No. 13520 

IN THE 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: District Court 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 

Filed* JFLL 1!3L 

Submitted: April 19, 1977 

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

Court. 

Plaintiff Norval Bonawitz brought suit in the district 

court, Cascade County, against the Estate of Pat Bourke, deceased, 

to recover damages for injuries suffered when a scaffold upon 

which he was working collapsed. Bourke died after the accident, 

but prior to commencement of this action. The Estate of Bourke 

(~ourke) filed a third party complaint for indemnity against 

third party defendants Russell Fleharty, Gene Mossey, William H. 

Webster and William J. Webster. After extensive formal discovery by all parties, third party defendants filed motions 

for summary judgment. The court entered summary judgment in 

favor of all third party defendants. Bourke appeals this ruling. 

Bonawitz and Bourke were the sole stockholders of a 

corporation known as Bonawitz & 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 this ranch from the corporation 

pursuant to an oral lease. 

On the morning of the accident, a work party consisting 

of Bourke, Bonawitz, and the four third party defendants met 

at a ranch house located on the Lewis Place. The purpose of 

this gathering was to reshingle 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. All labor was on a 

volunteer basis. 

The four third party defendants arrived at the Lewis 

Place first, and commenced building the scaffold to be used in 
che 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 in hauling 

the shingles from a storage shed and various other duties 

incidental to the shingling operation. 

When the scaffolding was fully erected, 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 to put on the new shingles when the center support for 

the scaffold collapsed. As he fell, Bonawitz apparently put 

his arm through the glass of a nearby window in an 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 at the time of the accident and Bourke, as the employer, 

had an obligation to furnish plaintiff with a safe place to work 

and safe appliances and instrumentalitieswith which to work. 

After discovery was completed, Bourke filed a 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 to Bonawitz 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 

shall be rendered only if: 
"* * * the pleadings, depositions, answers to 

interrogatories, and admissions on file show 

that there is no genuine issue as to any 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 

to promptly 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 Social and Rehab. Services, Mont . 9 563 P.2d 555, 

34 St. Rep. 255; Silloway v. Jorgenson, 146 Mont. 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 to all facts which are deemed 

material in light of those substantive principles which entitled 

him to a judgment as a matter of law. Harland v. Anderson, 

Mon t , , 548 P.2d 613, 33 St.Rep. 363. This rule imposes a 

strict standard upon the movant and in Kober &. Kyriss v. 

Billings Deaconess Hosp., 148 Mont. 13.7, 122, 417 P.2d 476, this 

Court, quoting from 6 Moore's Fed.Prac .2d 956.15[3], held: 

""* * *To satisfy his burden the movant must make 

a showing that is quite clear what the truth is, 

and that excludes any real doubt as to the 

existence of any genuine issue of material fact. 'I1 

It is clear therefore that the party opposing the motion 

will be indulged to the extent of all inferences which may be 

reasonably drawn from the offered proof. Harland v. Anderson, 

supra; Mally v. Asanovich, 149 Mont. 99, 423 P.2d 294; Johnson 

v. St. Patrick's Hospital, 148 Mont. 125, 417 P.2d 469. 

Considering the facts of the instant case, we feel 

genuine issues of material fact remain unresolved. The third 
party defendants are therefore not entitled to summary judgment 

as a matter of law. 

While we find several material issues of fact remain 

unresolved, we feel the most significant is found in the district 

court's finding of fact No. 4. This finding states: 

"The materials were furnished by Bourke, or by the Corporation * * *." 

Certainly the fact of whether Bourke individually or the corporation furnished the construction materials is of relevance 

determining for whom 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 in regard 

to the person who owes the duty of care to workers was discussed 

in State ex rel. Great Falls National Bank v. District Court, 

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

'I* * * against whom is the injured workman entitled 

to recover? Qr stated another way, who owes the 

basic duty imposed by the Scaffold Act? We must 

look to the Scaffold Act itself to determine the 

answer to this question. Section 69-1402, R.C.M. 

1947, imposes a duty on 'every owner, person, or 

corporation who shall have the direct and immediate --- 

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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 shall be laid to form a good substantial temporary floor for the protection of 

employees and all persons engaged above or below, 

or on such temporary floor in such building.' 

(~mphasis supplied. ) 

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

shall be the duty of all owners, contractors, 

builders, or persons having the direct and 

immediate control or supervision of any buildings 

under construction to protect stairways, elevator 

openings, flues, and all other openings in the. 

floors . (~mphasis supplied. ) I' 154 Mont . 343 

See also: Boyer v. Kloepfer, Mont . , , 554 P.2d 1116, 
This Court has held that the firm, person or corporation 

having direct and immediate control of the work involving the 

use of scaffolding is the one upon whom the duty is imposed by 

the Scaffold Act. State ex rel. Great Falls National Bank v. 

District Court, supra. This is a clarification of dictum 

contained in earlier case law which appeared to impose a nondelegable duty upon the landowner. See: Pollard v. Todd, 148 

Mont. 171, 418 P.2d 869; Joki v. McBride, 150 Mont. 378, 463 P. 

2d 78. 

Resolution of appellant's first issue makes discussion 

of the second issue unnecessary. The summary judgment is vacated 

and the cause remanded to the district court for further proceedings not inconsistent with this opinion. 

We Concur: 

@&A~+~~ Chief Justice