Salazar v. Continental Construction of Montana

Filing 170

ORDER denying 61 Motion for Summary Judgment; denying 65 Motion for Summary Judgment; denying 67 Motion for Partial Summary Judgment; denying 130 Motion for Summary Judgment; denying 133 Motion for Summary Judgment Signed by Magistrate Carolyn S Ostby on 8/3/2012. (JDH, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
BILLINGS DIVISION
JUAN SALAZAR,

CV 11-16-BLG-CSO
ORDER ADDRESSING
MOTIONS

Plaintiff,
vs.
CONTINENTAL CONSTRUCTION
OF MONTANA, LLC, A&J
CONSTRUCTION OF MONTANA,
INC., and JOHN DOES A-ZZ,
Defendants.
I.

INTRODUCTION
Plaintiff Juan Salazar (“Salazar”) claims that Defendants

Continental Construction of Montana, LLC (“Continental”) and A&J
Construction of Montana, Inc. (“A&J”) failed to provide a safe work
environment resulting in his work-related injury. Fourth Am. Cmplt.
(DKT 139). Salazar, seeking compensatory and punitive damages,
asserts the following claims:
1.

Count I – contractual obligation and vicarious liability

2.

Count II – unsafe place to work – negligent retention
1

3.

Count III – failure to provide a safe place to work – strict liability
and/or negligence per se

4.

Count IV – fraud (against A&J only)

5.

Count V – constructive fraud (against A&J only), and

6.

Common law negligence (unnumbered count)

Id. at 6-13.
After the parties filed their written consent, this case was
assigned to the undersigned for all purposes. Notice of Assignment
(DKT 37). The following motions, listed in the order filed, are now ripe
for decision:
1.

Salazar’s Motion for Partial Summary Judgment as to Element of
Duty (DKT 61);

2.

Salazar’s Motion for Partial Summary Judgment as to Element of
Breach (DKT 65);

3.

Salazar’s Motion for Partial Summary Judgment as to Affirmative
Defense of Contributory Negligence (DKT 67);

4.

A&J’s Motion for Summary Judgment (DKT 130); and

5.

A&J’s Cross-Motion for Summary Judgment (as to elements of
duty and breach) (DKT 133).
The parties filed these motions before Salazar recently amended

his complaint. The Court addresses them here because the parties’
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arguments remain relevant to claims and affirmative defenses at issue
in his Fourth Amended Complaint.
Also, Salazar recently settled his claims against Continental.
DKT 140. Thus, to the extent any of the foregoing motions relate to
Continental, they are now moot and are not addressed here.
Finally, the parties have filed motions in limine that are not yet
fully-briefed. The Court will address them by separate order after
briefing concludes. Having considered the parties’ briefs and
submissions respecting the above-listed motions, the Court rules as
discussed below.
II.

BACKGROUND
On June 19, 2008, Salazar fell and was injured while leveling or

“plumbing” trusses during his work as a framer on a chalet
construction project near Big Sky, Montana. Salazar’s Stmt. of
Undisputed Facts (DKT 63) at ¶¶ 1-2 and 11-12. Continental was the
general contractor on the project. Id. at ¶ 3. A&J was the
subcontractor for framing work on the project. Id. at ¶ 4; A&J’s Stmt.
of Undisputed Facts (DKT 132) at 2. The contract between Continental

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and A&J contained the following provision:
13.

ASSIGNMENT: Supplier [A&J] agrees that it will not
assign this Contract, or any of the monies due it, or to
become due hereunder, nor sublet any portion of the
work without obtaining written consent of Contractor
[Continental].

DKT 132, Ex. 1 (DKT 132-1) at 4.
A&J subcontracted the framing work to Oscar Cruz Construction
(“Oscar Cruz”) and Alcaraz Construction (“Alcaraz”). DKT 132 at ¶ 3.
The parties dispute whether A&J had authority to subcontract the
framing work in light of the foregoing assignment provision. Compare
Depo. of Keith Fortin (“Fortin”), Continental’s project manager, (DKT
62-3 at 7) at p. 25, ll. 13-16, p. 26, ll. 11-25, p. 27, ll. 1-20 with Depo. of
James Foster, A&J owner, (DKT 63-1 at 4) at p. 97, ll. 7-25, p. 98, ll. 125, p. 99, ll. 1-25, p. 100, ll. 1-23.
Salazar claims that he was an Alcaraz employee while performing
framing work on the project. DKT 139 at ¶ 10. A&J denies that
Salazar was an Alcaraz employee and instead claims that Salazar was
an independent contractor at all relevant times. A&J’s Answer to
Salazar’s Fourth Amended Cmplt. (DKT 164) at ¶ 5.

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While plumbing trusses on the project on June 19, 2008, Salazar
fell from a height of approximately 20 to 22 feet. He landed on his head
and sustained injuries. DKT 139 at ¶ 13; DKT 164 at ¶ 8. He filed this
action on February 17, 2011. Cmplt. (DKT 1).
III. SUMMARY JUDGMENT STANDARD
“The court shall grant summary judgment if the movant shows
that there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “[A]
party seeking summary judgment always bears the initial
responsibility of informing the district court of the basis for its motion,
and identifying those portions of ‘the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if
any,’ which it believes demonstrate the absence of a genuine issue of
material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
Material facts are those which may affect the outcome of the case.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as
to a material fact is genuine if there is sufficient evidence for a
reasonable fact-finder to return a verdict for the nonmoving party. Id.

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Entry of summary judgment is appropriate “against a party who
fails to make a showing sufficient to establish the existence of an
element essential to that party’s case, and on which that party will bear
the burden of proof at trial.” Celotex Corp., 477 U.S. at 322. “A moving
party without the ultimate burden of persuasion at trial – usually, but
not always, a defendant – has both the initial burden of production and
the ultimate burden of persuasion on a motion for summary judgment.”
Nissan Fire & Marine Ins. Co. v. Fritz Companies, Inc., 210 F.3d 1099,
1102 (9th Cir. 2000). “In order to carry its burden of production, the
moving party must either produce evidence negating an essential
element of the nonmoving party’s claim or defense or show that the
nonmoving party does not have enough evidence of an essential
element to carry its ultimate burden of persuasion at trial.” Id.
If the moving party meets its initial responsibility, the burden
then shifts to the opposing party to establish that a genuine issue as to
any material fact actually does exist. Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to
establish the existence of this factual dispute, the opposing party may

6

not rely upon the denials of its pleadings, but is required to tender
evidence of specific facts in the form of affidavits, and/or admissible
discovery material, in support of its contention that the dispute exists.
Fed. R. Civ. P. 56(c); Matsushita, 475 U.S. at 586, n.11. Again, the
opposing party must demonstrate that the fact in contention is
material, i.e., a fact that might affect the outcome of the suit under the
governing law, Anderson, 477 U.S. at 248; T.W. Elec. Serv., Inc. v.
Pacific Elec. Contractors Ass'n, 809 F .2d 626, 630 (9th Cir. 1987), and
that the dispute is genuine, i.e., the evidence is such that a reasonable
fact finder could return a verdict for the nonmoving party, Anderson,
477 U.S. at 248 (“summary judgment will not lie if the dispute about a
material fact is ‘genuine,’ that is, if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party”).
To establish the existence of a factual dispute, the opposing party
need not establish a material issue of fact conclusively in its favor. It is
sufficient that “the claimed factual dispute be shown to require a jury
or judge to resolve the parties’ differing versions of the truth at trial.”
T.W. Elec. Serv., 809 F.2d at 631. Thus, the “purpose of summary

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judgment is to pierce the pleadings and to assess the proof in order to
see whether there is a genuine need for trial.” Matsushita, 475 U.S. at
587 (quotation omitted).
In resolving a summary judgment motion, the Court examines the
pleadings, depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any. Fed. R. Civ. P. 56(c). The
evidence of the opposing party is to be believed, Anderson, 477 U.S. at
255, and all reasonable inferences that may be drawn from the facts
placed before the Court must be drawn in favor of the opposing party,
Matsushita, 475 U.S. at 587 (citation omitted).
Finally, the opposing party “must do more than simply show that
there is some metaphysical doubt as to the material facts. Where the
record taken as a whole could not lead a rational trier of fact to find for
the nonmoving party, there is no ‘genuine issue for trial.’ ” Matsushita,
475 U.S. at 587 (citation omitted).
IV.

DISCUSSION
As noted above, the parties have filed five separate summary

judgment motions. Their arguments supporting and opposing the

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various motions often overlap. The Court therefore addresses the
motions together.
Salazar first seeks partial summary judgment that A&J had a
duty to provide him a safe workplace (DKT 61) and that A&J breached
its duty violating the Montana Safety Act, MCA § 50-71-201 (DKT 65).
See Salazar’s Br. Supporting Mtn. for Partial Summary Judgment as to
Element of Duty (DKT 62) at 17-18 and Salazar’s Br. Supporting Mtn.
for Partial Summary Judgment as to Element of Breach (DKT 66) at 910. Salazar argues that: (1) when injured, he was engaged in an
inherently dangerous activity; (2) A&J retained actual control over him
and his work; and (3) under contracts between A&J and its
subcontractors, which employed Salazar, A&J owed him a duty which
A&J breached. DKT 62 at 6-17.
A&J responds and also moves for summary judgment that it did
not owe a duty and is not liable for any of Salazar’s claims. A&J’s Mtn.
for Summary Judgment (DKT 130); A&J’s Cross Mtn. for Summary
Judgment [as to Elements of Duty and Breach] (DKT 133). A&J argues
that Salazar was not an employee protected by the Safety Act but

9

rather was an independent contractor not covered under the Act.
A&J’s Resp. Br. and Br. Supporting Cross-Mtn. for Summary Judgment
(DKT 134) at 4, 6, 9-15. A&J also argues that even if Salazar was
subcontractor Alcaraz’s employee, the general rule is that contractors
are not liable for the torts of their subcontractors, and no exception to
the rule applies here. A&J’s Br. Supporting Mtn. for Summary
Judgment and Resp. to Pltf’s Mtns. for Summary Judgement (DKT 131)
at 4-23.
The Court concludes that genuine issues of material fact preclude
summary judgment on any of the grounds advanced by the parties. In
its Order granting Salazar’s motion to add an expert handwriting
analyst, the Court noted that Salazar has presented evidence that
documents purporting to show he was an independent contractor may
have been forged. DKT 163 at 4-7. A&J denies this and maintains that
Salazar held a valid Independent Contractor Certificate based on
submission of documents bearing his signature. This dispute alone
precludes summary judgment on whether Salazar was an employee or
an independent contractor and, consequently, precludes summary

10

judgment on the issues raised. Gonzales v. Walchuk, 59 P.3d 377, 382
(Mont. 2002) (holding that presumption that issuance of a Certificate of
Independent Contractor Exemption is conclusive as to status of an
independent contractor “presupposes that the applicant knowingly and
voluntarily completes and submits the application[ ]” and “does not
survive in the face of proof that the Certificate was obtained by fraud.”);
see also Porter v. Galarneau, 911 P.3d 1143, 1151 (Mont. 1996)
(genuine issues of material fact on nature of painter’s employment
status on claim against homeowner under Safety Act).
Also, the parties have presented conflicting evidence respecting
whether A&J retained actual control over safety at the project. For
instance, Salazar has presented evidence that no one at Continental
knew about or approved A&J’s subcontracting the framing to Oscar
Cruz and Alcaraz. Depo. of Keith Fortin (“Fortin”), Continental’s project
manager, (DKT 62-3) at p. 25, ll. 13-16, p. 26, ll. 11-25, p. 27, ll. 1-20.
Other evidence suggests that Fortin, Continental’s project manager,
knew A&J and some individuals who worked with A&J. Those
individuals happened to be affiliated with Oscar Cruz and Alcaraz from

11

a previous job. Fortin sought them out to work on the framing part of
the project where Salazar was injured. From the evidence, one might
draw the inference that Fortin thought the individuals were actually
affiliated with A&J and that their use on the project did not violate
A&J’s contract with Continental. Depo. of James Foster, A&J owner,
(DKT 63-1) at p. 97, ll. 7-25, p. 98, ll. 1-25, p. 99, ll. 1-25, p. 100, ll. 123.
Also, Fortin testified that he, as Continental’s project manager,
had sufficient authority at the site to stop any workers from performing
an unsafe act if he thought doing so was appropriate. DKT 62-3, p. 62,
ll. 5-22. A&J owner James Foster testified that Kirk Cecil, A&J’s
superintendent at the project, along with “other people”, was in charge
of safety issues on the work site. DKT 63-1 at p. 16, ll. 1-23. It being
impossible at this juncture to ascertain clearly from the record who had
control over safety at the project, summary judgment is precluded.
In addition, there is conflicting evidence respecting contractual
control over safety at the project. On one hand, A&J’s contracts with
Oscar Cruz and Alcaraz contain terms that provide that A&J retained

12

overall control over safety at the project site. See, e.g., DKT 62-2 at 6 (¶
21) and DKT 132-3 at 6 (¶ 21). On the other hand, the same contract
terms appear to place responsibility for safety on the subcontractor. Id.
At this juncture, the record is not sufficiently developed to allow the
Court to enter summary judgment.
Salazar also separately moves for summary judgment that A&J’s
contributory negligence affirmative defense is unavailable. DKT 67.
Salazar argues that: (1) because he was working at a height of 22 feet,
he was exposed to a hazard; (2) he had no reasonable means or
opportunity to avoid working from this height without endangering his
employment; and (3) he would be exposed to the subject hazard even if
fall protection had been in place. Salazar’s Br. Supporting Mtn. for
Partial Summary Judgment as to Affirmative Defense of Contributory
Negligence (DKT 68) at 3-10. Because of these facts, Salazar argues,
contributory negligence is unavailable as an affirmative defense.
A&J responds that: (1) Salazar was not exposed to a hazard; (2)
even if Salazar was exposed to a hazard, he had the means to avoid it
without endangering his employment; and (3) any harm to which

13

Salazar was exposed “was not caused by anything that A&J did or did
not do.” A&J’s Br. Supporting Mtn. for Summary Judgment & Resp. to
Salazar’s Mtn. (DKT 131) at 6-18 and A&J’s Br. in Opposition to
Salazar’s Mtn. for Summary Judgment as to Contributory Negligence
Affirmative Defense (DKT 135) at 4-5. Thus, A&J argues, the Court
should deny Salazar’s summary judgment motion respecting its
contributory negligence affirmative defense.
Under Montana law,
Contributory negligence remains available as a defense to a
defendant who has been found to have breached its
nondelegable duty to provide a safe working environment if
evidence demonstrates that:
(1) the worker has some reasonable means or
opportunity to avoid the hazard without
endangering his or her employment; or
(2) the subject harm was not a reasonably
foreseeable consequence of the contractor's
breach of the nondelegable safety duty.
Olson v. Shumaker Trucking and Excavating Contractors, Inc., 196
P.3d 1265, 1277 (Mont. 2008) (citations omitted; formatting added).
The Court concludes that genuine issues of material fact preclude
summary judgment on this issue. As noted above, fact issues
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surrounding whether Salazar was an employee or an independent
contractor preclude summary judgment respecting duty and breach.
The unresolved issue of whether A&J breached a nondelegable duty to
provide a safe working environment, in turn, precludes summary
judgment on the availability of the contributory negligence affirmative
defense under the above authority.
In addition, conflicting evidence prohibits the Court from deciding
whether Salazar had some reasonable means or opportunity to avoid
the hazard without endangering his employment. For example, some
evidence suggests that fall protection equipment was available to
Salazar at the site and that he knew how to use it. Depo. of Juan
Salazar (DKT 132-4 at 2) p. 26, ll. 16-25, p. 27, ll. 6-9. Other evidence
suggests, however, that he was unable or reluctant to take the time to
use the equipment because he was instructed by his supervisor to go
quickly to the work area, which prevented him from wearing a
protective harness. Id., p. 27, ll. 9-10, 15-16, p. 28, ll. 10-16; see also
Depo. of Ever Lozano (DKT 156-1 at 3), p. 12, ll. 18-24.
Finally, some evidence suggests that Salazar’s employment would

15

have been endangered had he not gone quickly to where his boss
wanted him to work. Salazar Depo., DKT 132-4at 3, p. 30, ll. 21-24, p.
31, ll. 2-12. But other evidence contradicts this. Depo. of Wilson
Hernandez (DKT 132-4 at 9), p. 10, ll. 8-23.
Because of the foregoing genuine issues of material fact, summary
judgment is precluded on the availability of contributory negligence as
an affirmative defense.
V.

CONCLUSION
Based on the foregoing, IT IS ORDERED that:

1.

Salazar’s Motion for Partial Summary Judgment as to Element of
Duty (DKT 61) is DENIED;

2.

Salazar’s Motion for Partial Summary Judgment as to Element of
Breach (DKT 65) is DENIED;

3.

Salazar’s Motion for Partial Summary Judgment as to Affirmative
Defense of Contributory Negligence (DKT 67) is DENIED;

4.

A&J’s Motion for Summary Judgment (DKT 130) is DENIED; and

5.

A&J’s Cross-Motion for Summary Judgment (as to elements of
duty and breach) (DKT 133) is DENIED.
DATED this 3rd day of August, 2012.
/s/ Carolyn S. Ostby
United States Magistrate Judge
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