No. 96-053 INTHESUPREME

COURTOFTHESTATEOFMONTANA 1996

v. ROBERTVUICASIN,

Defendant, Respondent andCross-Appellant.

APPEALFROM: District Court of the Twelfth Judicial District,

In andfor the County of Hill, TheHonorable JohnWarner, Judge presiding.

COUNSELOFRECORD:

For Appellant: Michael W.Cotter; Cotter &Cotter, Great Falls, Montana For Respondent: Brian Lilletvedt, Keith A. Maristuen; Bosch, Kuhr, Duydale, Martin &Kaze Havre, Montana

Filed: Submitted onBriefs: June 20, 1996 Decided: August 27, 1996Justice W.William Leaphart delivered the Opinion of the Court.

John Wilson (Wilson) appeals, and Robert Vukasin (Vukasin) cross-appeals from the Findings of Fact andConclusions of Lawof the Twelfth Judicial District Court, Hill County, concluding that the Montana Scaffolding Act §50-77-101 to -107, MCA(1991), is not applicable to the facts of this case. Wereverse the District Court's conclusion that the Montana Scaffolding Act does not apply and, therefore, donot consider the cross-appeal. Wilson raises the following issue onappeal: Did the District Court err in concluding that the Montana Scaffolding Act did not apply to the facts of this case? On September 2, 1992, Wilson, an independent insurance adjustor, went to Vukasin's residence to inspect the premises for hail damage. Vukasin's ladder wasused to gain access to the roof of the garage. Both menclimbed onto the roof andWilson performed his inspection. After the inspection wascompleted, Wilson began descending the ladder while Vukasin remained onthe roof. While Wilson wasclimbing downthe ladder, it l'walkedU'out from under him andhefell to the concrete slab below injuring his right heel. In its Findings of Fact andConclusions of Law, the District Court determined that the ladder was placed at too small of an angle and that the ladder wasgenerally inadequate for the task. The court noted that the ladder's base was too narrow, that its legs were rounded where they metthe concrete slab, andthat it was "old, weathered and flexed too much, allowing it to slip more easily." 2TheDistrict Court concluded that the Montana Scaffolding Act

(the Act) did not apply because the ladder wasnot ascaffold nor was the ladder used as a working place. Because the court concluded that the Act did not apply, the court invoked the doctrine of comparative negligence. The court reduced Wilson's damageaward by50percent because it found that hehadfailed to
use ordinary care in selecting andusing the ladder. Onappeal, Wilson argues that the District Court erred in failing to apply the Act. According to Wilson, had the District Court properly applied the Act, the comparative negligence statute, §27-l-702, MCA,would not havebeenapplicable because once it is shown that aviolation of the Act wasthe proximate cause of the injury, liability becomesfixed. Steiner v. Department of Highways (1994), 269Mont. 270, 278, 887P.2d 1228, 1233. TheDistrict Court recognized that the question of whether the ladder wasascaffold wasa "close call" andultimately concluded that it was not a scaffold. Wereview the District Court's conclusion of law--that the Act did not apply--to determine whether the court's interpretation of the lawwascorrect. Stratemeyer v. Lincoln County (Mont. 1996), 915P.2d 175, 177, 53St.Rep. 245, 246 (citing Carbon County v. Union Reserve Coal Co. (19951, 271Mont. 459, 469, 898P.2d 680, 686); Loneyv. Milodragovich, Dale &Dye, P.C. (1995), 273Mont. 506, 510, 905P.2d 158, 160. Wilson's fall occurred in 1992. Wehavepreviously determined that the 1995 amendments to the Act cannot be applied retroactively. Porter v. Galarneau (Mont. 1996), 911 P.2d 1143,

31150, 53St.Rep. 99, 103. Thus, wemust apply the version of the

Act applicable at the time of the accident. Asof 1992, §50-77- 101, MCA(1991), provided that: All scaffolds erected in this state for use in the erection, repair, alteration, or removal of buildings shall bewell andsafely supported, of sufficient width, and properly secured so as to ensure the safety of persons working onthemor passing under themor bythem and to prevent them from falling or to prevent any material that maybeused, placed, or deposited onthem from falling. Wehavedefined "scaffolding" to include "any device utilized by workmen to allow them to work where a fall might result in serious injury." Porter, 911 P.2d at 1147 (citing Steiner, 887 P.2d at 1233). This Court haspreviously held that, under the pre1995 version of the Act, a ladder is considered a scaffold. Porter, 911P.2d at 1147 (citing Mydlarz v. Palmer/Duncan Constr. Co. (19841, 209 Mont. 325, 338, 682 P.2d 695, 702). Thus, the ladder used byWilson wasascaffold for purposes of the pre-1995 Act. Further, this Court hasdetermined that where the Act applies, "the mandatory nature of the statute forecloses the common-law defenses of assumption of the risk, contributory negligence, and negligence of a fellow servant." Steiner, 887 P.2d at 1233 (citation omitted). The Act provides that all scaffolding "shall be well and safely supported, of sufficient width, and properly secured." Failure to comply with the Act constitutes negligence per se. Steiner, 887 P.2d at 1233. The District Court found that the ladder was too narrow, too flexible, not placed at the proper 4angle, andnot properly secured because of the rounded legs. Thus,

the District Court concluded that the inadequacy of the ladder was a proximate cause of Wilson's injuries; however, the court also determined that the Act did not apply. Asweheld in Steiner, the defense of contributory negligence is not available under the Act. Thus, the District Court erred in applying contributory negligence andin reducing Wilson's damageaward pursuant to §27-l-702, MCA. In addition, the District Court determined that the ladder was not "used asaworking place" and, therefore, that the Act did not apply. Section 50-77-101, MCA (1991), provides that the Act applies where a scaffolding is used in "the erection, repair, alteration, or removal of buildings." Apparently, the court reasoned that, asaninsurance adjustor, Wilson wasnot erecting, repairing, altering or removing a building at the time of his injuries. Wilson argues that the District Court interpreted the Act too narrowly. Weagree. At the time of the accident, Wilson
wasinspecting Vukasin's roof for hail damage. This inspection was integral to the repair of the roof asthe cost of the damagehadto be determined for Vukasin's insurance claim. Wilson was on the roof to makethis determination andfacilitate the repair. In Mvdlarz, this Court cited Quinnv. LBC, Inc. (Ill. Ct. App. 1981), 418N.E.2d 1011, in discussing the purposes of the Act and in deciding that the term "scaffolding" includes aladder. Wefind Quinn to beinstructive indetermining whether Wilson wasusing the ladder asa "working place." Quinn wasaninspector for the City of Chicago Building Department andwas injured while inspecting a
5building following afire. TheIllinois Court of Appeals concluded

that Quinn wascovered by Illinois' scaffolding act, stating that: Plaintiff, in his role as an inspector, played avital part in the construction process. Heentered the site for the purpose of evaluating the fire's effect on the building's structural integrity. Performance of this task necessitated his presence within and upon the building.

. Aliberal interpretation of the Act

. .

.requires that plaintiff beincluded within the class of persons the Act is intended to protect. Quinn, 418N.E.2d at 1013. Similarly, Wilson utilized the ladder to access the roof to inspect the damage, and ultimately, to facilitate the repair of Vukasin's roof. Asthe Illinois Court of Appeals recognized in m, an inspector, such as Wilson, is within the ambit of the Act's coverage. Wedetermine that District Court erred in concluding that the Act did not apply. Accordingly, wehold that the District Court erred by invoking the doctrine of comparative negligence and in reducing Wilson's award by50percent. Because the Act applies, it is unnecessary for this Court to consider Vukasin's cross-appeal. Reversed with direction to enter judgment in Wilson's favor for the full amount of his damages

Weconcur:

Chief JusticeJusticesJustice Charles E. Erdmanndissenting.

Themajority, in construing the 1991version of the Scaffold Act as set forth in § 50-77-101, MCA, has determined that the ladder used by Wilson was a scaffold for purposes of this Act. While I agree with that determination, the majority's conclusion that Wilson, asanindependent contractor, waswithin the ambit of the Act's coverage extends the Act beyond any of our previous interpretations. Wilson is anindependent insurance adjuster whocontracts with insurance companies to provide claims adjusting services. In this case, Vukasin's insurer, Austin Mutual, contracted with Wilson through Erickson-Baldwin, anindependent insurance agency in Havre, to readjust a hail damage claim to Vukasin's property. While inspecting Vukasin's property, Wilson fell from aladder that had been provided byVukasin. There wasnoemployment or contractual relationship between Wilson and Vukasin, and Vukasin had no authority to control, direct, or supervise Wilson's performance. Wediscussed the language of the Scaffolding Act in State
ex rel. Great Falls National Bankv. District Court (1969), 154 Mont. 336, 463 P.2d 326. In that case, it was necessary to determine what persons owed the duty that was imposed by the Scaffolding Act because the language employed to describe the duty
wasexpressed in passive voice andfailed to specify what persons owedthe duty. Weheld that it wasclear the Legislature did not intend to grant multiple remedies or damagesto injured workmen by allowing one recovery against the landowner, another against thegeneral contractor, a third against the subcontractor, and so

forth. Wefurther held that the Legislature intended only to make injured workmen whole by granting them relief against the person, firm, or corporation having direct and immediate control of the work involving the use of scaffolding. We specifically overruled our dictum in Pollard v. Todd (1966), 148 Mont. 171, 418 P.2d 869, and Joki v. McBride (1967), 150 Mont. 378, 436 P.2d 78, which suggested that alandowner not in control of the work being completed owed an absolute, nondelegable statutory duty to a scaffold worker or others. Great Falls Nat'1 Bank -I 154 Mont. at 344. The individual who was injured in Great Falls Nat'1 Bank was the employee of an independent contractor who had been hired to complete the project under the contractor's own guidance and supervision. Weheld that the bank, being simply the

owner of the property and not the employer of the injured individual, had no direct control over the work performed and therefore was not liable under the Scaffolding Act. The direct and immediate control analysis has since been consistently utilized by this Court to determine whether the Scaffolding Act applies. In Mydlarz v. Palmer/Duncan Construction

co. (1984), 209 Mont. 325, 339, 682 P.2d 695, 703, we noted that both defendants were acting as general contractors in control of the work area and, without reaching the question of which party was immediately responsible for failing to provide adequate scaffolding, held that the failure invoked the Scaffolding Act's applicability. This determination of direct and immediate control

9Wilson wasusing the ladder asa"working place" to inspect damage

on the roof which would ultimately facilitate the repair of the roof, hewastherefore within the scope of the Act,. Themajority however failed to complete the required analysis and determine whether Vukasin wasan individual whoowedaduty to Wilson under the Act. Wilson, as an independent contractor, was contracted by Vukasin's insurance agency to readjust the hail damageto Vukasin's property. Vukasin did not contact Wilson personally nor was his presence necessary for this inspection. The "person, firm, or corporation having direct and immediate control of the work involving the use of scaffolding" waseither Wilson himself as an independent contractor, or arguably the insurance company. Whatis clear is that Vukasin had no direct and immed~iate control of Wilson. I would therefore hold that the Montana Scaffolding Act does not apply andthat the judgment of the District Court finding the plaintiff and the defendant equally at fault under comparative negligence principles should beaffirmed.

Justice Chief Justice JeanA. Turnage andJustice Karla M.Gray join in the foregoing dissenting opinion.