Wells v. Stanley J. Thill and Associates, Inc. , 153 Mont. 28 ( 1969 )

MR. CHIEF JUSTICE JAMES T. HARRISON

delivered the Opinion of the Court.

The plaintiffs brought this action in the district court to recover damages for personal injuries. Upon defendants’ motions to dismiss, the trial judge determined to treat the motions as motions for summary judgment under Buie 12(b) (6), M.B.Civ.P., and ordered summary judgment entered against the plaintiffs. From this order the plaintiffs appeal.

Plaintiffs were injured in a 1964 trench cave-in while employed by an independent contractor, Fedco, Inc., who, in turn, had been hired by the respondent City of Belt to construct a sewer project designed and supervised by the respondent Stanley J. Thill & Associates, Inc. Fedco dug the trench, but failed to shore it with timber as its written contract with the City of Belt required and also failed to dig the trench in accordance with the laws of the State of Montana as its written contract with the City of Belt required.

Plaintiffs were covered by Workmen’s Compensation but brought this action under section 92-204, B.C.M.1947, against the City of Belt, hereafter called the city, as owner, and against Stanley J. Thill & Associates, Inc., hereafter called the engineer, who had drawn the plans and specifications for the city and who were to supervise on behalf of the city to insure that the contract was performed in accordance with the plans and specifications.

Both respondents filed motions to dismiss; the court temporarily overruled respondent engineer’s motion; but later, after considering respondent city’s motion, issued its order granting motions for summary judgment for both respondent defendants. The basis for the order granting the motions for summary judgment appears to be the “independent contractor rule” and a determination that an employee of an independent contractor does not qualify for recovery under exceptions to that rule which allow recovery to third persons.

Since the court below treated the defendants’ motions to dismiss as motions for summary judgment under Buie 12(b) (6), M.B.CivP., it is well to remember that “For the purposes of the motion, the well-pleaded material allegations of the complaint are taken as admitted; but conclusions of law or unwarranted deductions of fact are not admitted.” 2A Moore’s Federal Practice 2266-2269, paragraph 12.08. Also “A [complaint] may be dismissed on motion if clearly without any merit; and this want of merit may consist in an absence of law to support a claim of the sort made, or of facts sufficient to make a good claim, or in the disclosure of some fact which will necessarily defeat the claim.” Ibid, page 2271. The ■question then becomes whether the plaintiffs failed to state a claim upon which relief can be granted, which would justify the court’s summary judgment.

The plaintiffs in their complaint and brief admitted that Fedeo was an independent contractor. Therefore, the question became whether there is a duty on the part of the owner or his supervising engineer, running to the employee of an independent contractor, to see that the independent contractor ■complies with minimum safety standards promulgated by the Montana Industrial Accident Board pursuant to statute, section '92-1204, R.C.M.1947, when the independent contractor has, in his written contract with the owner, specifically agreed to comply with such standards.

The plaintiffs admit that ordinarily the rule is that a ■eontractee-owner is not liable for the acts of an independent contractor or his servants. However they then go on to contend that they should fall under exceptions to that rule relating to •certain third persons and to inherently dangerous or extra-hazardous work.

We cannot agree with those contentions of the plaintiffs because on closer scrutiny it appears that the exceptions apply to persons other than servants of the independent contractor. The rule appears to be well-settled that:

“Since, as discussed supra § 3(1), the servant of an independent contractor or of a subcontractor is not a servant of the contractee, ordinarily the contraetee is not liable for-injuries to such servant caused by the acts or negligence of the contractor, or subcontractor, or coemployee of the injured servant. * * * The rule is not affected by a statute making it the duty of owners, contractors, and subcontractors, engaged in designated work, to take designated precautions for the safety of their employees, since such statutes are intended to apply only to that member of the class enumerated who was engaged in the work designated at the time when the injury occurred.

“# * * The contraetee does not owe to the employees of the independent contractor the same duties he owes to his own employees. So too the duties which a contractee owes to employees of the independent contractor are less than those owing to third persons; and consequently his liability to such employees is not as extensive as his liability to third persons, that is, the act may be such as to render the contraetee liable to third persons although it would not make him liable to a servant of the contractor.” 57 C.J.S. Master and Servant § 600.

To the same effect see 35 Am.Jur., Master and Servant, Section 159.

A case that we think is very close in point is that of Potter v. City of Kenosha, 268 Wis. 361, 68 N.W.2d 4 (1955). There the Wisconsin Supreme Court saiid: “The principal question confronting us upon this appeal is whether a legal duty devolved upon the city not to permit the performance of work in the trench by the contractor’s employees unless shoring as required in the safety order of the Industrial Commission had been provided.” Ibid, p. 7. There the city had the right to inspect in order to assume that the specifications and plans for a city sewer project were being followed. The court held that the contractor was still an independent contractor and then went on to say: “In every such instance where the contractor is in full supervision and control of the work, he alone becomes liable to his employees under the statute for injuries sustained.” Ibid, p. 11.

In this same vein the court further stated: “The contractor had agreed to provide necessary shoring and had bound himself to comply with all laws, regulations and ordinances which, obviously, included observance of Industrial Commission’s General Order 610 on Trenches.” Ibid, p. 12.

Also what this Court said in the case of Hackley v. Waldorf-Hoerner Paper Products Co., 149 Mont. 286, 425 P.2d 712 (1967), is germane to the instant case for here, as there, the landowner had employed independent contractors to perform the work and had not, as we view the situation, retained control over the premises.

In the Hackley case we held:

“Generally a landowner is not liable- for injuries suffered by servants of an independent contractor. 57 C.J.S. Master and Servant § 600. The position of the appellant here is that of an invitee or a business visitor lawfully on the premises and this court in the case of Cassaday v. City of Billings, 135 Mont. 390, 340 P.2d 509, 510, summarized the law in Montana as follows:

“ ‘It is well established in Montana that a landowner is obligated toward an invitee to either use ordinary care to have the premises reasonably safe, or to warn the invitee “of any hidden or lurking danger therein”. Milasevich v. Fox Western Montana Theatre Corp., 118 Mont. 265, 270, 165 P.2d 195, 197, and see Restatement, Torts, Negligence, § 343. He is not an insurer against all accidents and injuries to such persons while there.’ See also Chichas v. Foley Brothers Grocery Co., 73 Mont. 575, 236 P. 361.

“While this state has not had to consider the matter there is an exception to the rule- which arises-when a landlord has retained control over the property on which work is being performed. The landlord then has the duty to use ordinary care, so that the premises will be reasonably safe for the independent contractor’s servants. Dillingham v. Smith-Douglass Co., 261 F.2d 267, 269 (4th Cir.1958); 57 C.J.S. Master and Servant, § 603; 38 Am.Jur., Negligence, § 94. For the purposes of this case it must be concluded that Bumstead-Woolford Co. was an independent contractor and the disposition of the case is governed by the general rule, which under the present circumstances free a landowner from liabilities for injuries suffered by an independent contractor’s servants, and not by the exception.” Hackley, supra, 295-296, 425 P.2d 717.

The instant case is governed by the rule and not by the exception, and in our view the city is under no duty in the present factual situation to see that their independent contractor complies with the minimum safety standards.

There remains the question of whether the supervising engineers owed any duty to the plaintiffs to see that certain safety standards were met.

The plans and specifications prepared and furnished by the engineer, which were also made a part of the contract, provided that “* * * all applicable State laws, municipal ordinances, and the rules and regulations of all authorities having jurisdiction over construction of the project shall apply to the contract throughout, and they will be deemed to be included in the contract the same as though herein written out in full.” The plans and specifications also provided for shoring where necessary. From that it is clear to this Court that there were provisions in the plans and specifications that safety precautions should be taken to assure the safety of employees working on the project. Those provisions in the contract made it the duty of the contractor to take all necessary safety precautions.

On the other hand, the duty of the engineer, which duty ran to the city, was to see that a certain end result was eventually accomplished, namely that the project as finally constructed and turned over to the city met the plans and specifications it prepared for the city. The engineer’s real interest was not in the actual construction but in a completed project in accordance with the plans and specifications.

There was no duty on the part of the engineer to see that standards set up by the Montana Industrial Accident Board were met. That duty lay with the contractor and with the Industrial Accident Board.

For these reasons the order of the district court is affirmed.

MR. JUSTICES CASTLES, HASWELL and JOHN CONWAY HARRISON, concur.