The opinion of the court was delivered by: Carolyn S. Ostby United States Magistrate Judge
Plaintiff Juan Salazar ("Salazar") claims that Defendants Continental Construction of Montana, LLC ("Continental") and A&J Construction of Montana, Inc. ("A&J") failed to provide a safe work environment resulting in his work-related injury. Fourth Am. Cmplt. (DKT 139). Salazar, seeking compensatory and punitive damages, asserts the following claims:
1. Count I -- contractual obligation and vicarious liability
2. Count II -- unsafe place to work -- negligent retention
3. Count III -- failure to provide a safe place to work -- strict liability and/or negligence per se
4. Count IV -- fraud (against A&J only)
5. Count V -- constructive fraud (against A&J only), and
6. Common law negligence (unnumbered count) Id. at 6-13.
After the parties filed their written consent, this case was assigned to the undersigned for all purposes. Notice of Assignment (DKT 37). The following motions, listed in the order filed, are now ripe for decision:
1. Salazar's Motion for Partial Summary Judgment as to Element of Duty (DKT 61);
2. Salazar's Motion for Partial Summary Judgment as to Element of Breach (DKT 65);
3. Salazar's Motion for Partial Summary Judgment as to Affirmative Defense of Contributory Negligence (DKT 67);
4. A&J's Motion for Summary Judgment (DKT 130); and
5. A&J's Cross-Motion for Summary Judgment (as to elements of duty and breach) (DKT 133).
The parties filed these motions before Salazar recently amended his complaint. The Court addresses them here because the parties' arguments remain relevant to claims and affirmative defenses at issue in his Fourth Amended Complaint.
Also, Salazar recently settled his claims against Continental. DKT 140. Thus, to the extent any of the foregoing motions relate to Continental, they ...