No. 87-68 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1987 

LARRY D. THORNOCK, 

Plaintiff and Appellant, 

-vsSTATE OF MONTANA, 

Defendant and Respondent. 

APPEAL FROM: District Court of the Twentieth Judicial District, 

In and for the County of Lake, 

The Honorable C. B. McNeil, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Edward K. Duckworth argued, Ronan, Montana 

Michael J. McKeon argued, Anaconda, Montana 

For Respondent : 

R. Scott Currey argued, Agency Legal Services Bureau, 

Helena, Montana 

Submitted: September 15, 1987 

Decided: November 4, 1987 

Filed: 14 av 4 - 1987 

Clerk 
Mr. Justice John Conway Harrison delivered the Opinion of the 

Court. 

Plaintiff Larry D. Thornock appeals from an order of 

the District Court of the Twentieth Judicial District 

granting summary judgment for the State. He had claimed that 

the State had been negligent in failing to inspect hazardous 

places of employment as required by 50-71-321, MCA. He 

argues that this inaction by the State allowed the sawmill at 

which Thornock worked to operate in a hazardous condition and 

led to an accident in which Thornock lost his left arm at the 

elbow. We are presented with the question of whether the 

federal Occupational Safety and Health Act (29 U.S.C. 55 651 

et seq.) preempted that statutory duty. The District Court 

ruled that it did and granted summary judgment for the State. 

We affirm. 

On December 1, 1982, Thornock injured his left arm 

while attempting to unjam a hlock of wood that had stalled a 

conveyor belt called a feed chain at the Flathead Lumber 

Company in Polson, Montana. He did not turn off the power 

that fed the machine. The result was that his arm was pulled 

into the drive chain and sprocket. Thornock filed a claim 

for Workers' Compensation benefits and received a full and 

final settlement in September 1984. One of the owners of the 

mill stated in his deposition that the State had never 

inspected that feed chain in the five years that the sawmill 

had been operating. Section 50-71-321, MCA, adopted as part 

of the Montana Safety Act in 1969, provides: 

(1) The division [of Workers I 

Compensation] shall inspect from t.ime to 

time all the places of employment defined 

in the Montana Workers1 Compensation Act 

as being hazardous and the machinery and 

appliances therein contained for the 

purpose of determining whether they 

conform to law. 
(2) A report of such periodic inspection 

shall be filed in the office of the 

division and a copy thereof given the 

employer. Such report shall not be open 

to public inspection or made public 

except on order of the division or by the 

division in the course of a hearing or 

proceeding. 

Mr. Thornock filed his claim against the State on 

January 10, 1985. In paragraph V of his complaint, he 

alleged that the State's failure to inspect the feed chain 

constituted negligence that was a proximate cause of the 

"traumatic amputation" of his arm. The State answered that 

it had no responsibility for the safety of working conditions 

at the Flathead Lumber Company in December 1982 because its 

authority had been preempted by the federal Occupational 

Safety and Health Act. Both parties moved for summary 

judgment and briefed the issue. On January 21, 1987, the 

District Court granted the State's motion for summary 

judgment, pursuant to Rule 54 (b) , M. R. Civ. P., and denied 

Thornock's motion. The District Court wrote: 

In 1970 the U.S. Congress enacted OSHA to 

assure safe and healthful working 

conditions and provides [sic] that states 

may assert jurisdiction where there are 

no federal standards in effect. 

29 C.F.R., Sec. 1900.265 was adopted and 

set federal safety standards for sawmills 

and adopted specific construction, 

operation and maintenance standards for 

conveyors . . . Since the adoption of 

OSHA and said regulations, the State of 

Montana has not followed the procedure 

provided therein for the state to assert 

jurisdiction over occupational safety in 

this area of conveyors in sawmills. 

The federal law and regulations adopted 

pursuant thereto have preempted the state 

law which is the basis of Plaintiff's 

complaint and Defendant is therefore 
entitled to summary judgment as a matter 

of law. 

On appeal, Thornock concedes that OSHA preempts the 

promulgation of safety standards and enforcement of such 

standards from the State's purview. However, he argues that 

OSHA has not preempted the State's responsibility of 

gathering and compiling information as to safety in the work 

place. He argues also that the wording of OSHA does not meet 

the United States Supreme Court's test for the applicability 

of the doctrine of preemption as set forth in Silkwood v. 

Kerr-McGee Corp. (1984), 464 U.S. 238, 104 S.Ct. 615, 78 

L.Ed.2d 443. We shall consider these arguments in turn. 

His first argument--that the State's duty to inspect 

hazardous work places and prepare reports on their safety js 

not preempted by OSHA--is founded on the premise that OSHA 

was intended to preempt states from setting and enforcingtheir own standards as to worker safety but not as to 

inspections. He notes that 29 U.S.C. S 667(a) allows state 

agencies to " [assert] jurisdiction under state law over any 

occupational safety or health issue with respect to which no 

standard is in effect under section 655 of this title." He 

notes that 29 U.S.C. § 655 establishes the rulemaking 

procedure by which the Secretary of Labor may "promulgate, 

modify, or revoke any occupational safety or health 

standard," and claims this does not include the process of 

inspection. Because inspection is not included in 29 U.S.C. 

S 655, he claims that § 50-71-321, MCA, is still valid 

because of 29 U.S.C. S 667 (a) Is provisions guarding state 

duties. Furthermore, he notes that 29 U.S.C. § 667(b) 

provides a means by which any state may petition the 

Secretary of Labor "to assume responsibility for development 

and enforcement . . . of occupational safety and health 

standards relating to any occupational safety or health issue 

with respect to which a Federal standard has been 
promulgated . . . " He concedes, however, that the State of 

Montana has never completed such a petition. 

Thornock relies on P & Z Co., Inc. v. District of 

Columbia (D.C. 1979), 408 A.2d 1249, in which the Court of 

Appeals for the District of Columbia distinguished the three 

functions of OSHA as standard specification, standard 

enforcement, and information gathering and reporting. 

P & Z Co., 408 A.2d at 1250. That court held that OSHA does 

not preempt state duties unless standards have been 

promulgated under 29 U.S.C. S 655. Thornock contends that 

since information gathering and reporting has not been 

considered to be a standard, information gathering and 

reporting are not preempted by OSHA. P & Z Co. , 408 A. 2d at 

1250. The District of Columbia Court of Appeals found 

nothing in the legislative history of OSHA to support the 

appellant's claim that a statute requiring an employer to 

report employee injuries had been preempted by OSHA. 

P & Z Co., 408 A.2d at 1251, n. 7. Similarly, in Berardi v. 

Getty Refining & Marketing (N.Y. 1980), 435 N.Y.S.2d 212, the 

court ruled that while OSHA was meant to be exclusive in the 

promulgation and enforcement of standards, a state may take 

jurisdiction over any safety issue on which there is no 

federal standard. Berardi, 435 N.Y.S.2d at 216. Thornock's 

reliance on these two cases, however, is misplaced because 

the holdings of these cases are at odds with the allegations 

of Thornock's complaint. In his complaint, Thornock cites 

9 50-71-321, MCA, as requiring the State to inspect the 

sawmill's feed chain and enforce standards. He claims it was 

the State's failure to inspect the premises along with the 

State's failure to require the sawmill to be operated safely 

that was the proximate cause of his injuries. Whereas 

P & Z Co. holds that a state or other local jurisdiction can 

exercise duties not preempted by OSHA, Thornock specifically 

incorporates into his complaint a duty preempted by OSHA--the 
right to enforce standards. The thrust of the holding in 

P & Z Co. is that the adoption and enforcement of work place 

safety standards by the states is preempted where federal 

standards have been promulgated. P & Z Co., 408 A.2d at 

1250. 

Section 50-71-321, MCA, does not exist in a vacuum; it 

is an integral part of a state scheme to set and enforce 

safety codes, §§ 50-71-101 through 50-71-334, MCA. Thornock 

concedes, however, that the provisions in that state scheme 

for establishing and enforcing safety standards are preempted 

by OSHA, but contends the element of the scheme providing for 

state inspection is still vital. He argues, in effect, that 

the State still has a duty to inspect work sites even though 

its authority to set the standards to be inspected or to 

impose sanctions for discrepancies has been superseded. 

The tort of negligence arises when one has a duty 

recognized by law, he breaches that duty, the breach of the 

duty serves as a legal cause of another's injury, and that 

injury is an actual loss or damage. Roy v. Neibauer (Mont. 

1981), 623 P.2d 555, 556, 38 St.Rep. 173, 174; Pretty on Top 

v. City of Hardin (1979), 182 Mont. 311, 315, 597 P.2d 58, 

60. If no duty exists there can be no negligence. Ambrogini 

v. Todd (1982), 197 Mont. 111, 118, 642 P.2d 1013, 1017, 

citing Prosser on the Law of Torts 5 30; Green v. Haegele 

(1979), 182 Mont. 155, 158, 595 P.2d 1159, 1161. No duty on 

the part of the State lies here because of the federal 

government's usurpation of the Montana Safety Act when 

Congress passed OSHA in 1970. Congress declared its role in 

29 U.S.C. 5 651 as being "to assure so far as possible every 

working man and woman in the Nation safe and healthful 

working conditions . . . " by creating occupational health 

and safety standards, establishing an enforcement program, 

and providing appropriate reporting procedures. Subsection 

11 of 29 U.S.C. S 651 allows states to assume administration 
of workers' safety programs if they submit plans approved by 

the Department of Labor. 

State laws dealing with workers' safety are preempted 

once OSHA enacts similar standards. New Jersey State Chamber 

of Commerce v. Hughey (3rd. Cir. 1985), 774 F.2d 587, 592. 

In that case, the court refused to hold that OSHA preempted 

all of New Jersey's environmental protection laws since the 

Secretary of Labor's preemptive authority applies only to 

state occupational safety and health laws. Chamber of 

Commerce, 774 F.2d at 593. OSHA itself provides the 

Secretary of Labor and his agents with the authority to enter 

any factory, construction site or other work place to inspect 

and investigate machinery and working conditions. Such 

inspecti-ons are sanctioned under 29 U.S.C. S 657. See, 61 

Arn.Jur.2d Plant and Job Safety 5 62 (1981). Since the 

federal legislation itself provides such inspection 

authority, it makes no difference whether standards for 

inspection have been approved under 29 U.S.C. § 655. In Ohio 

Manufacturers' Association v. City of Akron (6th Cir. 1986) , 

801 F.2d 824, the court interpreted the legislative history 

of OSHA. It determined that OSHA was intended to establish a 

national standard, which would be needed to insure that all 

states would at least meet certain minimum work safety 

requirements. To that degree, the court held that state 

workers ' safety laws were preempted expressly. 

Ohio Manufacturers' Association, 801 F.2d at 831. It also 

concluded that OSHA standards on communication of hazards, 29 

C.F.R. 1910, impliedly preempted a city ordinance that 

regulated the presence of hazardous substances in the work 

place. Ohio Manufacturers' Association, 801 F.2d at 834. 

That court ruled that OSHA's desire to achieve uniformity 

would aid in the enforcement of, and compliance with, its 

standards. 
The reasoning employed by the Sixth Circuit Court of 

Appeals in Ohio Manufacturers' Association is sound and is 

applicable to the question before this Court. Thornock must 

persuade this Court that federal powers granted in OSHA do 

not relieve the State of its burden to inspect dangerous work 

sites. As we have noted previously he bases that argument on 

the fact that OSHA expressly relieves the State of its right 

to set standards and to enforce standards, but fails to 

expressly relieve the State of its duty to inspect. Such an 

argument fails. Congress has stated expressly that 

formulation and enforcement of work place safety will be a 

prerogative of OSHA. The power to inspect the work place is 

part and parcel of the enforcement of standards. Without 

inspections, the governing agency has no grounds for 

enforcement. Similarly, without enforcement powers, which 

Thornock concedes the State no longer has, inspection 

privileges are meaningless. 

Congress may preempt state laws in either of two 

manners. The first occurs when Congress manifests an intent 

to occupy the field; the second occurs when Congress passes 

federal legislation not intended to occupy the field. In 

that case, any contradictory state laws must yield to the 

federal legislation. Pacific Gas & Electric Co. v. State 

Energy Resources Conservation & Development Commission 

(1983), 461 U.S. 190, 203-04, 103 S.Ct. 1713, 1722, 75 

L.Ed.2d 752, 765; State ex rel. Nepstad v. Danielson (1967), 

149 Mont. 438, 440, 427 P.2d 689, 691. The first of these 

scenarios controls this case. 

It is plain from reading the Occupational Safety and 

Health Act that Congress intended to occupy the field of 

assuring worker safety. Congress accomplished this by 

setting minimum federal standards that all employers must 

meet. Thornock's argument that Congress did not occupy the 

field because it expressly included. provisions in OSHA by 
which the various states could resume workers safety programs 

is not persuasive. In order to regain the right to set and 

enforce work safety rules, a state must submit to the 

Secretary of Labor a plan that is "at least as effective in 

providing safe and healthful employment and places of 

employment as the standards promulgated under section 655 

. . . " 29 U.S.C. $ 667 (c) (2) . So while states may choose 

to exercise work safety programs, they may do so only on the 

federal government's terms. This field has been occupied by 

federal law; as such we need not concern ourselves with 

whether $ 50-71-321, MCA, is or is not contrary to OSHA. 

Such an analysis would be required only if the field had not 

been occupied by the federal government but one party claimed 

state law and federal law clashed. 

The doctrine of preemption stems from Article VI, cl. 2 

of the United States Constitution, which states that the 

United States Constitution and the laws of the United States 

"shall be the Supreme Law of the Land . . . " Congress' 

intent to preempt state law may be either explicit in the 

statute or implicit in its structure and purpose. Marshall 

v. Burlington Northern, Inc. (9th Cir. 1983), 720 F.2d 1149, 

1152. In Jones v. Rath Packing Co. (1977), 430 U.S. 519, 97 

S.Ct. 1305, 51 L.Ed.2d 604, the United States Supreme Court 

ruled that when Congress has "unmistakably ordained" that its 

enactments alone will regulate a portion of commerce, any 

state laws regarding that aspect must fall. Jones, 430 U.S. 

at 525-26, 97 S.Ct. at 1310, 51 L.Ed.2d at 614. The 

interpretation and application of state law, vis-a-vis 

federal law, is as crucial in this determination as is the 

actual- wording of the competing acts. Jones, 430 U.S. at 

526, 97 S.Ct. at 1310, 51 L.Ed.2d at 614. 

Montana law recognizes that it is not the wording that 

determines if a state law has been preempted by federal 

action. "It is well settled that the question of whether a 
statute is invalid under the supremacy clause depends upon 

the intent of Congress." Mountain States Telephone & 

Telegraph Co. v. Commissioner of Labor and Industry (1979), 

187 Mont. 22, 41, 608 P.2d 1047, 1057, appeal dismissed 445 

U.S. 921, 100 S.Ct. 1304, 63 L.Ed.2d 754. As we have noted 

earlier Congress stated that OSHA was meant to assure every 

working person "safe and healthful working conditions." 29 

U.S.C. S 651(b). Congress also has stated a desire to return 

the function of protecting workers1 safety to the various 

states as soon as the state submits a plan at least as 

stringent as OSHA to the federal government for approval. 29 

U.S.C. 5 667 (b) . Montana has completed no such state plan. 

This combination of effective federal standards and State 

acquiescence to those standards despite the fact that the 

State could, if it wanted to, recapture those powers 

demonstrates that the federal government has occupied the 

field. Thus, Congress has preempted the Montana Safety Act. 

As his second issue, Thornock claims OSHA falls short 

of the test for preemption established in Silkwood, supra. 

In Silkwood, an award of punitive damages under state law for 

the decedent's contamination by plutonium was not preempted 

even though Congress had passed the Atomic Energy Act in an 

effort "to encourage widespread participation in the 

development and utilization of atomic energy for peaceful 

purposes." Silkwood, 464 U.S. at 257, 104 S.Ct. at 626, 78 

L.Ed.2d at 458, citing 42 U.S.C. 5 2013(d). The Supreme 

Court also noted that punitive damages would not be contrary 

to the federal act since 42 U.S.C. S 2013(d) said such 

development and utilization of atomic power should be done 

"consistent with thr health and safety of the public." The 

award of punitive damages did not contravene federal 

purposes. Silkwood, 464 U.S. at 257, 104 S.Ct. at 626, 78 

L.Ed.2d at 458. 
Such rationale does not comport well with the 

circumstances of this case. In 29 U.S.C. 5 657, the 

Secretary of Labor is provided with means by which he may 

enter and inspect a work site. Subsection (d) says very 

specifically that any such inspections by federal agencies or 

by proper state agencies shall not be unnecessarily 

burdensome on the employer 

(dl Obtaining of Information 

Any information obtained by - the 

il. Secretarv. Tof - Labor1 the Secretarv of 

Health and Human ~e;vices, - or - a - State 

agency under this chapter shall - be 

obtained - with a minimum burden upon -. -- employers, especially those operating 

small businesses. Unnecessary 

duplication . - - of efforts in obtaining . -- - 

information shall be reduced to the 

maximum --- extent -- feasible. (Emphasis 

added. ) 

The intent of Congress is clear. It has created 

federal law by which to insure the safety of the work place. 

It has established an agency to set standards and to enforce 

them. This has been done to create a uniform minimal level 

of safety. Thus, state efforts to set and enforce standards 

have been superseded. In addition, Congress has realized 

that a plethora of inspectors from all sorts of agencies is 

not needed, and ordered that such inspections not be unduly 

repetitious. The State of Montana, with no standards of its 

own or any enforcement powers, decided not to inspect 

dangerous work places. It concluded that OSHA had assumed 

that responsibility. 

As a last-ditch argument, Thornock cites 29 U.S.C. 

S 653(b) (4) and argues that it exempts his cause of action 

from OSHA preemption. That subsection reads: 

Nothin in this chapter shall be 

constr:ed To 

C 

su~ersede or in any manner 

affect 3 workmen's compensatio~ -- law or 

- to enlarge - or diminish - or affect in any 
other manner the common law -- or statutory 

rights, duties, or liabilities of 

employers - and employees under any law 

with respect to injuries, diseases, or 

death of -employees arising out of, or in 

the course of, employment. (Emphasis 

added. ) 

This argument has little merit. In United Steel Workers of 

America v. Marshall (D.C. Cir. 1980), 647 F.2d 1189, cert. 

denied National Association of Recycling Industries, Inc. v. 

Secretary of Labor, 453 U.S. 913, 101 S.Ct. 3149, 69 L.Ed.2d 

997, an issue was whether the monitoring of blood-lead levels 

and the payment of benefits to those that exhibited high 

blood-lead levels was an attempt to federalize workers' 

compensation laws. The Circuit Court termed 29 U.S.C. 

5 653 (b) (4) as "vague and ambiguous on its face, " and further 

stated that OSHA's legislative history reveals "essentially 

nothing" about the section. United Steel Workers, 647 F.2d 

at 1234, see also n. 70. It is true that the general rule of 

statutory construction in Montana is that a court should 

interpret the statute so as to allow the intent of the 

legislature to control if possible. Darby Spar, Ltd. v. 

Department of Revenue (Mont. 1985), 705 P.2d 111, 113, 42 

St.Rep. 1262, 1264. In interpreting an act of Congress, a 

court may not depart from the statute's clear meaning. Adams 

v. Morton (9th Cir. 1978), 581 F.2d 1314, 1320, cert. denied 

sub nom Gros Ventre Tribe v. United States (1978), 440 U.S. 

958, 99 S.Ct. 1498, 59 L.Ed.2d 771. It can be clearly 

determined from the language of this section that Congress 

did not mean to interfere with the various states' workers' 

compensation schemes. Beyond that, Congress' intention is 

obscure. We conclude that Thornock's cause of action is not 

exempted from OSHA. 

After a careful review of the record and a weighing of 

the arguments we agree that the State's duty to inspect had 

been superseded by the federal act. Thus, the fact that the 
State had not inspected the sawmill at which Thornock was 

injured does not make the State negligent for the most 

important element of negligence--duty--had been assumed by 

the federal government. We affirm the District Court's order 

granting summary judgment for the State. 
Mr. Justice William E. Hunt, Sr., dissenting: 

In this Opinion, as in Thornock v. Pack River Management 

Co. (1987), 740 P.2d 149, the majority posits an argument 

which denies Larry Thornock any third party action recovery 

for the tragic amputation of his left arm. I disagree with 

the result of the majority opinion and would reverse the 

judgment of the District Court. 

I concur with the foregoing dissent of Mr. Justice William 

E. Hunt, Sr. 

I '-, / 

/ ,I Justice 

'/ li' [ ' C