On February 10, 1998, Keith Dukes, an employee of Sirius Construction, was injured while working on the University of Montana campus. He later died from his injuries. At the time of the incident, Sirius Construction was performing services under a contract with the University of Montana. Following the accident, Traci L. Dukes, representing Keith Dukes’ estate and their minor children, along with Sandra Henry on behalf of another minor child, filed a complaint against Sirius Construction, Paradigm Architects, Carl Posewitz, the City of Missoula, the State of Montana, the University of Montana, and unnamed parties.
The complaint alleged that the City of Missoula had a duty under the Montana Scaffolding Act to inspect worksites and ensure compliance with safety provisions. The claim stated that the City failed to perform inspections required under § 50-77-106, MCA, and that this failure constituted negligence per se.
The City of Missoula moved to dismiss the complaint, asserting that the Montana Scaffolding Act was preempted by the Occupational Safety and Health Act of 1970 (OSH Act) and OSHA regulations. The City argued that because Montana had not submitted an approved state plan to the Secretary of Labor under 29 U.S.C. § 667(b), the federal standards occupied the field and preempted state law. The City further argued that OSHA regulations imposed duties only on employers, not third parties such as municipalities, and therefore, no legal duty existed that could support negligence liability.
The District Court agreed with the City. It concluded that the OSH Act preempted Montana’s Scaffolding Act, including its inspection and enforcement provisions, and dismissed the claim against the City. The court found that the OSH Act savings clause preserved private tort actions but did not save state occupational safety standards or enforcement duties from preemption.
On appeal, Dukes challenged the dismissal, arguing that the Montana Scaffolding Act imposed specific duties on the City that were not preempted by federal law. Dukes contended that neither express nor implied preemption applied and that the District Court erred by relying on prior precedent, including Thornock v. State, which had broadly interpreted preemption under OSHA.
The Montana Supreme Court reviewed the case under the standard for Rule 12(b)(6) dismissals, which required the complaint to be construed in the light most favorable to the plaintiffs.
The Court began by analyzing whether the OSH Act expressly preempted the Montana Scaffolding Act. It noted that 29 U.S.C. § 653(b)(4) did not contain explicit preemptive language against state safety standards. Therefore, express preemption was not established.
The Court then considered implied preemption, including field preemption and conflict preemption. It discussed relevant case law, including Gade v. National Solid Wastes Management Association, which held that state regulations addressing issues already covered by OSHA standards were preempted unless part of an approved state plan. The Court clarified that Gade did not hold that OSHA occupied the entire field of occupational safety regulation but instead applied preemption on an issue-by-issue basis.
The Court revisited its earlier decision in Thornock v. State, where it had broadly concluded that OSHA preempted all state safety regulation and enforcement. After analyzing federal case law, including P & Z Co. v. District of Columbia and Berardi v. Getty Refining, the Court determined that Thornock had been wrongly decided and overruled it to the extent it conflicted with later authority.
The Court concluded that Congress did not intend for the OSH Act to preempt all state regulation of workplace safety. Instead, state laws were preserved where OSHA had not issued a specific standard, and state tort remedies were not displaced.
Turning to conflict preemption, the Court examined whether the City’s duty under the Montana Scaffolding Act conflicted with OSHA scaffolding standards. It held that the duty to inspect did not establish a separate safety standard but instead involved enforcing existing applicable standards, including federal standards. Because this enforcement did not subject employers to duplicative regulations, it was not preempted.
The Court emphasized that the duty to inspect was not itself a safety standard but a procedural obligation. Therefore, it did not interfere with federal objectives under OSHA.
The Montana Supreme Court reversed the District Court’s dismissal of Dukes’ claim against the City of Missoula. It held that the City’s duty to inspect and enforce compliance under the Montana Scaffolding Act survived federal preemption. The case was remanded for further proceedings.
If you have experienced challenges related to prevailing wage requirements on federally funded construction projects, Whitcomb, Selinsky PC handles cases involving the Davis-Bacon Act. Reach out to learn how our team can assist with your claim.