decision in Greenv. Hagele (1979), 182 Mont. 155, 595 P.2d 1159, 

he had a right to assume that others would act with reasonable care 

and was not negligent for failing to anticipate an injury that 

could only have resulted from another's negligence. 

ALSC responds that Pierce entered a dark room without using a 

flashlight or otherwise attempting to see where he was going, and 

if he had paid attention, he would have noted changes in the 

storage area which would have alerted him to the possibility of 

danger. ALSC also contends that Pierce was aware that the walk-in 

cooler had been removed prior to the date of his accident, and that 

he should have associated the cooler's removal with the changed 

condition of the floor in the storage area. 

We have held that a motion for a directed verdict is proper 

only in the complete absence of any evidence which would justify 

submitting an issue to the jury, and all inferences which can be 

drawn from evidence must be considered in the light most favorable 

to the opposing party. Jacquesv. MontanaNationalGuavd (1982), 199 Mont. 

15 
493, 649 P.2d 1319. We have also held that even when a defendant 

is negligent as a matter of law, the issue of contributory 

negligence on the part of the plaintiff and the degree of 

comparative negligence, if any, is normally an issue for the jury 

or fact finder to resolve. Uklandv. Wolf (1993), 258 Mont. 35, 850 

P.2d 302. 

Based on our review of the record, we conclude that construing 

all inferences from the evidence in a manner most favorable to the 

defendant, there was sufficient evidence to submit the issue of 

contributory negligence to the jury, and we conclude that the 

District Court did not err when it refused to dismiss ALSC's 

affirmative defense of contributory negligence. 

ISSUE 3 

Is the plaintiff entitled to an order dismissing the 

defendant's affirmative defense which was based on the accepted 

work doctrine? 

Pierce contends that he was entitled to summary judgment 

dismissing ALSC's affirmative defense based on the accepted work 

doctrine. We review a district court's disposition of motions for 

summary judgment de novo. Spain-MorrowRanch,Inc. v. West (1994) , 264 Mont. 

441, 444, 872 P.2d 330, 331 (citing Mnniev. CityofRoundup (1993), 257 

Mont. 429, 431, 849 P.2d 212, 214). Summary judgment is proper 

only when there is no genuine issue of material fact and the moving 

party is entitled to judgment as a matter of law. Rule 56(c), 

M.R.Civ.P.; &“ain-Morrow, 872 P.2d at 331-32. 

16 
Pierce contends that he was entitled to summary judgment on 

this issue for several reasons. First, he contends that ALSC 

assumed the duty to assure that the remodeling project was done in 

a safe manner and that, pursuant to our decision in Stepanekv. Kober 

Construction (1981), 191 Mont. 430, 625 P.2d 51, that duty was 

nondelegable, but that the accepted work doctrine would permit 

delegation of that duty. 

Second, Pierce contends that we should follow the lead of the 

Supreme Court of Arizona and conclude that the accepted work 

doctrine applies only to contractors, and not to architects. See 

L. H. BeN&Assoc., Inc. v. Granger (Ariz. 1975), 543 P.2d 428. 

Third, Pierce contends that based on the undisputed facts in 

this case, there was insufficient evidence to justify instructing 

the jury on this defense because the construction project was not 

complete at the time of Pierce's injury and the defect which caused 

his injury was hidden. 

Finally, Pierce contends that the accepted work doctrine is 

inconsistent with the principles of modern tort law and should no 

longer be followed. Because we agree, we will not address the 

previous issues, but conclude that the District Court erred when it 

denied Pierce's motion to dismiss ALSC's affirmative defense based 

on the accepted work doctrine. 

The accepted work doctrine was first discussed, although not 

applied, in Ulmen x Schwieger (19321, 92 Mont. 331, 12 P.2d 856. 

However, in that case, the doctrine was not discussed in the 

17 
context of relieving a contractor of liability, but rather, for the 

purpose of imposing liability on a subcontractor who worked on a 

highway construction project during that period of time when the 

subcontractor was actually in control of the premises. We held 

that the cases cited in support of this doctrine 

are of that class wherein an owner or contractor employs 

an independent contractor to work upon premises the 

possession of, and control over, which is surrendered to 

him, and consequently the independent contractor is not 

relieved of responsibility until his work has been 

accepted and the premises revert to the control of the 

owner or original contractor. 

Ulmen , 12 P.2d at 862. 

We held that in that case the general contractor had never 

surrendered control of the project, and therefore, the 

subcontractor had never assumed any liability from which to be 

relieved based on the accepted work doctrine. However, we did not 

discuss the accepted work doctrine in that case under circumstances 

where a contractor or a subcontractor was seeking relief from 

liability for a condition actually created by the contractor's act 

of negligence. 

We affirmed and applied Ulmen in Harm@ v. Cahill-Mooney Construction 

co., hzc. (1972), 159 Mont. 413, 498 P.2d 1214. However, in that 

case, the contractor from whom damages were sought worked under the 

direction of the owner of the property regarding the nature and 

extent of work to be done. We held that where the contractor had 

left the job and had no control over the premises for some two 

months and twenty days preceding the accident, that it was the 

18 
owner of the property, rather than the contractor, who was 

responsible for maintaining it in a reasonably safe condition. 

Again, in HanniJin, the issue related to maintaining premises in a 

reasonably safe condition, rather than responsibility for actively 

creating a hazard through negligent acts or omissions. 

We again cited Ulmen in Olsonv. Kayser (1973), 161 Mont. 241, 505 

P.2d 394. In that case, the defendant, a plumbing contractor, had 

done excavation for the installation of a sewer service, which was 

refilled to the owner's satisfaction, but which subsequently 

settled naturally. The owner was aware of the fact that the 

excavated area would subsequently settle, and intended to fill it 

with gravel. However, before he was able to do so, the plaintiff, 

a passerby, tripped and fell in the recessed area. We held that 

since the contractor had committed no act of negligence from the 

time his job was complete and accepted by the property owner, that 

he was relieved of liability by the doctrine articulated in Ulmen. 

Our first occasion to reconsider this defense in the context 

of modern tort law was our decision in Harringtonv. LaBelle’s ofColorado, Inc. 

(1988), 235 Mont. 80, 765 P.Zd 732. In that case, a department 

store in Billings was sued by a bicyclist who was injured when he 

struck a speed bump in the store's parking lot. The property owner 

filed a third-party complaint against the contractor who installed 

the speed bump. However, the complaint was dismissed based upon 

the accepted work doctrine. On appeal from dismissal of its 

third-party complaint, the property owner asked that we reconsider 

19 
that doctrine in light of more contemporary decisions from other 

jurisdictions which have rejected it. The majority of the court 

declined to do so. However, Justice Weber, in a dissent joined by 

Justice Hunt, questioned the rationale for this defense in light of 

general rules of negligence in Montana. Justice Weber pointed out 

that: 

Other jurisdictions have held that the principles 

supporting the rule of contractor nonliability do not 

mesh with modern theories of negligence. The leading 

case in which the District of Columbia Circuit refuted 

these justifications for contractor nonliability is 

Hannah v. Fletcher (D.C.Cir.1956), 231 F.2d 469. The court 

reasoned that the antiquated justifications based on lack 

of privity had no place in modern theories of liability 

as set forth in MacPhersonv. BuickMotor Co. (1916), 217 N.Y. 

382, 111 N.E. 1050. 

. . . 

This Court has followed MacPherson and allowed 

recovery for negligence asserted against the 

manufacturers of automobiles [see Rix v. General Motors Corp. 

(Mont. 1986), 1222 Mont. 318,] 723 P.2d 195, 43 St.Rep. 

12961, and manufacturers of farm machinery [see Brownv. 

North American Manufacturing Co. ( 19 78 ) , 176 Mont . 9 8, 5 76 P .2d 

7111. We concluded in those cases that it was no longer 

appropriate to bar recovery on theories such as those 

identified in connection with the accepted work doctrine, 

that is a lack of contractual privity, or that there 

would be excessive litigation, or similar theories. 

Given our rules of liability in cases where negligent 

construction by a manufacturer may cause injury, I see no 

reason why we should not extend that reasoning to apply 

to negligent construction by a contractor. Certainly the 

potential for injury due to negligent construction by a 

contractor is just as great as with the negligent 

manufacturing of a consumer good. 

Harrington , 765 P.2d at 735-36 (alterations in original). 

Our most recent discussion of this defense is found in Nichols 

v. Corntassel (1993), 258 Mont. 173, 852 P.2d 583. In that case, the 

20 
majority noted a gradual trend away from nonliability for 

contractor negligence and observed that, u [aluthors of the 

Restatement (Second) of Torts at § 385 recommended that contractors 

should be placed on the same footing as manufacturers for 

negligence liability." Nichols, 862 P.2d at 585 

The majority also observed that: 

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 Building and 

Construction Contracts § 140 (1964 ) . Instead of applying the 

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.g., 

Menendezv. PaddockPoolConst. Co. (Ariz.App.1991), 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 Hannah v. 

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

rejecting the "accepted work" doctrine). 

Nichols, 852 P.2d at 585. 

However, after a review of the record in Nichols, the majority 

concluded that there was an insufficient factual record with which 

to apply the doctrine or its exceptions, and therefore, reversed 

summary judgment in favor of defendant and remanded that case to 

the district court for further development of the record. Justice 

Trieweiler, however, in a dissent joined by Justice Hunt, stated 

21 
that the doctrine had no place among modern theories of liability 

and stated that the defense should no longer be applied in Montana. 

We are now squarely faced with the issue which we declined to 

consider in Nichols, and upon further consideration, conclude that 

the accepted work doctrine should no longer be followed in Montana. 

This defense, as previously applied, has the undesirable 

effect of shifting responsibility for negligent acts or omissions 

from the negligent party to an innocent person who paid for the 

negligent party's services. Furthermore, the shifting of 

responsibility is based on the legal fiction that by accepting a 

contractor's work, the owner of property fully appreciates the 

nature of any defect or dangerous condition and assumes 

responsibility for it. In reality, the opposite is usually true. 

Contractors, whether they be building contractors, or architects, 

are hired for their expertise and knowledge. The reason they are 

paid for their services is that the average property owner does not 

have sufficient knowledge or expertise to design or construct real 

property improvements safely and soundly. The mere fact that 

expert testimony is required to establish professional negligence 

makes it clear that nonexperts are incapable of recognizing 

substandard performance on their own. How then can we logically 

conclude that simply because the professional has completed his or 

her services and the contractee has paid for those services, 

liability for the contractor's negligence should shift to the 

innocent and uninformed contractee? We cannot. That is why the 

22 
Supreme Court for the State of Texas held in Strukosv. Gehring (Tex. 

19621, 360 S.W.Zd 787, 791, that elimination of the accepted work 

doctrine would restore logic and simplicity to the law of 

liability. 

We conclude that, for the reasons first noted in Justice 

Weber's dissent to the opinion in Harrington, for those further 

reasons set forth, but not applied, by the majority in Nichols, and 

for the additional reasons set forth in this opinion, elimination 

of the accepted work doctrine is more consistent with modern 

principles of tort liability and is more likely to place liability 

for negligent conduct on the appropriate party. To the extent that 

prior opinions discussed herein are inconsistent with this 

conclusion, they are reversed. 

Therefore, we conclude that the District Court erred when it 

denied Pierce's motion to dismiss that defense by summary judgment, 

and the District Court erred when it instructed the jury that the 

accepted work doctrine was a defense to Pierce's claim. 

We reverse the judgment for ALSC. We remand this case to the 

District Court for entry of judgment in favor of Pierce on the 

issue of ALSC's negligence, and for further proceedings consistent 

with this opinion. 

We concur: 
Justices 

24 
Justice Fred J. Weber dissents as follows: 

I concur in the majority opinion on Issues II and III and 

dissent from Issue I of the majority's opinion. I do not agree 

with the conclusion that § 104(b) of the Uniform Building Code 

(UBC) applies to establish negligence per se in this case and the 

conclusion that negligence was established as a matter of law. 

Section 104(b) of the UBC provides in pertinent part: 

Additions or alterations shall not be made to an existing 

building or structure which will cause the existing 

building or structure to be in violation of any of the 

provisions of this code nor shall such additions or 

alterations cause the existing building or structure to 

become unsafe. An unsafe condition shall be deemed to 

have been created if an addition or alteration will cause 

the existing building or structure to become structurally 

unsafe or overloaded . . . or will otherwise create 

conditions dangerous to human life. 

Section 1711, provides: 

All unenclosed floor and roof openings, open and glazed 

sides of landings and ramps, balconies or porches, which 

are more than 30" above grade or floor below, and roofs 

used for other than service of the building shall be 

protected by a guardrail. . . . 

I do not agree that § 1711 mandates that the area where Pierce fell 

through the ceiling tile to the floor below was an area for which 

a guardrail was required according to the UPC. Nor do I agree with 

the majority’s conclusion that, as a matter of law, a condition was 

created that was dangerous to human life. 

The question whether ALSC violated the UBC was presented to 

the jury by means of the following instruction: 

Kalispell City Ordinance No. 1078, adopted as law 

the 1985 edition of the [UBCI. If you find that the 

defendant violated any provision of the RJBCI relating to 

human safety, such violation is negligence. You should 

then determine whether that negligence was a cause of the 

25 
plaintiff's injury. 

According to this instruction, the jury could find that ALSC 

violated the UBC and, in that event, negligence is established. 

The court refused to instruct the jury that ALSC was negligent as 

a matter of law, leaving the question of whether ALSC violated the 

UBC--and, therefore, was negligent--to be determined by the jury 

pursuant to expert testimony presented at trial. The jury heard 

the evidence presented by the experts and had the opportunity to 

observe the witnesses and determine their credibility firsthand. 

The District Court correctly presented the question whether 

the UBC was violated to the jury. The jury listened to the 

evidence presented and determined that there was no violation of 

the UBC. The evidence on this issue consisted of expert testimony 

from architects Hindley, Salsbury and Llewellyn. Whether the UBC 

had been violated was properly a question to be determined by the 

trier of fact based on expert testimony. 

Some of that expert testimony, as emphasized in the majority 

opinion, was presented by the plaintiff's expert, Professor Clark 

Llewellyn. Llewellyn was the only architect who testified 

unequivocally that the area where Pierce fell through had to be 

brought up to code by installing a new walking surface, lighting 

and guardrails even if it was not going to be used and even if the 

owner insisted upon leaving the area accessible without 

improvements. There was testimony from the other architects that 

such an area is up to code without improvements if no use is 

planned for the area. 

26 
Architect Hindley testified that the use to be made of a room 

determines how the UBC requirements for improvements are to be 

applied, specifically stating that "it is up to code if it's not 

being used." He testified that his understanding was that the use 

of that space was to be discontinued and that people would not be 

allowed in the space. He considered it as dead ceiling space, 

which does not require improvement. After he learned that the 

store manager and Roy Beekman agreed to leave the door in place and 

that access was possible to the area, he was assured again that the 

area was not going to be used for any purpose. Based upon that 

assurance, he determined that the space did not require improvement 

nor did it need to be closed in by sheetrock. 

The plan to close off the space was part of a change order 

primarily intended to provide access to the new security room. 

Sealing off the access by sheetrocking over the door opening was 

planned so that the door could be used for the new security room. 

Hindley and Salsbury agreed to move the door to the new security 

room in order to save on costs. They agreed that if the area where 

Pierce later fell through was going to be & by Rosauer's, it 

would need improvements, including a guardrail, in order to conform 

to the UBC. Salsbury assured Hindley that the area was not going 

to be used for any purpose. Removal of the door was never a main 

concern; it was planned in order to provide access to the new room, 

not primarily to conform to the UBC. Based on Salsbury's decision 

to abandon any use of the area, Hindley did not insist on closing 

off the space with sheetrock when he learned that, instead of 

2-l 
closing off the room, a new door was provided by the contractor for 

the new room at no extra cost to Rosauer's. 

Richard Salsbury, owner-representative for Rosauer's and an 

architect himself, testified extensively about the requirements for 

the abandoned area. As emphasized by the majority, some of his 

testimony was to the effect that the area did not conform to the 

UBC. However, his testimony equivocated--he also testified that 

the space was like attic space and did not need improvements unless 

it was going to be used. He told Hindley that Rosauer's intended 

to abandon the area. Salsbury did not concede, as the majority 

opinion states, that the area where Pierce was injured did not 

conform to the UBC. What Salsbury agreed to was the statement that 

if the area were to be used bv humans for any ournose, it did not 

conform to the UBC. He testified that he thought Hindley had 

violated the regulations of the AIA (American Institute of 

Architects), a professional organization for architects. Violation 

of an AIA regulation or ideal of conduct does not have the same 

significance as a violation of the UBC. The UBC is a set of 

minimum standards adopted as a city ordinance by the City of 

Kalispell. 

Salsbury also testified that the area was to be abandoned. He 

testified that unused attic space, even if there is an access door 

to it, does not require sealing off access to comply with the UBC. 

He further testified that, although there is no UBC requirement 

that a space has to be sealed off or improved, he decided, at the 

time of his initial discussion with Hindley about the space, that 

28 
it be sealed off because it was going to be abandoned and not used 

for any purpose. Instead of closing the area by means of 

sheetrocking over it, the door could have been nailed shut or kept 

locked to prohibit access. Salsbury testified that Hindley was 

justified under the circumstances in accepting his statement that 

it would not be used. Furthermore, if Rosauer's had not decided to 

have a security room built at the last stages of the project, the 

area would have been left as it was with no improvements. This 

area was only accessible by going through the manager's office. 

According to the testimony as discussed above, there was an 

actual dispute among the architects as to whether the facts 

demonstrated a violation of the UBC. Llewellyn testified that 

access to the area had to be closed off even if usage for any 

purpose was to be abandoned. Hindley testified that the UBC 

required that it be closed off or improved & if there was an 

intent to use the space. Salsbury's testimony on direct 

examination was that the UBC was violated if the area was to be 

used; on cross-examination he testified the area was like unused 

attic space which did not need improvements. All three architects 

agreed that the area had to be improved to conform to the UBC if it 

was going to be used; only Llewellyn testified unequivocally that 

the area here did not conform to the UBC requirements even if all 

use was abandoned. Although Salsbury testified that if he had 

known the door was left in place, he would have insisted it be 

locked or otherwise closed off, he did not testify that it did not 

conform to UBC standards. His testimony was that it did not comply 

29 
with AIA standards, which are different from and more exacting that 

the minimal requirements of the USC. 

We have held in numerous cases that expert testimony is 

required in order to establish the standard of care for 

professionals because such standards of care are outside the common 

experience and knowledge of lay jurors and expert testimony is 

required to assist them in resolving professional negligence cases. 

That requirement has been extended to negligence actions in Montana 

against veterinarians, medical doctors, lawyers, dentists, 

orthodontists, manufacturers of pharmaceuticals, and abstracters of 

title. Zimmerman v. Robertson (1993), 259 Mont. 105, 107, 854 P.2d 

338, 339. Most recently, we held that expert testimony was 

required to establish the standard of care of professional 

counselors. See Newville v. Department of Family Services (Mont. 

19941, 883 P.2d 793, 805, 51 St.Rep. 758, 767-68. Architects are 

included in the group of professional fields requiring expert 

testimony to establish the standard of care. See Presser and 

Keeton, The Law of Torts, § 32 (5th ed. 1984); Zimmerman, 854 P.2d 

at 339. 

After admitting evidence of expert testimony to assist the lay 

jurors in this case in making their determination on the issue of 

the professional architect's negligence, the District court 

submitted the issue of ALSC's negligence to the jury. The majority 

has disregarded that expert testimony from architects Hindley and 

Salsbury and has concluded that there was not substantial evidence 

to support the jury's verdict and that the uncontroverted evidence 

30 
established that ALSC's performance of the Rosauer's contract 

violated §§ 104(b) and 1711 of the 1985 edition of the Uniform 

Building Code. I emphasize that the evidence was not 

uncontroverted and there was substantial evidence from which the 

jury could determine either that the UBC was violated or that the 

UBC was not violated. The majority has usurped the jury's role and 

made that determination as a matter of law. Even assuming that 

Hindley's testimony was self-serving, however, that does not 

explain the following expert testimony from Salsbury, which I 

conclude constitutes substantial evidence that the UBC was not 

violated: 

Q [by Mr. Sullivan] Would the improvements of lighting and 

guard rail have been required under the Uniform Building Code 

if the area accessed by the door, which was left, was going to 

be continued to be used for any purposes? 

A Yes. 

Salsbury testified that an area not used did not have to 

conform to the UBC requirement for a guardrail and likened the 

space to unused attic space. His testimony was as follows: 

Q [by Mr. Heckathornl And if attic or if an attic space is 

going to be abandoned, and not used, there is no requirement, 

under the [UBCI to do something with the attic, is there? 

A NO. 

Q And there is no problem, even if you have an access door 

to that unused space, you still don't have to do anything to 

it, do you? 

A No. 

Q If you don't use it? 

A That is true. 

Q But, what does the [UBC] say as to when something like 

31 
that attic space must be developed and -- 

A When there is a use? 

Q Well, what kind of a use? 

A Use by humans. 

. . 

Q . . . Under the facts that you have given us, that you 

had told Steve that the attic space was going to be abandoned, 

you don't contend that there was some duty on the part of 

Steve to do something to comply with the [UBC], do you? 

A I do not, as long as the space was sealed off. 

Q Yeah. Well, no -- As long as you had told him that it 

was going to be abandoned and not used? 

A Well, the alternatives that I discussed with Steve were 

that we either had to improve that area where the accident 

happened, so that it would be safe, or that we would have to 

seal it off. 

Q I think that Steve asked you, did he not, whether you 

would like to have that developed for storage? 

A Yes, that's true. 

Q And you told him that you would not, that you were going 

to abandon it? 

A That's true. 

Q Now, the [UBCI does not require, and I think that we have 

already said that, does not require work to be done in an 

unused attic space, even if there is an access door to it? 

A That's true. 

Q And so, it isn't a requirement that it be sealed off? 

A That was my decision, however, and direction. 

Q That was by direction of the UBC now? 

A Yes. 

Q There is no UBC requirement that a space has to be sealed 

off, and if it isn't sealed off it has to have work done on 

it? 

32 
A That's true. 

Q And the only knowledge that Steve had again, was that you 

had said it was going to be abandoned? 

A Yes. 

Q And not used? 

A Not used. 

Q And he was justified under those circumstances in 

accepting your statement that it wouldn't be used? 

A That's true. 

. . . 

Q [by Mr. Heckathornl NOW, Mr. Salsbury, we saw a lot of 

exhibits about the AIA and a lot of requirements and those are 

some of the requirements and there are a lot more, aren't 

there? I mean there is a lot of requirements on an architect, 

you have a lot of professional responsibilities and you go to 

school for a long time to learn them, don't you? 

A Yes, that's true 

Q What relevance, or what did you think that all of these 

exhibits had to do with the issues that we have defined? 

A Well, my thinking is that these exhibits define roles, 

define paths of communication, define authorities and 

obligations. 

Q Do you think that Steve violated any of those ideals, 

regulation of AIA in this contract? 

A Of the AIA? 

Q Yes. 

A Yes. 

The requirement of the AIA which Salsbury thought Hindley 

violated was the failure to recognize that there was a contract 

requirement that had not been completed--removing the door and 

sealing off the opening. That requirement was one which the 

contractor and the store manager agreed should be left as is with 

33 
the contractor providing a new door for the security room for the 

same price. Violation of the AIA is not equivalent to violation of 

the UBC. 

The majority has concluded that there was not substantial 

evidence to support the jury's verdict and that uncontroverted 

evidence established that ALSC's performance related to the 

remodeling project violated §§ 104(b) and 1711 of the UBC. I do 

not agree that the evidence was uncontroverted and I do not agree 

that ALSC's performance violated the UBC sections. Moreover, there 

was substantial evidence to support the jury's finding of no 

negligence on ALSC's part. 

Our role is not to reweigh the evidence when there is 

substantial evidence to support the jury verdict. This is not the 

sort of unenclosed floor opening contemplated by 5 1711 which 

needed to be protected by a guardrail. It was an abandoned space 

accessible only through the manager's office which Hindley and 

Salsbury testified did not need improvement according to the UBC. 

Clearly this is substantial evidence to controvert other testimony 

provided by Llewellyn. 

In addition, I do not agree that this was an unsafe condition 

according to § 104(b). This was an unused area and, as such, 

needed no improvements, according to the testimony of Salsbury and 

Hindley. The testimony indicated that there were many changes 

within the area, including the installation of conduit and other 

ductwork which to some extent blocked access to the area where the 

cooler had previously provided the floor and that this should have 

34 
alerted Pierce to changes within the space. Although the access 

door remained where it had always been, the area inside the space 

behind the door was substantially changed. I do not agree with the 

statement of the majority that "when a functional door is provided, 

future use has to be presumed." 

Because of the conflicts in the evidence, I conclude the 

District Court properly submitted the issue of architectural 

negligence to the jury. I further conclude there clearly 

substantial evidence presented upon which the jury could base 

finding that ALSC was not negligent. 

I would affirm the District Court on this issue. 

was 

its 

35 
Justice Karla M. Gray, specially concurring. 

I concur in the Court's opinion in all regards and specially 

concur here on issue 1 in order to respond to the dissent's 

presentation of Mr. Salsbury's testimony in this case. 

Issue 1 is whether defendant was negligent as a matter of law 

by virtue of its violation of the Uniform Building Code. The Court 

recounts the clear and uncontroverted evidence--including that of 

Mr. Salsbury--that the UBC was violated and determines, on that 

basis, that the District Court erred in not granting plaintiff's 

motion for judgment notwithstanding the verdict. The dissent 

presents a picture of Mr. Salsbury's testimony suggesting that Mr. 

Salsbury equivocated and, thus, created a jury question regarding 

whether the UBC was violated. Because it is my view that the 

dissent takes the Salsbury testimony out of the context which is 

relevant here, I set forth Mr. Salsbury's unequivocal testimony 

that the altered portion of the store at issue here violated the 

UBC: 

Q At the time that Doug was injured, did the area 

accessed through the door, off of the store manager's 

office, and in particular the area where Doug Pierce fell 

through the suspended ceiling, conform to the minimum 

safety standards of the Uniform Building Code? 

A No 

Q If the door would have been removed and the 

opening patched over with sheet rock and studs, as was 

called for in the clarification drawing R17, would the 

building at that point have conformed to the provisions 

of the Uniform Building Code? 

A I believe that it would, that space would have 

been made non-accessible. 

36 
. . . . 

Q Do you consider this door, in and of itself, to 

be a hazard, Mr. Salsbury, or does it gain access to a 

hazard? 

A It gains access to a hazard. 

Q So the real -- Let me ask you this, did the 

same hazard exist that claimed Mr. Pierce as its first 

victim prior to the remodelling project? 

A No. 

Q AS the owner's representative, what is the 

owner's attitude as to that door being left there? 

A We preferred that it be sealed off 

Q Because it creates a dangerous situation? 

A Yes. 

. . . . 

Q The real part of this case, Mr. Salsbury, would 

you agree, is that there was a condition inside of this 

storage area which was unsafe to human life at the time 

that Mr. Pierce was using that space and at the time that 

he was injured on May 21, 1988? 

A Yes. 

. . . . 

Q Let's assume for a minute that under section 

104(B) that leaving the door here as it was at the time 

of the accident, unlocked, no warning signs, no warning 

signs inside the area, no barricade around the area, but 

as it existed at the time of the accident, and under 

section 104(B), did that constitute a condition which was 

a hazard to human health and safety? 

A Yes, in my opinion it did. 

Q so, in other words, under any of the scenarios 

that we have discussed, that area, at the time of the 

accident, had to conform to the minimum requirements of 

the Uniform Building Code? 

A I believe so, yes. 

37 
. . 

Q In other words, the real hazard that this whole 

lawsuit is about isn't simply the fact that a door was 

left in the contravention of your order and the 

contravention of the contract documents, in contravention 

of the architect's duty, but the real gut of the lawsuit 

is, is that door allowed access to a hidden hazard that 

claimed Mr. Pierce as its first victim, correct? 

A Yes. 

Nothing in this testimony equivocates on whether the 

requirements of the UK were met. Mr. Salsbury's testimony 

establishes without question a violation of section 104(b), which 

prohibits alterations to an existing building from causing the 

building to become unsafe or dangerous to human life. 

Justice James C. Nelson: 

I join in the special concurring opinion of Justice Gray. 

38