The opinion of the court was delivered by: Richard F. Cebull U.S. District Judge
Presently before the Court are (1) Defendant Stillwater Mining Company's Motion for Summary Judgment and (2) Plaintiffs' cross-motion for Summary Judgment. The crux of the issue for both parties is whether Defendant owed Plaintiff a duty, as a matter of law, to provide a safe workplace environment.
Defendant Stillwater Mine is a palladium and platinum mining company located near Nye, Montana. Thyssen Mining company is an independent contractor that was providing contract mining services to Defendant at the Nye facility. Plaintiff Michael Cobos was directly employed by Thyssen Mining to work as an underground miner at Defendant's Nye facility. Plaintiff Cobos worked at Defendant's mine for seven (7) months, from September 2000 through April 2001. Prior to being employed at the Stillwater mine, Plaintiff worked for 25 years as an underground miner at the Magma Copper Mining company in San Manuel, Arizona.
As part of his duties at the Stillwater mine, Plaintiff and an assistant would drill holes into the cave face, load them with explosives and detonated the explosives. After waiting for the blast smoke to clear, Plaintiff would "muck" the broken rock out. Plaintiff alleges that the underground atmosphere was filled with airborne dust and particles that were generated from the mine blasting operations.
Thyssen Mining had its own project superintendents, managers and safety managers onsite at Stillwater mine. Thyssen Mining received bonus payments based on the amount of palladium or platinum ore that was mined. Due to this bonus structure, Plaintiff alleges instances where his supervisors directed him to engage in mucking before the newly blasted area had been properly ventilated.*fn1
Beginning in late 2008, Plaintiff began experiencing frequent nosebleeds and difficulty breathing through his nose. In March, 2009, he was diagnosed with squamos cell carcinoma of the nasal septum, pharynx, sinuses, with metastasis of the skull base and frontal lobe of the brain.*fn2 Plaintiff alleges that his medical providers have linked his squamous cell carcinoma with his alleged exposure to platinum and palladium of the type encountered in Defendant's mine.*fn3
In September 2000, Defendant contracted with Thyssen Mining to perform stope preparation, mining and backfilling at the mine ("Production Contract").*fn4
Through various change orders, the Production Contract was extended through early 2002. As part of the contracting agreement between Defendant and Thyssen, the two parties agreed that Thyssen was to act as an independent contractor and not as an agent of Defendant.*fn5 In addition, the Production Contract stated that Thyssen would be solely responsible for avoiding the risk of harm to the health and safety of persons and property and that Thyssen would assume all responsibility and liability with respect to all matters regarding the safety and health of its employees, suppliers and subcontractors.*fn6
The Production Contract stated that Thyssen is solely responsible for complying with all applicable laws and regulations including the Mine Safety and Health Act and the Occupational Safety and Health Act.*fn7 The Production Contract also stated that Thyssen was responsible for providing, requiring and training its employees on the use of appropriate respiratory protective equipment that met international safety standards.*fn8
Regarding day-to-day activities, Thyssen Mining would have pre-shift safety meetings for its employees and would supply its employees with safety equipment.*fn9 At times when Thyssen Mining ran out of safety equipment, Plaintiff would request and was given safety equipment from Defendant Stillwater.*fn10
Summary judgment is proper when "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). An issue is "genuine" only if there is a sufficient evidentiary basis on which a reasonable fact finder could find for the nonmoving party and a dispute is "material" only if it could affect the outcome of the suit under the governing law. Anderson, v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The party moving for summary judgment has the initial burden of showing the absence of a genuine issue of material fact. Anderson, 477 U.S. at 256-57. Once the moving party has done so, the burden shifts to the opposing party to set forth specific facts showing there is a genuine issue for trial. In re Barboza, 545 F.3d 702, 707 (9th Cir. 2008). The nonmoving party "may not rely on denials in the pleadings but must produce specific evidence, through affidavits or admissible discovery material, to show that the dispute exists." Id.
On summary judgment, the evidence must be viewed in the light most favorable to the non-moving party. Id. The court should not weigh the evidence and determine the truth of the matter, but determine whether there is a genuine issue for trial. Anderson, 477 U.S. at 249.
The standard of review is the same for cross-motions as individual motions for summary judgment in that "the court must rule on each party's motion on an individual and separate basis, determining, for each side, whether a judgment may be entered in accordance with the Rule 56 standard." Fair Housing Council of Riverside County v. Riverside Two, 249 F.3d 1132, 1136 (9th Cir. 2001). In fulfilling its duty to review each cross-motion separately, the court must review the evidence submitted in support of each cross-motion. Id.
Plaintiff claims that Defendant Stillwater Mining Company failed to provide a safe work environment that resulted in his work-related injury and asserts the following claims:
Count I - Negligence in maintaining a premises in a reasonably safe condition Count II - Violation of the Montana Safety Act Count III - Strict liability for abnormally dangerous activity Count IV - Loss of Consortium - Plaintiff Linda Cobos.
The parties' summary judgment motions on Counts I, II and IV turn on whether there exists a non-delegable duty on Defendant Stillwater's part to maintain a reasonably safe workplace. As well established, in order to prevail on a negligence action, a plaintiff must establish a legal duty on the part of the defendant, a breach of that duty, causation and damages. Poole ex rel. Meyer v. Poole, 1 P.3d 936, 939 (Mont. 2000). The existence of a legal duty and the scope of any duty are questions of law. Dukes v. City of Missoula, 119 P.3d 61, 63 (Mont. 2005).
As a general rule, a general contractor owes no duty to independent contractors and therefore cannot be held liable for injuries incurred by their employees. Fabich v. PPL Montana, LLC, 170 P.3d 943, 947 (Mont. 2007); see also Beckman v. Butte-Silver Bow County, 1 P.3d 348, 350 (Mont. 2000). Relying on this, Defendant Stillwater contends that it owed no duty to Plaintiff who was, at the time of the alleged injury, employed by subcontractor Thyssen mining. Montana recognizes three exceptions to this general rule: (1) where there is a non-delegable duty based on contract; (2) where the subcontractor is engaged in ...