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Harrington v. Labelle's of Colorado12/6/1988
Submitted on Briefs August 4, 1988
Richard Harrington and third-party plaintiff LaBelle's appeal from a summary judgment granted in favor of Billings Sweeping Service (the Service) in the District Court for the Thirteenth Judicial District, Yellowstone County, Montana. We affirm
The issues are:
1. Did the District Court err in granting summary judgment in favor of the Service on the issue of negligence based on the rule of contractor non-liability?
2. Did the District Court err in granting summary judgment in favor of the Service on the issue of strict products liability under Section 402A, Restatement 2d of Torts?
3. Was the dismissal of LaBelle's third-party complaint proper?
This action arises out of a bicycle accident which occurred in the parking lot of LaBelle's in Billings on July 21, 1984 Richard Harrington was riding his bicycle through the lot at approximately 9:00 p.m. when he struck a speed bump, was thrown from the bike, and suffered severe head injuries. Harrington sued LaBelle's alleging that the speed bumps were improperly designed, negligently maintained, and inadequately marked to warn of their inherent latent danger. LaBelle's filed a third-party complaint against the contractor who had installed the bumps, alleging that the contractor was solely responsible for the design, construction and installation of the speed bumps. The third-party complaint did not allege the parties had contracted for painting the speed bumps. LaBelle's sought contribution or indemnity in the event that it was found to be liable. Harrington then filed an amended complaint to include the contractor, Billings Sweeping Service, seeking recovery on theories of negligence and strict products liability. On motion, the District Court granted summary judgment to the Service and dismissed LaBelle's third-party complaint
As to the negligence claim, the District Court found the Service not liable based upon the rule of contractor non-liability also known as the "Accepted Work Rule Doctrine," which has been adopted by this Court. Also, no cause of action would lie under the products liability claim since the court found speed bumps are not a "product" for purposes of Section 402A, Restatement 2d of Torts. Mr. Harrington and LaBelle's appeal from this order
I
Did the District Court err in granting summary judgment in favor of the Service on the issue of negligence based on the accepted work rule doctrine?
Montana has adopted the rule that independent contractor will not be liable to third-parties for injuries which occur after the contractor has completed the work and the work has been turned over to and accepted by the employer. The accepted work rule doctrine was first recognized in Montana in Ulmen v. Schwieger (1932), 92 Mont. 331, 12 P.2d 856. The rule is based on the lack of any duty owing by the contractor to the injured third-party at the time of the injury. Instead, the person employing the contractor is substituted as the responsible party. The accepted work rule doctrine established in Ulmen has been upheld and applied in related Montana cases since then. See Olson v. Kayser (1973), 161 Mont. 241, 505 P.2d 394; Hannifin v. Cahill-Mooney Construction (1972), 159 Mont. 413, 498 P.2d 1214
On appeal Mr. Harrington asks this Court to reconsider the rule. He argues that the facts and equity of this case compel us to revise the long-standing rule of Ulmen or to carve out exception to that rule. He contends that Ulmen does not represent the modern view and cites cases from jurisdictions which have extended contractor liability to foreseeable injury
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