                                         No. 03-714

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                         2004 MT 341



KERRY PEYATT,

              Plaintiff and Appellant,

         v.

JIM MOORE, and J. MOORE ENTERPRISES, LLC,

              Defendants, Third-Party Plaintiffs and
              Respondents,

         v.

DON REUTER and JOHN DOES I-X,

              Third-Party Defendants.


APPEAL FROM:         District Court of the Thirteenth Judicial District,
                     In and For the County of Yellowstone, Cause No. DV 2001-1026,
                     Honorable G. Todd Baugh, Presiding Judge

COUNSEL OF RECORD:

              For Appellant:

                     Gregory G. Murphy, Moulton, Bellingham, Longo & Mather, P.C.,
                     Billings, Montana

              For Respondents:

                     Kevin M. Funyak, Stacey & Funyak, Billings, Montana

                     Brenda L. Blazer and Monte L. Rogneby, Vogel Law Firm,
                     Bismarck, North Dakota (Third-Party Defendants)



                                                       Submitted on Briefs: March 31, 2004

                                                                 Decided: December 3, 2004

Filed:

                     __________________________________________
                                       Clerk
Justice Jim Rice delivered the Opinion of the Court.

¶1     Plaintiff Kerry Peyatt (Peyatt) appeals the October 22, 2003, bench ruling of the

Thirteenth Judicial District Court, Yellowstone County, granting summary judgment in favor

of Defendants Jim Moore and J. Moore Enterprises (collectively, Moore), Peyatt’s employer,

on Peyatt’s claim for breach of duty under the Montana Safety Act (Act). We reverse and

remand.

¶2     The following issue is presented on appeal:

¶3     Did the District Court err in granting summary judgment to Moore by holding that

the statutory duty to provide a safe workplace did not extend to the out-of-state location at

which Peyatt was injured?

                 FACTUAL AND PROCEDURAL BACKGROUND

¶4     Peyatt was severely injured on February 3, 2001, in Bismarck, North Dakota, when

his arm was torn off in the spinning power takeoff shaft (PTO) of a tractor. At that time,

Peyatt was employed by Moore as a truck driver.

¶5     During the summer of 2000, the State of Montana was adversely affected by fires and

drought. Particularly hard hit were ranchers in need of hay for their cattle. Then-Governor

Marc Racicot indicated that Montana would need over one million tons of hay to help

affected ranchers feed their livestock over the coming winter. Montana received a $300,000

federal grant to provide emergency hay to ranchers, which resulted in the creation of the “I

Care a Ton” relief program.




                                             2
¶6     The Montana Department of Agriculture contracted with the Montana Farm Bureau

Foundation (MFBF) to handle the administration of the federal grant and day-to-day

activities of the “I Care a Ton” program. The contract between the Department and the

MFBF stated that the purpose of the program was to “organize, coordinate, supervise, and

purchase transportation services” to ship emergency hay to Montana producers affected by

fire and drought.    To locate hay to be donated to the program, the MFBF placed

advertisements within the media of Montana and surrounding states. Those ads requested

that interested parties call the MFBF, which would then work with the donor on the specifics

of the donation. Once the details were worked out with the donor, MFBF would forward this

information to a transportation provider to pick up and deliver the hay. The MFBF would

advise donors that they would need to make arrangements for the loading of the hay on the

transport trucks.

¶7     Many North Dakotans were willing to help Montana in this emergency in light of the

help Montana ranchers lent to North Dakota three years earlier in 1997 when North Dakota

lost over 100,000 head of livestock during a spring blizzard. Montana ranchers responded

by donating hundreds of cows through the “One Good Cow” program to help North Dakota

ranchers rebuild their herds.

¶8     Don Reuter (Reuter), a North Dakota farmer, contacted the MFBF regarding his

desire to donate hay through the “I Care a Ton” program. The MFBF reached an agreement

with Reuter wherein the donated hay would be picked up at Reuter’s property in North

Dakota and then be delivered to a destination in Montana. To facilitate that agreement, the


                                             3
MFBF contracted with Moore to provide transportation services. The contract between the

MFBF and Moore stated that Moore was to “provide commercial transportation services to

haul hay.” In short, Moore was to supply the necessary truck, trailer and equipment, and

Reuter was to arrange for loading the hay. The MFBF gave Moore directions to Reuter’s

property in North Dakota. Moore then dispatched Peyatt, who was employed by Moore as

a truck driver, to pick up the load of donated hay and deliver it back to Montana.

¶9     When Peyatt arrived at Reuter’s farm, Peyatt positioned the trailer and prepared for

the hay to be loaded by Reuter. Reuter was using machinery borrowed from a neighbor to

load the hay onto the truck. In the process of loading one of the bales of hay, the tractor

being used by Reuter became stuck in some snow, according to Peyatt’s testimony, some

thirty feet away from the truck and trailer. Reuter left the tractor, which was still running

with the PTO engaged and spinning, to get his personal pickup to pull the tractor out. Reuter

backed his pickup close to the tractor and pulled a chain out to hook between the tractor and

his pickup. In an attempt to assist Reuter, Peyatt took one end of the chain and bent down

to hook that end to the tow bar at the back of the tractor. As Peyatt attempted to hook the

chain to the tow bar, his coat became entangled in the PTO shaft. Peyatt was maimed when

his arm was torn off in the spinning mechanism.

¶10    For reasons unstated in this litigation, Moore was deemed not to have workers’

compensation insurance, and, as an uninsured employer, was subjected to suit for Peyatt’s

injuries pursuant to § 39-71-508, MCA, and was prohibited from raising certain defenses,

such as the employee’s negligence, pursuant to § 39-71-509, MCA. Thus, the issues herein



                                             4
arise in the context of a work-related injury for which there was no workers’ compensation

coverage.

¶11    On December 19, 2001, Peyatt brought suit against Moore, raising claims under the

“Montana Safety Act” (Act), § 50-71-101, MCA, et seq., asserting that, while in the scope

and course of his employment as a truck driver for Moore, he suffered severe injuries as a

direct result of Moore’s failure to: (1) provide him with a safe place to work; (2) adopt and

use practices, means, methods, operations and processes that were reasonably adequate to

render his place of employment safe; and (3) do any other thing reasonably necessary to

protect his life, health, and safety. Moore responded by filing a third-party complaint against

Reuter and other unknown potentially liable parties which may have caused or contributed

to Peyatt’s injury.

¶12    Moore then moved for summary judgment, arguing that because Moore lacked control

over the location where Peyatt’s injury occurred–that is, Reuter’s farm–that location did not

constitute a place of work or employment under the Act, and therefore, Peyatt’s claims failed

as a matter of law. In a bench ruling at the hearing on summary judgment, the District Court

granted Moore’s motion for summary judgment. The District Court stated that although the

Act does not define “place of employment,” it must be one which is controlled by the

employer, or over which the employer has the right to exercise control. The District Court

stated that Peyatt’s place of employment was the truck, and not the loading environment at

Reuter’s farm.    The District Court ruled that since Reuter’s farm was not Peyatt’s




                                              5
“workplace,” Moore could not have breached the duties upon employers imposed by § 50-

71-201, MCA, to provide a safe workplace for employees. Peyatt appeals.

                               STANDARD OF REVIEW

¶13    Our standard of review on appeal from summary judgment is de novo, and we apply

the same criteria as the district court based on Rule 56, M.R.Civ.P. Fisch v. Montana Rail

Link, Inc., 2003 MT 76, ¶ 6, 315 Mont. 13, ¶ 6, 67 P.3d 267, ¶ 6. We set forth our inquiry

for summary judgment in Bruner v. Yellowstone County (1995), 272 Mont. 261, 264-65, 900

P.2d 901, 903, as follows:

       The movant must demonstrate that no genuine issues of material fact exist.
       Once this has been accomplished, the burden then shifts to the non-moving
       party to prove, by more than mere denial and speculation, that a genuine issue
       does exist. Having determined that genuine issues of fact do not exist, the
       court must then determine whether the moving party is entitled to judgment
       as a matter of law. We review the legal determinations made by a district
       court as to whether the court erred. [Citations omitted.]

In a summary judgment proceeding, the evidence must be viewed in the light most favorable

to the non-moving party. LaTray v. City of Havre, 2000 MT 119, ¶ 15, 299 Mont. 449, ¶ 15,

999 P.2d 1010, ¶ 15. In reviewing the record, all reasonable inferences will be drawn in

favor of the party opposing summary judgment. LaTray, ¶ 15.

¶14    This Court has routinely stated that the purpose of summary judgment is to eliminate

unnecessary trials, but that summary adjudication should “never be substituted for a trial if

a material factual controversy exists.” Boyes v. Eddie, 1998 MT 311, ¶ 16, 292 Mont. 152,

¶ 16, 970 P.2d 91, ¶ 16. Ordinarily, questions of negligence are poorly situated to

adjudication by summary judgment and are better left for jury determination at trial. LaTray,


                                             6
¶ 15 (citing Scott v. Henrich, 1998 MT 118, ¶ 13, 288 Mont. 489, ¶ 13, 958 P.2d 709, ¶ 13;

Kolar v. Bergo (1996), 280 Mont. 262, 266, 929 P.2d 867, 869; Wiley v. City of Glendive

(1995), 272 Mont. 213, 216, 900 P.2d 310, 312; Pappas v. Midwest Motor Express, Inc.

(1994), 268 Mont. 347, 350, 886 P.2d 918, 920; Dillard v. Doe (1992), 251 Mont. 379, 382,

824 P.2d 1016, 1018; and Brown v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1982), 197

Mont. 1, 10, 640 P.2d 453, 458).

                                      DISCUSSION

¶15     Peyatt asserts that Moore failed to inquire of Reuter about the nature of the hay

loading operation, to insure that any equipment used by Reuter would be safe and to insure

that Peyatt would be safe at Reuter’s farm. He further asserts that Moore: (1) failed to

provide him with any safety training related to hazards associated with loading hay onto

flatbed trucks or with working around farm machinery, although Moore knew that he would

be working around this type of machinery during the performance of his job; (2) failed to

give him any information on accident and hazard reporting procedures, first aid, or work site

hazards; and (3) never instructed him not to assist a farmer in the loading operation or not

to do anything else reasonably necessary to accomplish the loading task.

¶16    Peyatt asserts these failures by Moore constituted a breach of the duty imposed on

Moore by § 50-71-201, MCA. Section 50-71-201, MCA, states:

              Employer to provide safe workplace and to purchase, furnish, and
       require use of health and safety items– safe practices. Each employer
       shall:
              (1) furnish a place of employment that is safe for each of his
       employees;


                                             7
               (2) with the exception of footwear, purchase, furnish, and require the
       use of health and safety devices, safeguards, protective safety clothing, or
       other health and safety items, including but not limited to air masks, hardhats,
       and protective gloves, that may be required by state or federal law, the
       employer, or the terms of an employment contract, unless the terms of a
       collective bargaining agreement provide otherwise;
               (3) adopt and use practices, means, methods, operations, and processes
       that are reasonably adequate to render the place of employment safe; and
               (4) do any other thing reasonably necessary to protect the life, health,
       and safety of his employees.

The primary focus of Peyatt’s argument, both before the District Court and this Court, is that

Moore breached the duties imposed by subsection (3) which requires an employer to “adopt

and use practices, means, methods, operations, and processes that are reasonably adequate

to render the place of employment safe,” and by subsection (4) which requires an employer

to “do any other thing reasonably necessary to protect the life, health, and safety of his

employees.” Section 50-71-201(3) and (4), MCA.

¶17    Moore responds that § 50-71-201, MCA, does not apply to the facts surrounding

Peyatt’s injury. Focusing primarily on the Act’s references to “place of employment,”

Moore agrees that § 50-71-201, MCA, requires an employer to provide a safe workplace and

to otherwise furnish equipment and other items in the context of ensuring that the workplace

is safe for its employees. Further, Moore even concedes that he owed a general duty to his

employees, including Peyatt, to provide a safe place to work under § 50-71-201, MCA.

¶18    However, Moore asserts this duty did not extend to the location where Peyatt’s injury

occurred. Moore argues that “place of work” or “place of employment,” under the facts of

this case, would necessarily have to be the property owned by third-party defendant Reuter,

where the injury took place. Moore argues that he had no control over or right to control

                                              8
Reuter’s property, and therefore, it cannot be a “place of work” or a “place of employment”

such that a duty is triggered under § 50-71-201, MCA.

¶19     The District Court agreed with Moore. The District Court focused on the question

of whether or not Reuter’s property was a “place of employment” under § 50-71-201, MCA.

The District Court indicated that, although “place of employment” is not defined by the Act,

it must be a place which is controlled by the employer or over which the employer has the

right to exercise control. The District Court held that, because Moore had neither control

nor right of control to Reuter’s farm, Peyatt’s “place of employment” was limited to Moore’s

truck which Peyatt drove to the farm, and did not extend to the loading environment at the

farm:

               And we get down to, [w]hat is a safe place to work? It’s either limited
        to the truck that the Plaintiff operated; or if it’s extended to the loading
        environment, which included the tractor and the power takeoff, then we have
        a question as to whether that environment was safe or not.

              . . . Defendant Reuter’s farm and the loading environment, I must
        conclude, was not a place of work within the meaning of the Safe Place to
        Work Act.

¶20     This Court has previously rendered several decisions under § 50-71-201, MCA. Four

of these decisions cited by Moore in support of his motion for summary judgment, and upon

which the District Court based its decision granting Moore’s motion for summary judgment,

include: Pollard v. Todd (1966), 148 Mont. 171, 418 P.2d 869, overruled on other grounds

by State ex rel. Great Falls Nat’l Bank v. District Court (1969), 154 Mont. 336, 344, 463

P.2d 326, 330; Shannon v. Howard S. Wright Const. Co. (1979), 181 Mont. 269, 593 P.2d

438; Hackley v. Waldorf-Hoerner Paper Products Co. (1967), 149 Mont. 286, 425 P.2d 712,

                                              9
overruled on other grounds by Lynch v. Reed (1997), 284 Mont. 321, 328-29, 944 P.2d 218,

223;1 and Cain v. Stevenson (1985), 218 Mont. 101, 706 P.2d 128.

¶21    Generally, the outcome of these cases turned on the degree of control the employer

or his agent exercised over the workplace. In Pollard, where an employee brought suit

against his employer for personal injuries resulting from a fall from a scaffold, the lower

court entered judgment for the employee, and the employer appealed. This Court held that

because the employer had actual, physical control of the scaffolding through the project

supervisor who had selected a faulty plank in constructing the scaffolding and had directed

the employee to assist, the employer was subject to liability for the employee’s injury.

Pollard, 148 Mont. at 177, 418 P.2d at 872. In Shannon, where a subcontractor’s employee

brought suit against a general contractor for injuries resulting from a fall from a ladder, this

Court held that since the defendant retained control over the working conditions at the job

site, the general contractor had a duty to provide the employees of the subcontractor with a

safe place to work. Shannon, 181 Mont. at 281, 593 P.2d at 444. And in Hackley, where

an employee of an independent contractor was injured by a fall from a ladder at a job site,

this Court held that the landowner was not liable for injuries suffered by the independent

contractor’s employee where the landowner did not retain control over the job site.

¶22    In Cain, consistent with Pollard, Shannon, and Hackley, the Court initially noted that,

under the Act, a general contractor had an obligation to provide a safe workplace which


       1
       Hackley is no longer applicable because the Legislature has since repealed and
replaced the safety statute and the definition of “employer” under which the case was
decided. See Shannon, 181 Mont. at 282-83, 593 P.2d at 445.

                                              10
extended to employees of subcontractors “when the general contractor controls job safety

or has a non-delegable duty of safety arising out of contract.” Cain, 218 Mont. at 103, 706

P.2d at 130 (citing Shannon). However, the Court concluded that the Act extended to

subcontractors individually without further consideration of the control issue, reasoning only

that the subcontractors were included under the Act simply by virtue of the broad definition

of “employee” thereunder. Cain, 218 Mont. at 104, 706 P.2d at 131.

¶23    Peyatt correctly notes that these cases did not define “place of employment” for

purposes of the Act, but rather focused on whether the duty to provide a safe place of

employment extended to persons other than the employer. He reasons therefrom that the

District Court erred in relying on these decisions. However, although not defining “place

of employment,” these cases nonetheless demonstrate that the employer’s control over, or

right to control, the location of the injury is essential to determining whether that location

is the injured party’s “place of employment” for purposes of the duties imposed by the Act.

Obviously, without the right to control a location, an employer cannot make it safe. See

Shannon, 181 Mont. at 283, 593 P.2d at 446 (the owner and general contractor both “had a

duty to provide the employees of their subcontractors with a safe place to work because each

retained control over the working conditions at the Stillwater condominium site”). Although

the parties offer arguments regarding the course and scope of Peyatt’s employment, the

question here is not whether Peyatt was injured while engaged in his employment, but

whether Moore violated his duty under the Act to “furnish” and “render” a safe place of




                                             11
employment, requirements which necessitate control over the workplace. Section 50-71-

201(1) and (3), MCA.

¶24    The facts in regard to Moore’s control or right to control Reuter’s farm are not in

dispute. Moore had no involvement in the selection of Reuter as a donor of hay. Moore had

no responsibility, under his contract with MFBF, with the loading of hay upon the truck, and

was not involved in the method thereof, or the choice of loading equipment, its condition,

operation or safety. Moore was not present, did not observe the loading, and, in short, did

not participate in the events on Reuter’s farm which led to Peyatt’s injury. We conclude,

therefore, as a matter of law, that Moore had no right to control that location and did not,

under these circumstances, violate his duty under the Act to furnish a safe place to work

under subsections (1) and (3) of § 50-71-201, MCA.

¶25    However, Peyatt also claims that Moore violated the employer’s duty to ensure safety

required by subsection (4) of § 50-71-201, MCA, which mandates that an employer “do any

other thing reasonably necessary to protect the life, health, and safety of his employees.”

Peyatt argues that this provision creates a duty for the employer which is not dependent upon

the workplace location. We agree.

¶26    We note initially that a clarification is needed in the nomenclature used to refer to

§ 50-71-201, MCA, which states: “Short title. This chapter may be cited as the ‘Montana

Safety Act.’” Moore makes the common error of referring to this statute as the “Safe Place

to Work” statute, asserting in his briefing that “absent the exercise of control, or at least the

right to exercise control over the specific location alleged to be a place of employment, the


                                               12
Safe Place to Work Act does not apply.” (Emphasis added.) As quoted above, in its bench

ruling granting Moore’s motion for summary judgment, the District Court likewise stated

that the loading environment “was not a place of work within the meaning of the Safe Place

to Work Act.” (Emphasis added.) Moreover, at various times since § 50-71-201, MCA, was

enacted in 1969, this Court has also referred to this provision as the “Safe Place to Work”

statute, although, technically, the title of the Act has always been the “Montana Safety Act.”

See e.g., Trankel v. Dept. of Military Affairs (1997), 282 Mont. 348, 364, 938 P.2d 614, 624;

Stratemeyer v. Lincoln County (1996), 276 Mont. 67, 79, 915 P.2d 175, 182; Gibby v.

Noranda Minerals Corp. (1995), 273 Mont. 420, 427-28, 905 P.2d 126, 130-31; Steiner v.

Department of Highways (1994), 269 Mont. 270, 276, 887 P.2d 1288, 1232; Cain, 218

Mont. at 104, 706 P.2d at 130; Shannon, 181 Mont. at 283, 593 P.2d at 445.

¶27    Although an error in nomenclature may itself be harmless, here the error helps to

obscure the breadth of the Act. Although Moore frames the issue narrowly, i.e., whether

Reuter’s farm can properly constitute a “place of employment” under the “Safe Place to

Work Act,” Peyatt argues that the statute is broader. Peyatt correctly asserts that the statute

also imposes a duty upon Moore to “do any other thing reasonably necessary to protect the

life, health, and safety of his employees.” Section 50-71-201(4), MCA. In his affidavit

filed in opposition to Moore’s motion for summary judgment, Peyatt averred Moore did not

advise him that he could not assist a donor in the loading of hay, did not provide him with

any safety training or safety instructions related to the loading of hay and did not provide




                                              13
information related to farm machinery, although it was known to Moore that Peyatt would

be working around such machinery.

¶28    The Wisconsin Supreme Court has held that the concept of “safe employment” is

broader in scope than a “safe place of employment” and has explained that inclusion into the

Wisconsin safety statute of the words “do every other thing reasonably necessary to protect

the life, health, safety, and welfare” broadens the scope of the statute to mean safe

employment rather than a mere place of employment which shall be safe:

       [W]hen [the Legislature] required the employer to “do every other thing
       reasonably necessary to protect the life, health, safety and welfare of such
       employees and frequenters,” even the doctrine of noscitur a sociis cannot
       restrain the meaning of such words to the physical aspects of the place of
       employment alone, because the dominant subject, in connection with which
       such words are used, is employment which shall be safe rather than a mere
       place of employment which shall be safe.

Miller v. Paine Lumber Co. (Wis. 1930), 230 N.W. 702, 703. To illustrate the point that

“safe employment may require something besides a place of employment that is safe in a

physical sense,” the Wisconsin court invoked the example of an employee whose job it is to

repair track in a railroad switching yard. The court noted that to render safe the employment

of such an employee, it may be necessary to require a warning of the approach of switching

engines and train cars. The court noted that in this illustration, and a myriad of others which

one could think of, “safe employment calls for something in addition to a safe place of

employment in a physical sense.” Miller, 230 N.W. at 703.

¶29    In Stratemeyer, we addressed a similar issue to the one raised by Peyatt: whether,

under § 50-71-201, MCA, an employer was liable for an employee’s injuries as a result of


                                              14
the employer’s failure to train or warn the employee of hazards inherent in the job. In

Stratemeyer, a Lincoln County sheriff’s officer sued the county and others for mental injuries

(post-traumatic stress disorder) allegedly received when he witnessed the aftermath of a

teenage girl’s suicide on grounds that the county failed to train, counsel, and debrief him

following the incident. Stratemeyer, 276 Mont. at 70, 915 P.2d at 176. Although the district

court interpreted § 50-71-201, MCA, as excluding emotional harm, this Court agreed with

Stratemeyer that the plain language of § 50-71-201, MCA, did not limit its application to

only physical harm. Stratemeyer, 276 Mont. at 80, 915 P.2d at 182. We stated that

subsection (4) of § 50-71-201, MCA, as well as § 50-71-203(3) and (4), MCA, constituted

a “broad duty” on the part of an employer to assure an employee’s safety. Stratemeyer, 276

Mont. at 80, 915 P.2d at 182. We remanded the case for jury determination as to whether the

employer breached its duty in failing to train, supervise, treat, or debrief Stratemeyer, thereby

incurring liability for his emotional injuries. Stratemeyer, 276 Mont. at 80, 915 P.2d at 182.

¶30    The broad language of subsection (4) of § 50-71-201, MCA, of the “Montana Safety

Act,” does not limit the statute’s application only to the workplace. Peyatt has raised

genuine issues of material fact regarding whether Moore fulfilled his duty under the statute

to “do any other thing reasonably necessary to protect the life, health, and safety” of Peyatt

while he was employed with Moore. Although the District Court correctly ruled that, as a

matter of law, Reuter’s farm could not be the “place of employment” for purposes of the Act,

its entry of summary judgment in favor of Moore improperly foreclosed Peyatt’s claim under




                                               15
subsection (4) of § 50-71-201, MCA. A question remains for the jury as to whether Moore

breached this duty.

¶31   We reverse and remand for further proceedings consistent with this Opinion.



                                                     /S/ JIM RICE




We concur:

/S/ JAMES C. NELSON
/S/ PATRICIA O. COTTER
/S/ W. WILLIAM LEAPHART
/S/ JOHN WARNER
/S/ JIM REGNIER




                                          16
Chief Justice Karla M. Gray, dissenting.


¶32    I respectfully dissent from the Court’s determination that § 50-71-201(4), MCA, of

the Montana Safety Act imposed a duty on Moore to “do any other thing reasonably

necessary to protect the life, health, and safety of” Peyatt under the circumstances presented

here. I would affirm the District Court’s grant of summary judgment to Moore.

¶33    I agree with the Court’s conclusion that §§ 50-71-201(1) and -201(3), MCA, did not

impose a duty on Moore to provide Peyatt with a safe place of employment at Reuter’s farm

in North Dakota because Moore had no control--or right to control--the conditions existing

at that location. I also agree that § 50-71-201(4), MCA, imposes a duty upon an employer

which is broader in scope than the duty to provide a safe place of employment. In my

opinion, however, the Court interprets this duty too expansively. I would conclude that this

broader duty did not arise under the facts of this case.

¶34    Section 50-71-201(4), MCA, requires an employer to “do any other thing reasonably

necessary to protect the life, health, and safety of his employees.” As the Court observes,

the Wisconsin Supreme Court has held that nearly identical language in their work safety

statutes creates a duty to provide “safe employment,” which calls for something in addition

to a physically “safe place of employment.” See Miller v. Paine Lumber Co. (Wis. 1930),

230 N.W. 702, 703. Notably absent from the Court’s discussion of Miller, however, is the

Wisconsin court’s actual holding in that case:

       We therefore hold that this statute does impose upon employers the duty to
       warn employees of dangers incident to their employment, not absolutely, but


                                             17
         when it is “reasonably necessary to protect the life, health, safety and welfare
         of such employees.”

Miller, 230 N.W. at 703 (emphasis added). Thus, the duty to provide safe employment is

a duty to protect employees from dangers “incident to their employment.” “Incident” is

defined as “[d]ependent upon, subordinate to, arising out of, or otherwise connected with

(something else, usu. of greater importance) . . . .” BLACK’S LAW DICTIONARY 777 (8th ed.

2004).

¶35      The following facts are set forth in the Court’s opinion and undisputed by the parties.

Moore’s contract with the MFBF provided that Moore was to provide commercial

transportation services to haul hay. The MFBF would advise donors of hay that the donor

must make arrangements for loading the hay onto the transport trucks, and the MFBF

informed Reuter he was to arrange for loading his donated hay onto the truck. In other

words, Moore was to supply the necessary truck, trailer and equipment, and Reuter was to

arrange for loading the hay. Under the contract between Moore and MFBF, Moore had no

responsibility for the loading of hay onto the truck and was not involved with the choice of

loading method, the choice of loading equipment or the loading equipment’s condition,

operation or safety. Moore employed Peyatt to pick up the load of hay in North Dakota and

deliver it back to Montana.

¶36      Peyatt was employed to haul hay. The task of loading the hay onto the truck was not

within the tasks that his performance of the job of hauling the hay required. I would

conclude that any dangers arising from the loading of the hay were not dangers that were



                                               18
“incident to” Peyatt’s job of hauling the hay. Consequently, I would further conclude that

it was not “reasonably necessary” for Moore to warn or train Peyatt regarding the hazards

of loading hay and using the loading equipment provided by Reuter in order to protect

Peyatt’s life, health and safety. Where no reasonable necessity to warn or train exists, no

duty arises under § 50-71-201(4), MCA.

¶37    The Court cites Stratemeyer v. Lincoln County (1996), 276 Mont. 67, 915 P.2d 175,

in support of its conclusion that Moore owed a duty to Peyatt pursuant to § 50-71-201(4),

MCA. I disagree. At the outset, the pertinent issue in Stratemeyer was whether the Montana

Safety Act--and the broad duty to do anything reasonably necessary to protect the life, health

and safety of employees under § 50-71-201(4), MCA--is applicable in cases where a plaintiff

alleges only mental/psychological, as opposed to physical, injuries. The Court did not

address § 50-71-201(4), MCA, in the context raised here. To the extent Stratemeyer may be

applicable in any way, however, it supports the conclusion that no § 50-71-201(4), MCA,

duty arose in this case.

¶38    In Stratemeyer, Deputy Sheriff Stratemeyer sued Lincoln County for damages for

psychological injuries he suffered as a result of witnessing the aftermath of a young girl’s

suicide. Stratemeyer, 276 Mont. at 70-71, 915 P.2d at 176-77. Clearly, responding to the

scene of the suicide was within the requirements of Stratemeyer’s employment as a sheriff’s

deputy. Consequently, the psychological trauma resulting from responding to the dispatch

call and witnessing the scene resulted from a danger “incident to” his employment as a

deputy and, as a result, a duty arose under § 50-71-201(4), MCA, for Lincoln County to do


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anything reasonably necessary to provide him with safe employment--e.g., train, supervise,

treat and debrief Stratemeyer with regard to his job requirement of responding to the scene

of a suicide. In the present case, Peyatt’s employment did not include the requirement of

loading the hay onto the truck and, therefore, the dangers of loading were not “incident to”

his employment.

¶39      I would conclude that, while § 50-71-201(4), MCA, does impose a broad duty on an

employer to provide employees with “safe employment,” the duty arises only to the degree

that is “reasonably necessary” in relation to the actual requirements of the employment. I

would further conclude that, in this case, Peyatt was acting outside the range of his

employment requirements at the time he was injured and § 50-71-201(4), MCA, does not

apply.

¶40      I would affirm the District Court’s grant of summary judgment to Moore and I dissent

from the Court’s failure to do so.



                                                         /S/ KARLA M. GRAY




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