Roberts v. Pegasus Gold Corp.

NO. 94-482
IN THE SUPREME COURT OF THE STATE OF MONTANA
1995
BENJAMIN C. ROBERTS,
Plaintiff/Appellant,
PEGASUS GOLD CORPORATION,
a foreign corporation; O'KEEFE
DRILLING COMPANY, INC., a
Montana corporation; BEAL
MOUNTAIN MINING, INC., a
Montana corporation; and
DOES ONE through FIVE,
$bPi‘%
Defendant/Respondents.
APPEAL FROM: District Court of the Third Judicial District,
In and for the County of Deer Lodge,
The Honorable Ted L. Mizner, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Richard J. Pyfer, Small, Hatch, Doubek & Pyfer,
Helena, Montana
For Respondent:
Paul C. Meismer, Lucy T. France, Garlington, Lohn &
Robinson, Missoula, Montana; Thomas E. Hattersley,
David C. Dalthorp, Gough, Shanahan, Johnson &
Waterman, Helena, Montana
Submitted on Briefs: July 13, 1995
Decided: Septeniber19, 1995
Filed:
Justice James C. Nelson delivered the Opinion of the Court.
This is an appeal from a decision of the Third Judicial
District Court, Deer Lodge County, granting summary judgment in
favor of respondents, O'Keefe Drilling Company, Inc. (O'Keefe) and
Beal Mountain Mining, Inc. (BMMI). We affirm.
We restate the issues as follows:
I. Did the District Court err in ruling that the O'Keefe
employees were not acting within their scope of employment in the
alleged incident?
II. Did the District Court err in finding no genuine issue of
material fact existed as to whether a BMMI employee or an O'Keefe
employee caused Roberts' injury?
III. Did the District Court err in determining BMMI had no duty to
provide security on the road where the incident occurred?
Facts
BMMI owned and operated Beal Mountain Mine. BMMI hired, as
independent contractors, O'Keefe Drilling Company and Dave Smith
Contracting. Plaintiff, Benjamin C. Roberts (Roberts), was an
employee of Dave Smith Contracting.
On October 9, 1990, at approximately 5:00 p.m., Roberts was
hauling a load of clay on a public forest service road leading to
the Beal Mountain Mine. Roberts observed a white flatbed truck
with three people in the cab and toolboxes, oxygen and acetylene
tanks mounted on the back. Roberts testified that, as the flatbed
truck passed him, a loud explosion went off causing damage to his
left ear. Roberts could not see what was thrown but he believed it
2
was a blasting cap. Testimony was also presented that it was
possible, though unlikely, the noise was caused by the driver
intentionally causing the truck to backfire. Roberts believed the
flatbed truck was one he had seen a few days before which belonged
to BMMI.
Roberts reported the incident to a coworker who contacted
BMMI. BMMI investigated the incident and concluded, based on the
description of the truck and the recorded time schedule, that the
flatbed truck belonged to O'Keefe and not to BMMI.
On November 2, 1992, Roberts filed a complaint against
O'Keefe, Pegasus Gold Corporation, and BMMI to recover damages as
a result of injuries caused by either an employee of BMMI or an
employee of O'Keefe. After briefing and oral arguments, the
District Court granted summary judgment in favor of all three
defendants on July 28, 1994. Roberts appeals the grant of summary
judgment to BMMI and O'Keefe only.
Discussion
We apply the same standard in reviewing a district court's
grant of summary judgment as that used by the court under Rule
56(c), M.R.Civ.P.--" [slummary judgment is proper only when no
genuine issue of material fact exists and the moving party is
entitled to a judgment as a matter of law." Spain-Morrow Ranch,
Inc., v. West (1994), 264 Mont. 441, 444, 872 P.2d 330, 331-32,
citing Minnie v. City of Roundup (1993), 257 Mont. 429, 431, 849
P.2d 212, 214.
I.
Did the District Court err in ruling that the O'Keefe
employees were not acting within their scope of employment in the
alleged incident?
Roberts admits the record supports the conclusion that an
O'Keefe employee was responsible for the explosion. However, he
reserves as a question for the jury whether in fact an O'Keefe
employee or a BMMI employee caused the explosion. If the jury
found an O'Keefe employee responsible, Roberts contends O'Keefe is
liable for its employee's actions under the theory of respondeat
superior.
Roberts refers to Maguire v. State (1992), 254 Mont. 178, 182,
835 P.2d 755, 758, where we restated respondeat superior imposes
liability on an employer for wrongful acts of an employee committed
within the scope of his employment. Roberts reasons O'Keefe's
employees were in the course of employment at the time the incident
occurred because they were in route in a company vehicle from their
work place to their own personal vehicles. Roberts cites to
Webster v. Mountain States Telephone and Telegraph Company (1939),
108 Mont. 188, 199, 89 P.2d 602, 605, where we said where "the work
of an employee creates the necessity for travel, he is in the
course of his employment, even though he is serving at the same
time some purpose of his own."
The facts in Webster, however, involved negligent driving and
the liability of the employer when the employee was driving in the
course of employment. Webster, 89 P.2d at 605. In the case at
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hand, the alleged injury did not result from the employee driving
the vehicle but from intentionally throwing an explosive from the
vehicle or causing the truck to backfire. Nothing in the record
suggests the act of driving caused the injury to Roberts.
Therefore, what we stated in Webster does not apply here.
Roberts further contends that this Court, in Lassabe v.
Simmons Drilling, Inc. (1987), 228 Mont. 94, 743 P.2d 568, provided
that employees may be considered in the course of employment while
going to or coming from work when the employer provides
transportation to the job site. Here, O'Keefe provided
transportation for its employees to the job site.
Lassabe, though, was a workers' compensation case and it is
recognized that the concept of "scope of employment" in those sorts
of cases is broader than in the context of respondeat superior.
Larson's treatise on workers' compensation law discusses what is
meant by "course of employment" in the context of respondeat
superior and workers' compensation.
In the law of respondeat superior, the harmful force is
always an act of the servant, or at least an omission
which is the equivalent of an act. The inquiry is
whether the performance of that act was in furtherance of
the master's business. But in many work terl's
compensation situations, the harmful force is not the
employee's act, but something acting upon the employee.
1 Larson, Workmen's Compensation Law 5 14.00, pp.4-1 to 4-2.
Moreover, under pre-1987 versions of the Workers' Compensation
Act, we were required to liberally construe workers' compensation
statutes in favor of the employee. See 5 39-71-104, MCA (1985),
and Grief v. Industrial Accident Fund (1939), 108 Mont. 519, 526,
5
93 P.Zd 961, 963. Respondeat superior cases do not require such an
interpretation. Therefore, Lassabe's interpretation of scope of
employment does not control here.
O'Keefe correctly argues there must be some connection between
the alleged tortious conduct and the employer's business to hold
the employer liable. The act, if isolated, must not be imputable
to the employer. Kornec v. Mike Horse Mining Co. (1947), 120 Mont.
1, 9, 180 P.2d 252, 256. We agree with the District Court's use of
our analysis in Kornec. In Kornec, plaintiff was injured during a
scuffle with an employee of defendant while on the job. The
quarrel arose out of an ongoing confrontation between plaintiff and
defendant's mining company. There were two different versions of
the assault. One version was that the employee attacked plaintiff
for threatening to disturb the mine. In that situation, the
defendant would have benefited from the tort and would, therefore,
be liable for the employee's action. Kornec, 180 P.2d at 256. It
was a question of fact for the jury to determine whether the
employee was acting in the course of his employment.
Here, it is Roberts' contention that the O'Keefe employees
threw an explosive from the truck or intentionally caused the truck
to backfire as Roberts passed. Accepting Roberts' interpretation
of the facts, there is no genuine issue of material fact. The act
of throwing the explosives, or intentionally causing the truck to
backfire, was neither authorized by O'Keefe nor was it incidental
to conduct authorized. The act did not benefit O'Keefe in any way.
See Kornec, 180 P.2d at 256. Therefore, we conclude the District
6
Court did not err in ruling that the O'Keefe employees were not
acting within their scope of employment in the alleged incident.
Did the District Court err in finding no genuine issue of
material fact existed as to whether a BMMI employee or an O'Keefe
employee caused Roberts' injury?
Roberts argues the record contains a genuine fact question as
to who caused the explosion that resulted in his injury. The
disputed issue, however, is not material given our holding in Issue
I. Neither BMMI nor O'Keefe would be held liable for their
respective employees' actions under these facts.
III.
Did the District Court err in determining BMMI had no duty to
provide security on the road where the incident occurred?
Roberts alleges BMMI maintained actual, voluntary control of
the road between the mine site and BMMI's administrative offices.
Roberts asserts BMMI monitored and controlled traffic on the
roadway to such an extent that it assumed the responsibility of
providing security for all road use. Thus, he argues BMMI is
liable for the actions of O'Keefe's employees on a theory of
negligent supervision of the road.
We agree with the District Court's findings that BMMI's
control of the roadway was limited. BMMI provided a pilot car to
escort chemical trucks and visitors to the mine site.
Additionally, BMMI exercised control over the speed limit along the
road solely to minimize dust as was its obligation to the Air
Quality Bureau. There is no further evidence in the record to
suggest BMMI assumed responsibilities in patrolling the roadway
that would lead to an assumption of duty to provide security.
Therefore, we conclude the District Court did not err in
determining BMMI had no duty to provide security on the road where
the incident occurred.
September 19, 1995
CERTIFICATE OF SERVICE
I hereby certify that the following certified order was sent by United States mail, prepaid, to the
following named:
Richard J. Pyfer
Small, Hatch, Doubek & Pyfer
P.O. Box 236
Helena, MT 59624-0236
Paul C. Meismer) LMcy T 6-e
Attorney at Law
P.O. Box 7909
Missoula, MT 59807
Thomas E. Hattersley, i)qv;d c, &&orp
Attorney at Law
P.O. Box 1715
Helena, MT 59624
ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA