Harrington v. LaBelle's of Colorado, Inc. , 235 Mont. 80 ( 1988 )

MR. JUSTICE GULBRANDSON

delivered the Opinion of the Court.

Richard Harrington and third-party plaintiff LaBelle’s appeal from a summary judgment granted in favor of Billings Sweeping Service (the Service) in the District Court for the Thirteenth Judicial District, Yellowstone County, Montana. We affirm.

The issues are:

1. Did the District Court err in granting summary judgment in favor of the Service on the issue of negligence based on the rule of contractor nonliability?

2. Did the District Court err in granting summary judgment in favor of the Service on the issue of strict products liability under Section 402A, Restatement 2d of Tortsl

3. Was the dismissal of LaBelle’s third-party complaint proper?

This action arises out of a bicycle accident which occurred in the parking lot of LaBelle’s in Billings on July 21, 1984. Richard Harrington was riding his bicycle through the lot at approximately 9:00 p.m. when he struck a speed bump, was thrown from the bike, and suffered severe head injuries. Harrington sued LaBelle’s alleging that the speed bumps were improperly designed, negligently maintained, and inadequately marked to warn of their inherent latent danger. LaBelle’s filed a third-party complaint against the contractor who had installed the bumps, alleging that the contractor was solely responsible for the design, construction and installation of the speed bumps. The third-party complaint did not allege the parties had contracted for painting the speed bumps. LaBelle’s sought contribution or indemnity in the event that it was found to be liable. Harrington then filed an amended complaint to include the contractor, Billings Sweeping Service, seeking recovery on theories of negligence and strict products liability. On motion, the District Court granted summary judgment to the Service and dismissed LaBelle’s third-party complaint.

As to the negligence claim, the District Court found the Service not liable based upon the rule of contractor nonliability also known as the “Accepted Work Rule Doctrine,” which has been adopted by this Court. Also, no cause of action would lie under the products liability claim since the court found speed bumps are not a “product” for purposes of Section 402A, Restatement 2d of Torts. Mr. Harrington and LaBelle’s appeal from this order.

I

Did the District Court err in granting summary judgment in favor of the Service on the issue of negligence based on the accepted work rule doctrine?

Montana has adopted the rule that independent contractor will not be liable to third-parties for injuries which occur after the contractor has completed the work and the work has been turned over to and accepted by the employer. The accepted work rule doctrine was first recognized in Montana in Ulmen v. Schwieger (1932), 92 Mont. 331, 12 P.2d 856. The rule is based on the lack of any duty owing by the contractor to the injured third-party at the time of the injury. Instead, the person employing the contractor is substituted as the responsible party. The accepted work rule doctrine established in Ulmén has been upheld and applied in related Montana cases since then. See Olson v. Kayser (1973), 161 Mont. 241, 505 P.2d 394; Hannifin v. Cahill-Mooney Construction (1972), 159 Mont. 413, 498 P.2d 1214.

On appeal Mr. Harrington asks this Court to reconsider the rule. He argues that the facts and equity of this case compel us to revise the long-standing rule of Ulmén or to carve out exception to that rule. He contends that Ulmén does not represent the modern view and cites cases from jurisdictions which have extended contractor liability to foreseeable injury caused by negligent construction. This is not the rule in Montana, however, and we decline to depart from the line of cases which have established otherwise. In doing so, we direction our attention to the “facts” and “equity” of this case.

LaBelle’s is located at a busy intersection in Billings. To avoid the traffic signal at that intersection, traffic frequently cuts across La-Belle’s parking lot between 24th and Central. To slow and discourage this traffic, LaBelle’s manager contracted with Billings Sweeping Service to install two speed bumps in the parking lot. The record conflicts as to who solicited whom, but a work order was processed on May 3, 1984, and construction was completed on or about that date.

The bumps were made of asphalt, the same material as the parking lot, and were not marked or painted in any way so as to distinguish them from the parking lot’s smooth surface. There is disagreement in the depositions about who was responsible for the design and placement of the bumps and why the speed bumps did not get striped, painted, or otherwise marked.

Despite the conflict in facts surrounding the speed bump construction, there is no doubt that the Service had turned over, and La-Belle’s had accepted, the contracted work. Upon completion, La-Belle’s paid the Service for the job, and the Service completely removed itself from the premises prior to the accident, which occurred approximately 70 days thereafter. There is no evidence that LaBelle’s requested any follow-up work or made any complaints to the Service prior to the accident. These facts substantiate the District Court’s findings that the Service had turned over and LaBelle’s had accepted the work on the speed bumps, so as to satisfy the accepted work rule doctrine.

Regarding Mr. Harrington’s plea in equity, we note that he has settled with LaBelle’s for $125,000. We find little merit in his argument that he will be left “without recovery” unless this Court revises or finds exceptions to the accepted work rule doctrine as established in Ulmén. For these reasons, we hold that the District Court did not err in granting summary judgment to the Service on the issue of negligence.

II

Did the District Court err in granting summary judgment in favor of the Service on the issue of strict products liability under Section 402A, Restatement 2d of Torts?

Mr. Harrington contends that the Service should be held strictly liable as the manufacturer of a defective and unreasonably dangerous product. He argues that a speed bump should be recognized as a “product” for purposes of Section 402A Restatement 2d of Torts.

To date, there are no Montana cases which discuss the meaning of “product” for a strict products liability case. In refusing to recognize a speed bump as a product, the District Court relied on policy considerations set forth in the case in which Montana adopted the doctrine of strict liability. See Brandenburger v. Toyota Motor Sales (1973), 162 Mont. 506, 513 P.2d 268. In that case, this Court said:

“Inherent in these policy considerations is not the nature of the transaction . . . but the character of the defect itself . . . and the unavailability of an adequate remedy on behalf of the injured plaintiff.”

Brandenburger, 513 P.2d at 273 (quoting Escola v. Coca Cola Bottling Company of Fresno (1944), 24 Cal.2d 453, 150 P.2d 436).

Based on our review of these policy considerations, we agree with the District Court that a speed bump is not a “product” for purposes of Section 402A strict liability. A major goal of the doctrine was to afford the plaintiff a remedy in the face of an extremely complicated manufacturing industry, where the inability of the plaintiff to pinpoint a negligent act or a negligent party could preclude recovery altogether. As was pointed out by the District Court, there is no problem of a remote manufacturer or the inability to trace a specific negligent act in this case. Our determination in no way affects Mr. Harrington’s existing settlement agreement with LaBelle’s, so he is not left without adequate remedy. We hold that the District Court did not err in granting summary judgment on the issue of strict products liability.

Ill

Was the dismissal of LaBelle’s third-party complaint proper?

Montana law does not allow a claim for contribution or indemnity to be asserted by a defendant against a co-defendant who is not liable to the plaintiff. Section 27-1-703, MCA. See State ex rel. Deere and Company v. District Court (Mont. 1986), [224 Mont. 384,] 730 P.2d 396, 400, 43 St.Rep. 2270, 2274. Since we have affirmed the District Court’s granting of summary judgment in favor of the Service, it follows that LaBelle’s claim for contribution or indemnity must fail. We conclude that the District Court properly dismissed LaBelle’s claim. We affirm.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES HARRISON, SHEEHY and McDONOUGH concur.