Unpublished Disposition, 904 F.2d 41 (9th Cir. 1990)

MEMORANDUM^* 

Jay C. Stanger appeals from the district court's grant of summary judgment on a claim under the Montana Scaffolding Act and the grant of judgment n.o.v. on a negligence claim. We affirm in part and reverse in part.

Stanger was injured when an extension ladder slipped while he was attempting to procure carpet padding from a rack in a warehouse owned and operated by Sears, for whom he was working as an installer on an independent contractor basis. The ladder, stipulated as non-defective, was provided by the warehouse supervisor, who provided no further assistance. Conflicting evidence was presented as to whether a company policy was in effect which barred installers from entering the warehouse to obtain their own materials. If such a policy existed, it was not enforced. No evidence was presented showing slippery conditions in the area or any other physical cause for the accident. The district court granted summary judgment on a claim under the Montana Scaffolding Act, but denied summary judgment on the negligence claim. The jury returned special verdicts, finding Sears negligent, but also finding 50% contributory negligence. The district court granted Sears' motion for judgment n.o.v., and Stanger appealed.

Stanger's contention that Sears violated the Montana Scaffolding Act M.C.A. 50-77-101 is without merit. The purpose of the Act is to protect workmen from the "extraordinary hazards associated with scaffolds." Mydlarz v. Palmer/Duncan Constr. Co., 209 Mont. 325, 682 P.2d 695, 701 (1984). While the Act can, in certain circumstances, be construed to encompass ladders used as scaffolding devices, id. at 701-03, it contemplates only scaffolding used directly in the " 'erection, repair, alteration or removal of buildings." Id. at 701 (quoting section 50-77-101). In this case, the ladder was used in a warehouse to reach carpet to be installed elsewhere. Summary judgment was properly granted.

In reviewing a j.n.o.v. we must apply the same standard as the district court. The Jeanery, Inc. v. James Jeans, Inc., 849 F.2d 1148, 1151 (9th Cir. 1988). J.n.o.v. is "improper" if, after viewing the evidence and inferences in the light most favorable to the non-moving party, "reasonable minds could differ over the verdict." Peterson v. Kennedy, 771 F.2d 1244, 1252 (9th Cir. 1985), cert. den. 475 U.S. 1122 (1986).

A duty exists, under the Montana "Safe Place to Work" statute, M.C.A. 50-71-201, to "adopt and use such practices, means, methods, operations, and processes as are reasonably adequate to render the place of employment safe" for employees. Montana courts have indicated that the Legislature intended contractors to be considered as "employees" for the purposes of this statute. Cain v. Stevenson, 218 Mont. 101, 706 P.2d 128, 130 (1985). See also Stepanek v. Kober Constr., 191 Mont. 430, 625 P.2d 51, 55 (1981); Shannon v. Howard S. Wright Constr. Co., 181 Mont. 269, 593 P.2d 438, 445-46 (1979).

Viewing the evidence and inferences in the light most favorable to Stanger, the jury could have found safety-related reasons for a policy restricting entry into the warehouse area to authorized employees. After weighing the evidence regarding Sears' failure to enforce its policy, or, alternatively, its failure to institute such a policy, it could reasonably have concluded that Sears breached its duty to adopt and implement procedures as were reasonably adequate to render the workplace safe for Stanger. Reasonable minds could also have concluded that a prudent employer would have provided assistance with an extension ladder to a person of Stanger's age and size.

The jury could reasonably have found Sears' failure to render the workplace safe to be a proximate cause of the injury, notwithstanding Stanger's own negligence. Since the jury found Stanger's negligence not to be greater than 50%, recovery is not barred. M.C.A. 27-1-702.

The entry of summary judgment is AFFIRMED. The entry of j.n.o.v. is REVERSED and the matter is REMANDED for the district court to reinstate the jury's verdict.