PIERCE v ALSC ARCHITECTS
Annotate this Case
Download PDF
NO. 93-541 IN THE SUPREME COURT OF THE STATE OF MONTANA 1994 DOUGLAS J. PIERCE, Plaintiff and Appellant, v. ALSC ARCHITECTS, P.S., a Washington Professional Service Corporation, Defendant APPEAL FROM: and Respondent. District Court of the In and for the County The Honorable Michael Eleventh Judicial of Flathead, H. Keedy, Judge District, presiding. COUNSEL OF RECORD: For Appellant: Roger M. Sullivan, McGarvey, Sullivan & McGarvey, Kalispell, For Heberling, Montana Respondent: I. James Heckathorn, Heckathorn & Phillips, Submitted Murphy, Robinson, Kalispell, Montana on Briefs: Decided: Filed: Clelfk August February 12, 1994 23, 1995 Justice Terry The N. Trieweiler plaintiff, District in which Pierce sought Douglas Court County for the to were Hindley, one returned caused of ALSC's notwithstanding the verdict alternative, due However, for to the motions within entered in appeal. We reverse for the were judgment of 50(b), the jury judgment M.R.Civ.P., 59, on Judgment filed or M.R.Civ.P. rule denied. District Steven the for to Pierce following issues are raised negligent 2. Was the plaintiff free plaintiff entitled 3. moved he a those was notice Court of and remand proceedings. defendant of which of to Rule deemed Flathead trial, failure defendant. Was the matter Rule pursuant 1. from by Pierce's appeal: as a matter of law? contributory negligence as a to dismissing the law? Is the defendant's work to Court's they the Pierce the defendant. negligence ALSC. in injuries Following a new trial District of personal pursuant days, favor further The 45 for Court. in was named as the principles. of the District professional favor of a complaint Judicial P.S., the opinion filed Pierce, damages by in the Eleventh recover a verdict the J. ALSC Architects, alleged in delivered affirmative defense which an was order based on the accepted doctrine? FACTUAL BACKGROUND In March agreement architectural ALSC Architects, 1987, with Rosauers services related P.S., Supermarkets, to a remodeling 2 entered Inc., project into a written to provide at Rosauers Supermarket ALSC in agreed to construction to that Montana. act phase instructions assure Kalispell, as the of the the the project plans that and other construction and deficiencies as the also Steven ALSC's project is agreed to consistent with the that the communicating also end, visit president a partner architect remodeling the ALSC agreed the owner site against of Rosauers remodeling of the defects and acted project. in ALSC Architects, during services foreman store Rosauers' the He is and served remodeling a door walkway, windows Prior of storage from located the Kalispell located to main the office as Rosauers' the The store project, floor for the could floor project, included a of there access be observed, were the project. second provided room performed Roy Beckman store. remodeling immediately 3 which on the which and decorations remodeling on the is room. which contractor supervisor Prior manager's material to office store. the and surplus on Rosauers' manager's in was the Inc., and construction Kalispell observation cooler vice of the contractor." for and Meredith, The where the the during store. was their was of services, architect. Stewart the work is Hindley Kalispell Toward to guard the other architect a manner documents. representative a licensed in purpose periodically Salsbury owner's The would in Richard the and "endeavor work to representative for progressed representative its owner's contractor. project contract In addition to security and areas stored. store also below had a walk-in the an observation and storage security place room. The roof walkway and provided storage of seasonal for During the remodeling removed and replaced ceiling As part longer developing the and sealing accessible, requirements that they of agreed that therefore, it order to seal off access door, covering access door not provide access The first was the the preparation room make discussed with accessible in area of the it would the walkway be necessary and surface. to use to the drop ceiling with in the drywall, store Hindley space, if it the a televisions. as or was going satisfy the be necessary drop ceiling, However, the they space, and by removing the and moving the manager's office to room. accomplishing a as Code, opening toward redesigned was circuit televisions were no Building location of changes windows They agreed that to the new security step circuit safe access to another was freezer led to these it and improve would and a A suspended the new walk-in which walkway to guardrails lighting, the cooler freezer. Salsbury off. the Uniform install provide it in room, walk-in closed housed the closed options be walk-in observation changes, it large and observation of these abandoning to the project, walkway The room which of the storage with and ALSC. of the remodeling and the was even used in the store. The plans As a result the for displays walkway. necessary. security a floor a smaller by Hindley installed, cooler in the space between and the observation were developed the project, with was installed were of change 4 order the changes which agreed illustrated upon the relocation of the change for to contractor. the the access Roy amount room, the door from the extra not access door was not space for in the place, advised by that have door been to used in the discussion, that he became change Salsbury final drawings the aware a order, had that the payment to door by to Salsbury 18, the door be the Rosauers of to the area the door, to left the indicated 5 in to contractor, that the area He abandon removed; nor surface access in door the which Pursuant be to store for with inspection, did by that not fact, Hindley removal which off as required In that order sealed had future. during a change he would walking the the was a guardrail but place. that Hindley. Salsbury accomplished, had been which visit removal been testified be used storage and used storage would he prepared the relocate with remain, that on the it discussed. 1987, to leave with was a subsequent not it work in place and an improved discussion access that to by Rosauers than wanted He was aware access During sheetrock. going and assumed on November required was it discuss supposed the Beekman Salsbury and lighting past left make the made. rather to he did was door recalled of and that to paid did room. that be provided. the Hindley removal the he he simply that fact was never authorization but be installed, have if door, new security Hindley the that would when area, Salsbury's advised to change that storage agreed was in the testified the have and which he had an extra door he did $1647, of The contractor However, Beekman security door. of inform prior to conveyed the access door, as required fact been Pierce 1988, Hawaiian supervisor, or the the posters that visit that times normally often stored, where items roof of the step had in on what stepped onto the below. As a result storage roof where or in to and the on store's his advised new security access which there area drop ceiling and fall, injuries. 6 door; left; to were another area accessible storage the freezer, the from area. door to sustained the items the to displays to in be the Pierce store the access He turned crashed to where opened switch He least the the switch the walkway. would door be gained Pierce thought the freezer illuminated he and at to recover was a light he a year make a turn the that decorations. through was no light down the his store that could accident, required twice feet; of There his of the request duties open and that the freezer noticed Rosauers request be located once several stored. and proceeded down there the on of at the to retrieve for from date area, doorway, or were On the storage order, some of the He testified enter down borrow Pierce's was normally step clerk conveyed storeroom down a walkway then stock to either date, altogether. he would the change area. the office and 1987, who approved he had been manager's a asked would to estimated as Sterling, storage occasionally proceed 18, Pierce old Prior a dozen working posters. Lynn that room was when a customer Day Pierce November accomplished. Doug May 21, by the to the of the left to area his but floor serious instead, ten feet physical Although the Pierce remodeling occasion project, the of the plywood in had been access substituted been the area, Sterling is one likely is in that they had been located in he had entered the storage area prior to room behind to the use the remodeling storage expressed his "The was still door based on his against the failing to there, warn of the a guardrail. as affirmative past. the it could filed this by the provide ALSC answered that it that times was still He He explained, been me." against guard ceiling lighting by denying ALSC to suspended Pierce most there. failed adequate He as six complaint negligently presented defenses have Kalispell testified was still fall. door. because as often of Pierce's had injury. Sterling door was ceiling were and he presumed Hindley hazard, of his office himself because that the decorations manager's project Pierce danger the the I mean, 8, 1989, inherent the at learning allegation or provide and alleged area surprise On September area, Pierce there on the at date the No warning manager on the was Neither a drop cooler. department supervisor advised that was no lock storage a year okay walk-in the where that who tell first about accident. and there grocery was his to project and because was no way to door and was Pierce's of prior the different any different, former was remodeling was nothing date area injury the look the Rosauers storage his on the there the of door the outside the after there for placed the area that walkway no light date that He stated appearance entered the he had to enter completed. did had often in negligence, was contributorily by the negligent and that his claim barred was by the accepted work doctrine. Prior that, to since January 1988, the 15, his claim on the was negligent Building was barred moved the related to Pierce's to there were not accepted work of judgment work basis complete occur striking until by May 21, doctrine. ALSC's affirmative and holding doctrine, law based on the substantially did an order jury that on violations Uniform to is work of the work not Building to third It ALSC Uniform Pierce the alternative, 8 issues of at time the Court evidence 1991, it moved for work fact of With held that code had been violated, 28, per accepted was hidden. of negligence. and on November ALSC was not negligence in the for injuries by 1 negligent. was instructed instructed 7, 1991, or any, and accepted was also were District parties Code is On November verdict, on October completed was done. the deliberations, liable been if whether the complete defect, that to there were only verdict jury's that Code, about commenced the has the violations its regard was actually Building that returned architect held work issues trial With Court the factual Prior denied. and whether the A jury the injury accepted were whether and furthermore, Uniform for District injury, regard the was by the as a matter motions doctrine, after summary Code. Both the for project and Pierce's also based ALSC moved remodeling 1988, Pierce defense trial, the that that which owner a violation an occur for whom of the se. judgment for a notwithstanding new trial. On January 17, judgment 1992, and 969, entered that 45 days and the appeal, to District file of an the of this to blame plaintiff a notice order issue the order Pierce's motion, the case's for 59, unique previously would have of appeal 379, not motion 856 been had been M.R.Civ.P. procedural We also history, his an additional the ALSC's issues. had withdrawing after of 259 Mont. Court's to Rule granting remaining District by law pursuant was not on retrial after because plaintiff which the by operation held verdict a because within issued Pierce v. ALSCArchitects (1993), in that Court the ordered we held However, denied District notwithstanding negligence, P.2d the the notice 30 days case was remanded District Court, of within to the Court. After remittitur was entered for was received by the ALSC and a notice of ISSUE Was the The defendant standard notwithstanding of the negligent review of verdict appeal was filed judgment by Pierce. 1 as a matter a denial made of of law? a motion pursuant to for judgment Rule 50 (b) , M.R.Civ.P., is the same as that for review of a motion for a directed verdict, and . . _ may be granted only when it appears as a matter of law that the non-moving party could not recover upon any view of the evidence, including the legitimate inferences to be drawn from it. Hashv. State (1991), 247 Mont. 497, 500, 807 P.2d 1363, Wilkersonv. School District No. 1.5,Glacier County ( 198 5 ) , 2 16 Mont 700 P.2d 617, 622). 9 1365 (citing 2 03 , 2 11, Pierce the argues jury's that verdict there because, violated the Uniform a matter of was insufficient based that Herbstv. Miller when the failure to ordinance, that on support evidence, time comply ALSC Uniform the 1078 and that that 1986, the remodeling of sec. U.B.C. is negligent the City Building were code 104. were applicable upon which . . se. It Kalispell Pierce code relies is in on that are we held a city undisputed the City performed to of adopted were as ordinance, violation Code as Kalispell the 1268, by local a per of of and the adopted services project, provisions Code is provisions Hindley's was negligent 830 P.2d is therefore, 17, 503, the with March and therefore, 252 Mont. Building of edition No. (19921, Uniform and Code, undisputed to law. In Building on the evidence 1985 Ordinance effect the at Rosauers project. the following: . . (b) Additions, Alterations or Repairs. Additions, alterations or repairs may be made to any building or structure without requiring the existing building or structure to comply with all the requirements of this provided the addition, alteration or repair code, that required for a new building or conforms to structure. Additions or alterations shall not be made to an existing building or structure which will cause the existing building or structure to be in violation of any of the provisions of this code nor shall such additions or alterations cause the existing buildins or structure to become unsafe. An unsafe condition shall be deemed to have been created if an addition or alteration will cause the existing building or structure to become structurally unsafe or overloaded . . . or will otherwise create conditions dangerous to human life. . . 10 the The Guardrails Sec. 1711. which are bei0k All unenclosed floor and roof openings more than 30 inches above grade or floor . shall be protected by a guardrail. shall not be less than 42 inches in height. . Guardrails U.B.C. §§ 104(b) Salsbury, learned 1711 who is that removed, and the himself access and that (1985) which to the off, when he learned had been that the door specifications, to or do so. the to advise access to Pierce was injured was (1985). a hazard "unsafe remodeling § 1711 have to (19851, to that project, been if project conformity with of the changes not storage previously a condition made during room the area was accessible were necessary to violation the in of comply with provided and storage U.B.C. that area 5 104(b) following pursuant and an improved to failure existed, inside it project contractor's the sealed that the the to been architect of lighting added been testified life" guardrails and that have of human not owner door had because in the he first had not because the which He agreed the had He also as that, project, area injury. removed He testified remodeling which was that we have discussed, responsibility assure testified storage of Pierce's Hindley's added). an architect, door, access (emphasis walkway acceptable to the U.B.C. would also architectural standards. In the of sum, area the minimum Salsbury where Uniform conceded he was injured Building that did at the not Code and that standards. 11 time conform those of to Pierce's the requirements injury requirements were only Pierce a also professor of practices of access the up to sealed, brought Pierce person is fell He testified if the attorney, the Salsbury area removal of remodeling witness required that the storage area be installation of an the ceiling defect which is improved cannot walkway, area through be seen that until a the area the Uniform that the to U.B.C. use is the Hindley. cooler He formerly been used for without the the storage, of agreed He also agreed the contractor's 12 only ALSC's applicable testimony that during manager's an improved it was his performance of based was no longer that Code by made store lighting, be used, Building the changes and had installation not area. by ALSC to controvert was that will and access cross-examination an intention and guardrails. an area to denied walk-in to then response called owner provided assume behind store it he that area the standards, the the surface, his and accessible, Llewellyn the on removed project, which assure is expresses and relevant and that area a door he specifically The only use if In owner the Based be cannot applicable. and area. and it. an architect and that Forks University either the that allowed, State is alternative, the by of Three storage as a hidden on top Montana Llewellyn He described in code as a witness. was applicable and guardrails. which if the scene the or to lighting, in U.B.C. door opening at accident that Llewellyn architecture the concluded is Clark architecture review the called on the office, safe for walking duty conformed to to the contract removal documents, of the room access Hindley room contended would improvements He admitted not inside that violation the if area, the U.E.C. would not it door was allowed Lynn obvious it was neither Sterling, documents. told the to make necessary to the area. used, it was nothing to assure acknowledged that because not was access apparent going to but He also it requiring he had been eliminate requirements, to remain, order was one of those because nor be used. that change that area the the door be used, of Pierce, that storage However, storage and would did have been Pierce's an inspection accident, being used installed for to storage, prevent that jury's access that was edition The floor Kalispell, the area opening through which § 1711 based used, or will the to Doug Building room had no 1989 following the room a lock of was and to §§ the evidence uncontroverted related still hasp be trial to support evidence the and the established remodeling 104(b) court project 1711 of the of 1985 Code. which Pierce was more than fell was clearly 30 inches There on an architect's be used that review by a guardrail. only that substantial the the the area. thorough violated Uniform and was unprotected in that performance in of not and ALSC's Rosauers a there observed to that in January he recommended after verdict, building when Hindley We conclude, record, of the employee, in use. During or any other be belief infrequently. 13 above is that an unenclosed the floor no exception the area Furthermore, below, provided will the not be record establishes that performance Hindley was complete, been with no when no warning the to preclude who had frequently presume that employees not continue or protective preventative We conclude that frequently used remodeling was the floor an the violation of Hindley storage would not which existed. functional door The fact removed cannot and the or it if used Yet, did . to this area future, in the absent Salsbury entryway he warn of which a false which, any dangerous had been because floor any form to future sealed excuse in its ten of of feet lighting, human altered nothing life" in use users for by those pointed has to Hindley because failure condition, to potential Llewellyn advised access area but he did Professor as the and (1985). provided, to prevent that future of that the it hazard out, when a be presumed. the door could use was not to either who were assure the unaware planned make the of the be area danger posed. For matter that now serve safe, that is the access, unreasonable used was without . that, As was had always provided past, included 5 104(b) nor it storage the and which was unsafe. be used, as it It in floor in condition U.B.C. so second now admitted room do employees below, "unsafe to which contractor's measures. alterations, above by to the remained access. which hazard door the with would access that of lock past certified of these law reasons, and the we conclude District Court 14 that erred ALSC was negligent when, due to the as a passage Pierce's of time, was deemed motion for a judgment matter the of plaintiff our to was or had of in the floor held drawn evidence party. a motion absence to must the him Pierce storage of care an that injury he was going, changes to the was aware that of his accident, removal with in date a and possibility the the of walk-in and that the changed area. any evidence and all in verdict which inferences the light is would most proper justify which Jacquesv.MontanaNationalGuavd (1982), 15 using noted a directed be considered 1159, room without for jury, on reasonable with see where cooler's the based negligence. have to the the in that complete opposing prior he 595 P.2d anticipate alerted that associated an issue to the a affirmative that 155, a dark to above, ALSC's act would have contends submitting from he would removed the We have attempting attention, ALSC also condition to entered which have failing forth contends would Pierce otherwise had been others that danger. only as set 182 Mont. another's paid should Pierce from area he for evidence dismissing resulted storage cooler verdict that negligent have flashlight on the negligence. to assume not only he contributory Greenv. Hagele (1979), ALSC responds if negligence 2 from based a directed in he had a right could that of contributory decision and free contends entitled defense verdict law? Pierce was the denied. ISSUE Was notwithstanding can be favorable 199 Mont. 493, 649 P.2d is 1319. negligent as We have a negligence on comparative matter negligence, or fact P.2d to held of part of if law, the any, inferences review from there contributory is did record, in sufficient to not defense Is the contributory the degree an issue for the 258 Mont. of we conclude a manner evidence the err jury, when it contributory that most to and of jury 35, 850 we construing favorable submit refused to issue the conclude to the of that dismiss the ALSC's negligence. 3 plaintiff entitled to affirmative defendant's defense which an order dismissing was based on the the accepted summary judgment doctrine? Pierce contends dismissing ALSC's doctrine. that We review summary party of and normally ISSUE only when a defendant issue plaintiff evidence the was Court affirmative Mont. the of the negligence District 441, even Uklandv. Wolf (1993), resolve. on our defendant, work that 302. Based all the finder also judgment 444, 429, is M.R.Civ.P.; affirmative 431, entitled was entitled defense a district court's based to on the disposition accepted of work motions for de novo. Spain-MorrowRanch,Inc. v. West (1994) , 264 Mont. 872 P.2d when there he 330, 849 is 331 P.2d 212, no genuine to Mnniev. CityofRoundup (1993), (citing 214). issue judgment & ain-Morrow, 872 P.2d Summary of material as a matter at 16 331-32. judgment fact of law. 257 is proper and the moving Rule 56(c), Pierce issue this contends for several duty to assumed the a safe manner that he was entitled reasons. assure and that, to that the pursuant judgment he First, summary contends that remodeling to project 191 Mont. 430, nondelegable, but that the P.2d accepted that decision 625 Construction (1981), our on ALSC was done in Stepanekv. Kober in duty. delegation of Pierce Second, Supreme Court doctrine applies contends of Arizona only that conclude L. H. BeN&Assoc., Inc. v. Granger (Ariz. Third, this the case, jury there at injury the defense time of Pierce inconsistent with be previous that on the evidence because the and the of the work architects. See 428. justify construction injury Pierce's lead undisputed to permit accepted to 543 P.2d based was facts in instructing project defect was not which caused was hidden. Finally, longer contends was insufficient on this complete his Pierce 1975), the the and not duty would follow that contractors, that doctrine we should and to work 51, contends the accepted of Because we agree, but conclude to denied Pierce's motion on the accepted work The accepted the principles followed. issues, that that modern the dismiss tort ALSC's law we will District doctrine is and should no work not Court affirmative address erred the when it defense based doctrine. work doctrine was first applied, in Ulmen x Schwieger (19321, However, in that case, the doctrine 17 92 discussed, Mont. was not 331, although 12 discussed not P.2d 856. in the context of relieving a contractor purpose of liability highway construction imposing subcontractor that the cases during actually cited in but on a subcontractor project was of liability, in that control support of rather, who worked period of the premises. of this for time the on a when the We held doctrine are of that class wherein an owner or contractor employs an independent contractor to work upon premises the possession of, and control over, which is surrendered to him, and consequently the independent contractor is not relieved of responsibility until his work has been accepted and the premises revert to the control of the owner or original contractor. Ulmen , 12 P.2d 862. that We held at in had relieved on the the control subcontractor case of surrendered that based discuss the where a accepted for accepted or any work doctrine a a condition general contractor project, assumed work contractor liability of never the and that subcontractor actually from case was created the which However, doctrine. never therefore, liability in had under to be we did not circumstances seeking from contractor's by the relief act negligence. We affirmed co., hzc. case, (1972), the left months of of the 159 Mont. contractor direction extent and applied the work job and to and twenty 413, from owner of days no 498 Harm@ v. Cahill-Mooney Construction P.2d whom damages be done. had Ulmen in the were property We held that control over preceding the 18 1214. However, in worked under sought regarding where the the the contractor premises accident, nature for that that the and had some it two was the owner of the responsible Again, property, for maintaining in HanniJin, reasonably a hazard We again P.2d 394. to the his tripped filed and fell in the 80, speed bump. the accepted third-party this complaint However, work complaint, doctrine. the against that the to fill it We held of negligence defense that from owner, articulated the that in Ulmen. in the context case, On appeal a department who was injured lot. dismissal owner asked that owner who installed was dismissed from when he The property the contractor complaint 19 fact area. In that parking the property the in Harringtonv. LaBelle s ofColorado, Inc. was sued by a bicyclist a third-party subsequently by the property 765 P.Zd 732. a speed bump in the store's the no act to reconsider had to do so, the plaintiff, by the doctrine law was our decision 235 Mont. of recessed and accepted which 505 which was and intended he was able had committed occasion in Billings struck settle, of liability of modern tort store was aware job was complete Our first but 241, contractor, of a sewer service, satisfaction, before a actively 161 Mont. a plumbing subsequently contractor he was relieved (1988), the defendant, for in or omissions. The owner However, a passerby, acts was condition. premises than responsibility negligent owner's who safe to maintaining the installation area would gravel. time for naturally. excavated contractor, a reasonably related rather case, the in the Ulmen in Olsonv. Kayser (1973), In that refilled since issue through cited done excavation with the than it safe condition, creating settled rather based upon of its we reconsider that doctrine jurisdictions in light which of have declined to do so. Justice Hunt, questioned general rules of more contemporary rejected However, Weber, rationale for in from The majority Justice the negligence it. decisions Montana. in other the court of a dissent this defense Justice joined in by light of Weber pointed out that: Other jurisdictions have held that the principles supporting the rule of contractor nonliability do not The leading mesh with modern theories of negligence. case in which the District of Columbia Circuit refuted these justifications for contractor nonliability is Hannah v. Fletcher (D.C.Cir.1956), 231 F.2d 469. The court reasoned that the antiquated justifications based on lack of privity had no place in modern theories of liability as set forth in MacPhersonv. BuickMotor Co. (1916), 217 N.Y. 382, 111 N.E. 1050. . . . This Court has followed MacPherson and allowed recovery negligence asserted against the for manufacturers of automobiles [see Rix v. General Motors Corp. (Mont. 1986), 1222 Mont. 318,] 723 P.2d 195, 43 St.Rep. 12961, and manufacturers of farm machinery [see Brownv. North AmericanManufacturing Co. ( 19 78 ) , 176 Mont . 9 8, 5 76 P .2d 7111. We concluded in those cases that it was no longer appropriate to bar recovery on theories such as those identified in connection with the accepted work doctrine, that is a lack of contractual privity, or that there would be excessive litigation, or similar theories. Given our rules of liability in cases where negligent construction by a manufacturer may cause injury, I see no reason why we should not extend that reasoning to apply to negligent construction by a contractor. Certainly the potential for injury due to negligent construction by a contractor is just as great as with the negligent manufacturing of a consumer good. Harrington , 765 P.2d Our most at recent v. Corntassel (1993), 735-36 (alterations in discussion of defense is found 583. In that 258 Mont. 173, this 852 P.2d 20 original). in Nichols case, the a noted majority gradual contractor negligence Restatement (Second) should placed be negligence and observed of Torts on away trend the The majority also nonliability that, same observed for u [aluthors at § 385 recommended footing Nichols, 862 P.2d liability." from as at that of the contractors manufacturers for 585 that: A number of courts have expressed dissatisfaction favoring a more direct approach such as the rule, 13 Am. Jur .2d Building and of the Texas court in Strakos. ConstructionContracts § 140 (1964 ) . Instead of applying the nonliability rule, these courts have established a rule that a contractor is liable for injuries to or death of third persons after acceptance by the contractee where the work is reasonably certain to endanger third persons if negligently completed. Id. This view adopts a grounds to rationale that there are no sufficient differentiate between liability of a manufacturer of goods and that of a building or construction contractor. Id. The building contractor's liability under this but reasoning is not absolute, predicated upon negligence. Thus, a contractor following plans or specifications given to him will not be liable if a reasonable person would have followed them. Id. See,e.g., Menendezv.PaddockPoolConst.Co. (Ariz.App.1991), 836 P.2d 968 (nonliability rule applies only when contractor has no discretion and is merely following plans and specifications provided by the employer); and Hannah v. Fletcher (D.C.Cir.19561, 231 F.2d 469 (the leading case rejecting the "accepted work" doctrine). with that Nichols, 852 P.2d However, concluded to apply summary the district Trieweiler, after that the at 585. a review there in court however, the record was an insufficient doctrine judgment of or its favor of for further in defendant development joined 21 Nichols, the factual exceptions, a dissent in record with and therefore, and remanded of by the which reversed that record. Justice majority Hunt, case to Justice stated that the doctrine and stated that We are consider the in defense Nichols, work This the shifting responsibility nature for Contractors, whether are hired for paid for have sufficient their property In they services knowledge testimony is makes it that clear conclude her that innocent simply and for the to own. the contractee has contractee? 22 or reason they mere How then are does not or construct real fact that negligence of recognizing can we logically incapable has completed for those should We cannot. true. owner The paid assumes architects, professional negligence a the usually property professional contractor's and uninformed is The soundly. on their the and to design are because by accepting opposite establish of appreciates average nonexperts performance services liability required the shifting that contractors, or expertise and for condition the the safely expert who paid and knowledge. that omissions fully dangerous be building is or the fiction property reality, expertise improvements substandard or it. their of undesirable acts person that in Montana. the negligent legal to conclude has Furthermore, owner we declined be followed an innocent liability in Montana. consideration, for on the the responsibility which applied, defect any issue previously to of be applied no longer based work, of the further services. is contractor's with should party party's theories no longer responsibility negligent negligent faced doctrine as among modern should and upon defense, of from the now squarely accepted effect had no place or services, shift That his to is the why the Supreme Court for the State of 791, that 19621, 360 S.W.Zd 787, doctrine would restore Texas held of elimination logic and Strukosv. Gehring (Tex. in the simplicity accepted to the work law of liability. We conclude Weber's dissent reasons set for the additional of the that, accepted principles for forth, of negligent prior to but Therefore, work forth is issue with that erred judgment Court for entry this We concur: opinion. in further Nichols, and in opinion, elimination with likely to place party. To the are Justice those consistent more the modern liability extent that with this inconsistent District negligence, of erred defense by summary it instructed the when for Court that was a defense the of ALSC's more herein for majority this appropriate to dismiss We reverse District noted reversed. Court doctrine in and is on the motion District by the set liability first Harrington, in doctrine work are reasons applied, we conclude Pierce's accepted not discussed they and the the opinion reasons tort opinions denied the conduct conclusion, for to ALSC. judgment and for Pierce's We remand in further favor when it judgment, jury that the claim. this of proceedings case Pierce to the on consistent the Justices 24 Justice Fred I J. Weber dissents as follows: the majority opinion concur in from Issue dissent with the (UBC) of conclusion applies conclusion Section I that to that the of the Issues of the se in as in do not Uniform per UBC provides and I established was II opinion. negligence negligence 104(b) majority's § 104(b) establish on pertinent III agree Building this Code case a matter and and the of law. part: Additions or alterations shall not be made to an existing building or structure which will cause the existing building or structure to be in violation of any of the provisions of this code nor shall such additions or alterations cause the existing building or structure to become unsafe. An unsafe condition shall be deemed to have been created if an addition or alteration will cause the existing building or structure to become structurally otherwise create unsafe or overloaded . . . or will conditions dangerous to human life. Section 1711, provides: All unenclosed floor and roof openings, open and glazed sides of landings and ramps, balconies or porches, which are more than 30" above grade or floor below, and roofs used for other than service of the building shall be protected by a guardrail. . . . I do not agree through the a guardrail the jury tile was required to the was dangerous question whether by means of the that, to that floor according conclusion that The § 1711 mandates ceiling majority s created the that the area below to the was an area UPC. as a matter where of Pierce for Nor do I agree law, a condition fell which with was human life. ALSC violated following the UBC was presented instruction: Kalispell City Ordinance No. 1078, adopted as law If you find that the the 1985 edition of the [UBCI. defendant violated any provision of the RJBCI relating to You should human safety, such violation is negligence. then determine whether that negligence was a cause of the 25 to plaintiff's According to violated of UBC--and, UBC and, to the The Some of opinion, on this Salsbury that expert was presented The the consisted of and Llewellyn. to as emphasized testimony, plaintiff's by installing a new walking if it going to be used the area planned an area for is the up only where was not leaving code from without area. 26 architect Pierce was testimony to the of testimony the UBC by the fell the the majority Professor code There the expert, brought such was in area improvements. to testimony. by the upon whether be determined the insisted to firsthand. Whether that owner opportunity expert unequivocally even heard was no violation Llewellyn and guardrails jury jury listened Llewellyn. up to the the question jury there a question on expert by credibility that issue was properly based trial. The as ALSC violated and had the jury. and determined Hindley, fact at experts ALSC established. be determined presented the is that ALSC was negligent presented to find of whether correctly The evidence of that their violated trier jury and determine Court violated could negligence question by the witnesses had been the the presented architects event, testimony presented UBC. that jury was negligent--to District evidence the instruct leaving expert UBC was from to law, evidence the in therefore, pursuant observe instruction, refused a matter the this the The court the injury. who through testified had surface, improvements to and even if the without architects if be lighting accessible other Clark no that use is Architect Hindley determines how applied, used." that allowed stating He testified space that the was to that that use to for UBC requirements specifically being of the testified improvements "it his is be made of up to be discontinued and that are code understanding if not the would be use not the space. He considered it which does not require improvement. After he learned that the store manager leave the door in place and again that the upon that that access area was was possible not assurance, nor did going need The plan to to to close to Sealing off planned so that Hindley and room in order to Pierce later fell need to the to be used not the it abandon off the by door save to any space use with to in to over the agreed to area, require of improvement the the door of the to provide Hindley when 2-l he did security room. opening new security to the that new security the by Rosauer's, in order the area door learned area it to conform was never to where was not the on Salsbury's not was room. if access Based UBC. order door be & that a change new a guardrail, Hindley the sheetrock for move Removal to not the They order Based was part was going purpose. space, by sheetrock. including the did be used assured of space access could conform any purpose. space on costs. was planned he was assured sheetrocking through any the agreed Salsbury for in provide improvements, primarily to the for the off access Salsbury UBC. concern; that to area, be used be closed intended primarily would to the he determined it agreed ceiling be in and Roy Beekman dead to it's was that people as a room going a main new room, decision insist on closing that, instead of closing the off the new room at Richard architect the the was like it was going to abandon to opinion to the if the area conform to violated the the He told the be used a professional an AIA regulation significance ideal a violation standards minimum as adopted of of that improvements unless Rosauer's intended concede, as majority Pierce as was for he statement it (American for thought does that did not had Institute not The not Hindley architects. UBC. city did any ournose, conduct a the injured to was the AIA the the that organization or to testified that the of his also agreed He testified UBC. of need not bv humans some conform Hindley where for not not did area regulations Architects), of to did and an requirements majority, area and did What Salsbury UBC. were the Salsbury that for Rosauer's the equivocated--he space area. states, conform attic by the that testimony be used. the for about emphasized effect contractor Rosauer's. extensively As his by the owner-representative area. However, was provided to testified was to space cost Salsbury, abandoned UBC. a new door no extra himself, testimony the room, Violation have UBC is ordinance of by the same a set the of City of Kalispell. Salsbury testified to it, also that does He further testified unused not require testified that a space time of his has initial attic be sealed discussion the space, sealing that, to that even off with 28 if access although off area there or was to be abandoned. there to Hindley comply is improved, is an access with He door the UBC. no UBC requirement he decided, about the space, at the that it be sealed for any off purpose. sheetrocking locked to it, prohibit not was going the of door access. under would it Instead over justified it because the could room built at area would been as it area was only accessible According actual to dispute demonstrated access area to that intent the to be it was that used; be attic space agreed which that was going the to area here use was abandoned. the locked or conform door did otherwise off Although closed to UBC standards. in to place, he did His testimony 29 any that the UBC there the area area was like to unused UBC if unequivocally even that have was that if insisted testify that it did be architects to the testified not direct was three conform was an on All he would off, that for UBC requirements Salsbury facts usage testimony if was an the if testified the if & improvements. to office. testified testified the This whether even improved Llewellyn conform left to UBC was violated need the there Llewellyn Hindley or above, Salsbury's only not was UBC. had to be improved be used; the known not area manager's as to project, the he testified did the that improvements. closed off on cross-examination of was decided no the space. the had not as discussed abandoned. the examination to be closed use stages architects of had Rosauer's or kept statement through testimony among the was required the his of Hindley was with by going a violation to purpose left accepting used means shut that last the by been nailed if a security and not area testified in Furthermore, the have Salsbury have have be abandoned closing circumstances be used. to it not it that if all he had it did be not comply with AIA the standards, minimal held in such orthodontists, required counselors. included in and of we 793, v. 805, group of establish The Law of 51 St.Rep. of Family fields standard § 32 (5th care of ed. 107, 854 P.2d was professional Services (Mont. Architects are requiring care. See 1984); of testimony 767-68. professional the Torts, 758, cases. dentists, 105, expert of is and abstracters of Department common in Montana lawyers, that standard the for testimony actions 259 Mont. held the negligence doctors, (1993), care outside expert is expert Presser Zimmerman, and 854 P.2d 339. jurors in admitting this case professional submitted the disregarded Salsbury to Robertson recently, the to After has jurors are of pharmaceuticals, See Newville 883 P.2d the v. testimony standard of care medical establish 19941, Keeton, expert to negligence Most to testimony the lay manufacturers 339. that professional Zimmerman 338, cases them in resolving veterinarians, that USC. standards of and more exacting has been extended requirement title. from establish knowledge to assist the numerous to and against at in because experience That of order professionals required are different requirements We have required which support evidence in making their architect's issue that expert jury's verdict testimony to assist the lay determination on the issue of negligence, of ALSC's and has concluded the of expert negligence testimony that there and that 30 the to the from jury. architects was not the District court The majority Hindley and substantial evidence uncontroverted evidence established that violated §§ Building 104(b) was either violated. determination Hindley's testimony the conclude the 1985 the the of was that the role and jury's however, evidence the or Even from not which from the law. testimony Uniform evidence has usurped substantial of evidence self-serving, expert constitutes the contract UBC was violated as a matter following Rosauer's edition substantial that was the that The majority made that explain of of emphasize there determine UBC was not 1711 I and could performance and Code. uncontroverted jury ALSC's assuming that does Salsbury, that the that not which UBC was I not violated: Q [by Mr. Sullivan] Would the improvements of guard rail have been required under the Uniform if the area accessed by the door, which was left, be continued to be used for any purposes? A Yes. Salsbury conform space lighting and Building Code was going to to to testified the that an UBC requirement unused attic space. area for His not Q to it, did a guardrail testimony And if attic Q [by Mr. Heckathornl going to be abandoned, and not used, under the [UBCI to do something with A used not and have to likened the was as follows: or if an attic space there is no requirement, the attic, is there? is NO. And there that unused do you? is no problem, even if space, you still don't A No. Q If A That is Q But, what you have an access door have to do anything to you don't use it? true. does the [UBC] 31 say as to when something like that attic A When there is Q Well, kind A Use by humans. . space what must be developed and -- a use? of a use? . Q . . . Under the facts that you have given us, that you had told Steve that the attic space was going to be abandoned, you don't contend that there was some duty on the part of Steve to do something to comply with the [UBC], do you? A I do not, as long as the space was sealed Yeah. Well, no -- As long as you Q was going to be abandoned and not used? off. had told him that it A Well, the alternatives that I discussed with Steve were that we either had to improve that area where the accident happened, so that it would be safe, or that we would have to seal it off. I think that Steve Q would like to have that A Q to A Yes, that's And you told abandon it? That's asked you, did he not, developed for storage? whether you true. him that you would not, that you were going true. Now, the [UBCI does not require, Q already said that, does not require unused attic space, even if there is A That's Q And A That was my decision, however, Q That was by direction of A Yes. Q off, it? There is no UBC requirement and if it isn't sealed off and I think that we have work to be done in an an access door to it? true. so, it isn't a requirement 32 the that it be sealed off? and direction. UBC now? that a space has to be sealed it has to have work done on A That's true. And the only knowledge that Steve had again, Q had said it was going to be abandoned? A And not A Not you Yes. Q was that used. And Q accepting A used? he was justified your statement that That's . under those it wouldn't circumstances be used? in true. . . Q [by Mr. Heckathornl NOW, Mr. Salsbury, we saw a lot of exhibits about the AIA and a lot of requirements and those are aren't some of the requirements and there are a lot more, there? I mean there is a lot of requirements on an architect, you have a lot of professional responsibilities and you go to school for a long time to learn them, don't you? A Yes, that's true What relevance, or what did you think that Q exhibits had to do with the issues that we have A Well, my thinking is that define paths of communication, obligations. Do you think Q regulation of AIA A Of the Q exhibits define define authorities that Steve violated in this contract? any of those roles, and ideals, Yes. A these all of these defined? Yes. The violated requirement was requirement sealing contractor AIA? the that off of failure had the to not the opening. and the store AIA which recognize been that thought there was completed--removing That manager Salsbury requirement agreed 33 should the was one be left Hindley a contract door and which the as is with the contractor providing same price. the a new door Violation majority the AIA not equivalent of has evidence to evidence is remodeling support concluded established agree that ALSC's was security substantial room for the to violation needed of Clearly provided In ductwork is that the to uncontroverted performance and related 1711 of and the to the UBC sections. support substantial the UBC. I do I do not agree Moreover, jury's there finding of no to to reweigh support floor the the evidence jury opening verdict. did the not need substantial the which space office to not is 5 1711 improvement evidence by is was an abandoned It manager's there This contemplated by a guardrail. through when which Hindley according controvert to the and UBC. other testimony was an unsafe condition by Llewellyn. addition, to I do not The the had previously was some extent provided the this an to indicated including to that according testimony area, which agree This § 104(b). no improvements, Hindley. within not testified according needed is only this and not part. be protected accessible Salsbury violated evidence unenclosed to ALSC's was was uncontroverted evidence of verdict evidence the role there §§ 104(b) on ALSC's Our jury's that performance negligence that violated substantial sort the project that cooler the UBC. The not for unused the that the 34 floor and, testimony there installation blocked area of were as Salsbury many such, and changes of access conduit and other to the where and that area this should the have alerted door Pierce remained behind the statement future to where door of use has negligence to substantial finding to I would that Although space. the been, changed. area inside I do not "when a functional the the agree door access is space with the provided, be presumed." the conflicts properly the evidence that the had always majority of Court it within was substantially the Because District changes the submitted further presented upon the I evidence, the I jury. ALSC was not affirm in issue conclude which the of there clearly Court 35 on this the architectural jury negligent. District conclude issue. could base was its Justice Karla M. Gray, I concur concur in here the of Issue 1 is by virtue of recounts the Mr. Court's issue on presentation 1 Mr. whether its the motion for judgment a picture Salsbury that the altered the and, UBC was here, to I portion dissent's case. as a matter and in Code. of store The suggesting question my view of the context unequivocal at issue here dissent that that violated No If the door would have been removed and the Q opening patched over with sheet rock and studs, as was called for in the clarification drawing R17, would the building at that point have conformed to the provisions of the Uniform Building Code? A I believe that made non-accessible. it would, 36 that space is testimony At the time that Doug was injured, did the area Q off of the store manager's accessed through the door, office, and in particular the area where Doug Pierce fell through the suspended ceiling, conform to the minimum safety standards of the Uniform Building Code? been the which UBC: A Mr. regarding is Salsbury's the on that it out of plaintiff's verdict. a jury Because that granting testimony law The Court determines, not the Mr. of this the evidence--including testimony forth and specially to Building created violated. set in violated Salsbury's Salsbury respond Uniform erred thus, regards was negligent notwithstanding equivocated relevant Court of Mr. all testimony UBC was District presents takes order of the the that dissent in in and uncontroverted basis, the opinion defendant violation clear concurring. Salsbury's Salsbury--that whether specially would have the . . . . Do you consider Q be a hazard, Mr. Salsbury, hazard? A It gains this door, or does access to in and of itself, it gain access to a a hazard. So the real -- Let me ask you Q same hazard exist that claimed Mr. Pierce victim prior to the remodelling project? A to this, did the as its first No. AS the owner's representative, attitude as to that door being Q owner's A We preferred Q Because A what is there? left the Yes. . . . it that it creates be sealed a dangerous off situation? . The real part of this case, Mr. Salsbury, would Q you agree, is that there was a condition inside of this storage area which was unsafe to human life at the time was using that space and at the time that that Mr. Pierce he was injured on May 21, 1988? A . Yes. . . . Let's assume for a minute that under section Q 104(B) that leaving the door here as it was at the time of the accident, unlocked, no warning signs, no warning signs inside the area, no barricade around the area, but as it existed at the time of the accident, and under section 104(B), did that constitute a condition which was a hazard to human health and safety? A Yes, in my opinion it did. under any of the scenarios Q so, in other words, that we have discussed, that area, at the time of the accident, had to conform to the minimum requirements of the Uniform Building Code? A I believe so, yes. 37 . . In other words, the real hazard that this whole Q lawsuit is about isn't simply the fact that a door was left in the contravention of your order and the contravention of the contract documents, in contravention of the architect's duty, but the real gut of the lawsuit is, is that door allowed access to a hidden hazard that claimed Mr. Pierce as its first victim, correct? A Yes. Nothing in requirements of establishes building Justice the without prohibits this testimony UK question alterations to become James I join in were to unsafe equivocates met. Mr. a violation on whether Salsbury's of section testimony 104(b), an existing building from or dangerous to the which life. human causing C. Nelson: the special concurring 38 opinion of Justice Gray. the
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
