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Dick Irvin Inc. v. State

Supreme Court of Montana

September 24, 2013

DICK IRVIN INC., Third Party Plaintiff and Appellant,
v.
STATE OF MONTANA, Third Party Defendant and Appellee.

Submitted on Briefs: May 28, 2013

Appeal from District Court of the Eighth Judicial District, In and For the County of Cascade, Cause No. CDV 08-314(b) Honorable Julie Macek, Presiding Judge.

For Appellant William J. Gregoire; Michael L. Rausch; Smith, Walsh, Clarke & Gregorie, PLLP; Great Falls, Montana.

For Appellee Maxon R. Davis; Davis, Hattley, Haffeman & Tighe, P.C.; Great Falls, Montana,

OPINION

MICHAEL E WHEAT JUSTICE

¶1 Dick Irvin, Inc. (Irvin) appeals from the Order of the Eighth Judicial District Court, Cascade County, denying Irvin's motion for summary judgment on the issue of duty in its negligence action against the State of Montana and United Rentals Highway Technologies, Inc. (collectively, State) and granting judgment in favor of the State.

ISSUES

¶2 The issues on appeal are as follows:

¶3 Did the State owe a statutory, nondelegable duty to Irvin?

¶4 Did the State owe a common law duty to Irvin?

¶5 Was the State vicariously liable for the torts of contractors working on this road project?

¶6 Did the District Court err when it determined Irvin is not entitled to summary judgment?

FACTUAL AND PROCEDURAL BACKGROUND

¶7 This case arose after Keith Davies (Davies), who worked for Great Falls Sand and Gravel (GFSG), was run over by a tractor-trailer driven by Paul Tychsen (Tychsen), who worked for Irvin. Davies was directing traffic and had his back to the turning truck when it struck him.

¶8 The incident occurred during a project to construct a Flying J Travel Plaza in Great Falls. To accommodate large semi-trucks and tractors accessing the Plaza, 31st Street Southwest in Great Falls needed to be widened. Flying Jhired Deerfield Construction as the general contractor. GFSG subcontracted for the road work. GFSG completed most of the paving in 2004. In 2005, a portion of the roadway remained unpaved. The City of Great Falls requested repaving on a portion.

¶9 Common access to 31st Street Southwest occurs by turning south off Interstate 15 (I-15) at the airport exit (Gore Hill Interchange). Whether this portion of 31st Street Southwest is a state highway remains in dispute; however, the District Court observed "it appears that the accident itself occurred on a state right of way." The State did not request or pay for the paving or repaving. At the time of the accident the State was not aware that the City of Great Falls had directed GFSG to do the work or that repaving work was occurring.

¶10 In "Special Provisions" dated March 1, 2000, the State provided supplemental conditions with which the contractors were required to abide. Those provisions required Flying J to:

Prior to the start of construction develop and submit to the Engineer for approval, a traffic control management plan to provide for the movement and safety of traffic through the project during construction.
Submit a revised plan whenever a change in work schedule significantly effects [sic] traffic control. Provide a traffic control management plan including as a minimum the following requirements…
(5) Include the intended traffic control method including flagging and spacing and type of traffic control devices. Provide traffic control in compliance with the current Manual on Uniform Traffic Control Devices. Those provisions also stated:
This project (31st Southwest) is a Montana Department of Transportation (MDT) project. The Contractor is required to provide all required submittals and adhere to all applicable MDT standards for construction. Applicable specifications for the roadway construction is the "Standard Specifications for Road and Bridge Construction, 1995 Edition." The owner will employ a full time representative (engineer) to provide construction inspection services.
It is the Contractor's responsibility to be familiar with all MDT special provisions, standards, specifications, and construction requirements.
The provisions required that flaggers provided possess current certification from either the Montana Flagger training program, the ATSSA[1] flagger program, or Idaho, Oregon or Washington state flaggers training programs. The record provides no indication that the State required use of flaggers to control traffic, although the State's Maintenance Chief, David Kelly, ...

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