No. 13195 INTHE SUPREME COURT OF THE STATE OF MONTANA 1976

MELVIN BOYER, Plaintiff and Appellant,

-vs

# - RICHARD KLOEPFER, Defendant and Respondent.

Appeal from: District Court of the Thirteenth Judicial District, Honorable Charles Luedke, Judge presiding. Counsel of Record: ForAppellant: Michael J. Whalen argued, Billings, Montana For Respondent: Crowley, Kilbourne, Haughey, Hanson & Gallagher,

Billings, Montana H. Elwood English argued, Billings, Montana

Submitted: April 22, 1976

C ~ecided 

### : 

# ., ;i 

## ... 13, Filed:Hon. R. D. McPhillips, District Judge, sitting forMr. Chief Justice James T. Harrison, delivered the Opinion of the Court.

Plaintiff appeals from an order of the district court, Yellowstone County, granting summary judgment to defendant. The facts are essentiallyundisputed. Plaintiff brought this action in the district court to recover damages for injuries sustained by him when he fellfrom a scaffold. Both plaintiff and defendant made a motion for summary judgment on the grounds there was no genuine issue as to any material fact on the question of liability. The trialcourt granted summary judgment todefendant Richard Kloepfer. Plaintiff, Melvin Boyer, appealed. Plaintiff and appellant hereafter shallbe referred to asBoyer and defendant and respondent asKloepfer. Kloepfer 

### is a masonry contractor. He bid 

### a job atEastern Montana College against one EarlWilliams. Williams had the low bid and received the contract todo themasonry mrk. Williams then hired Kloepfer ashismasonry foreman forthe collegejob. Inaddition, Williams and Kloepfer entered into a rental agreement whereby Kloepfer was to furnish equipment, including scaffolding, upon thejob for $3,500. The scaffold furnished by Kloepfer included planking, scaffoldjacks, braces, scaffold brackets and other equipment necessary to do themasonry work atEastern Montana College. Kloepfer's job asWilliams

## ' foreman included hiring hod carriers and brick layers aswell asgenerally supervising all the masonry work on behalf of Williams. On May 

### 22, 1972, while working as an employee of Williams

on the Eastern Montana Collegejob, Boyer was pushing 

### a wheel-barrow full of wet concrete along the scaffold and while going up an incline thereon which had a plywood floor and was unstable, the weight of thewheelbarrow shifted,gushed him backwards off the scaffolding, and he fellto the ground approximately 13feet below. The wheelbarrow fullof wet cement followed him off the scaffold and landed directlyupon Boyer's back causing severe injury

# . In the areawhere Boyer fellto the ground, therewere no X braces, guardrails orkickboards. A guardrail may have prevented his falland kickboards may have prevented the wheelbarrow fullof wet concrete from falling on him. Three issues are presented: 

### 1. Under the facts and circumstances of this case 

### is Kloepfer liable toBoyer under the ScaffoldAct? 2. Under the facts and circumstances of this case 

### is 1947 Kloepfer liable toBoyer under section 92-204, 

### R.c.M/,of the Workmen's Compensation Act? 3. Were any genuine issues of material fact present so as topreclude the trialcourt from entering summary judgment herein? Dealing with the first issue this Court inState ex rel. Great Falls National Bank v. District Court, 154Mont. 336, 343, 463 P.2d 326, stated: 

# "** * againstwhom 

### is the injured workman entitled to recover? Orstated another way, who owes the basic duty imposed by the ScaffoldAct? We must look to the ScaffoldAct 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-shallhave-the direct and immediate supervision or control of the construction orremodeling of any building having more than three framed floors' toprovide a temporary planked floor 'which shallbe laid to form a good substantialtemporary floor for the protection of employees and allpersons engaged above orbelow, or on such temporary floor in such building.' (Emphasis supplied.)firm "Section 69-1404, R.C.M. 1947, provides that 'It 

# - shallbe the duty of allowners, 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. (Emphasis supplied.)

"In our view neither the language nor the purpose of the ScaffoldAct suggests any intentionby the legislature to grant multiple remedies or damages to injured workmen by granting one recovery against the landowner, another recovery against the general contractor, a third recovery against the subcontractor using the scaffolding, and so on ad infinitum. On the contrary it is clear tous from the language of the Act construed in the light of 

### itspurpose that the legislature intended only tomake the injured workman whole by granting him relief to the extent of his injuries and damages against the person, firm or corporation having direct and immediate control of the work involving the use of scaffolding." It 

### is clear this Court has previously determined the person, corporation having direct and immediate control of the work involving the use of scaffolding 

### is the one upon which a duty 

### is imposed by the ScaffoldAct. Kloepfer was in immediate control of the work that involved the use of scaffolding, but he exercised that control as the foreman of Earl Williams Masonry. There 

### is absolutely no dispute from the record that Kloepfer was anything other than EarlWilliams Masonry's foreman. Kloepfer was paid an hourly wage by Williams; he hired brick layers and hod carriers

on Williams' behalf; he did not share inany profits from thejob; he was instructedby Williams on how Williams wished thejob to be done; nothing suggests Kloepfer was anything other than an Earl Williams Masonry employee. Kloepfer cannot be held liable under the ScaffoldAct ashe acted simply asWilliams' employee and not

an owner, person or corporation,who had direct and immediate supervision and control of the masonry construction.Second, can Kloepfer be held liableunder the provisions of section 92-204, as amended in 1969, since repealed and replaced 1947 by section 92-204.1, R.C.M./which allowed a fellowworkman tobe held liablewhen the injuries of any employee, It* 

# ** are caused by the intentional and malicious act or omission of a servant or employee of his employer

# ** *.It In this connection, Boyer had the following to say inhis deposition: "Q. Did Dick Kloepfer have anything to do with the erection of the scaffold that you felloff of? A. I don't know for sure. AllI know, itwas his scaffolding. "Q. 

### It was his scaffolding, you say? A. Yeh. Q. Did Dick Kloepfer have anything to do with removing or putting any braces on that scaffold? That you know of. A. Well, I haven't seen anybody do anything with it. You know, I haven't seen Dick do anything with it. "Q. Do you have any reason tohold Dick Kloepfer personally responsible forwhat happened to you? A. (No response.)

"Q. That you know of. A. Well, I can't

# **

# * It's

# * * * no, I have nothing personal against him. "Q. Do you have any reason tobelieve thathe has anything personal against you? A. No. Q. Did you get alongwith him okay? A. Yes. 

### "Q. Would you say your relationshipwas a good one? A. Yes, I'd say it was. I I The scaffolding inthis casewas rented by EarlWilliams Masonry from Kloepfer, a factwhich isundisputed. In this regard Kloepfer testified inhis deposition: "Q. And as a part of this agreement to rent equipment to him, was it understood that you would maintain and install the equipment on thejob? A. No, therewas nothing along that line."Q. Well, as a part of that agreement did you in factmaintain the equipment upon thejob and install the scaffolding, for example? A. No, I didn't maintain it or

# - EarlWilliams did any maintaining or anything like that that had to do. Like he bought the gasoline. He provided any of the expenses. It was hisjob.

"Q. And as the owner of that equipment, and particularly the scaffolding that you had rented to Earl Williams, did you oversee the erection of it? A. Well, I would say this, that I was his foreman on thejob. It was my job to see that everything was done as faras the masonry work was concerned. I had hod carriershired and I had brick layers hired. Those are the two people that I worked with or dealt with. They were under my control. The hod carrier's job 

### is to, basically, firstof all, when there 

### is a masonry job tobe done they move the equipment onto thejob, they put the material in the position where thebricklayer can get up

# - that includes the brick, the block, the mortar

# - they do the setting up of allthis various equipment and materials to proceed with the masonry work. The hod carriers

# - "Q. But as I understand your testimony, you were in immediate charge of setting thisjob up insofar as supervisory responsibility is concerned, isn't that correct? A. Yes. A foreman 

### is, I would say, responsible for building thejob the best way he knows how." The record further discloses that when this unfortunate accident took place, Kloepfer was not atthejob site. Kloepfer, as foreman for EarlWilliams, had the responsibility for construction, erection and maintenance of the scaffolding. No malice or intent toharm has been shown and Boyer concedes that his relationship with Kloepfer was always

a good one. There 

### isno evidence to the contrary so the conditions under which a workman could sue a co-worker intortunder section 92-204, R.C.M. 1947, arenot satisfied. The third issue, did the trialcourt err ingranting Kloepfer

## 's motion for summary judgment?Boyer contends he was not the fellow employee of Kloepfer insofar as the furnishing of the scaffolding for thejob 

### is concerned. That having been furnished under a separate agreement between Williams and Kloepfer, and that his failure toprovide X braces, guardrails and kickboards atthe point Boyer felloff the scaffoldmade Kloepfer liable toBoyer or atleast created

an issue of fact. Rule 56(c), Montana Rules Civil Procedure, provides, inter alia: "The judgment sought shallbe rendered forthwith 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 isentitled to a judgment as a matter of law." The complaint contains no allegation of a duty on the part of Kloepfer toprovide allthe safetymechanisms that are normally required with scaffolding. The responsibility to provide such equipment 

### is that of EarlWilliams Masonry who was the contractorhaving the direct and immediate control of the building under construction, section 69-1404, R.C.M. 1947. As a matter of law the Scaffold Act and theWorkmen's Compensation Act are inapplicable to the claim involved under the undisputed facts of this case. There 

### is no theory of the law pleaded that would allow recovery of any damages by Boyer

as against Kloepfer. The 

### trial court did not err ingranting Kloepfer'

### s motion for summary judgment. The judgment of the trialcourt 

### is affirmed.

I Hon. R. D. McPhillips, District Judge, sitting for Chief Justice James T. Harrison.

### We Concur: 

# LJ8

Justices.



### Mr. Justice John Conway Harrison dissenting: 

### Iwould vacate the order of summary judgment in view of the fact that testimony indicates that Kloepfer removed part of the scaffolding equipment and put it on

a job he was operating as a scaffolding contractor.

'us t