                                           No. 02-724

                IN THE SUPREME COURT OF THE STATE OF MONTANA

                                           2004 MT 148


GLEN GROVER,

               Petitioner and Appellant,

         v.

CORNERSTONE CONSTRUCTION N.W., INC.,
a corporation registered to do business in the state
of Montana,

               Respondent and Respondent.



APPEAL FROM:          District Court of the Twentieth Judicial District,
                      In and for the County of Lake, Cause No. DV 98-93
                      The Honorable Ted O. Lympus, Judge presiding.



COUNSEL OF RECORD:

               For Appellant:

                      Kenneth S. Thomas, Bothe & Lauridsen, P.C., Columbia Falls, Montana

               For Respondent:

                      Erika L. Johnson, Stephen G. Berg, Johnson, Berg, McEvoy & Bostock,
                      PLLP, Missoula, Montana



                                                          Submitted on Briefs: April 24, 2003

                                                                      Decided: June 8, 2004
Filed:



                      __________________________________________
                                        Clerk
Justice Patricia O. Cotter delivered the Opinion of the Court.

¶1     Glen Grover (Grover), a carpenter, sustained injuries when he fell from the roof of

a house on which he was working. The house under construction was owned by Michael and

Ruth Crenshaw (the Crenshaws). In addition to filing a workers’ compensation claim,

Grover sued the Crenshaws and Cornerstone Construction for negligently failing to provide

a safe workplace. Section 50-71-201, MCA. The Crenshaws and Cornerstone each filed a

Motion in Limine requesting that Grover be prohibited from introducing safety standards

established under the Occupational Safety and Health Act (OSHA or the Act). The Motions

were granted. Grover and the Crenshaws subsequently settled. Following a jury trial and

defense verdict for Cornerstone, Grover appeals, challenging the entry of the Order in

Limine. We affirm.

                                           ISSUE

¶2     The only issue before this Court is whether the District Court abused its discretion in

granting Cornerstone’s Motion in Limine prohibiting Grover from introducing at trial OSHA

safety standards as evidence of Cornerstone’s alleged negligence.

                 FACTUAL AND PROCEDURAL BACKGROUND

¶3     In the spring of 1996, the Crenshaws began planning their new home along Flathead

Lake. After having plans drawn and obtaining the necessary building permits, they asked

their brother-in-law, Stephen Tartaglino, who was married to Ruth Crenshaw’s sister, to act

as “general contractor” over the project. The three of them entered into a written contract

on May 29, 1996.

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¶4     Tartaglino had worked in the construction industry for much of his adult life, but for

a few years prior to this time, in addition to construction work, he also had worked as a

licensed paramedic and emergency medical technician (EMT) in New England. Upon

returning to Montana in August 1995, he was unable to secure an EMT/paramedic position

in Kalispell, so he began working as a building contractor again. He was working for a

contractor in Kalispell when the Crenshaws approached him about helping in the

construction of their house.

¶5      Prior to beginning work on the Crenshaw home, Tartaglino established a sole

proprietorship, Cornerstone Construction, N.W., and obtained the necessary licenses,

insurance and bonding. In January 1997, a few months after the accident giving rise to this

case, Tartaglino incorporated Cornerstone. Because Cornerstone was owned exclusively by

Tartaglino at the time of Grover’s injury, we will use “Tartaglino” and “Cornerstone”

interchangeably in this Opinion.

¶6     Tartaglino had only a few small tools when he began assisting the Crenshaws in July

1996, having left his large construction tools in New England. The Crenshaws provided

various tools for use on the construction site and over the course of their home-building

project, they purchased other needed tools and equipment which Tartaglino agreed to

purchase from them.

¶7     Because Cornerstone had no employees, the Crenshaws contracted with Labor

Contractors of Kalispell (Labor Contractors) to provide laborers for the building project. The

Crenshaws prepaid Labor Contractors a substantial sum from which Labor Contractors

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would in turn pay the wages, taxes, and workers’ compensation premiums for the laborers

it “loaned” to Crenshaws. Grover was employed as a carpenter by Labor Contractors and

was one of the workers “loaned” to the Crenshaws. On September 3, 1996, Grover fell from

the roof of the Crenshaw home and sustained injury.

¶8     In addition to filing a workers’ compensation claim, Grover filed suit against the

Crenshaws and Cornerstone in July 1998, alleging that they negligently failed to provide a

reasonably safe place to work. Section 50-71-201, MCA. Prior to the jury trial, the

Crenshaws and Cornerstone filed Motions in Limine seeking to prohibit Grover from

presenting the OSHA safety standards to the jury as evidence of the Crenshaws’ and

Cornerstone’s negligence. The District Court granted the motions. Shortly thereafter,

Grover and the Crenshaws settled their claims. At the conclusion of the trial, the jury

returned a verdict in favor of Cornerstone.

¶9     Grover filed a timely notice of appeal. He asserts that the District Court erred in

granting Cornerstone’s Motion in Limine. He asks that we set aside the jury verdict and

order a new trial in which he would be allowed to introduce the OSHA safety standards.




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                             STANDARD OF REVIEW

¶10    We review a district court’s grant or denial of a motion in limine for an abuse of

discretion. State v. Brasda, 2003 MT 374, ¶ 14, 319 Mont. 146, ¶ 14, 82 P.3d 922, ¶ 14

(citation omitted). A district court abuses its discretion if the district court “acts arbitrarily

without conscientious judgment or exceeds the bounds of reason resulting in substantial

injustice.” Brasda, ¶ 14 (citation omitted). Furthermore, “[t]his Court will uphold the

decision of a district court, if correct, regardless of the lower court’s reasoning in reaching

its decision.” Hulse v. State, Dept. of Justice, 1998 MT 108, ¶ 15, 289 Mont. 1, ¶ 15, 961

P.2d 75, ¶ 15.

                                        DISCUSSION

¶11    Grover maintains that, under OSHA, certain safety procedures and equipment were

required in the construction of the Crenshaw home. He asserts that Cornerstone failed to

provide the required safety equipment and that, as a result, he fell from the Crenshaw’s roof.

He further maintains that he should have been able to present the OSHA safety guidelines

to the jury in his effort to prove that Cornerstone was negligent in failing to provide an

adequately safe work environment. Grover submits that while violations of the OSHA rules

in the construction industry are not considered negligence per se, they are evidence of

common law, or ordinary, negligence. He argues that because the jury was not allowed to

consider the OSHA guidelines, a disproportionate amount of negligence was attributed to

him, thus precluding his recovery at trial.



                                                5
¶12    To support his position that the OSHA regulations applied to this construction project,

Grover contends that Tartaglino was an experienced and knowledgeable commercial builder

who was aware of the industry accepted safety standards. Grover maintains that Tartaglino

undertook the construction of a residential home that was not his own, and thus was

participating in a construction endeavor that was part of the construction industry as a whole.



¶13    In reaching its decision, the District Court applied the following two-part rule

announced in Lynch v. Reed (1997), 284 Mont. 321, 944 P.2d 218:

       1) A code or standard sought to be admitted for the purpose of “conclusively
       determining the standard of care imposed upon the defendant” must have been
       adopted by a governmental agency so as to have the force of law; and

       2) Where a code or standard does not have the force of law, it may
       nevertheless be admitted as substantive evidence of negligence if it is coupled
       with a showing of general acceptance in the industry concerned.

Lynch, 284 Mont. at 328, 944 P.2d at 223. Applying this rule, the District Court pointed to

the fact that Grover was employed by Labor Contractors, not Cornerstone. It therefore

concluded that Tartaglino was not Grover’s “employer.” The court stated that OSHA does

not impose obligations upon an owner where the worker in question is an independent

contractor and not an employee of the owner. The court further concluded, under the second

part of the Lynch test, that the Crenshaw construction project--a private residence

construction project--was not the type of project that “fits within the scheme of the

construction industry in general.”



                                              6
¶14    We disagree with the District Court’s reasoning, but for the reasons set forth below,

nonetheless affirm the District Court’s decision. Hulse, 1998 MT 108, ¶ 15, 289 Mont. 1,

¶ 15, 961 P.2d 75, ¶ 15. We conclude that, in order to determine whether the District Court

abused its discretion in granting the Motion in Limine, we must analyze not who was the

employer, but rather, who had control over the safety of the operations of the workplace.

¶15    In Shannon v. Howard S. Wright Const. Co. (1979), 181 Mont. 269, 593 P.2d 438,

we affirmed the jury’s verdict finding that both the owner Big Sky and the general contractor

Wright were liable under § 41-1710, RCM (1947)1 of the Montana Safety Act for the injuries

sustained by the employee of a subcontractor, because Big Sky and Wright “took an active

part in the decision-making which affected the [subcontractor’s] working conditions” and

exercised “control over the means by which the subcontractor’s employees could reach their

places of work on the upper levels of the condominiums.” Shannon, 189 Mont. at 277 and

79, 593 P.2d at 442 and 443. We concluded that “Big Sky not only retained the supervisory

capacity . . . but exercised that authority in a manner that directly affected the access of the

subcontractor’s employees to the condominiums, thereby forcing them to climb ladders and

crawl through a window casing. In Wright’s case, as general contractor, it had the authority

to order temporary stairs and handrails built, but its project superintendent . . ., decided not

to . . . . Thus the authority to create safe working conditions rested entirely with Big Sky and

Wright.” Shannon, 181 Mont. at 281, 593 P.2d at 444-45.



       1
           Subsequently re-numbered § 50-71-201, MCA (1978).

                                               7
¶16    Subsequently in Gibby v. Noranda Minerals Corp. (1995), 273 Mont. 420, 905 P.2d

126, we affirmed the jury’s verdict in favor of an injured worker and against the majority

owner and manager of operations, Noranda, finding that Noranda expressly retained

supervisory authority over the subcontractor’s employees and methods of operation,

including employee safety. Gibby, 273 Mont. at 425, 905 P.2d at 129. We also noted that

“[i]n addition to this contractual grant of authority,” evidence presented at trial showed that

Noranda extensively exercised this authority on-site, clearly indicating that it was in “actual

control” of the worksite. Gibby, 273 Mont. at 426, 905 P.2d at 130.

¶17    We conclude a similar analysis should be applied here. In resolving whether the

District Court abused its discretion in precluding the admission of the OSHA regulations

against Tartaglino, we will look to the evidence to determine the extent to which he was in

actual control over safety and working conditions in the workplace.

¶18    It is apparent from the record that both Michael Crenshaw and Tartaglino exercised

varying levels of control over the project. It would appear, however, that Tartaglino’s

control over the worksite was much narrower than seen in Shannon or Gibby.

¶19    The substantive terms of Tartaglino’s contract with the Crenshaws were:

       Steve Tartaglino will be the General Contractor and be paid an hourly wage
       of $25 per hour for those duties. He will be bonded insured and licensed in
       Montana as a General Contractor. Steve is committed to stay on the job at
       least until the roof is complete.

       Labor will be furnished by Labor Contractors.

       Purchases and billings will be paid through Bachelor Sales Ltd. [the
       Crenshaws’ company].

                                              8
¶20    Unlike the comprehensive contract in Gibby, Tartaglino’s contract did not address,

or even mention, a project safety program, safety devices, safeguards or protective

equipment. Therefore, Tartaglino did not expressly and contractually accept responsibility

for safety on the site.

¶21    The Crenshaws designed the home and assumed responsibility for obtaining the

necessary permits. During construction, Michael Crenshaw visited the site on an average of

2-3 days per week. On some visits he performed light carpentry tasks or cleaned up around

the site. He constructed a ladder for the comfort and safety of the crew. He frequently

observed crew members performing their jobs. Additionally, he provided some of the tools

used by various crew members and purchased others during the course of the project. Both

Crenshaw and Tartaglino fired workers during the project. Tartaglino terminated at least two

workers based on the need to down-size the work crew. Crenshaw, however, assumed the

responsibility for terminating a worker for cause.

¶22    From the record it appears that Tartaglino’s primary day-to-day function was to

perform construction--just like Grover and the other laborers borrowed from Labor

Contractors.    Moreover, the record reveals that Tartaglino and Crenshaw selected

experienced carpenters from Labor Contractors, all of whom had worked on multiple

residential home constructions prior to this project. At the beginning of the project,

Crenshaw and Tartaglino instructed the subcontractor’s employees to work safely and utilize

any safety practices, procedures or equipment necessary to perform their given tasks. While

Tartaglino had general oversight responsibilities designed to move the project forward to

                                             9
completion, unlike Big Sky, Wright Construction or Noranda, he did not exercise actual

control over the subcontractor’s employees, nor did he dictate to them in any specific manner

how they were to perform their jobs. Finally, nothing in the record indicates that Tartaglino

either assumed or exercised “. . . the authority to create safe working conditions . . .”

Shannon, 181 Mont. at 281, 593 P.2d at 444.

¶23    In summary, under the specific facts of this case and given the law as set forth above,

we cannot conclude that the District Court abused its discretion in precluding the admission

of the OSHA safety standards as evidence against Tartaglino. We therefore affirm the

District Court’s Order granting Cornerstone’s Motion in Limine.



                                                         /S/ PATRICIA O. COTTER


We Concur:


/S/ KARLA M. GRAY
/S/ JAMES C. NELSON
/S/ JIM REGNIER
/S/ W. WILLIAM LEAPHART




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