NO. 93-541 INTHESUPREMECOURTOFTHESTATE OFMONTANA 1994

DOUGLASJ. PIERCE,

Plaintiff and Appellant,
v. ALSCARCHITECTS, P.S., aWashington 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.

COUNSELOFRECORD:

For Appellant: Roger M. Sullivan, McGarvey, Heberling, Sullivan &McGarvey, Kalispell, Montana For Respondent: I. James Heckathorn, Murphy, Robinson, Heckathorn &Phillips, Kalispell, Montana

Filed: Submitted onBriefs: August 12, 1994 Decided: February 23, 1995

ClelfkJustice Terry N. Trieweiler delivered the opinion of the Court.

The plaintiff, Douglas J. Pierce, filed acomplaint in the District Court for the Eleventh Judicial District in Flathead County in which ALSCArchitects, P.S., wasnamed asthe 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 averdict 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 anewtrial 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. Wereverse the judgment of the District Court and remand for further proceedings. The following issues are raised by Pierce's appeal: 1. Wasthe defendant negligent asamatter of law?
2. Wasthe plaintiff free from contributory negligence asa 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, ALSCArchitects, P.S., entered into awritten agreement with Rosauers Supermarkets, Inc., to provide architectural services related to aremodeling project at Rosauers

2Supermarket 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 amanner consistent with the contract plans and other documents. Toward that end, ALSCagreed 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. Heis also alicensed architect. Steven Hindley is apartner in ALSCArchitects, and served as ALSC's project architect during the remodeling of Rosauers' Kalispell store. Stewart andMeredith, Inc., wasthe contractor which performed the remodeling services onRosauers' Kalispell store. RoyBeckman
was their foreman and construction supervisor for the project. The store manager's office is located onthe 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 beobserved, and areas where surplus material anddecorations were stored. Prior to the remodeling project, the store also had awalk-in cooler located onthe main floor immediately below the observation 3

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

security walkway andprovided afloor for the storage room, anda place for storage of seasonal displays usedin the store. During the remodeling project, the large walk-in cooler was removed andreplaced with asmaller walk-in freezer. Asuspended ceiling wasinstalled inthe spacebetween the newwalk-in freezer andthe observation walkway. Theplans which led to these changes
were developed byHindley andALSC. Aspart of the remodeling project, closed circuit televisions
were installed, andthe walkway andobservation windows were no longer necessary. The observation room was redesigned as a security roomwhich housedthe closed circuit televisions. Asaresult of these changes, Salsbury discussed with Hindley the options of developing the walkway as accessible space, or abandoning it andsealing it off. Theyagreed that if it wasgoing to be accessible, in order to make it safe and satisfy the requirements of the Uniform Building Code, it would benecessary that they install guardrails in the area of the drop ceiling, provide lighting, andimprove 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 byremoving the
access door, covering the opening with drywall, andmoving the
access door to another location in the store manager's office to provide access to the newsecurity room. Thefirst step toward accomplishing the changes agreed upon was the preparation of a change order which illustrated the 4relocation 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 wasnever made. Roy Beekman testified that when he did the work on the security room, hehad anextra door, and that rather than relocate the door from the storage area, hesimply left it in place andused the extra door for the newsecurity room. Beekman testified that hedid not have Salsbury's authorization to leave the storage area access door in place, but that hedid 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, aguardrail would have to beinstalled, and lighting and animproved walking surface would have to beprovided. Hewasaware that the access door had been used in the past and assumed it would beused in the future. Hindley recalled a discussion with Salsbury during which removal of the access door was discussed. Pursuant to that discussion, onNovember 18, 1987, heprepared achange order which required that the access to the storage area be sealed off with sheetrock. During asubsequent visit to the store for inspection, hebecame aware that the removal of the door, as required bythat 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

5door, 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 acustomer asked to borrow someof 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 belocated in the newsecurity
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 hehad been there once or twice ayear andat least
adozen times altogether. Hetestified that the door to the store manager's office wasnormally open andthat to recover the displays hewould normally enter the storage area through the access door; proceed down awalkway for several feet; make aturn to the left; and then step down on the roof of the freezer where items were often stored, or from where access could begained to another area where items were stored. There wasalight switch accessible from the roof of the freezer which illuminated the storage area. Onthe date of his accident, Pierce opened the door to the storage area, noticed there wasnolight switch in the area of the doorway, and proceeded downthe walkway. Heturned to his left to step down onwhat he thought would be the freezer, but instead, stepped onto the drop ceiling and crashed to the floor ten feet below. Asaresult of his fall, Pierce sustained serious physical injuries. 6Although Pierce had often entered the storage area prior to

the remodeling project, the date of his injury was the first occasion hehadto enter that area after the remodeling project was completed. Hestated that there was nothing different about the appearance of the access door onthe date of his accident. Neither did the plywood walkway look any different, and because there was nolight in the area, there wasnowayto tell that adrop ceiling hadbeen substituted for the former walk-in cooler. Nowarning had been placed outside the door and there wasno lock onthe door. Sterling is the grocery department manager at the Kalispell Rosauers andwasPierce's supervisor onthe 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 hehad entered the storage area himself asoften as six times
ayear prior to the remodeling project andhepresumed it was still okay to use the storage area because the door wasstill there. He expressed his surprise at learning of Pierce's fall. Heexplained, "The door was still there, Imean, it could have been me." OnSeptember 8, 1989, Pierce filed this complaint against ALSC based on his allegation that Hindley negligently failed to guard against the inherent danger presented bythe suspended ceiling by failing to warn of the hazard, provide adequate lighting in the area, orprovide aguardrail. ALSCanswered bydenying negligence, and alleged asaffirmative defenses that Pierce wascontributorilynegligent and that his claim was barred by the accepted work

doctrine. Prior to trial, ALSCmoved for summary judgment onthe 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 onthe accepted work doctrine, and holding that ALSC
wasnegligent asamatter of law based onviolations 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, washidden. With regard to the Uniform Building Code, the District Court held that there were factual issues about whether the code hadbeen violated, andfurthermore, that violations were only evidence of negligence. Ajury trial commenced onOctober 28, 1991, and onNovember 1 the jury returned its verdict that ALSCwas 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 aviolation of the Uniform Building Code is negligence per se. OnNovember 7, 1991, Pierce moved for judgment notwithstanding the verdict, or in the alternative, for a new trial. On 8January 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, 

### weheld in 

### Piercev.

### ALSCArchitects(1993), 259 Mont. 379, 856 P.2d 969, that because the District Court's order had not been entered within 45days after Pierce's motion, the motion had been denied byoperation by law pursuant to Rule 59, M.R.Civ.P. Wealso held that because of this case's unique procedural history, the plaintiff wasnot to blame for previously withdrawing his notice of appeal, and the plaintiff would have anadditional 30days within which to file anotice of appeal after the case wasremanded to the District Court. After remittitur wasreceived bythe District Court, judgment
was entered for ALSCand anotice of appeal wasfiled by Pierce. ISSUE 1 Wasthe defendant negligent as amatter of law? The standard of review of adenial of amotion for judgment notwithstanding the verdict made pursuant to Rule 50(b), M.R.Civ.P., is the sameasthat for review of amotion for adirected verdict, and

.._maybegranted only whenit 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 bedrawn from it. 

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

### Wilkersonv.SchoolDistrictNo.1.5,GlacierCounty(1985), 216Mont 203, 211, 700 P.2d 617, 622).

9Pierce argues that there wasinsufficient evidence to support

the jury's verdict because, based onthe undisputed evidence, ALSC violated the Uniform Building Code, andtherefore, wasnegligent as amatter of law. In Herbstv.Miller (19921, 252Mont. 503, 830 P.2d 1268, weheld that when the Uniform Building Codeis 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 bemadeto an existing building or structure which will cause the existing building or structure to bein violation of any of the provisions of this code nor shall such additions or alterations cause the existing buildins or structure to become unsafe. Anunsafe condition shall bedeemed to have been created if anaddition or alteration will cause the existing building or structure to become structurally unsafe or overloaded

. . . or will otherwise create conditions dangerous to human life.

. . 10Guardrails Sec. 1711. All unenclosed floor and roof openings which are more than 30inches above grade or floor bei0k

. . shall be protected by a guardrail. Guardrails shall not beless than 42inches in height. U.B.C. §§104(b) and 1711 (1985) (emphasis added). Salsbury, whois himself anarchitect, testified that hefirst learned that the access door, which wehave discussed, hadnot been removed, and that access to the storage area had not been sealed off, whenhelearned of Pierce's injury. Healso 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. Hetestified 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 acondition inside the storage area which was "unsafe to human life" in violation of U.B.C. 5104(b) (1985). Heagreed that if the area was accessible following the remodeling project, guardrails were necessary pursuant to U.B.C. §1711 (19851, andthat lighting andanimproved 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 hewas injured did not conform to the requirements of the Uniform Building Codeand that those requirements were only minimum standards.

11Pierce also called Clark Llewellyn asawitness. 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. wasapplicable andthat 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. Hedescribed the ceiling area through which Pierce fell as ahidden defect which cannot be seen until a person is ontop of it. Hetestified that if adoor is provided to anarea and access allowed, anarchitect cannot assume that the area will not beused, andthat if the area is accessible, then the Uniform Building Code is applicable. In response to cross-examination by ALSC's attorney, hespecifically denied that the U.B.C. is only applicable if the owner expresses anintention to use the area. Theonly witness called byALSCto 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. Healso agreed that it was his duty to
assure the store owner that the contractor's performance conformed

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

removal of the storage roomaccess door wasoneof those documents. However, Hindley contended that because hehad 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 beused. Healso acknowledged that because the door wasallowed to remain, it would not have been apparent to Doug Pierce, Lynn Sterling, or any other employee, that the room hadno obvious use. During aninspection ofthe 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 anunenclosed floor opening which wasmore than 30inches above the floor below, andwasunprotected byaguardrail. There is noexception provided in §1711 based onanarchitect's belief that the area will not be used, or will only beused infrequently. Furthermore, the record 13establishes that when Hindley certified that the contractor's

performance wascomplete, the access door remained asit hadalways been with nowarning of the hazard towhich 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. Weconclude that the second floor storage area which hadbeen 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, andwhich waswithout any form of lighting,
was an "unsafe condition

. . dangerous to human life" in violation of U.B.C. 5104(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 hewarn potential users of the hazard which existed. As Professor Llewellyn pointed out, when a functional door is provided, future use has to bepresumed. The fact that Salsbury advised Hindley that the door could be removed and the entryway sealed because future use wasnot planned cannot nowserve asthe excuse for failure to either make the area safe, or to prevent access bythose whowere unaware of the danger that it posed. For these reasons, weconclude that ALSCwas negligent as a matter of law andthe District Court erred when, due to the passage

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

was deemed denied. ISSUE 2 Was the plaintiff free from contributory negligence as a matter of law? Pierce contends that based onthe evidence set forth above, he
was entitled to adirected verdict dismissing ALSC's affirmative defense of contributory negligence. Pierce contends that based on
our decision in Greenv.

### Hagele(1979), 182Mont. 155, 595 P.2d 1159, hehadaright 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. ALSCresponds that Pierce entered adark room without using a flashlight or otherwise attempting to see where hewas 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. ALSCalso contends that Pierce was aware that the walk-in cooler hadbeen removed prior to the date of his accident, andthat he should have associated the cooler's removal with the changed condition of the floor in the storage area. Wehave held that amotion for adirected 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 beconsidered in the light most favorable to the opposing party. 

### Jacquesv.MontanaNationalGuavd(1982), 199Mont.

15493, 649 P.2d 1319. Wehave also held that even when adefendant

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 anissue for the jury
or fact finder to resolve. 

### Uklandv.Wolf (1993), 258Mont. 35, 850 P.2d 302. Based onour review ofthe record, weconclude that construing all inferences from the evidence in amanner 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. Wereview adistrict court's disposition of motions for summary judgment 

### denovo. Spain-MorrowRanch,Inc.v.

### West(1994) ,264Mont. 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 nogenuine issue of material fact andthe 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.

16Pierce contends that hewas entitled to summary judgment on

this issue for several reasons. First, he contends that ALSC assumed the duty to assure that the remodeling project wasdone in
asafe 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 weshould 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 onthe undisputed facts in this case, there was insufficient evidence to justify instructing the jury onthis defense because the construction project was not complete at the time of Pierce's injury andthe 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, wewill not address the previous issues, but conclude that the District Court erred whenit denied Pierce's motion to dismiss ALSC's affirmative defense based
onthe accepted work doctrine. The accepted work doctrine was first discussed, although not applied, in Ulmenx

### Schwieger(19321, 92 Mont. 331, 12 P.2d 856. However, in that case, the doctrine was not discussed in the
17context of relieving acontractor of liability, but rather, for the

purpose of imposing liability on asubcontractor who worked on a highway construction project during that period of time when the subcontractor was actually in control of the premises. Weheld that the cases cited in support of this doctrine
are of that class wherein anowner 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, 12P.2d at 862. Weheld 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 onthe accepted work doctrine. However, wedid not discuss the accepted work doctrine in that case under circumstances where a contractor or a subcontractor was seeking relief from liability for acondition actually created bythe contractor's act of negligence. Weaffirmed and applied Ulmenin Harm@ v.Cahill-Mooney Construction
co.,hzc. (1972), 159 Mont. 413, 498 P.2d 1214. However, in that case, the contractor from whomdamages were sought worked under the direction of the owner of the property regarding the nature and extent of work to bedone. Weheld 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 ahazard through negligent acts or omissions. Weagain cited Ulmen

### in Olsonv.Kayser(1973), 

### 161Mont. 241, 505 P.2d 394. Inthat case, the defendant, aplumbing contractor, had doneexcavation for the installation ofasewer 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, andintended to fill it with gravel. However, before hewasable todoso, the plaintiff,
apasserby, tripped andfell in the recessed area. Weheld that since the contractor hadcommitted noact of negligence from the time his job wascomplete andaccepted bythe property owner, that hewasrelieved of liability bythe doctrine articulated in Ulmen. 

### Ourfirst occasion to reconsider this defense in the context ofmoderntort lawwasourdecision inHarringtonv. LaBelle’sofColorado, Inc. 

### (1988), 235Mont. 80, 765P.Zd 732. In that case, adepartment store in Billings wassuedbyabicyclist whowasinjured whenhe struck aspeedbumpinthe store's parking lot. Theproperty owner filed athird-party complaint against the contractor whoinstalled the speedbump. However, the complaint wasdismissed based upon the accepted work doctrine. Onappeal from dismissal of its third-party complaint, the property owneraskedthat wereconsider
19that doctrine in light of more contemporary decisions from other

jurisdictions which have rejected it. The majority of the court declined to doso. However, Justice Weber, in adissent 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 

### Hannahv.Fletcher(D.C.Cir.1956), 231 F.2d 469. The court reasoned that the antiquated justifications based onlack of privity had noplace in modern theories of liability as set forth in 

### MacPhersonv.BuickMotorCo. (1916), 217 N.Y. 382, 111 N.E. 1050.

. . . This Court has followed 

### MacPhersonand allowed recovery for negligence asserted against the manufacturers of automobiles 

### [see Rixv.GeneralMotorsCorp. (Mont. 1986), 1222Mont. 318,] 723 P.2d 195, 43 St.Rep. 12961, and manufacturers of farm machinery 

### [see Brownv. NorthAmericanManufacturingCo.(1978), 176Mont

.98, 576P.2d 7111. Weconcluded in those cases that it was nolonger 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 byamanufacturer maycause injury, Iseeno reason whyweshould not extend that reasoning to apply to negligent construction byacontractor. Certainly the potential for injury due to negligent construction by a contractor is just as great as with the negligent manufacturing of aconsumer 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
20majority noted a gradual trend away from nonliability for

contractor negligence and observed that, u[aluthors of the Restatement (Second) ofTorts at §385recommended 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: Anumber of courts have expressed dissatisfaction with the rule, favoring amore direct approach such as that of the Texas court in 

### Strakos. 13Am.Jur.2d 

### Buildingand ConstructionContracts§140 (1964)

. Instead of applying the nonliability rule, these courts have established arule that acontractor 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 andthat of abuilding 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), 836P.2d 968 (nonliability rule applies only when contractor has no discretion and is merely following plans and specifications provided by the employer); and 

### Hannahv. 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 areview of the record in 

### Nichols,the majority concluded that there wasaninsufficient 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 adissent joined by Justice Hunt, stated 21that the doctrine had noplace among modern theories of liability

andstated that the defense should nolonger beapplied in Montana. Weare nowsquarely faced with the issue which wedeclined to consider in Nichols, and upon further consideration, conclude that the accepted work doctrine should nolonger befollowed 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 onthe 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 bebuilding 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 ontheir own. Howthen can welogically 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? Wecannot. That is why the

22Supreme 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, bythe 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 onthe appropriate party. Tothe extent that prior opinions discussed herein are inconsistent with this conclusion, they are reversed. Therefore, weconclude 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 adefense to Pierce's claim. Wereverse the judgment for ALSC. Weremand this case to the District Court for entry of judgment in favor of Pierce on the issue ofALSC's negligence, and for further proceedings consistent with this opinion.

Weconcur:Justices

24Justice Fred J. Weber dissents asfollows:

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 andthe conclusion that negligence was established as a matter of law. Section 104(b) of the UBCprovides in pertinent part: Additions or alterations shall not bemadeto anexisting 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. Anunsafe condition shall be deemed to have been created if anaddition or alteration will cause the existing building or structure tobecome 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 andramps, 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 aguardrail.

. . . Idonot agree that §1711mandates that the area where Pierce fell through the ceiling tile to the floor below was anarea for which
aguardrail wasrequired according to the UPC. Nor doIagree with the majority’s conclusion that, asamatter of law, acondition was created that was dangerous to human life. The question whether ALSCviolated the UBCwas 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 anyprovision of the RJBCIrelating to human safety, such violation is negligence. You should then determine whether that negligence wasacause of the 25plaintiff's injury.

According to this instruction, the jury could find that ALSC violated the UBCand, in that event, negligence is established. The court refused to instruct the jury that ALSCwas negligent as amatter of law, leaving the question of whether ALSCviolated 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 noviolation of the UBC. The evidence onthis issue consisted of expert testimony from architects Hindley, Salsbury andLlewellyn. Whether the UBC had been violated was properly aquestion to bedetermined bythe trier of fact based onexpert testimony. Someof that expert testimony, as emphasized in the majority opinion, waspresented 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 anew walking surface, lighting and guardrails even if it wasnot going to beused and even if the
owner insisted upon leaving the area accessible without improvements. There wastestimony from the other architects that such an area is up to code without improvements if no use is planned for the area.
26Architect Hindley testified that the use to bemadeof aroom

determines how the UBCrequirements for improvements are to be applied, specifically stating that "it is upto code if it's not being used." Hetestified that his understanding wasthat the use of that space wasto bediscontinued 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 RoyBeekman agreed to leave the door in place and that access waspossible to the area, hewasassured again that the
area was not going to be used for any purpose. Based upon that assurance, hedetermined 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 achange order primarily intended to provide access to the new security room. Sealing off the access by sheetrocking over the door opening was planned sothat the door could beused for the newsecurity room. Hindley and Salsbury agreed to move the door to the new security
room in order to save oncosts. They agreed that if the area where Pierce later fell through was going to be & by Rosauer's, it would need improvements, including aguardrail, in order to conform to the UBC. Salsbury assured Hindley that the area was not going to beused for any purpose. Removal of the door was never amain concern; it wasplanned in order to provide access to the newroom, not primarily to conform to the UBC. Based onSalsbury's decision to abandon any use of the area, Hindley did not insist onclosing off the space with sheetrock when he learned that, instead of
2-lclosing off the room, anewdoor wasprovided bythe contractor for

the newroom at noextra 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 anddid not need improvements unless it was going to beused. Hetold 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 towasthe statement that if the area were to beused 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), aprofessional organization for architects. Violation of anAIA 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 wasto beabandoned. He testified that unused attic space, even if there is anaccess door to it, does not require sealing off access to comply with the UBC. Hefurther testified that, although there is no UBCrequirement that aspace has to be sealed off or improved, hedecided, at the time of his initial discussion with Hindley about the space, that
28it besealed off because it wasgoing to beabandoned andnot 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 beused. Furthermore, if Rosauer's hadnot decided to have asecurity 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 aviolation 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 UBCwas violated if the area was to be used; on cross-examination hetestified the area was like unused attic space which did not need improvements. All three architects agreed that the area hadto beimproved to conform to the UBCif it
was going to beused; only Llewellyn testified unequivocally that the area here did not conform to the UBCrequirements 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, hedid not testify that it did not conform to UBCstandards. His testimony wasthat it did not comply
29with AIA standards, which are different from andmore 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 hasbeen extended to negligence actions in Montana against veterinarians, medical doctors, lawyers, dentists, orthodontists, manufacturers of pharmaceuticals, andabstracters of title. Zimmerman v. Robertson (1993), 259Mont. 105, 107, 854P.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, 51St.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 Lawof Torts, §32 (5th ed. 1984); Zimmerman, 854P.2d at 339. After admitting evidence of expert testimony to assist the lay jurors in this case in making their determination onthe issue of the professional architect's negligence, the District court submitted the issue ofALSC's negligence tothe jury. Themajority has disregarded that expert testimony from architects Hindley and Salsbury andhas concluded that there wasnot substantial evidence to support the jury's verdict andthat the uncontroverted evidence
30established 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 UBCwasviolated or that the UBCwasnot violated. Themajority hasusurped the jury's role and made that determination as amatter 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 UBCwas 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 bythe door, which wasleft, wasgoing to becontinued to beused for any purposes? A Yes. Salsbury testified that an area not used did not have to conform to the UBCrequirement for a guardrail and likened the space to unused attic space. His testimony was as follows: Q[by Mr. Heckathornl Andif attic or if anattic space is going to beabandoned, andnot used, there is norequirement, under the [UBCI to dosomething with the attic, is there? A NO. Q Andthere is noproblem, even if you have anaccess door to that unused space, you still don't have to doanything to it, doyou? 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 31that attic space must bedeveloped and --

A Whenthere is ause? Q Well, what kind of ause? A Use by humans.

. . Q

. . .Under the facts that you have given us, that you had told Steve that the attic space wasgoing to beabandoned, you don't contend that there was some duty on the part of Steve to do something to comply with the [UBC], doyou? A I donot, as long as the space was sealed off. Q Yeah. Well, no -- As long asyou had told him that it was going to beabandoned 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, sothat it would be safe, or that wewould 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 Andyou told him that youwould not, that you were going to abandon it? A That's true. Q Now, the [UBCI does not require, and Ithink that wehave already said that, does not require work to be done in an unused attic space, even if there is anaccess door to it? A That's true. Q And so, it isn't arequirement that it be sealed off? A That was mydecision, however, and direction. Q That was by direction of the UBCnow? A Yes. Q There is noUBCrequirement that aspace has to besealed off, and if it isn't sealed off it has to have work done on it? 32A That's true.

Q Andthe only knowledge that Steve hadagain, wasthat you had said it was going to beabandoned? 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 beused? A That's true.

. . . Q[by Mr. Heckathornl NOW,Mr. Salsbury, wesaw alot of exhibits about the AIA andalot of requirements andthose are some of the requirements and there are a lot more, aren't there? Imeanthere is alot of requirements onanarchitect, you have alot of professional responsibilities andyou goto school for along 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 dowith the issues that wehave defined? A Well, mythinking is that these exhibits define roles, define paths of communication, define authorities and obligations. Q Doyou think that Steve violated any of those ideals, regulation of AIA in this contract? A Ofthe AIA? Q Yes. A Yes. The requirement of the AIA which Salsbury thought Hindley violated was the failure to recognize that there was acontract 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 33the contractor providing anewdoor for the security room for the

sameprice. 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 donot agree that ALSC's performance violated the UBCsections. Moreover, there
was substantial evidence to support the jury's finding of no negligence onALSC'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 beprotected by aguardrail. It was anabandoned 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 donot agree that this was anunsafe 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 someextent blocked access to the area where the cooler hadpreviously provided the floor and that this should have
34alerted Pierce to changes within the space. Although the access

door remained where it had always been, the area inside the space behind the door wassubstantially changed. Idonot agree with the statement of the majority that "when afunctional door is provided, future use has to bepresumed." 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 ALSCwas not negligent. Iwould affirm the District Court onthis issue. was its

35Justice 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 1is whether defendant wasnegligent as amatter of law byvirtue of its violation of the Uniform Building Code. The Court recounts the clear and uncontroverted evidence--including that of Mr. Salsbury--that the UBCwas violated and determines, onthat basis, that the District Court erred in not granting plaintiff's motion for judgment notwithstanding the verdict. The dissent presents apicture of Mr. Salsbury's testimony suggesting that Mr. Salsbury equivocated and, thus, created ajury question regarding whether the UBCwas violated. Because it is myview 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 Dougwasinjured, did the area accessed through the door, off of the store manager's office, andin particular the area where DougPierce 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, aswas called for in the clarification drawing R17, would the building at that point have conformed to the provisions of the Uniform Building Code? A Ibelieve that it would, that space would have been made non-accessible.
36. . . . Q Doyou consider this door, in andof itself, to be ahazard, Mr. Salsbury, or does it gain access to a hazard? A It gains access to ahazard. Q Sothe real -- Let meask 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 asto that door being left there? A Wepreferred that it be sealed off Q Because it creates adangerous situation? A Yes.

. . . . Q Thereal part ofthis case, Mr. Salsbury, would you agree, is that there was acondition inside of this storage area which was unsafe to human life at the time that Mr. Pierce wasusing that space andat the time that hewas injured onMay21, 1988? A Yes.

. . . . Q Let's assume for aminute that under section 104(B) that leaving the door here as it was at the time of the accident, unlocked, nowarning signs, nowarning signs inside the area, nobarricade around the area, but as it existed at the time of the accident, and under section 104(B), did that constitute acondition which was ahazard to human health and safety? A Yes, in myopinion it did. Q so, in other words, under any of the scenarios that wehave 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 Inother words, the real hazard that this whole lawsuit is about isn't simply the fact that adoor was left in the contravention of your order and the contravention ofthe contract documents, in contravention of the architect's duty, but the real gut of the lawsuit is, is that door allowed access to ahidden 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 aviolation 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