No. 13520 INTHE SUPREME COURT OF THE STATE OF MONTANA 1977

NORVAL C. BONAWITZ,Plaintiff and Respondent,

LOIS BOURKE as Executrix of the Estate of PAT BOURKE, Defendant and Third Party Plaintiff

and Appellant,

RUSSELL FLEHARTY, GENE MOSSEY, WILLIAM H. WEBSTER, and WILLIAM J. WEBSTER, Third Party-Defendants and Respondents.
Appeal from: DistrictCourt of the Tenth Judicial District, Honorable LeRoy L. McKinnon, Judge presiding. Counsel of Record: For Appellant: Cure and Borer, Great Falls, Montana Charles Borer argued, Great Falls, Montana Patterson and Marsillo, Missoula, Montana For Respondent: Robert Johnson Lewistown, Montana Torger Oaas argued, Lewistown, Montana Marra, Wenz & Iwen, Great Falls, Montana David Hopkins argued, Great Falls, Montana Rapkoch and Knopp, Lewistown, Montana Robert L. Knopp argued, Lewistown, Montana

#fl 

# JFLL 1!3L Filed* Submitted: April 19, 1977

ClerkMr. Justice John Conway Harrison delivered the Opinion of the Court.

Plaintiff Norval Bonawitz brought suit inthe district court, Cascade County, against the Estate of Pat Bourke, deceased, torecover damages for injuries sufferedwhen 

### a scaffoldupon which he was working collapsed. Bourke died afterthe accident, but prior tocommencement of this action. The Estate of Bourke (~ourke) filed

### a third party complaint for indemnity against third party defendants Russell Fleharty, Gene Mossey, 

### WilliamH. Webster and William J. Webster. After extensive formal discovery by 

### allparties, third party defendants filedmotions for summary judgment. The court entered summary judgment in favor of allthird party defendants. Bourke appeals thisruling. Bonawitz and Bourke were the sole stockholders of a corporation known asBonawitz & Bourke, Inc. Bourke 

### was the president and owned 

### 75%of its stock. Bonawitz was the vicepresident and owned 25%of the stock. Bonawitz & Bourke, Inc. owned a ranch south of Lewistown, Montana known as the "~ewis Place". Bourke 

### was leasing thisranch from the corporation pursuant toan oral lease. On the morning of the accident, 

### a work party consisting of Bourke, Bonawitz, and the four third party defendants met ata ranch house located on the Lewis Place. The purpose of this gatheringwas toreshingle the roof of the ranch house. The work 

### was undertaken 

### at the request of Bourke. There 

### is

some question whether Bourke individually, or the corporation, supplied the shingles and at least a portion of the materials to be used in the construction of a scaffold. Alllabor was on a volunteer basis. The four thirdparty defendants arrived atthe Lewis Place first, and commenced building the scaffold tobe used inche reshingling process. The Websters and Mossey had previous experience in the construction of scaffolds. Neither Bourke

rlor Bonawitz participated in the actual construction or erection
01' the scaffold. During this time they were engaged inhauling the shingles from a storage shed and various other duties incidental tothe shingling operation. When the scaffolding was fullyerected, Bonawitz and the thi1.d party defendants climbed upon 

### it and began removing the old shingles. They had been working about an hour and were just beginning toput on the new shingleswhen the center support for the scaffold collapsed. As he fell, Bonawitz apparently put his arm through the glass of a nearby window inan attempt to catch himself. Severe and partially disabling injuries resulted. Pretrial discoveryindicated the cause of the scaffold failure

was improper construction, rather than weakness of the component parts. Bonawitz's complaint alleges he was in the employ of Pat Bourke atthe time of the accident and Bourke, as the employer, had an obligation to furnish plaintiff with a safe place towork and safe appliances and instrumentalitieswith which towork. After discovery was completed, Bourke fileda third party complaint for indemnity against the third party defendants alleging it was their active and primary negligence in the construction of the scaffold that caused plaintiff's injuries. Two issues are presented upon appeal: I. Whether the district court erred in granting summary judgment in favor of third party defendants? 2. Whether Bourke is liable toBonawitz by virtue of the Scaffold Act under the facts and circumstances of this case? Rule 56(c), M.R.Civ. P., states that summary judgment shallbe rendered only if:

## "** 

## * the pleadings, depositions, answers to interrogatories, and admissions on file show that there is no genuine issue 

### as toany material fact and that the moving party is entitled to

### a judgment 

### as a matter of law." 

## * *" The general purpose underlying Rule 

### 56, M.R.Civ. P., is topromptly dispose of actions which have no genuine issue of fact, thereby encouraging judicial economy through the elimination of unnecessary 

### trial, delay and expense. Guthrie v. Dept. of Socialand Rehab. Services, Mont

# . 9 563 P.2d 

### 555, 34 St. Rep. 255; Silloway v. Jorgenson, 146Mont. 307, 406 P.2d 

### 167. Nevertheless, summary judgment is not a substitute for a trial. Guthrie, supra; Johnson v. Johnson, Mon

### t

# . J 561 P.2d 

### 917, 34 St. Rep. 162. This Court has consistently held that the party moving for summary judgment has the burden of showing the complete absence of any genuine issue as toallfactswhich 

### are deemed material in light of those substantive principles which entitled him toa judgment as

### a matter of 

### law. Harland 

### v. Anderson, Mon

### t

## , 

# , 548 P.2d 

### 613, 33 St.Rep. 

### 363. This rule imposes 

### a strictstandard upon the movant and inKober &. Kyriss v. Billings Deaconess Hosp., 148Mont. 

### 13.7, 122, 417 P.2d 476, this Court, quoting from 

### 6 Moore's Fed.Prac.2d 956.15[3], held: ""*

## * *To satisfyhisburden the movant must make

a showing that is quite clearwhat the truth is, and that excludes any realdoubt as tothe existence of any genuine issue of material fact.'I1 It is clear therefore that the party opposing the motion 

### willbe indulged tothe extent of 

### allinferences which may be reasonably drawn from the offered proof. Harland v. Anderson, supra; Mally v. Asanovich, 149Mont. 

### 99, 423 P.2d 294; Johnson

v. St. Patrick's Hospital, 148Mont. 125, 

### 417 P.2d 

### 469. Considering the facts of the instant case, 

### we feel genuine issues of material factremain unresolved. The thirdparty defendants are therefore not entitled tosummary judgment


### as a matter of law. While we find several

### material issues of fact remain unresolved, we feelthe most significant is found in the district court's finding of fact No. 

### 4. This finding states: "The materials were furnishedby Bourke, orby the Corporation

## * * *." Certainly the fact of whether Bourke individually or the corporation furnished the constructionmaterials is of relevance determining forwhom the work was being done. The fact of whether Bourke individually or the corporation 

### was in immediate supervision or control of the reshingling operation is of great import in light of plaintiff's reliance on Montana's Scaffold Act, section 69-1401, et seq., R,,C.M. 

### 1947. The interpretation given Montana's Scaffold Act inregard tothe person who owes the duty of care toworkers was discussed in Stateexrel. Great Falls National Bank v. District Court, 154Mont. 

### 336, 343, 463 P.2d 326, where the Court stated:

'I* 

## * * against whom is the injuredworkman entitled torecover? 

### Qrstatedanotherway, who owes the basic duty imposed by the Scaffold Act? We must look tothe Scaffold Act itself todetermine the answer tothis question. Section 69-1402, R.C.M. 1947, imposes a duty on 'every owner, person,or corporation who shallhave the direct and immediate

--- ~~r:mir\n hw n~mtnnl nf' thn nnnnt-wrrntinn nr, supel VIDIVLI VL bVLI bL VI UI VLLG CIVIIU Ub UIVII remodeling of any building having more than three framed f'---- I 

### "- 

### ----- '2- 

# - 4-

### ,,. n-ln".l.rrA LUUL'Y ' (ru PL'UVLU~ d ~e~i~pu~'a~-y pLallncu :'which shallbe laid toform 

### a good substantialtemporary floor for the protection of employees and allpersons engaged above orbelow, or on such temporary floor in suchbuilding.' (~mphasis supplied.

### ) "~ection 69-1404, R.C.M. 1947, provides that 'It 

### - shallbe the duty of allowners, contractors, builders, or persons having the direct and immediate control or supervision of any buildings under construction toprotect stairways, elevator openings, flues, and allother openings inthe. floors

# . (~mphasis supplied.

### ) I' 154Mont

# . 343 See also: Boyer v. Kloepfer, Mont

# . ,

## , 554 P.2d 

### 1116,

### This Court has held that the firm, 

### person or corporation having directand immediate control of the work involving the
use of scaffolding is 

### the one upon whom the duty is 

### imposed by the ScaffoldAct. Stateexrel. Great FallsNational Bank v. District Court, supra. This is a 

### clarification of dictum contained inearlier case law

### which appeared toimpose a nondelegable dutyupon the landowner. See: Pollard v. Todd, 

### 148 Mont. 

### 171, 418 P.2d 869; Joki v. McBride, 

### 150Mont. 

### 378, 463 P. 

### 2d 

### 78. Resolution of appellant's first 

### issue makes discussion of the second issueunnecessary. The summary judgment is 

### vacated and the cause remanded tothe districtcourt for further proceedings not inconsistentwith this opinion.

We Concur: 

# @&A~+~~
Chief Justice