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No. 93-537 IN THE SUPREME COURT OF THE STATE OF MONTANA
DOUGLAS E. STEINER,
Plantiff and Appellant,
-v-
DEPARTMENT OF HIGHWAYS of the
STATE OF MONTANA,
Defendant and Respondent.

APPEAL FROM: District Court of the Nineteenth Judicial District,
In and for the County of Lincoln,
The Honorable Robert S. Keller, Judge presiding.

COUNSEL OF RECORD: For Appellant: Roger M. Sullivan and Allan M. McGarvey, McGarvey, Heberling, Sullivan & McGarvey, Kalispell, Montana For Respondent: Dana L. Christensen and Debra D. Parker, Murphy, Robinson, Heckathorn & Phillips, Kalispell, Montana
Submitted on Briefs:  October 27, 1994  
Decided:  December 23, 1994  
Filed:  

Justice Fred J. Weber delivered the opinion of the Court.

This is an appeal from the District Court of the Nineteenth
Judicial District, Lincoln County, which granted judgment for the
defendant, Montana Department of Highways, following a nonjury
trial. Plaintiff appeals the District Courtls Findings of Fact,
Conclusions of Law, and Judgment and also the denial of his Motion
for Summary Judgment, both concluding that defendant did not owe a
duty to plaintiff. We reverse and remand.

The following issues are presented for review:

I. Did the contract between the Federal Highway
Administration and the Montana Department of Highways create a
nondelegable duty on the part of the Montana Department of Highways
to assure that safe scaffolding was used on the Fisher River Bridge
Project?

11. Does failure to assure compliance with contractually-
imposed safety standards and the Montana Scaffolding Act constitute
a breach of duty as a matter of law?

Douglas E. Steiner (Steiner) worked as a laborer on the Fisher
River Bridge highway reconstruction project on U.S. Highway 2
between Kalispell and Libby, Montana. He was employed by Frontier
West, Inc., a contractor doing bridge construction on the project.
On May 15, 1987, Steiner injured his back when he fell from a
scaffold structure which was attached to the outside of the bridge
being constructed.

The scaffold structure consisted of a series of metal overhang
brackets upon which a working "deckM was constructed. The surface

of the deck was used to anchor forms for the concrete parapet
(retainer wall); it also functioned as a work surface and walkway.
In particular it was used as follows: (1) by the laborers in

constructing and removing the forms for pouring the concrete retainer wall; (2) as a walkway and work surface during the pouring of the concrete deck; (3)as a work surface to enable the laborers to perform concrete finishing work and repairs to the outside surface of the concrete retaining wall; and (4) as a work surface by both laborers and supervisory personnel from the Montana Department of Highways (MDOH) .
The deck extended between 17% to 24 inches outward from the
edge of the parapet and ran for the entire length of the bridge.
It was over nine feet above ground for most of its length. There
was no guardrail at the outer edge of this narrow deck overhang at
any time during the construction project. Steiner fell backwards
to the ground from the deck overhang while he was attempting to go
around another worker to get a hose. The other worker was kneeling
on the working surface outside the parapet wall with his upper body
parallel to the parapet and his head near its base as he smoothed
out the newly poured concrete retaining wall--a process called
"sacking. Steiner claims that he reached for a 2 x 4 piece of
wood which he believed to be part of the deck overhang structure,
but instead was a loose piece of wood which was not anchored to the
structure. He lost his balance and fell backwards to the ground
approximately nine feet below the overhang.

The Fisher River Bridge was part of a federally funded highway

construction project, governed by an agreement between MDOH and the Federal Highway Administration (FHWA) . It was designated as a
"Certification Acceptance" project, a classification which applied
to this project but does not apply to all such construction
projects receiving federal funding. Because it was a Certification
Acceptance project, it had to be performed pursuant to the terms of
the Certification Acceptance Agreement, which is a complex contract
incorporating, among other things, the MDOH Construction Manual and
a document entitled Standard Specifications for Road and Bridse
Construction.

For purposes of our review, it is undisputed that there was no
guardrail on the outside of the overhang work surface and that MDOH
did not issue any verbal or written notice, stop-work order, or
take any other action to assure that a guardrail was installed on
the deck overhang.

Issue I

Did the contract between FHWA and MDOH create a nondelegable
duty on the part of MDOH to assure that safe scaffolding was
used on the Fisher River Bridge Project?

Steiner contends that the contract between FHWA and MDOH
imposed a nondelegable duty upon MDOH concerning the Fisher River
Bridge project. This duty on the part of MDOH, according to
Steiner, required MDOH to assure the use of appropriate safety
devices on the project, including safe scaffolding. Steiner
contends that the District Court committed reversible error by not
granting his summary judgment motion recognizing MDOHVs
nondelegable safety duties arising from contract and also by not

recognizing these nondelegable safety duties in its Conclusions of

Law and Judgment.

The contract between FHWA and MDOH, which was applicable to the Fisher River Bridge construction project, required that the construction be performed pursuant to the terms of the Certification Acceptance Agreement. As stated above, the Certification Acceptance Agreement incorporates by reference the MDOH Construction Manual and a document entitled Standard S~ecifications for Road and Bridse Construction (1981 ed. adopted by MDOH) . It also incorporates by reference certain other state and federal safety regulations. Not all highway contracts are governed by the Certification Acceptance Agreement; its terms apply only to highway contracts undertaken pursuant to a process referred to as "Certification Acceptance. 23 C. F.R.

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Montana Law