No. 96-053 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1996 

v. 

ROBERT VUICASIN, 

Defendant, Respondent 

and Cross-Appellant. 

APPEAL FROM: District Court of the Twelfth Judicial District, 

In and for the County of Hill, 

The Honorable John Warner, Judge presiding. 

COUNSEL OF RECORD: 

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 on Briefs: June 20, 1996 

Decided: August 27, 1996 
Justice W. William Leaphart delivered the Opinion of the Court. 

John Wilson (Wilson) appeals, and Robert Vukasin (Vukasin) 

cross-appeals from the Findings of Fact and Conclusions of Law of 

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. We reverse the District 

Court's conclusion that the Montana Scaffolding Act does not apply 

and, therefore, do not consider the cross-appeal. 

Wilson raises the following issue on appeal: 

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 was used to gain access to the roof 

of the garage. Both men climbed onto the roof and Wilson performed 

his inspection. After the inspection was completed, Wilson began 

descending the ladder while Vukasin remained on the roof. While 

Wilson was climbing down the ladder, it l'walkedU' out from under him 

and he fell to the concrete slab below injuring his right heel. 

In its Findings of Fact and Conclusions of Law, the District 

Court determined that the ladder was placed at too small of an 

angle and that the ladder was generally inadequate for the task. 

The court noted that the ladder's base was too narrow, that its 

legs were rounded where they met the concrete slab, and that it was 

"old, weathered and flexed too much, allowing it to slip more 

easily." 

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The District Court concluded that the Montana Scaffolding Act 

(the Act) did not apply because the ladder was not a scaffold 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 

damage award by 50 percent because it found that he had failed to 

use ordinary care in selecting and using the ladder. 

On appeal, 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 have been applicable because once it is 

shown that a violation of the Act was the proximate cause of the 

injury, liability becomes fixed. Steiner v. Department of Highways 

(1994), 269 Mont. 270, 278, 887 P.2d 1228, 1233. 

The District Court recognized that the question of whether the 

ladder was a scaffold was a "close call" and ultimately concluded 

that it was not a scaffold. We review the District Court's 

conclusion of law--that the Act did not apply--to determine whether 

the court's interpretation of the law was correct. Stratemeyer v. 

Lincoln County (Mont. 1996), 915 P.2d 175, 177, 53 St.Rep. 245, 246 

(citing Carbon County v. Union Reserve Coal Co. (19951, 271 Mont. 

459, 469, 898 P.2d 680, 686); Loney v. Milodragovich, Dale & Dye, 

P.C. (1995), 273 Mont. 506, 510, 905 P.2d 158, 160. 

Wilson's fall occurred in 1992. We have previously determined 

that the 1995 amendments to the Act cannot be applied 

retroactively. Porter v. Galarneau (Mont. 1996), 911 P.2d 1143, 

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1150, 53 St.Rep. 99, 103. Thus, we must apply the version of the 

Act applicable at the time of the accident. As of 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 be well and safely supported, of sufficient width, 

and properly secured so as to ensure the safety of 

persons working on them or passing under them or by them 

and to prevent them from falling or to prevent any 

material that may be used, placed, or deposited on them 

from falling. 

We have defined "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 has previously held that, under the pre1995 version of the Act, a ladder is considered a scaffold. 

Porter, 911 P.2d at 1147 (citing Mydlarz v. Palmer/Duncan Constr. 

Co. (19841, 209 Mont. 325, 338, 682 P.2d 695, 702). Thus, the 

ladder used by Wilson was a scaffold for purposes of the pre-1995 

Act. 

Further, this Court has determined 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 

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angle, and not 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. As we held in Steiner, the 

defense of contributory negligence is not available under the Act. 

Thus, the District Court erred in applying contributory negligence 

and in reducing Wilson's damage award pursuant to § 27-l-702, MCA. 

In addition, the District Court determined that the ladder was 

not "used as a working 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, as an insurance adjustor, Wilson was not erecting, 

repairing, altering or removing a building at the time of his 

injuries. Wilson argues that the District Court interpreted the 

Act too narrowly. We agree. At the time of the accident, Wilson 

was inspecting Vukasin's roof for hail damage. This inspection was 

integral to the repair of the roof as the cost of the damage had to 

be determined for Vukasin's insurance claim. Wilson was on the 

roof to make this determination and facilitate the repair. 

In Mvdlarz, this Court cited Quinn v. LBC, Inc. (Ill. Ct. App. 

1981), 418 N.E.2d 1011, in discussing the purposes of the Act and 

in deciding that the term "scaffolding" includes a ladder. We find 

Quinn to be instructive in determining whether Wilson was using the 

ladder as a "working place." Quinn was an inspector for the City 

of Chicago Building Department and was injured while inspecting a 

5 
building following a fire. The Illinois Court of Appeals concluded 

that Quinn was covered by Illinois' scaffolding act, stating that: 

Plaintiff, in his role as an inspector, played a vital 

part in the construction process. He entered 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. . A liberal interpretation of the Act . . 

. requires that plaintiff be included within the class of 

persons the Act is intended to protect. 

Quinn, 418 N.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. As the Illinois Court of 

Appeals recognized in m, an inspector, such as Wilson, is 

within the ambit of the Act's coverage. 

We determine that District Court erred in concluding that the 

Act did not apply. Accordingly, we hold that the District Court 

erred by invoking the doctrine of comparative negligence and in 

reducing Wilson's award by 50 percent. 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 

We concur: 

Chief Justice 
Justices 
Justice Charles E. Erdmann dissenting. 

The majority, in construing the 1991 version 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, as an independent contractor, was within the ambit of 

the Act's coverage extends the Act beyond any of our previous 

interpretations. 

Wilson is an independent insurance adjuster who contracts with 

insurance companies to provide claims adjusting services. In this 

case, Vukasin's insurer, Austin Mutual, contracted with Wilson 

through Erickson-Baldwin, an independent insurance agency in Havre, 

to readjust a hail damage claim to Vukasin's property. While 

inspecting Vukasin's property, Wilson fell from a ladder that had 

been provided by Vukasin. There was no employment or contractual 

relationship between Wilson and Vukasin, and Vukasin had no 

authority to control, direct, or supervise Wilson's performance. 

We discussed the language of the Scaffolding Act in State 

ex rel. Great Falls National Bank v. 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 

was expressed in passive voice and failed to specify what persons 

owed the duty. We held that it was clear the Legislature did not 

intend to grant multiple remedies or damages to injured workmen by 

allowing one recovery against the landowner, another against the 
general contractor, a third against the subcontractor, and so 

forth. We further 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 a landowner 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. We held 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 

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Wilson was using the ladder as a "working place" to inspect damage 

on the roof which would ultimately facilitate the repair of the 

roof, he was therefore within the scope of the Act,. The majority 

however failed to complete the required analysis and determine 

whether Vukasin was an individual who owed a duty to Wilson under 

the Act. 

Wilson, as an independent contractor, was contracted by 

Vukasin's insurance agency to readjust the hail damage to 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" was either Wilson himself as an 

independent contractor, or arguably the insurance company. What is 

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 and that the judgment of the District Court finding the 

plaintiff and the defendant equally at fault under comparative 

negligence principles should be affirmed. 

Justice 

Chief Justice Jean A. Turnage and Justice Karla M. Gray join in the 

foregoing dissenting opinion.