NO. 94-482

IN THE SUPREME COURT OF THE STATE OF MONTANA

1995

BENJAMIN C. ROBERTS,

Plaintiff/Appellant,

PEGASUS GOLD CORPORATION,

a foreign corporation; O'KEEFE

DRILLING COMPANY, INC., a

Montana corporation; BEAL

MOUNTAIN MINING, INC., a

Montana corporation; and

DOES ONE through FIVE,

Defendant/Respondents.

$bPi‘%

APPEAL FROM: District Court of the Third Judicial District,

In and for the County of Deer Lodge,

The Honorable Ted L. Mizner, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Richard J. Pyfer, Small, Hatch, Doubek & Pyfer,

Helena, Montana

For Respondent:

Paul C. Meismer, Lucy T. France, Garlington, Lohn &

Robinson, Missoula, Montana; Thomas E. Hattersley,

David C. Dalthorp, Gough, Shanahan, Johnson &

Waterman, Helena, Montana

Filed:

Submitted on Briefs: July 13, 1995

Decided: Septeniber19, 1995
Justice James C. Nelson delivered the Opinion of the Court.

This is an appeal from a decision of the Third Judicial

District Court, Deer Lodge County, granting summary judgment in

favor of respondents, O'Keefe Drilling Company, Inc. (O'Keefe) and

Beal Mountain Mining, Inc. (BMMI). We affirm.

We restate the issues as follows:

I . Did the District Court err in ruling that the O'Keefe

employees were not acting within their scope of employment in the

alleged incident?

II. Did the District Court err in finding no genuine issue of

material fact existed as to whether a BMMI employee or an O'Keefe

employee caused Roberts' injury?

III. Did the District Court err in determining BMMI had no duty to

provide security on the road where the incident occurred?

Facts

BMMI owned and operated Beal Mountain Mine. BMMI hired, as

independent contractors, O'Keefe Drilling Company and Dave Smith

Contracting. Plaintiff, Benjamin C. Roberts (Roberts), was an

employee of Dave Smith Contracting.

On October 9, 1990, at approximately 5:00 p.m., Roberts was

hauling a load of clay on a public forest service road leading to

the Beal Mountain Mine. Roberts observed a white flatbed truck

with three people in the cab and toolboxes, oxygen and acetylene

tanks mounted on the back. Roberts testified that, as the flatbed

truck passed him, a loud explosion went off causing damage to his

left ear. Roberts could not see what was thrown but he believed it

2
was a blasting cap. Testimony was also presented that it was

possible, though unlikely, the noise was caused by the driver

intentionally causing the truck to backfire. Roberts believed the

flatbed truck was one he had seen a few days before which belonged

to BMMI.

Roberts reported the incident to a coworker who contacted

BMMI. BMMI investigated the incident and concluded, based on the

description of the truck and the recorded time schedule, that the

flatbed truck belonged to O'Keefe and not to BMMI.

On November 2, 1992, Roberts filed a complaint against

O'Keefe, Pegasus Gold Corporation, and BMMI to recover damages as

a result of injuries caused by either an employee of BMMI or an

employee of O'Keefe. After briefing and oral arguments, the

District Court granted summary judgment in favor of all three

defendants on July 28, 1994. Roberts appeals the grant of summary

judgment to BMMI and O'Keefe only.

Discussion

We apply the same standard in reviewing a district court's

grant of summary judgment as that used by the court under Rule

56(c), M.R.Civ.P.--" [slummary judgment is proper only when no

genuine issue of material fact exists and the moving party is

entitled to a judgment as a matter of law." Spain-Morrow Ranch,

Inc., v. West (1994), 264 Mont. 441, 444, 872 P.2d 330, 331-32,

citing Minnie v. City of Roundup (1993), 257 Mont. 429, 431, 849

P.2d 212, 214.
I.

Did the District Court err in ruling that the O'Keefe

employees were not acting within their scope of employment in the

alleged incident?

Roberts admits the record supports the conclusion that an

O'Keefe employee was responsible for the explosion. However, he

reserves as a question for the jury whether in fact an O'Keefe

employee or a BMMI employee caused the explosion. If the jury

found an O'Keefe employee responsible, Roberts contends O'Keefe is

liable for its employee's actions under the theory of respondeat

superior.

Roberts refers to Maguire v. State (1992), 254 Mont. 178, 182,

835 P.2d 755, 758, where we restated respondeat superior imposes

liability on an employer for wrongful acts of an employee committed

within the scope of his employment. Roberts reasons O'Keefe's

employees were in the course of employment at the time the incident

occurred because they were in route in a company vehicle from their

work place to their own personal vehicles. Roberts cites to

Webster v. Mountain States Telephone and Telegraph Company (1939),

108 Mont. 188, 199, 89 P.2d 602, 605, where we said where "the work

of an employee creates the necessity for travel, he is in the

course of his employment, even though he is serving at the same

time some purpose of his own."

The facts in Webster, however, involved negligent driving and

the liability of the employer when the employee was driving in the

course of employment. Webster, 89 P.2d at 605. In the case at

4
hand, the alleged injury did not result from the employee driving

the vehicle but from intentionally throwing an explosive from the

vehicle or causing the truck to backfire. Nothing in the record

suggests the act of driving caused the injury to Roberts.

Therefore, what we stated in Webster does not apply here.

Roberts further contends that this Court, in Lassabe v.

Simmons Drilling, Inc. (1987), 228 Mont. 94, 743 P.2d 568, provided

that employees may be considered in the course of employment while

going to or coming from work when the employer provides

transportation to the job site. Here, O'Keefe provided

transportation for its employees to the job site.

Lassabe, though, was a workers' compensation case and it is

recognized that the concept of "scope of employment" in those sorts

of cases is broader than in the context of respondeat superior.

Larson's treatise on workers' compensation law discusses what is

meant by "course of employment" in the context of respondeat

superior and workers' compensation.

In the law of respondeat superior, the harmful force is

always an act of the servant, or at least an omission

which is the equivalent of an act. The inquiry is

whether the performance of that act was in furtherance of

the master's business. But in many work terl's

compensation situations, the harmful force is not the

employee's act, but something acting upon the employee.

1 Larson, Workmen's Compensation Law 5 14.00, pp.4-1 to 4-2.

Moreover, under pre-1987 versions of the Workers' Compensation

Act, we were required to liberally construe workers' compensation

statutes in favor of the employee. See 5 39-71-104, MCA (1985),

and Grief v. Industrial Accident Fund (1939), 108 Mont. 519, 526,

5
93 P.Zd 961, 963. Respondeat superior cases do not require such an

interpretation. Therefore, Lassabe's interpretation of scope of

employment does not control here.

O'Keefe correctly argues there must be some connection between

the alleged tortious conduct and the employer's business to hold

the employer liable. The act, if isolated, must not be imputable

to the employer. Kornec v. Mike Horse Mining Co. (1947), 120 Mont.

1, 9, 180 P.2d 252, 256. We agree with the District Court's use of

our analysis in Kornec. In Kornec, plaintiff was injured during a

scuffle with an employee of defendant while on the job. The

quarrel arose out of an ongoing confrontation between plaintiff and

defendant's mining company. There were two different versions of

the assault. One version was that the employee attacked plaintiff

for threatening to disturb the mine. In that situation, the

defendant would have benefited from the tort and would, therefore,

be liable for the employee's action. Kornec, 180 P.2d at 256. It

was a question of fact for the jury to determine whether the

employee was acting in the course of his employment.

Here, it is Roberts' contention that the O'Keefe employees

threw an explosive from the truck or intentionally caused the truck

to backfire as Roberts passed. Accepting Roberts' interpretation

of the facts, there is no genuine issue of material fact. The act

of throwing the explosives, or intentionally causing the truck to

backfire, was neither authorized by O'Keefe nor was it incidental

to conduct authorized. The act did not benefit O'Keefe in any way.

See Kornec, 180 P.2d at 256. Therefore, we conclude the District

6
Court did not err in ruling that the O'Keefe employees were not

acting within their scope of employment in the alleged incident.

Did the District Court err in finding no genuine issue of

material fact existed as to whether a BMMI employee or an O'Keefe

employee caused Roberts' injury?

Roberts argues the record contains a genuine fact question as

to who caused the explosion that resulted in his injury. The

disputed issue, however, is not material given our holding in Issue

I . Neither BMMI nor O'Keefe would be held liable for their

respective employees' actions under these facts.

III.

Did the District Court err in determining BMMI had no duty to

provide security on the road where the incident occurred?

Roberts alleges BMMI maintained actual, voluntary control of

the road between the mine site and BMMI's administrative offices.

Roberts asserts BMMI monitored and controlled traffic on the

roadway to such an extent that it assumed the responsibility of

providing security for all road use. Thus, he argues BMMI is

liable for the actions of O'Keefe's employees on a theory of

negligent supervision of the road.

We agree with the District Court's findings that BMMI's

control of the roadway was limited. BMMI provided a pilot car to

escort chemical trucks and visitors to the mine site.

Additionally, BMMI exercised control over the speed limit along the

road solely to minimize dust as was its obligation to the Air
Quality Bureau. There is no further evidence in the record to

suggest BMMI assumed responsibilities in patrolling the roadway

that would lead to an assumption of duty to provide security.

Therefore, we conclude the District Court did not err in

determining BMMI had no duty to provide security on the road where

the incident occurred.
September 19, 1995

CERTIFICATE OF SERVICE

I hereby certify that the following certified order was sent by United States mail, prepaid, to the

following named:

Richard J. Pyfer

Small, Hatch, Doubek & Pyfer

P.O. Box 236

Helena, MT 59624-0236

Paul C. Meismer) LMcy T 6-e

Attorney at Law

P.O. Box 7909

Missoula, MT 59807

Thomas E. Hattersley, i)qv;d c, &&orp

Attorney at Law

P.O. Box 1715

Helena, MT 59624

ED SMITH

CLERK OF THE SUPREME COURT

STATE OF MONTANA