No. 85-568 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1986 

ROGER DVORAK, 

VS. 

MATADOR SERVICE, INC. a foreign corporation; 

and KOCH INDUSTRIES, INC., a foreign 

corporation, 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

in and for the County of Yellowstone, 

The Honorable Diane ~arz, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant/Plaintiff: 

GOETZ, MADDEN and DUNN, P.C.; James P. Molloy, 

Bozeman, Montana, Argued, 

Jeffrey T. Renz, Billings, Montana, 

For Respondents/Defe &C.LqB dant : 

n&- shmoa-; Charles R. Cashmore, 

Billings, ~ontana, Argued 

Submitted: July 8, 1986 

Decided: August 28, 1986 

Filed: 

2 8 1986 

elLC *#- 

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

Court. 

The plaintiff-appellant brought this action to recover 

for injuries which he sustained when he was overcome by 

hydrogen sulfide gas as he was preparing a vacuum tank for 

welding repairs. The District Court granted the defendants1 

second motion for summary judgment. From that order and 

judgment the plaintiff appeals. We affirm. 

In March of 1981, the plaintiff-appellant, Roger Dvorak 

("Dvorak") , was employed as a journeyman welder at Beall, 

Inc. of Billings, Montana. Beall repairs and fabricates 

truck tanks used for hauling commodities such as gas and oil. 

On March 4, 1981, defendant-respondent Matador Services 

Company, a subsidiary of defendant-respondent Koch 

Industries, Inc., delivered a vacuum tank truck to Beall for 

repairs. The truck at one time or other had hauled oil 

production water, salt water, and bottom sediment, all 

contaminated with hydrogen sulfide, a highly toxic substance. 

Beall officials were aware that all trucks from the Williston 

Basin, including this truck, could be expected to have hauled 

hydrogen sulfide contaminated matter. The record is also 

undisputed that Beall officials were generally aware of the 

serious dangers associated with hydrogen sulfide. 

When Beall received the truck from Matador, it followed 

its standard procedures for readying tanks for repair. It 

placed the truck on a steam rack where it was steam cleaned. 

It was then left outside to cool overnight. The following 

morning, March 5, Beall1s foreman, Israel Sanchez, tested the 

tank with an explosimeter to determine whether any explosive 

gases were present. After determining that the tank was 
safe, Sanchez assigned Dvorak and an assistant to do the 

necessary welding repairs. 

When Dvorak entered the tank to begin his work, he 

discovered that it still contained a considerable amount of 

tar-like material and sediment, and was generally still 

dirty. Fearing that an explosion would occur if he began 

welding, Dvorak left the tank and complained about its 

condition to Sanchez. Sanchez entered the tank himself to 

inspect it. He noticed no unusual smells or any other 

indications that the tank was unsafe so he "ordered" Dvorak 

and his assistant to reenter the tank and scoop the sediment 

from the bottom before welding. Sanchez told Dvorak and his 

assistant to either reenter the tank or "go down the road." 

As Dvorak began shoveling the sludge out of the tank, 

he collapsed. Dvorak's assistant and several other workers 

reached into the tank and pulled Dvorak out. It was later 

learned that Dvorak had been exposed to hydrogen sulfide. 

Dvorak received serious injuries as a result of his exposure 

to the hydrogen sulfide. 

On March 4, 1983, Dvorak filed suit against Beall, 

Matador and Koch. Dvorak alleged that Beall was liable under 

the intentional tort exception to the exclusivity provisions 

of Montana's Workers' Compensation laws. Beall's motion for 

summary judgment was granted on January 16, 1984. Dvorak's 

subsequent appeal from that judgment was dismissed with 

prejudice as fully settled on the merits. 

Dvorak stated two claims for relief against Matador and 

Koch (hereinafter defendants or "Matador"). The first claim 

for relief alleged that the defendants were strictly liable 

for engaging in an abnormally dangerous activity. Dvorak's 

second claim for relief was based on the several theories of 
negligence. First, Dvorak contended that the defendants 

generally negligent conduct was responsible for his injuries 

(primarily that the defendants were under a duty to warn or 

advise Beall that special precuations were necessary when 

dealing with hydrogen sulfide). Second, Dvorak contended 

that the peculiar risks associated with hydrogen sulfide make 

it an inherently or intrinsically dangerous activity, thus 

making the defendants' vicariously liable for Beall's 

wrongful conduct. 

The defendants moved for summary judgment in February 

of 1984 based on the argument that the sole proximate cause 

of Dvorak's injuries was Beall's negligence in failing to 

properly clean the subject tank and in requiring Dvorak to 

reenter the tank even with actual knowledge of its unclean 

condition. The District Court found that a material issue of 

fact existed, relating to whether Beall was aware of the 

gravity of the danger presented by the presence of hydrogen 

sulfide in the subject tank. On that basis, the court denied 

the defendants' first motion for summary judgment. 

Following further discovery, the defendants renewed 

their motion for summary judgment based on information which 

showed that Beall had actual knowledge of the serious dangers 

associated with hydrogen sulfide. The District Court 

thereafter granted the defendants' motion for summary 

judgment and concluded that Beall's knowledge of hydrogen 

sulfide's potential dangers rendered its conduct the sole 

proximate cause of Dvorak's injuries. 

It is from the granting of summary judgment in favor of 

the defendants that Dvorak appeals. 

Dvorak now presents the following issues for review by 

this Court: 
I. Did the District Court erroneously impose summary 

judgment on plaintiff's negligence claims? 

A. Did the District Court err in holding as a matter 

of law that the peculiar risk (inherently dangerous 

activity) exception to the independent contractor rule 

does not apply to this case? 

1. Does Montana recognize the peculiar risk 

exception? 

2. Are employees of an independent contractor 

protected under the peculiar risk exception? 

B. Did the District Court erroneously impose summary 

judgment on the plaintiff's general negligence claim 

when the record reflected disputed issues of fact 

regarding foreseeability and causation? 

11. Did the District Court erroneously impose summary 

judgment on plaintiff's strict liability claim for an 

abnormally dangerous activity? 

I. Dvorak's negligence claims 

Dvorak begins his argument under this issue by noting 

that at the time he was injured, he was an employee of Beall, 

Inc. Dvorak further notes that Beall was in turn an 

independent contractor employed by defendant Matador. The 

general common law rule, which Montana follows, is that an 

employer is not liable for the negligence or wrongdoing of an 

independent contractor. See, Storrusten v. Harrison (1976) , 

169 Mont. 525, 549 P.2d 464. However, there are some very 

important exceptions to this general rule. Dvorak argues 

that Matador falls under two common exceptions to the 

independent contractor rule: (1) the peculiar risk or 

inherently dangerous activity doctrine; and (2) the 

employer's liability for his own negligence. Dvorak asserts 
the District Court, in imposing summary judgment, held that 

Montana does not recognize the "inherently dangerous 

activity" exception and that, in any event, the exception 

would not apply to the facts of this case. With regard to 

the employer's own negligence exception, the trial court 

apparently recognized the exception but held that Matador 

could not be liable on that basis. Dvorak argues the trial 

court erred in its conclusions. 

First, with regard to the inherently dangerous activity 

exception, Dvorak argues that Montana has long recognized 

this doctrine. This doctrine basically provides that where 

the acts to be performed by an independent contractor are of 

an inherently dangerous nature, the employer will be held 

vicariously liable for any resultant injury caused by the 

negligence or wrongdoing of the independent contractor. To 

establish that Montana has adopted the peculiar risk or 

inherently dangerous activity exception, Dvorak directs this 

Court's attention to the recent cases of Kemp v. Bechtel 

Construction Co., et al. (Mont. 1986), P.2d I 43 

St.Rep. 1022 and Cash v. Otis Elevator Co. (Mont. 1984), 684 

P.2d 1041, 41 St.Rep. 1077. 

It is also important to note, Dvorak argues, that 

employees of independent contractors are protected under the 

inherently dangerous activity exception. In other words, the 

exception extends not only to third persons, but also to 

employees of an independent contractor. Therefore, an 

employer (i.e. Matador) who hires an independent contractor 

(i.e. Beall) to engage in an inherently dangerous activity 

will be liable for negligent acts which injure the 

contractors own employees (i. e. Dvorak) . See, Kemp, supra, 
and Stepanek v. Kober Construction (Mont. 1981), 625 P.2d 51, 

38 St.Rep. 385. 

In light of Montana's clear recognition of the 

inherently dangerous activity exception, Dvorak argues, the 

only remaining issue is whether the exception applies to this 

case. In other words, whether the repairing and fabrication 

by Beall of tanks which contain hydrogen sulfide contaminated 

matter is an inherently dangerous activity thereby making 

Matador vicariously liable for Beall's negligence or 

wrongdoing. Dvorak argues this issue is a question of fact 

which can only be determined by a jury. Consequently, Dvorak 

asserts, this case must be reversed and remanded for trial. 

Dvorak argues the second exception to the general rule 

that an employer is not liable for the tortious acts of an 

independent contractor is that if the employer is himself 

negligent in his own dealings with the independent 

contractor, this can give rise to employer liability. In the 

instant case, Dvorak primarily argues that Matador's conduct 

falls under this exception because Matador negligently failed 

to advise or warn Beall that special precautions were 

necessary when dealing with hydrogen sulfide. Dvorak 

contends that Beall was ignorant of the reasonable particular 

protections necessary against hydrogen sulfide's dangers and 

that Matador knew of Beall's ignorance. Thus, it was 

reasonably foreseeable to Matador that a Beall employee (i.e. 

Dvorak) would be injured. Dvorak bases his theory of 

negligence on 5 413 of the Restatement (Second) of Torts. 

In response to Dvorak's contentions under this :ssue, 

Matador argues it is not vicariously liable for Beall's 

wrongful conduct. Matador acknowledges there appears to be 

several exceptions to the general rule that an employer is 
not vicariously liable for the tortious acts of his agent if 

the latter is an independent contractor. The exceptions 

relied on by Dvorak are: (1) the inherently dangerous 

activity exception; and (2) the employer's liability for his 

own negligence exception. Dvorak's objective, Matador notes, 

is to establish that Beall was an independent contractor 

employed by Matador thereby making Matador vicariously liable 

for Beall's tortious conduct under the exceptions noted 

above. However, Matador argues, this whole line of argument 

by Dvorak simply begs the question and entirely misses the 

point. We agree. 

We agree with Matador that Beall is simply not its 

agent in the sense in which the proferred doctrines apply and 

vicarious liability simply does not attach to the instant 

case. Working through the exceptions to the independent 

contractor rule is, therefore, to no avail since the 

underlying agency relationship upon which vicarious liability 

rests does not exist. 

Matador points out the independent contractor rule 

provides that a principal (employer) will not be liable for 

the tortious acts of his agent (employee) if the latter is an 

independent contractor, with certain limited exceptions. In 

the instant case, however, Matador argues that Beall is not 

its agent in the first place. Matador did not engage Beall 

to undertake activities on behalf of Matador in Matador's 

relations with third parties or the public generally. 

Rather, Matador engaged Beall to perform tasks for Matador, 

not tasks which Matador had undertaken to perform for others 

and was delegating to Beall. This is simply not an agency 

case and no principle of vicarious liability can be applied. 
We agree with Matador that Dvorak simply attempts to 

stretch to the point of misapplication the cases which do 

properly apply exceptions to the independent contractor rule. 

For example, such doctrines (i.e. the inherently dangerous 

activity exception) are especially prevalent in construction 

cases because clearly a subcontractor is an agent of the 

contractor (principal) for purposes of performing work which 

the contractor had agreed to perform for the owner (third 

party) . See, Kemp, supra (although the inherently dangerous 

activity exception was ultimately held not to apply to this 

fact situation). In such an arrangement, there may very well 

be a situation in which the contractor is vicariously liable 

for the acts of the subcontractor, even though an independent 

contractor relationship exists. In the present case, 

however, the agency relationships which form the framework of 

the doctrines are absent. Therefore, Matador can not be 

vicariously liable for Beall's wrongful conduct. 

It is also important to note, Matador argues, that it 

is not liable to Dvorak under any general negligence theory, 

whether associated with an exception to the independent 

contractor rule or not, because Beall's conduct was the sole 

proximate cause of Dvorak's injuries. Matador asserts that 

since Beall knew of the presence and dangers of hydrogen 

sulfide in the subject tank, had the responsibility to clean 

the tank prior to employee entry, failed to adequately do so, 

and then ordered Dvorak into the tank despite his protests 

that the tank was unc1ea.n and unsafe, Beall, and not Matador, 

is liable for Dvorak's injuries. Matador notes the District 

Court came to this same conclusion and granted its motion for 

summary judgment. We agree. 
Matador points out that Dvorak under a general 

negligence theory, is basically arguing that the defendants 

are liable for his injuries because Matador failed to 

exercise reasonable care in advising or warning Beall that 

special precautions were necessary when dealing with hydrogen 

sulfide. Even assuming Matador owed such a duty to Beall at 

all (which is highly questionable), and then breached such a 

duty, the law and facts clearly establish that Beall's 

conduct, and not Matador's conduct, was the proximate cause 

of Dvorak's injuries. 

Matador strongly relies on the case of Rost v. C.F.I. 

Steel Corp. (Mont. 1980), 616 P.2d 383, 37 St.Rep. 1657, to 

establish tha.t Beall's conduct was the proximate cause of 

Dvorak's injuries. The Rost case was a products liability 

action against the manufacturer of an elevator cable for 

injuries sustained when the frayed and torn cable broke and 

the elevator fell. The plaintiffs in the Rost case settled 

their dispute against the store owner and proceeded to trial 

against the cable manufacturer on the theory that the 

defendant failed to warn the store owner of the dangerous use 

of the cable. In affirming a jury verdict in favor of the 

cable manufacturer, this Court found that the proximate cause 

of the accident was the negligent conduct of the store owner 

in failing to properly maintain and inspect the cable and not 

any failure to warn on the part of the manufacturer. ' The 

Court characterized the store owner's conduct, as a matter of 

law, as the superseding intervening force or "operative 

conduct" leading to the plaintiff's injuries. 

We find the circumstances of the Rost case are 

analogous to the circumstances of the instant case. Dvorak's 

injuries occurred because Beall did not clean the tank, as it 
was expected and required to do, and then forced Dvorak to 

enter the tank even after the unclean conditions had been 

brought to the attention of Dvorak's foreman. We find 

without Beall's grossly negligent conduct the accident would 

not have occurred and, therefore, Beall's conduct was the 

"operative conduct" or superseding force which intervened as 

the proximate cause of Dvorak's injuries. A warning from 

Matador to Beall as to the risks of hydrogen sulfide (if such 

a duty existed at all) would have been to no avail, and 

consequently, a failure to warn could not have been the 

proximate cause of the accident. 

11. Dvorak's strict liability claim 

In addition to the negligence claims mentioned above, 

Dvorak's complaint also included a claim against Matador 

based upon strict liability for engaging in an abnormally 

dangerous activity. Dvorak points out this Court in Matkovic 

v. Shell Oil Co. (Mont. 1985), 707 P.2d 2, 42 St.Rep. 1482, 

recently addressed the theory of strict liability in cases 

involving an abnormally dangerous activity. In Matkovic this 

Court adopted 5 519 of the Restatement (Second) of Torts 

which basically holds that ''[olne who carries on an 

abnormally dangerous activity is subject to liability for 

harm to the person . . . of another resulting from the 

activity, although he has exercised the utmost care to 

prevent the harm." Matkovic, 707 P. 2d at 3-4. In addition, 

this Court listed numerous factors adopted from S 520 of the 

Restatement (Second) of Torts to determine whether a 

particular activity is abnormally dangerous. 

Dvorak now argues, consistent with the law embodied in 

Matkovic, that the transport and storage of hydrogen sulfide 

contaminated materials by Matador is an abnormally dangerous 
activity, thereby making Matador strictly liable for his 

injuries. Dvorak further asserts this issue of whether the 

handling and storage of hydrogen sulfide contaminated matter 

is an abnormally dangerous activity is a question of fact for 

the jury. 

We acknowledge that Dvorak's allegations under this 

issue create a superficial factual issue as to whether the 

handling of hydrogen sulfide contaminated materials is an 

abnormally dangerous activity. However, we find, as did the 

District Court, that even if a jury could have found that 

Matador's activities were abnormally dangerous, Matador can 

not be liable in any event because it was not the proximate 

cause of Dvorak's injuries. 

This Court has previously established that a showing of 

proximate cause is a necessary element for any plaintiff's 

recovery in strict liability. Brown v. North American 

Manufacturing Co. (1978), 176 Mont. 98, 576 P.2d 711. 

Therefore, in order for Dvorak to establish a prima facie 

case for strict liability, it must be proven that Matador's 

conduct was the proximate cause of his injuries. Further, 

contrary to Dvorak's belief, the showing of proximate cause 

under strict liability is identical to that required for a 

prima facie showing of negligence. In other words, a 

defendant's liability can be cut off by a superseding 

intervening force. 

As we have already explained under issue I, we find 

that Beall's conduct, and not Matador's conduct, was the 

proximate cause of Dvorak's injuries. Therefore, Matador can 

not be stictly liable for Dvorak's injuries. 

Finally, we agree with Matador that the ultimate reason 

strict liability does not apply in this case is that Dvorak's 
injury did not occur while Matador was conducting any 

activity at all. Rather, the injury occurred during the 

conduct of an activity by Beall. Matador was not carrying on 

an abnormally dangerous activity which resulted in harm to 

Dvorak. Matador had delivered the tank to Beall and it was 

Beall, not Matador, who was carrying on the activity involved 

in Dvorak's injury. In other words, Matador was carrying on 

no activity, abnormally dangerous or otherwise, which 

resulted in Dvorak's injuries. 

In conclusion, we hold the District Court properly 

granted summary judgment in favor of Matador. This Court has 

repeatedly stated "that a plaintiff is subject to summary 

judgment if he fails in establishing certain material 

elements in a negligence action" (or any cause of action for 

that matter). Scott v. Robson (1979), 182 Mont. 528, 535, 

597 P.2d 1150, 1154; see also Pickett v. Kyger (1968), 151 

Mont. 87, 439 P.2d 57. This general rule applies to the 

instant case. 

With regard to his negligence claims under issue I, 

Dvorak failed to establish the basic principles of agency law 

necessary to hold Matador vicariously liable for Beall's 

wrongful conduct. Further, even under a general negligence 

theory Matador can not be held liable to Dvorak because 

Dvorak failed to establish that Matador was the proximate 

cause of his injuries. (This is even assuming Matador owed a 

duty to Beall and Dvorak in the first place.) 

Finally, with regard to his strict liability claim 

under issue 11, Dvorak failed to establish a prima facie case 

for this cause of action. As explained in the opinion above, 

Dvorak failed, once again, to show that there was a proximate 

causal connection between Matador's conduct and his injuries. 
We hold because Dvorak failed to establish the 

necessary elements of his stated causes of action, summary 

judgment was appropriately granted in favor of Matador. 

The order of the District Court granting summary 

judgment is affirmed. 

We concur 

Justices 
Mr. Justice Frank B. Morrison, Jr., concurring in part and 

dissenting in part. 

I specially concur in part and dissent in part. 

Plaintiff presents three theories: 1. Matador and 

Koch, as owners who employed the services of an independent 

contractor, should be liable to persons injured by the 

negligence of the independent contractor on the basis of 

nondelegable duty because the activity to be performed was 

inherently dangerous. 2. Matador and Koch were engaged in 

conducting an ultra hazardous activity, transporting and 

storing hydrogen sulfide, and should be liable for injury 

resulting therefrom on the basis of strict liability. 

3. Matador and Koch were negligent in failing to warn the 

independent contractor, Beall and its employees, of the 

dangerous propensities of hydrogen sulfide and in delivering 

the truck to Beall in a highly dangerous condition exposing 

Beall's employees to unreasonable risk of harm. 

I would affirm summary judgment on the first two 

theories and remand for trial on the third issue involving 

defendants' direct negligence. 

In the recent case of Kemp v. Bechtel Construction Co. 

(Mont. 1986), 720 P.2d 270, 43 St.Rep. 1022, we recognized 

that an owner can be liable for the negligence of an 

independent contractor where the owner employees an 

independent contractor to engage in an inherently dangerous 

activity. In Kemp the majority found that trenching was not 

inherently dangerous under the circumstances of that case. 

The rule in Kemp is premised upon the fact that the 

owner controls the work place in general and cannot delegate 

safety responsibility to a subcontractor thereby effectively 

insulating the owner from liability. However, in this case, 

Matador is not in control of the work place. Matador owns 

personalty, in the form of a truck, which is taken to an 
independent contractor for servicing. Matador has no right 

to enter the work place nor control the way work is performed 

on the premises. Therefore, it would make no sense to extend 

the Kemp rationale to the Matador circumstance. I would 

affirm summary judgment in favor of Matador and Koch on the 

non-delegable duty theory. 

In the recent case of Matkovic v. Shell Oil Co. (Mont. 

1985), 707 P.2d 2, 42 St.Rep. 1482, we held that strict 

liability attached for conducting an ultra hazardous 

activity. I believe that the Matkovic rule is not applicable 

here. The activity at issue was being conducted by Beall and 

not by the defendants. Again, I would affirm summary 

judgment on this count. 

Plaintiff alleges direct negligence on behalf of Matador 

and Koch in failure to warn of the dangerous propensities of 

hydrogen sulfide and in delivering for cleaning a truck which 

presented an unreasonable risk of harm to those working 

inside the truck's tank. This claim should go forward for 

factual resolution. Apparently the majority feels there is 

an issue on negligence but finds the action of Beall, 

plaintiff's employer, to be a superseding cause. The 

majority alludes to "proximate cause". 

This case involves multiple causes. Therefore, the 

pertinent inquiry is whether the defendants' conduct was a 

substantial factor in producing plaintiff's injuries. Legal 

cause, not proximate cause, is the test. Kyriss v. State of 

Montana (Mont. 1985), 707 P.2d 5, 42 St.Rep. 1487. 

Beall, acting through its supervisory personnel, may 

well have been negligent in directing plaintiff to enter the 

subject tank containing hydrogen sulfide. However, if 

Matador and Koch were negligent in failing to advise of the 
extreme danger, given the amount of sediment they knew was in 

the tank, that negligence may have concurred with the 

negligence of Beall. The question of causation, under proper 

legal cause instructions, is for a jury. 

This case should be reversed and remanded for trial on 

the direct negligence claim. 
Justice William E. Hunt, Sr., dissenting: 

This cause of action should be reversed and remanded for 

trial in the District Court. Appellant Dvorak has stated a 

claim for which relief may be granted and questions of fact 

exist which can only be resolved by trial. 

Appellant asserts three legal theories by which 

respondents Matador and Koch may be held liable for his 

injuries. All three theories rely on recognized exceptions 

to the general rule that employers of independent contractors 

are not liable for injury caused by those independent 

contractors. Before discussing each theory of liability, it 

is necessary to examine the relationship between Beall and 

Matador, the subsidiary of Koch. 

I agree with the majority that Beall was not acting as 

an agent of Matador. An agency relationship "results from 

the manifestation of consent by one person to another that 

the other shall act on his behalf and subject -- to his control, 

and consent by the other to act. State v. Holdren (1963), 

143 Mont. 103, 109, 387 P.2d 446, 449, citing 1 Restatement, 

Agency, 5 1 (emphasis in Holdren). No where in the record is 

it alleged that Matador employed Beall to act on its behalf 

or subject to Matador's control. Rather, Matador did not 

have any right to control the details of Beall's operation. 

Therefore Beall must be considered an independent contractor. 

- See Sharp v. Hoerner Waldorf Corporation (1978) , 178 Plont. 

419, 424, 584 P.2d 1298, 1302; State -- ex rel. Ferguson v. 

District Court (1974), 164 Pilont. 84, 88, 519 P.2d 151, 153. 

I now turn to the three theories of liability asserted 

by the appellant. First appellant argues that Matador and 

Koch are liable beca.use Beall's work in cleaning trucks, 
which are often contaminated with hydrogen sulfide, is 

abnormally dangerous. In Matkovic v. Shell Oil Company 

(Mont. 1985), 707 P.2d 2, 4, 42 St.Rep. 1482, 1484, we 

replied to a certified question from the Federal District 

Court for Montana. We stated that strict liability 

principles apply in an abnormally dangerous situation. In so 

holding, we adopted the standard set forth in Restatement 

(Second) of Torts 5 519 (1976). The Restatement also treats 

the issue of abnormally dangerous activities carried on by an 

independent contractor. Section 427 A. of the Restatement 

states: 

One who employs an independent contractor to do 

work which the employer knows or has reason to know 

to involve an abnormally dangerous activity, is 

subject to liability to --- the same extent as the 

contractor for physical harm to others caused by 

the activity. 

Comment a to 5 427A refers to the reader to 55 419-524A 

"to determine the liability of both the employer and the 

independent contractor." The rationale for this rule of 

employer liability is stated in 5 427A comment b. An 

employer who meets the criteria of 5 427A "cannot be 

permitted to escape the responsibility for the abnormal 

danger created by the activity which [the employer] has set 

in motion, and so cannot delegate the responsibility for harm 

resulting to others to the contractor." This language 

harmonizes well with our longstanding rule that an employer 

may not "set in opera.tion causes dangerous to the person or 

property of others . . . [and then] divest himself of the 

primary duty he owes to other members of the community by 

contracting with others for the performance of work, the 

necessary and probable result of which is injury to third 
persons." A. M. Holter Co. v. Western Mtge. & Warranty Co. 

(1915), 51 Mont. 94, 99, 149 P. 489, 490. 

I disagree with the majority's conclusion that "Matador 

cannot be liable in any event because it has not the 

proximate cause of Dvorak's injuries. " Proximate causation 

is applicable only in a direct negligence action, not in the 

area of strict liability. 

Appellant states a cause of action for which relief may 

be granted. On this theory, a jury should determine whether 

Beall's a-ctivities were abnormally dangerous and whether 

Matador knew or had reason to know about the abnormal danger. 

Our opinion in Matkovic sets forth the factors to be 

considered by the jury in determining whether an activity is 

abnormally dangerous. Matkovic, 707 P.2d at 4, 42 St.Rep. at 

148, citing Restatement (Second) of Torts 5 520 (1976). 

Next, appellant asserts that another exception to the general 

rule of non-liability of employers of independent contractors 

applies to the facts of this case. Again, appellant relies 

on Montana cases which reflect the exception found in §§ 416 

and 427, Restatement (Second) of Torts (1976) . Montana has 

long recognized that those who employ independent contractors 

to undertake "inherently dangerous" activity, or activity 

involving "peculiar risks" are primarily liable for harm 

growing out of the inherent dangers. See Kemp v. Bechtel 

(Mont. 1986), - P.2d - , 43 St.Rep. 1022, 1029-1034 

(Morrison, Hunt. JJ dissenting) Ulmen v. Schweiger (1932) , 

92 Mont. 331, 247, 12 P.2d 856, 857; Shope v. City of 

Billings (1929), 85 Mont. 302, 278 P. 826; A. M. Holter Co. 

v. Western Mtge. & Warranty Co. (1915), 51 Mont. 94, 99, 149 

P. 489, 490. 
This rule imposes liability upon employers for "the 

failure of the contractor to exercise reasonable care." 

Restatement (Second) of Torts 5 416 at 395. Therefore, the 

contractor's negligence cannot be held to cut off the 

employer's liability simply because that negligence is the 

sole proximate cause of the injury. It is the very 

negligence of the contractor which makes the employer liable. 

Again this vicarious liability exists because Montana's 

policy is not to let those who set in motion dangerous 

activities escape liability. And again, this theory calls 

for jury determination of the factual issue of whether 

shoveling sediment from trucks used in the Williston Basin is 

inherently dangerous or involves peculiar risks. 

Finally appellant also relies upon a direct negligence 

theory to hold Matador and Koch liable for his injuries. The 

first two theories would hold Matador and Koch liable despite 

the absence of any negligence upon their part. In his third 

argument, appellant contends that Matador was directly 

negligent in not exercising reasonable care to provide that 

Beall take precautions necessary to avoid peculiar and 

unreasonable risks inherent in the work. Again this theory 

reflects the Restatement (Second) of Torts, this time 5 413. 

That section recognizes that employers of independent 

contractors do not have the right to control the details of 

the contractor's work. However, where the employers, by 

knowledge and experience, realize that the work is inherently 

d-angerous, the employers have a duty of due care in setting 

that work in motion. The simplest way to exercise that care 

is to provide for preventative precautions in the contract 

with the independent contractor. Section 413 (a) Restatement 

(Second) of Torts (1976) . The employer who realizes, after 
forming the contract, that dangers have arisen should act to 

prevent those dangerous from causing injury. - See 5 413 

comment d. Again, a jury should determine the extent of 

Matador's experience, knowledge, and awareness of 

unreasonable danger and evaluate the acts of Matador against 

that standard of due care. For appellant to prevail on this 

third theory, a negligence action, the jury must, of course, 

find Matador's actions, or failure to act, proximately caused 

appellant's injury. 

Finally, I must disagree with the majority position that 

the Restatement exceptions to the general rule of employer 

non-liability apply only in the construction context. I 

simply cite a sampling of cases where these sections have 

been applied outside the construction area. Sun Pipeline Co. 

v. Kirkpatrick (Tex.App. 1974), 514 S.W.2d 789 (spraying 

defoliant along an easement) ; Jrexler v. Tug Raven (E.D.Va. 

1968) 290 F.Supp. 429, 444 (gasoline being discharged into 

storage tanks from a barge); McDonald v. Oakland (Cal.App. 

1967) 255 Cal.App.2d 816, 63 Cal.Rptr. 593 (painting a water 

tank with volatile paint). 

As long as the policy behind the sections 413, 416, 427, 

427A is remembered, employers will not be suddenly liable for 

every negligent act of independent contractors employed by 

them. These theories apply only where employers set in 

motion activities which are inherently dangerous and where 

Montana's long-standing policy is to hold the initiator of 

dangerous activities liable for any resulting injury. 

I would reverse and remand for trial.