No. 13195 

IN THE 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 : 

For Appellant : 

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 for Mr. 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 essentially undisputed. Plaintiff brought 

this action in the district court to recover damages for injuries 

sustained by him when he fell from 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 trial court granted summary judgment to defendant 

Richard Kloepfer. Plaintiff, Melvin Boyer, appealed. Plaintiff 

and appellant hereafter shall be referred to as Boyer and 

defendant and respondent as Kloepf er. 

Kloepfer is a masonry contractor. He bid a job at Eastern 

Montana College against one Earl Williams. Williams had the low 

bid and received the contract to do the masonry mrk. Williams 

then hired Kloepfer as his masonry foreman for the college job. 

In addition, Williams and Kloepfer entered into a rental agreement whereby Kloepfer was to furnish equipment, including scaffolding, upon the job for $3,500. The scaffold furnished by 

Kloepfer included planking, scaffold jacks, braces, scaffold 

brackets and other equipment necessary to do the masonry work 

at Eastern Montana College. 

Kloepfer' s job as Williams ' foreman included hiring hod 

carriers and brick layers as well as generally supervising all 

the masonry work on behalf of Williams. 

On May 22, 1972, while working as an employee of Williams 

on the Eastern Montana College job, 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 the wheelbarrow shifted, gushed him backwards off 

the scaffolding, and he fell to the ground approximately 13 feet 

below. The wheelbarrow full of wet cement followed him off the 

scaffold and landed directly upon Boyer's back causing severe 

injury . 

In the area where Boyer fell to the ground, there were no 

X braces, guardrails or kickboards. A guardrail may have prevented his fall and kickboards may have prevented the wheelbarrow 

full of wet concrete from falling on him. 

Three issues are presented: 

1. Under the facts and circumstances of this case is 

Kloepfer liable to Boyer under the Scaffold Act? 

2. Under the facts and circumstances of this case is 

1947 

Kloepfer liable to Boyer under section 92-204, R.c.M/, of the 

Workmen's Compensation Act? 

3. Were any genuine issues of material fact present so as 

to preclude the trial court from entering summary judgment herein? 

Dealing with the first issue this Court in State ex rel. 

Great Falls National Bank v. District Court, 154 Mont. 336, 343, 

463 P.2d 326, stated: 

"* * * against whom is the injured workman entitled 

to recover? Or stated another way, who owes the basic 

duty imposed by the Scaffold Act? We must look to the 

Scaffold Act 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- shall have- the 

direct and immediate supervision or control of the construction or remodeling of any building having more than three 

framed floors' to provide a temporary planked floor 'which 

shall be laid to form a good substantial temporary floor 

for the protection of employees and all persons engaged 

above or below, or on such temporary floor in such building.' 

(Emphasis supplied.) 
firm 

"Section 69-1404, R.C.M. 1947, provides that 'It - 

shall be the duty of all owners, 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 Scaffold Act suggests any intention by 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 to us from the language of the Act 

construed in the light of its purpose that the legislature 

intended only to make 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 Scaffold Act. 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 Earl Williams 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 in any profits from the job; 

he was instructed by Williams on how Williams wished the job to 

be done; nothing suggests Kloepfer was anything other than an Earl 

Williams Masonry employee. Kloepfer cannot be held liable under 

the Scaffold Act as he acted simply as Williams' 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 liable under 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 fellow workman to be 

held liable when 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 in his 

deposition: 

"Q. Did Dick Kloepfer have anything to do with 

the erection of the scaffold that you fell off of? 

A. I don't know for sure. All I know, it was 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 to hold Dick Kloepfer personally responsible for what 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 to believe that he has 

anything personal against you? A. No. 

Q. Did you get along with him okay? A. Yes. 

"Q. Would you say your relationship was a good one? 

A. Yes, I'd say it was. I I 

The scaffolding in this case was rented by Earl Williams 

Masonry from Kloepfer, a fact which is undisputed. In this 

regard Kloepfer testified in his 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 the job? A. No, there was 

nothing along that line. 
"Q. Well, as a part of that agreement did you in 

fact maintain the equipment upon the job and install 

the scaffolding, for example? A. No, I didn't maintain 

it or - Earl Williams did any maintaining or anything 

like that that had to do. Like he bought the gasoline. 

He provided any of the expenses. It was his job. 

"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 the job. 

It was my job to see that everything was done as far as 

the masonry work was concerned. I had hod carriers hired 

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, first of all, when 

there is a masonry job to be done they move the equipment 

onto the job, they put the material in the position where 

the bricklayer can get up - that includes the brick, the 

block, the mortar - they do the setting up of all this 

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 this job up insofar as supervisory responsibility is concerned, isn't that correct? 

A. Yes. A foreman is, I would say, responsible for 

building the job the best way he knows how." 

The record further discloses that when this unfortunate 

accident took place, Kloepfer was not at the job site. 

Kloepfer, as foreman for Earl Williams, had the responsibility for construction, erection and maintenance of the 

scaffolding. No malice or intent to harm has been shown and 

Boyer concedes that his relationship with Kloepfer was always 

a good one. There is no evidence to the contrary so the conditions under which a workman could sue a co-worker in tort under 

section 92-204, R.C.M. 1947, are not satisfied. 

The third issue, did the trial court err in granting 

Kloepf er ' s mot ion for summary judgment? 
Boyer contends he was not the fellow employee of Kloepfer 

insofar as the furnishing of the scaffolding for the job is 

concerned. That having been furnished under a separate agreement 

between Williams and Kloepfer, and that his failure to provide 

X braces, guardrails and kickboards at the point Boyer fell off 

the scaffold made Kloepfer liable to Boyer or at least created 

an issue of fact. 

Rule 56(c), Montana Rules Civil Procedure, provides, inter 

alia : 

"The judgment sought shall be 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 is entitled to a judgment as a matter of 

law." 

The complaint contains no allegation of a duty on the part 

of Kloepfer to provide all the safety mechanisms that are 

normally required with scaffolding. The responsibility to provide such equipment is that of Earl Williams Masonry who was 

the contractor having 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 the Workmen'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 in granting 

Kloepfer' s motion for summary judgment. 

The judgment of the trial court 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: 

I would 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. 

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