                              No. 82-98
             IN THE SUPREME COURT OF THE STATE OF MONTANA

                                  1984



JOHANN J. PIYDLARZ ,
                          Plaintiff and Appellant,


PAL~R/DUTJCAN CONSTRUCTION COMPANY
AND RICE MOTORS,

                          Defendants and Respondents.




APPEAL FROM:    ~istrictCourt of the Eighth Judicial ~istrict,
                In and for the County of Cascade,
                The Honorable Joel G. Roth, Presiding


COUNSEL OF RECORD:
         For Appellant:
                Jardine, Stephenson, Blewett & Weaver; Curtis G.
                Thompson and Alexander Blewett I11 argued,
                Great Falls, Montana

         For Respondents:
                 Smith, Baillie & Walsh; Dennis Clarke and William
                 Baillie argued for Respondents Palmer/Duncan, Great
                 Falls, Montana
                 Cure & Borer; Edward W. Borer argued for Respondent
                 Rice Motors, Great Falls, Montana




                                  Submitted:   January 10, 1984

                                    ~ecided:   April 30, 1934


Filed:




    .-
                                  Clerk
Mr. Chief Justice Frank I. Haswell delivered the Opinion of
the Court.
      Johann J. Mydlarz a.ppeals a Cascade County District
Court judgment, based upon the jur~'s special verdict, in
favor of Palmer/Duncan Construction        (respondent) and Rice
Motors     (respondent) in an action to recover damages for
injuries he received in a fall from a ladder at the construc-
tion site of a new Rice Motors building.          We reverse and
remand for a new trial.
      Rice Motors, an automobile dealership, let bids and
awarded contracts for building a new saies facility in Great
Falls, Montana.     Rice awarded a substantial portion of the
contract to Palmer/Duncan. It awarded electrical, mechanical-,
plumbing and installation of the sprinkler system to several
other contractors.      Palmer/Duncan, as the general contra.ctor,
subcontracted     the   painting   to   Don   Bidwe1.1,   Mydlarz's
employer.
      Pursuant to specific instructions from Rice, Bidwell's
employees covered the overhead sprinkler nozzles prior to
painting the ceiling.       They used scaffolding owned by the
electrical subcontractor when they covered the nozzles and
painted the ceiling.        It is important to note tha.t Rice
contracted independently to have the sprinkler system in-
stalled.     It was not part of the Rice-Palmer/Duncan contract
and, thus, not part of the Palmer/Duncan-Bidwell subcontract.
The painting of the sprinkler pipes was independent of the
installation contract.
      Palmer/Duncan allowed use of its scaffolding during
construction of the building but removed a.11 of its scaffold-
ing before July 29, 1977.       On August 3, 1977, Palmer/Duncan
received a certificate of substantial completion and none of
its employees were at the site after that date.
       After the painting was completed, Bjdwell apparently
ordered an employee, Ron Lins, to remove the coverings from
the sprinkler nozzles.     Lins arrived at Rice Motors on July
29,   1977, and found no scaffolding was available.    He used a
ladder that was present at the work site to remove the nozzle
covers.      The ladder was leaned against the sprinkler pipes
and sI-ipped when Lins was on it.       He fell and sustained
injuries.
       On August 1, 1977, Mydlarz was ordered by Bidwell to
compl-ete the removal of the nozzle covers.    The scaffolding
owned by the electrical subcontractor was in use; the scaf-
folding owned by Palmer/Duncan had been removed.         Bidwell
directed Mydlarz to use a ladder to remove the covers.
       Mydlarz removed several nozzle covers near the horizon-
tal east-west sprinkler pipe before removing the fifth or
sixth covering at a narrower point in the pipe.   While remov-
ing the covering, Mydlarz fell from the sixteen-foot ladder.
As a result of this fall he sustained serious knee and elbow
injuries and was unable to work.
       The    sprinkler pipes moved   under pressure   from the
ladder.      They had a lateral movement of five inches and a
vertical movement of two inches before resting against con-
crete beams.
       Mydlarz was given specific instructions by Bidwell how
to place the ladder, i.e., if the ladder was placed several
inches above the pipe, the lateral-vertical movement of the
pipe would not cause the ladder to fall.        Before Mydlarz
fell, Peter Rice of Rice Motors attempted. to contact Bidwell
or Palmer to request scaffolding for Mydlarz but was unable
to reach them in time.       After the accident, Bidwell removed
the nozzle covers with the use of a ladder.           Peter Rice
testified he climbed the same ladder at the point where
My6larz fell with no difficulty.         Evidence was presented
showing Mydlarz had placed the ].adder only one inch above the
pipe.
        Under   the Rice-Palmer/Duncan contract, ~almer/~uncan
was responsible for scaffolding:
                "Temporary Scaffolds, Staging and Safety
                Devices.
                "Provide, erect, maintain all scaffold.-
                ing staging, platforms, temporary floor-     .
                ing, guards, ra.ilings, sta.irs, etc., as
                required by local and state codes or laws,
                for the protection of workmen and the
                public. The construction, inspection and
                maintenance of the above items shall
                comply with all safety codes a.nd regula-
                tions as applicable to the project."
        The contract further provided that Palmer/Duncan woul-d
he responsible for the safety of all workmen:
                "PROTECTION - PERSONS AND PROPERTY
                            OF
                "10.1   SAFETY PRECAUTIONS AND PROGRAMS
                10.1.1.  The contractor sha.11 be respon-
                sible for initiating, maintaining and
                supervising all safety precautions and
                programs in connection with the work."
In a.ddition, this contract provided that Palmer/~uncanwould
be specifically responsible for the safety of all workmen and
property on the project:
                "The contractor shall take all reasonable
                precautions for the safety of, and shall
                provide all reasonable protection to
                prevent damage, injury or loss to:
                " .1 All employees on the work and al-L
                other persons who may be affected
                thereby;
                ".2  All the work materials and equipment
                to be incorpora-ted therein, whether in
                storage on or off the site, under the
                care, custody or control of the contrac-
              tor or any of his subcontractors or
              sub-subcontractors; and
              ".3  Other property at the site or adja-
              cent thereto, including trees, shrubs,
              lawns, walks, pavements, roadways, struc-
              tures and utilities not designated for
              removal, relocation, or replacement in
              the course of construction."
       Under the contract PalmerlDuncan was to protect work
and materials by        suitable covering while paintins was in
progress.     Rice retained the right to perform cleanup work.
       Before trial Mydlarz filed two motions - limine to
                                              in
prevent respondents from introducing evidence of workers1
compensation benefits he received from the accident and a
prior fall.     This evidence was admitted, but the trial court
instructed the jury not to use the evidence of workers1
compensation benefits to reduce any damages awarded Mydlarz.
The court allowed the jury to consider evidence of Mydlarz's
drinking problem.
       Mydlarz attempted to introduce evidence tha-twould show
grounds for the workers1 compensation benefits and that he
would have to pay the state fund its subrogation interest
from   any   recovery     in   the   lawsuit.      This   evidence   was
excluded.
       By    special    verdict,     the   jury   found   that   neither
Palmer/Duncan nor Rice had breached a duty to provide scaf-
folding to Mydlarz, thus finding that the Scaffolding Act had
no application.        The jury also found that neither respondent
was negligent in failing to provide a safe place to work or
safe equipment to Mydlarz.            Finally, the jury found that
Mydlarz was 100 percent contributorily negligent and such
negligence was the proximate cause of his injuries.               Based
upon   the   special     verd-ict, judgment was       entered    against
Mydlarz from which he appeals.     He asserts numerous issues
for review:
      1.    Does the Montana Scaffolding Act apply to the facts
of this case?
      2.    Did the District Court err by al-lowing evidence of
Mydlarz's receipt of workers' compensation benefits?
      3.    Did the District Court err by refusing to allow
evidence explaining receipt of such benefits?
      4.    Did the District Court err by allowing evidence of
Mydlarz's alleged drinking problem?
      5.    Did the District Court err by admitting evidence of
a prior fall taken by Mydlarz on another project?
      6.    Did the District Court err by excluding the opinion
testimony of Mydlarz's     fellow employee who had a similar
accident?
      7.    Did the District Court err by excluding evidence of
Palmer/Duncanls offer to repay an outstandinq debt to a
witness prior to giving his testimony?
      8.    Did the District Court err by striking ~ydlarz's
claim for punitive damages?
      9.    Was it error to fail to instruct the jury that
following the directions of an employer is not contributory
negligence?
      10.     Was Palmer/Duncan Construction Company negligent
as a matter of law for removing scaffolding before completion
of the project?
      11.     Were instructions on OSHA viol-ations improperly
refused?
      12.     Did the District Court err in allowing certain
costs and disbursements?
   . Respondent Palmer/Duncan hasnot consider
addressed by appellant.  We will
                                   raised two                   issues not
                                                                such issues
because Palmer/Duncan has not complied with Montana Rules of
Appellate Civil Procedure; specifically, ~almer/~uncan
                                                     has
not      perfected     a     cross-appeal.          Although        Rule    14,
M.R.App.Civ.P.,        provides        for    review    of     matters      by
cross-assignment of          errors, this does not eliminate the
necessity for cross-appeal by a respondent who seeks review
of matters separate and distinct from those sought to be
reviewed by appellant.         Johnson v. Tindall (Mont. 1981) , 635
P.2d     266,   268,   38    St.Rep.    1763; Francisco v.          Francisco
(1948), 120 Mont. 468, 470, 191 P.2d 317, 319.
         We will first consider the applicability of Montana's
Scaffolding Act.            Mydlarz argues that the obligation to
provide for the safety of all workers on a construction
project mandates applicati-onof the Scaffolding Act.                  Liabil-
ity falls on the entity who assumed that obligation, accord-
ing to Mydlarz.
         Furthermore, Mydlarz asserts that the term "scaffold-
inq" must include any device utilized to allow work in high
places.     The Act must he construed in light of evils it is
intended to prevent.          Since the Act was intended to increase
safety in ultrahazardous work (i.e., work in high places from
which a fall could cause death or injury), "scaffolding"
should be any device that would protect a worker from that
peril.
         Mydlarz alternatively argues that where the contractor
or owner agrees to provide scaffolding and fails to do so,
such failure constitutes a violation of the Scaffolding Act.
         Respondent    Palmer/Duncan         contends   that   it     had   not
assumed     full     control    of     the    project    as    Rtce    Motors
ind-ependently subcontracted with other entities for particu-
lar portions of the work.     Second, absent some form of con-
trol   over   the   subcontractor's method   of   operation, the
general contractor is not liable for injuries to subcontrac-
tors' employees.     Third, the Act only applies to those who
have direct control of construction of a building with more
than three floors.      Here, the building had only one floor.
Final-ly, the Act applies to scaffol-ding. This term must be
construed according to its ordinary meaning.       The appellant
was using a ladder so the Act should not apply.
       Respondent Rice Motors asserts that the Act applies to
scaffolding and the appellant was using a ladder.      Thus, the
Act should not apply.     Further, the Illinois cases cited by
appellant were decided under the Structural Work Act which
includes "all mechanical contrivances" instead of scaffolding
specifically, as in the Montana Scaffolding Act.        Finally,
the Act does not impose a duty to provide scaffolding, only a
safe place to work.     If that includes scaffoldj.ng, then the
Act applies.    In the case at bar, a safe place to work was
provided; scaffolding was not needed for appellant to perform
his duties.




       Applicability of the Scaffolding Act to the case at bar
depends upon proper interpretation of the term "scaffolding"
within the Act.     The essence of the Act is codified in sec-
tion 50-77-101, MCA:
              "Construction of scaffolds.   All scaf-
              folds erected T n this state for use in
              the erection, repair, alteration, or
              removal of buildings shall be well and
              safely supported, of sufficient width,
              and properly secured so as to ensure the
              safety of persons working on them or
                 passing under them or by them and to
                 prevent them from falling or to prevent
                 any material that may be used, placed, or
                 deposited on them from falling."
This Court has stated that the purpose of the Act is to
"supplement the protection of the common law by providing
criminal sanctions and imposing an absolute statutory duty
upon the owners of real estate to protect workmen and others
from the extraordinary hazards associated with scaffolds."
Pollard v. Todd (1966), 148 Mont. 171, 179, 418 P.2d 869,
873.
         A particular term in a statute must he construed ac-
cording to the context and the approved usage of the lan-
guage, but technical terms are to be construed according to
their peculiar and appropriate meaning.            Section 1-2-106,
MCA.     When construing a statute as a whole, the intent of the
legislature should be pursued.          Section 1-2-102, MCA.   When
read together, these two statutes require that determination
of the meaning of a phrase' or word be made according to the
purpose of the statute.          Gannon v. Chicago, Milwaukee, St.
Paul     &   Pac. Ry. Co. (1961), 22 I11.2d 305, 175 N.E.2d     785.
         Therefore, we must construe the term "scaffolding" in
light of the purpose of the Act which          is to protect workmen
and others from the extraordinary hazards associated with
scaffolds.       Pollard, supra.    These hazards include scaffold-
ing work performed in high places where a fall could cause
death or injury.       Hence, liberal construction of the term is
required to establish that scaffolding is any device which
would reduce or eliminate the hazard the Act wa-s designed to
avoid.       Quinn v. L.B.C.,   Inc. (1981), 94 Ill.App.3d 660, 418
N.E.2d       1011; Rocha v.     State   (1974), 45 A.D.2d   633, 360
N.Y.S.2d      484; Bohnhoff v. Fischer (1914), 210 N.Y.            172, 104
N.E.   130.
       Webster's     New     Twentieth    Century     Dictionary    defines
"scaffol.ding" as "a frame or structure for support in an
elevated place      . . ."     2nd Ed. at 1614 (1979).          Addressing
what    constitutes       scaffolding,     American     Jurisprudence   2d
states:
                ". . .  courts have seldom permitted an
                employer to disclaim liability for his
                servant's injury when the accident oc-
                curred in connection with the use of any
                structure intended to provide footing -or
                support above - ground or floor.
                                the                    On
                the other hand, when the injury is the
                result of the use hy the workman, for
                purposes of personal support, of a device
                which has not been constructed with the
                intention that it should be so used, the
                courts have been reluctant to hold that
                such devices are scaffolds.        "  ...
                                                       53
                Am.Jur.2d Priaster and Servant, 5 207 at
                262. (Emphasis added.)
       An appellate court in Illinois has found that a tempo-
rary apparatus intended to provide footing above the ground
floor for workmen is a sca.ffold and within the purview of its
Scaffolding Act.         Spiezio v. Commonwealth Edison Co. (1968),
91 111.App.2d      392, 235 N.E.2d        323; Frick v. O'Hare-Chicago
Corp. (1966), 70 Ill.App.2d 303, 217 N.E.2d              552.   The Illi-
nois Scaffolding Act          includes the phrase        "all mechanical.
contrivances" rather than           "scaffolding" in Montana's Act.
However, the purposes of the two acts are identical.
       In Rocha v. State, supra, the New York Supreme Court,
Appellate Division, recognized that a scaffold is a temporary
elevated      working    platform   and     its   supporting    structure,
designed      to   support    a   workman    in   his   work.   Caddy   v.
~~terborough
           Rapid Transit Co. (1909), 195 N.Y. 415, 88 N . E .
         Other jurisdictions have recognized that an apparatus
not technically scaffolding is contemplated by that state's
scaffolding act:     Hoult v. Kunhe-Simmons Go., Inc. (1978), 64
Ill.App.3d    476, 381 N.E.2d      403   (steel columns from which
employee was working may be considered "scaffolding" und-er
structural work act); Evans v. NAB Construction Corp. (1981),
80 A.D.2d    841, 436 N.Y.S.2d    774 (plank resting on structural
steel and     four-by-fours considered      "scaffold" under state

scaffolding act); Carpenter v. Burmeister (1925), 217 Mo.App.
104, 273 S.W. 418 (sheathing hoards temporarily laid on floor
joists inside building was scaffolding according to scaffold-
ing act); Most v. Goebel Const. Co. (1918), 199 Mo.App. 336,
203 S.W.     474   (platform supported by chains swinging from

roof, the other end supported by poles running along side of
buildings, is scaffold); Steel and Masonry Contracting Co. v.
Reilly (2nd Cir. 1913), 210 F. 437 (plank laid loosely across

permanent steel roof trusses having a slope of about one and
one-half inches to the foot, is considered scaffolding under
labor law of New York).          See also, Spiezio, supra; Frick,
supra; Ross v. Delaware L. and W.R. Co. (1921), 231 N.Y. 335,
132 N.E. 108.
         We adopt the analysis of the appellate court in Illi-
nois t.hat focuses on the nature of the device in question.


N.E.2d    1011, the court said:
              "Undisputedly, a part of a permanent
              structure may itself constitute a 'scaf-
              fold' within the contemplation of the Act
              (Louis v. Barenfanger (1968), 39 111.2d
              445, 236 N.E.2d     724; Halberstadt v.
              Harris Trust & Savings Bank (1972), 7
              Ill.App.36 991, 289 N.E.2d       90.)    In
              making-this determination, our inquiry is
              not limited - - identity - - object
                          to the            of the
              claimed - -be a s u ~ ~ o r t scaffold. but
                      to -               or
              rather - - - a s g Ttilized - -
                     how it w                      at
              (1979)  ,
              time of the injury. (Kenworthy v. Young
                          IlI.App.3d 144, 26 Il1.Dec.
              593, 388 N.E.2d 217).    .
                                       .   ."
                                           418 N.E.2d
              at 1014. (Emphasis added.)
        According to the authority discussed above, particular-
ly the statutory construction mandated by the purpose of the
Scaffolding Act, we find the term "scaffolding" includes not
only a unique device constructed by steel tubing, planks or
plywood, and nuts and bolts, but additionally any device
utilized by workmen to allow them to work where a fall might
result in serious injury.    This would accomplish the purpose
of the act stated in Pollard, supra.           Following the Quinn
analysis, we need not determine appli.cability of the Act
exclusively by the identity of the device used but how such
device was beinq u.tilized at the time of the injury.      Mydlarz
was using the ladder and the flexible sprinkler pipe as a
substitute for regular scaffolding which was unavailable.
T h i s combination was used as a d.evice to raise him approxi-

mately sixteen feet to the ceiling of the building to remove
sprinkler head coverings.   This height is sufficient to cause
serious injury as evidenced by Mydlarz's injuries due to the
fall.
        It is important to note that in Pollard, supra, this
Court found the Scaffolding Act        applied even though the
injury occurred from a ladder jack device, which is not
scaffolding per se.     Further, Pollard cited with approval
Hall v. Paul Bunyan Lumber Co. (1960), 177 Cal..App. 2d 761, 2
Cal.Rptr. 519, where the California Appeals Court, an inter-
mediate court, applied the scaffolding act to a ca.sewhere an
employee of a subcontractor was injured in a fall from a
platform   that was built    on   a   pallet   and attached to a
"hyster."     The platform was   specifically built to raise
materials and equipment, not workers.
        Respondent   Palmer/Duncan     contends   that    section
50-77-102, MCA, limits the Act's applicability to the con-
struction of a building with more than three floors.         This
statute requires temporary flooring in buildings under con-
struction.   It does not address the construction of scaffold-
ing and therefore does not affect the application of section
50-77-101, MCA.
        Thus the Scaffolding Act is applicable where Mydlarz
used the 1-adder-pipe device as a substitute for scaffolding.
There is an additional basis for holding that the Act applies
to these facts.      Arguably both defendants were actin9 as
general contractors in control of the work area and had a
nondelegable duty to furnish workers a safe place to work.
Clearly in the present case there was a failure to provide
adequate scaffolding.    Without reaching the question of which
party was immediately responsible for this failure, we do
hold the failure invokes the Act's applicability. The breach
of contractual obligations to provide scaffolding invokes the
Scaffolding Act to the same extent that providing deficient
scaffolding would.       See Louis v.    Rarenfanger   (1968), 39
111.2d 445, 236 N.E.2d   724.
        Finding the Act applies, we reverse and remand to the
District Court to determine proximate cause and liability
under rules set forth in State ex rel. Great Falls Nat'l Bank
v. District Court (1969), 154 Mont. 336, 463 P.2d 326.       Upon
remand certain questions must he ] e t to the province of the
                                  .f
jury.    Liability does not become fixed upon the showing of a
scaffolding-associated injury.       A directed verdict is inap-
propriate to decide if the Scaffolding Act was violated--that
is, did t.he ladder-pipe device fail?    A directed verdict is
also inappropriate to determine whether the violation was the
proximate cause of the injury.    Pol-lard v. Todd, 148 Mont. at
180, 418 P.2d at 873; Joki v. McBri.de (1967), 150 Mont. 378,
386, 436 P.2d 78, 82.




      We next consider Mydlarz's evidentiary challenges.     He
contends that the District Court committed prejudicial error
by admitting evidence of hi.s receipt of workers' compensation
benefits.   He argues that before such evidence Is allowed to
show lack of incentive to return to work, actual. ma-lingering
must be shown.
      Respondents assert that this evidence is admissible to
show Nydlarz's la.ck of motive to return to work.   Respondents
point out that in his two best years, Mydlarz ma.de an average
of   $4,400 per year.      However, he received approximately
$60,000 in workers' compensation benefits.    The court limited
the instruction to the question of lack of motive by admon-
ishing the jury not to use the evidence to reduce d-amages.
      This Court has specifically determined that in a per-
sonal injury action the prejudicial. impact of allowing a jury
to receive evid-ence of plaintiff's pending workers' compensa-
tion claim vastly outweighs the proba.tive value of        such
evidence.   All.ers v. Willis (Mont. 1982), 643 P.2d 592, 39
St.Rep. 745.     The Court ruled in Allers that evidence of the
workers' compensation claim was clearly inad.missible, quoting
the following passage from an annotation:
            "Generally, it has been held to consti-
            tute error, requiring a reversal or new
            trial, to bring to the jury's attention
            the fact that the plaintiff in a personal
            injury or death action is entitled to
            workmen's compensation benefits.      The
            courts have reasoned that such informa-
            tion would tend to prejudice the jury and
            influence their verdict, either as to
            liability or damages, as such information
            is ordinarily immaterial and irrelevant."
            77 ALR2d at 1156.
      Admission of thi.s evidence was reversible error and
requires a new trial.    This holding renders Mydlarz's conten-
tion that the District Court erred by preventing him from
presenting expl.anatory evidence moot.
      Mydlarz also argues that the District Court. erred in
admitting evidence of an alleged drinking problem.      He points
out that there is no evidence that he was drinking at the
time of the accident or that drinking was the cause of the
accident.   In fact, the first person. who rendered aid to
Mydlarz after the accident testified. there was no indication
that he had been drinking.
      Respondents contend that MydLarz "opened the door" for
cross-examination on his drinking when he testified about it
and this evidence is relevant to the cause of the accident.
Mydlarz admitted that while on the ladder he "got the shakes
and jumped off."   Respondents contend that this indicates a
drinking problem that is arguably a cause of the accident.
      There is nothing in the record indica.ting Mydlarz was
drinking on or before the day of the accident.       The evidence
of a general drinking problem was unfairly prejudicial. Rule
403, Mont.R.Evid., addresses prejudicial evidence.      It reads:
            "Exclusion    of   relevant   evidence     on
            grounds prsudice, confusion, or waste
                    -
            of -
            -  ti-me. Although relevant, evidence may
            be excluded if its probative va.lue is
            substantially outweighred by the danger of
            unfair prejudice, confusi-on of the is-
            sues, or misleading the jury, or by
            consj.derations of undue delay, waste of
            time, or needless presentation of cumula-
            tive evidence."
        Evidence that Mydlarz might have been an alcoholic when
the accident occurred may have some probative value regarding
the cause of the accident.        However, the indirect relevance
of this evidence requires us to find that the probative value
of the evidence is clearly outweighed by the prejudicial
effect on Mydlarz.       We find that the jury could have been
misled by evidence indicating Mydlarz was an alcoholic and
erroneously presume the accident was caused by such disease.
Therefore, the evidence was inadmissible and its introduction
constitutes reversible error.
        Mydlarz also contends that the District Court erred by
admitting evidence of a prior fall he took on another pro-
gect.    This evidence is irrelevant to the present action and
prejudicial to Mydlarz.      The fall occurred one and one-half
months prior to the accident in question and under different
circumstances.        Furthermore,   contributory    negligence     is
foreclosed as a defense in an action for damages under the
Scaffolding Act.      Pollard v. Todd, supra.
        Respondents assert that Mydlarz opened the door for
this testimony when he raised j t on direct examination.
                               .                                   We
will not dismiss the challenge on this ground because Rice
Motors    initially   mentioned   the    incident   in   its   opening
statement.
        We hold that this evidence was improperly admitted.
Rule 406, Mont.R.Evid.,      allows evidence of habit which is
defined as a regular response to a repeated specific situa-
tion.    Rule 406(a), Mont.R.Evid.      Moreover, evidence of habit
may be proven by specific instances of conduct sufficient in
number to warrant a finding that the habit existed or that
the practice was routine.      Rule 406(c), M0nt.R.Evi.d.       In our
view one instance of alleged carel.essness does not indicate
habitual carelessness.
        Addl.itionally, this Court has held that evid.ence of
prior accidents is inadmissible to prove negligence apart
from the Scaffolding Act.
                                                           -
                                Runkle v. Burlington Northern
(Mont. 1980), 613 P.2d 982, 986, 37 St.Rep. 995, 997.
        Mydlarz next asserts that the lay opinion of one Ron
TAins was improperly excluded.     Prior to Mydlarz's accident
Lins performed the same job that caused Mydlarz's accident.
Lins fell under the same circumstances and was         injured.
Mydlarz argues tha.t Lins's opinion concerning the safety of
the device should have been allowed.
        Respondent Pal-mer/Duncan contends the testimony was
properly excluded since it was an opinion on the ul-timate
issue of the action.     Further, Lins was never identified as
an expert witness in interrogatories and would not. qualify as
such.
        Respondent Rice Motors argues that since Lins did not
perceive Mydlarz's accident, he could not give an opinion on
it.
        We hold that Lins's opinion should have been admitted
into evidence.    Lay opinion is admissible pursuant to Rule
701, M.ont.R.Evid.   The opinion must be based on actual per-
ceptions of the witness and. helpful to the jury to understand
the facts in issue.      State v. Fitzpatrick (Mont. 1980), 606
P.2d 1343, 37 St.Rep. 1.94. In this case, Lins's opinion as a
layman should have been allowed.     His opinion of the safety
of the workplace was based. on his perceptions from working
the same job as Mydlarz.     Further, his testimony would help
the jury understand the conditions under which Mydlarz was
working.     Finally, the respondents' objections to Lins's
testimony were generally based on the failure to meet the
expert testimony requirements, and the court rejected the
opinion on that basis.       The question of lay opinion testimony
was not addressed.
        Mydlarz further argues that the Court erred by refusing
evidence regarding the repayment of a longstanding, possibly
unacknowledged debt, by Palmer to one of Palmer's former
employees.    The witness would testify that once a subcontrac-
tor placed     the protective covers on the sprinklers, the
general contractor would ordinarily remove them.             According
to Mydlarz, Palmer/Duncan and its counsel did not like this

testimony and on the evening prior to such testimony the
offer to repay the old debt was made.
        Palmer/Duncan contends that this was simply the repay-
ment of an old debt and unconnected to the testimony.
        We hold the testimony was properly excluded.          While we
recognize the circumstances surrounding the transaction were
questionable, the record shows no more than repayment of a
debt.      Consequently, such evidence is irrelevant to the
issues of the action and to the witness's testimony, and the
District Court did not abuse its discretion by excluding it.
        Further, this evidence is not admissible to show bias
or prejudice on the part of Palmer/~uncan for repaying the
debt simply because the testimony was substantially unfavor-
ah1 e to Pa lmer/Duncan.
        Mydlarz also contends that the District Court abused
its discretion by granting respondents' motion for a directed
verdict on punitive damages as there was sufficient evidence
to get this issue to the jury.        Prior to the accident another
employee     fell   under    the   same   circumstances.      Further,
Palmer/Duncan knew      of    this   fall   and   still    removed   the
scaffolding--arguably in violation of the law.              Rice Motors
also knew of this fall and the need for scaffolding but
failed to remed-y the situation.           This, Mydlarz contends,
indicates a willful and wanton disregard for the safety of
the workers and a violation of the law, thereby warranting
punitive damages.
       Palmer/Duncan asserts that Mydlarz failed to produce
evidence of Ron Lins's fall and the fact that something could
have   been   done   to   prevent   such   an   accident.      Further,
Palmer/Duncan employees were off the job when the prior
accident happened.        Finally, since the jury found no negli-
qence was committed by Palmer/Duncan, punitive damages could
not be awarded.      Therefore, no error occurred in striking the
request.
       Rice Motors argues that there was no evidence that its
employees saw Ron Lins fall off the ladder; thus, Rice Motors
had no knowledge of the accident.
       We hold the District Court erred in striking the puni-
tive damage claim.
       When deciding a motion for directed verdict by the
defendants, the trial judge must view the evidence in a light
most favorable to the plaintiff.           Weber v. Blue Cross of
Montana (Mont. 1982), 643 P.2d 198, 39 St.Rep. 245; Ferguson
v. Town Pump, Inc. (1978), 177 Mont. 122, 580 P.2d 915.              No
case should be withdrawn from the iury if reasonable men may
differ as to the conclusions drawn from the evidence.            Weber,
supra; Solich v. Hale (1967), 150 Mont. 358, 435 P.2d 883.
       Exemplary damages can be awarded pursuant to section
27-1-221, MCA, which reads:
              "When exemplary damages allowed. In any
              actionfor a breach of an obligation not
              arising from contract where the defendant
            has been guilty of oppression, fraud, or
            mali-ce, actual or presumed, the jury, in
            addition to the actual damages, may give
            damages for the sake of example and by
            way of punishing the defendant."
     As stated in the above statute, the jury can award
exemplary damages where the defendant has been found guilty
of either actual or implied malice.     Furthermore, implied
malice may he shown by proof that a defendant engaged in a
course of conduct knowing it to be harmful or unlawful.
Lauman v. Lee (Mont. 1981), 626 P.2d    830, 38 St.Rep.   499;
Ferguson v. Town Pump, Inc. f1978), 177 Mont. 122, 580 P.2d
915, overruled on other grounds, Bohrer v. Clark (1978), 180
Mont. 233, 590 P.2d 117.
     We find viewing the evidence in a liqht most favorahle
Mydlarz reasonable men could differ as to whether or not
either respondent was guilty of actual or implied malice.
The issue of punitive damages should not have been taken from
the jury.   There is evidence in the record indicating that
Palmer/Duncan removed the scaffolding before the painting
work was complete.   This may have been in violation of the
law or the contract between Palmer/Duncan and Rice Motors.
Further, Palmer/Duncan may have known that this conduct could
cause harm to persons working on the ceiling since scaffold-
ing was used to paint the ceiling and sprinkler pipes.
      Rice was arguably guilty of harmful conduct in allowing
the work from which Mydlarz was injured to continue.      The
record indicates that Peter Rice attempted to locate scaf-
folding for Mydlarz when he began working on the ladder;
thus, he arguably acknowledged the danger or potential harm
of such device.
      Mydlarz asserts that the District Court erred by fail-
ing to instruct the jury that following the directions of an
employer is not contributory negligence.     We have held that
the defense of contributory negligence cannot be raised when
the Scaffolding Act is applicable.     Pollard v. Todd, supra.
Since we have found that the Act applies, such defense cannot
be raised and this issue is moot.
        Mydlarz contends that, notwithstanding the Scaffolding
Act, Palmer/Duncan is guilty as a matter of law for removing
the scaffol-dingunder section 50-71-203, MCA.    This Court has
held that negligence as a matter of law requires a showing
that the statutory violation is the proximate cause of the
injuries sustained.    Kudrna v. Comet Corp. (1977), 175 Mont.
29, 572 P.2d 183.     While Palmer/Duncan may have violated the
statute in question, the issue of proximate cause was not
addressed.     This, we hold, is best left to the trial court
upon remand.
        Mydlarz 's challenges with respect to OSHA instructions
and costs and disbursements are without merit.     The question
of OSHA violations was never addressed by the District Court
and no OSHA citations were issued with respect to this pro-
ject.    The alleged violations are not part of the evidence
and instructions thereon were properly denied.         This Court
has held that instructions not supported by the evidence
brought out at trial need not be given.         Adams v. Cheney
(Mont. 1983), 661 P.2d 434, 40 St.Rep. 383; Payne v. Sorenson
(Mont. 19791, 599 P.2d 362, 36 St.Rep. 1610.
        Costs for certain depositions and witness fees were
properly awarded to Mydlarz and Rice.        Mydlarz used the
depositions in question and the witnesses testified.
        The judgment is vacated and the cause remanded to the
District Court for a new trial.




                                       Ce
                                       h!
                                        i    Justice
We concur :




Justices
                                                                                                   .       1


                                                                          CORRECTION. In preparing this opinion for pub-
                                                                          lication, we noted in our verification of titles a n d
      Hon. F r a n k B. M o r r i s o n                                   citations the matters listed below. Corrections have
      J u s t i c e , Supreme C o u r t                                   been made on our copy of the opinion.
      Room 414 J u s t i c e B u i l d i n g
      215 N o r t h S a n d e r s
      Helena, Montana 59620

Date:

Re:          J u l y 1 0 , 1984
             M y d l a r z v . ~ a l m e r / ~ u n c a C o n s t . Co., N o .
                                                       n                        82-98,    A p r i l 30, 1984,
             concurs i n p a r t and d i s s e n t s i n p a r t



      Page 23, l i n e 1 3 from bottom              --- Ulman v. S c h w i e g e r s h o u l d r e a d Ulmen
           v. S c h w i e g e r .




                                                                            WEST PUBLISHING COMPANY
                                                                                       Box 3526
                                                                                 St. Paul, MN 55165
Mr. Justice Frank B. Morrison, Jr.               concurs in part     and
dissents in part as follows.
      I concur in the resolution of all issues discussed in
the majority opinion with the exception of the first issue. I
do agree that the Montana Scaffolding Act applies to the
facts of this case.        This dissent addresses the question of
"control"; discusses the relative position of Palmer/Duncan
and Rice Motors; comes to a different conclusion regarding
disposition of the first issue.
      The majority opinion states:
      "Finding the Act applies, we reverse and remand to
      the District Court to determine proximate cause and
      liabil-ity under rules set forth in State ex rel.
      Great Falls Nat'l Bank v. District Court (1969),
      154 Mont. 336, 463 P.2d 326."
The holding of Great Falls National Bank insulates the owner
from liability absent evidence of actual control.                   This
holding in the Great Falls Bank case was modified in Stepanek
v.   Kober Construction,        (1981) 38 St.Rep.      385,         P.2d
      .   The modification in Stepanek changes the resolution
of this issue.
      In ~lm$n v. Schwieger, (1932) 92 Mont. 331, 12 P.2d 856
we held that one who undertakes to perform an inherently
dangerous activity has a nondelegable duty and cannot be
immunized     by     engaging   the   services    of   an     independent
contractor.        The Great Falls Bank case addressed the subject
of nondelegable duty but stated that an owner did not have a
nondelegable duty running to employees of a subcontractor.
If that rule were applied in this case, Rice Motors would not

have a nondelegable duty that ran to the plaintiff here.
However, in Stepanek we held           that the     1972 constitution
mandated that employees of subcontractors be treated equally
with others.       Therefore, we held that nondelegable duties do,
in fact, run to employees of subcontractors.             If Rice has a
nondelegable   duty     arising       out     of   the   performance   of
inherently dangerous work activities, then that nondelegable
duty runs to Mydlarz, the plaintiff in this case.
      I agree with the majority opinion that Palmer/Duncan has
a   nondelegable duty    on     the basis of         the responsibility
assumed by contract.     This is in line with our holding in the
Stepanek case.        I would     further hold        that Rice motors,
although it assumed no duty by contract, nevertheless has a
nondelegable     duty   to      see     that       inherently   dangerous
work-related activities are safely performed a.nd that such a
duty cannot be delegated to Palmer/Duncan so as to insulate
Rice from liability.     I believe such a holding comports with
the law of Ulman v. Schwieger, supra.
     The Scaffolding Act does not identify those who have the
duties imposed by the Act.            I would hold that the duty is
first imposed upon the owner.         If the owner engages a general
contractor, that contractor also assumes the responsibilities
imposed by the Act.      For the reasons previously mentioned,
neither of these, two parties can effectively delegate their
responsibilities and thereby escape liability for violation
of the provisions of the Act.
     Once the Scaffolding Act is applied to the facts of this
case, liability necessarily attaches.               There unquestionably
was a failure causing the plaintiff's injury.             Under the Act,
contributory negligence is not a defense.             Therefore, I would
direct a verdict on liability in favor of plaintiff and
remand for a new trial on damages.
                                      //'\/
Mr. Justice Fred J. Weber dissents:
       I   respectfully   dissent   from   the   conclusion   of   the
majority that the Montana Scaffolding Act applies to the
facts of this case.       As pointed out in the majority opinion,
the essential portion of the Act is codified in section
50-77-101, MCA which, as pertinent to this case, states:
       "All scaffolds erected in this state for use in the
       erection  . . .   of buildings shall be well and
       safely supported, of sufficient width, and properly
       secured so as to ensure the safety of persons
       working on them     . . .and to prevent them from
       falling  ...  "
       The statute was enacted in 1909.          There is no general
statement of legislative purpose for this chapter, which also
refers to temporary floors in certain buildings, guarding of
scaffolds and stair openings, temporary toilets, building
inspector enforcement, and penalties of $100 to $200 for each
offense.
       The majority cites the purpose of the Act as stated in
Pollard v. Todd     (1966), 148 Mont.      171, 179, 418 P.2d      869,
873.    Pollard states that the purpose of the Act is to impose
absolute statutory liability to protect workmen and others
from the "extraordinary hazards associated with scaffolds. "
Pollard was a case in which ladders were placed on both sides
of a door at a distance of about 15 feet apart, each ladder
was fitted with metal hooks called ladder jacks which are
devices commonly used in the building trades to support a
plank, and a wooden plank 18 to 20 feet long was positioned
on the ladder jacks.      While standing on this plank platform,
the plaintiff fell 12 feet to the ground after the plank
broke near the center.          I agree with the conclusion in
Pollard that a combination of ladders, ladder jacks and plank
constitutes a scaffold under the Act.
       That is a different question than is presented here.                       In
essence, our question is:             Is a ladder a scaffold under this
Act?    From the background of the Pollard case, the majority
opinion moves         to    the    conclusion      that    a     scaffold    is    a
structure for support in an elevated place, as defined in
Webster's, and that any temporary apparatus providing footing
above ground for workmen is a scaffold as held by the courts
of Illinois.         The majority does point out that the Illinois
Act uses the phrase "all mechanical contrivances" instead of
"scaffolds."          The   Court     then    suggests that because            the
purposes of the two acts are identical, it is appropriate to
conclude that any mechanical contrivance is a scaffold.                            I
find no reasoned basis for that conclusion.
       The    majority      cites     cases      from    other    jurisdictions
describing the types of structures or devices which have been
classed as scaffolds.             A review of these cases does indicate
a broad variety in the types of structures which have been
classed as         scaffolds.       However, none of the cases have
concluded that a mere ladder is the equivalent of a scaffold.
I   find     little    support in        those    cases    for the majority
conclusion.
       The majority opinion then adopts the analysis of the
Illinois Court which has held that the inquiry is not limited
to the identity of the object, but rather "how it was being
utilized      at    the     time    of   injury."          That    analysis       is
appropriate under the Illinois Act which                       is intended to
include all mechanical contrivances.                    Obviously that phrase
can properly include a ladder or a footstool.                        However, I
find it of no assistance in determining what our legislature
meant by using the term "scaffolds."                    Finally, the majority
opinion      concludes      that    "scaffolds" includes           "any     device
utilized by workmen to allow them to work where a fall might
result in serious injury," and then concludes that a 16-foot
ladder meets that definition.
       Notwithstanding that extended analysis, a 16-foot ladder
does   not   appear      to   fall within    the   statutory provision
relating to "all scaffolds erected in this state."               If a
ladder meets the statutory definition, then a step-ladder,
saw-horse, chair, or anything else from which a workman could
fall and     be   hurt    also meets   the definition.       I cannot
conclude that the legislature intended that all these devices
are to be classed as scaffolds erected in Montana.
       It may well be that our statute should be modernized
after 75 years so that it covers all mechanical contrivances
as   in   Illinois.       That   amendment should be      left to our
legislature.




I concur in the foregoing dissent.

                                            Justice
                                                      k
I concur with Justice Weber's dissent, but find in addition
no factual or legal reason to keep Rice Motors in the law-
suit, and I would dismiss the same in this lawsuit.
