                                  No.      96-053
               IN THE SUPREMECOURT OF THE STATE OF MONTANA
                                        1996




         v.
ROBERT VUICASIN,
              Defendant,  Respondent
                    and Cross-Appellant.



APPEAL FROM:        District  Court of the Twelfth Judicial  District,
                    In and for the County of Hill,
                    The Honorable John Warner, Judge presiding.


COUNSEL OF RECORD:
              For Appellant:
                    Michael W. Cotter;  Cotter       & Cotter,
                    Great Falls, Montana
              For Respondent:
                    Brian Lilletvedt,  Keith A. Maristuen;
                    Bosch, Kuhr, Duydale, Martin & Kaze
                    Havre, Montana



                                        Submitted   on Briefs:   June 20, 1996
                                                      Decided:   August   27, 1996
Filed:
Justice       W. William           Leaphart           delivered             the Opinion                 of the Court.


         John Wilson              (Wilson)           appeals,         and Robert                  Vukasin          (Vukasin)
cross-appeals             from the Findings                    of Fact            and Conclusions                 of Law of
the Twelfth          Judicial            District        Court,            Hill        County,          concluding           that
the Montana Scaffolding                     Act § 50-77-101                   to -107,            MCA (1991),           is not
applicable          to     the     facts        of     this        case.           We reverse              the     District
Court's       conclusion           that      the Montana Scaffolding                          Act does not apply
and,      therefore,        do not consider                    the cross-appeal.
         Wilson      raises         the following               issue         on appeal:
      Did the District  Court err in concluding    that the                                                          Montana
Scaffolding  Act did not apply to the facts of this case?
         On September                2,      1992,        Wilson,                 an    independent               insurance
adjustor,          went to Vukasin's                  residence             to inspect             the premises                for
hail     damage.          Vukasin's          ladder       was used to gain                    access            to the roof
of the garage.              Both men climbed                   onto the roof               and Wilson             performed
his     inspection.              After      the inspection                  was completed,                 Wilson         began
descending          the     ladder         while       Vukasin         remained            on the          roof.          While
Wilson      was climbing             down the ladder,                 it      l'walkedU' out from under him
and he fell          to the concrete                  slab below injuring                     his        right      heel.
          In its       Findings          of Fact        and Conclusions                   of Law, the District
Court       determined            that      the      ladder         was placed               at     too     small         of    an
angle      and that         the      ladder          was generally                 inadequate             for     the task.
The court          noted      that        the       ladder's        base was too narrow,                           that        its
legs were rounded where they met the concrete                                             slab,         and that        it     was
"old,       weathered            and flexed            too      much,             allowing         it     to     slip        more
easily."
                                                               2
          The District                  Court       concluded             that      the Montana Scaffolding                    Act
(the Act)              did not apply                 because the ladder                      was not a scaffold                nor
was       the         ladder          used      as       a working                place.            Because        the      court
concluded              that           the     Act        did     not       apply,          the       court     invoked         the
doctrine              of     comparative             negligence.                    The court          reduced          Wilson's
damage award by 50 percent                                 because it              found      that     he had failed               to
use ordinary                  care      in selecting              and using             the ladder.
          On appeal,                  Wilson         argues       that           the    District         Court         erred       in
failing           to apply             the Act.            According              to Wilson,           had the District
Court properly                 applied          the Act,          the comparative                  negligence           statute,
§ 27-l-702,                 MCA, would not have been applicable                                      because once it               is
shown that                 a violation              of the Act             was the proximate                   cause of the
injury,          liability             becomes fixed.                  Steiner          v. Department             of Highways

(1994),           269 Mont.             270,        278,       887 P.2d 1228,                1233.
          The District                 Court        recognized             that     the question             of whether        the
ladder          was a scaffold                  was a "close                call"       and ultimately                 concluded
that       it         was not           a     scaffold.                We review              the      District          Court's
conclusion                 of law--that             the Act did not apply--to                         determine          whether
the court's                 interpretation                 of the law was correct.                           Stratemeyer           v.
Lincoln          County         (Mont.         1996),          915 P.2d 175, 177, 53 St.Rep.                            245, 246
(citing           Carbon County v. Union Reserve                                       Coal Co.        (19951,         271 Mont.
459,      469,         898 P.2d 680,                 686);       Loney v. Milodragovich,                          Dale & Dye,
P.C.       (1995),            273 Mont.             506,       510,       905 P.2d 158,              160.
          Wilson's             fall         occurred        in 1992.             We have previously                determined
that            the         1995        amendments               to        the         Act       cannot           be     applied
retroactively.                        Porter        v.     Galarneau              (Mont.      1996),         911 P.2d       1143,

                                                                      3
1150,      53 St.Rep.            99, 103.          Thus,         we must apply                the version              of the
Act    applicable          at the time              of the accident.                     As of 1992,              § 50-77-
101, MCA (1991),                 provided         that:
         All    scaffolds       erected      in 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.
         We have defined                 "scaffolding"                to include          "any device          utilized
by workmen to              allow         them to work                  where       a fall        might        result       in
serious       injury."             Porter,         911 P.2d at                  1147 (citing              Steiner,        887
P.2d at 1233).              This Court            has previously                 held that,         under the pre-
1995      version         of      the      Act,        a     ladder        is         considered          a scaffold.
Porter,       911 P.2d at 1147 (citing                           Mydlarz          v.    Palmer/Duncan              Constr.
Co.      (19841,      209 Mont.             325,       338,          682 P.2d          695,     702).         Thus,       the
ladder      used by Wilson                was a scaffold                  for     purposes        of the pre-1995
Act.
          Further,        this     Court has determined                        that     where the Act applies,
"the      mandatory            nature       of     the       statute            forecloses          the      common-law
defenses       of assumption                of     the risk,             contributory             negligence,             and
negligence           of     a     fellow          servant."               Steiner,            887    P.2d         at     1233
(citation          omitted).
          The Act         provides          that       all           scaffolding          "shall          be well         and
safely       supported,             of      sufficient                width,          and properly            secured."
Failure       to     comply         with         the       Act       constitutes           negligence             per     se.
Steiner,        887 P.2d            at     1233.            The District                Court       found      that       the
ladder       was too            narrow,          too       flexible,            not     placed       at     the        proper
                                                                 4
angle,       and not properly                   secured because of the rounded legs.                                             Thus,
the District            Court         concluded          that        the inadequacy                   of the ladder                was
a proximate             cause of            Wilson's            injuries;            however,           the         court         also
determined         that        the Act did not apply.                              As we held           in Steiner,                the
defense       of contributory                   negligence            is not available                      under      the Act.
Thus,       the District              Court      erred      in applying                 contributory                negligence
and in reducing               Wilson's           damage award pursuant                          to § 27-l-702,                    MCA.
         In addition,               the District           Court determined                     that        the ladder             was
not "used as a working                         place"      and, therefore,                     that     the Act did not

apply.          Section             50-77-101,            MCA (1991),                   provides            that       the         Act
applies        where         a scaffolding                 is        used      in       "the        erection,              repair,
alteration,             or     removal           of      buildings."                    Apparently,                  the         court
reasoned        that,        as an insurance                    adjustor,           Wilson           was not erecting,
repairing,         altering               or     removing            a building                at     the      time         of     his
injuries.          Wilson            argues       that      the District                  Court        interpreted                 the
Act    too narrowly.                  We agree.            At the           time     of the accident,                       Wilson
was inspecting               Vukasin's           roof     for     hail       damage.            This inspection                    was
integral        to the repair                  of the roof            as the cost              of the damage had to
be determined                for     Vukasin's            insurance            claim.               Wilson          was on the
roof     to make this                determination               and facilitate                     the repair.
         In Mvdlarz,               this    Court        cited        Quinn v. LBC, Inc.                     (Ill.      Ct.        App.
1981),       418 N.E.2d              1011,       in discussing               the purposes                   of the Act             and
in deciding         that           the term "scaffolding"                      includes             a ladder.              We find
Quinn to be instructive                         in determining               whether           Wilson was using                    the
ladder       as a "working                 place."         Quinn was an inspector                              for     the City
of Chicago         Building               Department            and was injured                     while      inspecting                a

                                                                 5
building        following          a fire.          The Illinois           Court of Appeals           concluded
that     Quinn was covered                   by Illinois'            scaffolding       act,      stating          that:
         Plaintiff,   in his role as an inspector,             played a vital
         part in the construction         process.       He entered the site
         for the purpose of evaluating           the fire's     effect   on the
         building's    structural     integrity.        Performance    of this
         task necessitated        his presence        within    and upon the
         building.  .         A liberal    interpretation       of the Act . .
         . requires  that plaintiff       be included within the class of
         persons the Act is intended to protect.
Quinn,        418 N.E.2d          at 1013.              Similarly,        Wilson      utilized       the ladder
to     access      the      roof        to      inspect        the     damage,        and ultimately,                 to
facilitate         the repair             of Vukasin's            roof.      As the Illinois               Court      of
Appeals        recognized            in       m,            an inspector,             such    as    Wilson,           is
within        the ambit          of the Act's             coverage.
         We determine            that        District        Court     erred       in concluding           that      the
Act     did    not apply.            Accordingly,              we hold         that    the District               Court
erred      by invoking             the       doctrine        of      comparative        negligence           and in
reducing        Wilson's         award by 50 percent.                     Because the Act applies,                    it
is unnecessary             for     this        Court      to consider          Vukasin's         cross-appeal.
         Reversed        with       direction            to enter         judgment      in Wilson's               favor
for     the full       amount of his                damages




We concur:



               Chief     Justice
Justices
Justice         Charles      E. Erdmann dissenting.
         The majority,            in construing                 the 1991 version                  of the Scaffold
Act     as set       forth        in     § 50-77-101,                 MCA, has determined                       that       the
ladder       used by Wilson               was a scaffold                     for      purposes         of     this        Act.
While      I agree        with     that      determination,                    the majority's                 conclusion
that     Wilson,        as an independent                 contractor,              was within           the ambit           of
the     Act's       coverage           extends      the         Act     beyond          any      of     our     previous
interpretations.
         Wilson      is an independent               insurance               adjuster          who contracts              with
insurance          companies       to provide             claims        adjusting              services.             In this
case,       Vukasin's         insurer,           Austin         Mutual,            contracted            with        Wilson
through      Erickson-Baldwin,                  an independent                 insurance          agency in Havre,
to     readjust         a hail         damage claim              to     Vukasin's               property.              While
inspecting          Vukasin's          property,           Wilson           fell      from a ladder             that       had
been provided             by Vukasin.              There was no employment                            or contractual
relationship              between         Wilson          and     Vukasin,              and      Vukasin             had    no
authority          to control,           direct,          or supervise                Wilson's         performance.
         We discussed             the     language          of        the      Scaffolding             Act      in     State
ex rel.         Great     Falls        National           Bank v.           District           Court        (1969),        154
Mont.       336,     463 P.2d            326.        In     that        case,           it     was necessary                to
determine          what      persons        owed the             duty          that          was imposed             by    the
Scaffolding          Act because the language                         employed to describe                      the duty
was expressed             in passive         voice         and failed              to specify           what persons
owed the duty.               We held        that     it     was clear              the Legislature               did       not
intend      to grant         multiple        remedies           or damages to injured                         workmen by
allowing         one recovery            against          the     landowner,                 another     against           the
general               contractor,                     a     third          against              the        subcontractor,                             and       so
forth.           We further                     held        that        the      Legislature                   intended                 only          to make

injured              workmen              whole           by granting                 them       relief           against                the      person,

firm,       or            corporation                   having            direct           and        immediate                   control             of     the

work       involving                 the        use        of     scaffolding.
          We          specifically                        overruled                 our        dictum            in         Pollard              v.        Todd

 (1966),             148 Mont.                 171,        418         P.2d        869,        and      Joki          v.      McBride                 (1967),

150 Mont.                 378,       436 P.2d              78, which                suggested             that         a landowner                     not      in

control              of     the      work        being           completed                owed an absolute,                             nondelegable

statutory                  duty      to        a scaffold                 worker          or     others.                   Great         Falls          Nat'1

Bank
-I          154 Mont.                     at     344.            The individual                       who was               injured              in     Great

Falls       Nat'1            Bank was the                       employee            of     an independent                         contractor                 who

had been              hired          to        complete             the       project            under          the         contractor's                     own

guidance              and supervision.                              We held           that       the       bank,            being          simply            the

owner           of         the        property                   and       not           the     employer                    of         the       injured

individual,                   had         no      direct               control            over         the        work            performed                  and

therefore                 was not              liable           under         the        Scaffolding                  Act.

          The             direct           and          immediate              control                analysis               has          since            been

consistently                       utilized                by       this         Court           to       determine                     whether              the

Scaffolding                  Act      applies.                   In Mydlarz               v.     Palmer/Duncan                          Construction

co.      (1984),              209 Mont.                   325,      339,         682 P.2d              695,           703,         we noted                that

both      defendants                      were        acting           as general                contractors                       in     control              of

the      work        area          and,        without            reaching               the    question              of which                party          was

immediately                        responsible                      for             failing               to          provide                  adequate

scaffolding,                       held        that        the       failure              invoked          the         Scaffolding                     Act's

applicability.                        This         determination                      of direct                and immediate                      control


                                                                               9
Wilson       was using           the ladder               as a "working         place"      to inspect            damage
on the       roof         which       would         ultimately          facilitate         the    repair         of    the
roof,       he was therefore                     within      the scope of the Act,.                 The majority
however          failed         to    complete             the      required       analysis       and determine
whether          Vukasin        was an individual                    who owed a duty             to Wilson         under
the Act.
        Wilson,            as        an     independent              contractor,          was     contracted            by
Vukasin's          insurance              agency to readjust              the hail        damage to Vukasin's
property.            Vukasin          did        not      contact      Wilson        personally      nor     was his
presence          necessary               for     this      inspection.              The "person,          firm,        or
corporation               having           direct         and       immediate         control      of      the        work
involving          the use of scaffolding"                           was either         Wilson     himself         as an
independent          contractor,                 or arguably          the insurance           company.       What is
clear       is     that      Vukasin              had no direct                and immed~iate           control         of
Wilson.
         I would          therefore              hold     that      the Montana Scaffolding                 Act does
not apply          and that           the judgment               of the District           Court        finding        the
plaintiff           and the           defendant             equally       at    fault      under        comparative
negligence          principles                  should     be affirmed.


                                                                               Justice
Chief Justice    Jean A. Turnage and Justice                                    Karla     M. Gray join            in the
foregoing   dissenting   opinion.
