Porter v. Galarneau

Do New Montana Laws Apply to Accidents That Already Happened? Porter v. Galarneau, 275 Mont. 174, 911 P.2d 1143 (1996)

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Generally, no. In Porter v. Galarneau, 275 Mont. 174, 911 P.2d 1143 (1996), the Montana Supreme Court held that a 1995 amendment to the Scaffolding Act could not be applied to a worker’s fatal 1992 ladder fall, because a statute is not retroactive unless the Legislature expressly says so. The Court also held that its own decisions, unlike statutes, do apply retroactively. It reversed summary judgment against the worker’s widow and sons on four of five issues and sent the wrongful death case back for trial.

Key Takeaways

• A “retroactive law” is one that impairs vested rights, creates new duties or disabilities for past transactions, or gives a past transaction “a different legal effect from that which it had when it occurred.” Such a statute does not apply unless the Legislature expressly declares it retroactive (Porter, 911 P.2d at 1148–50; § 1-2-109, MCA).
• The Court limited the “apply the law in effect at the time of decision” rule to judicial decisions and overruled earlier Montana cases that had used it for statutes and rules (911 P.2d at 1150).
• “We will continue to give retroactive effect to judicial decisions,” following Harper v. Virginia Dept. of Taxation (911 P.2d at 1150).
• Under the pre-1995 Scaffolding Act, a ladder was a scaffold, and an employer had the “direct and immediate supervision or control” of its employee’s work (911 P.2d at 1147–48).

In this case sheet: At a glance · What the Court held · Our position and how the Court differed · What changed · Statutes · When it applies · How hard · FAQ

The practice Tom Boland built is the practice that handles your case today. Contact Boland Aarab PLLP for a free consultation at (406) 315-3737.

At a glance

What did the Montana Supreme Court hold in Porter v. Galarneau?

Robert and Lorraine Porter ran a Billings cleaning and maintenance business and did work for Gordon Galarneau at his Billings residence (911 P.2d at 1145–46). In late November 1992, the parties agreed that Robert would paint an interior wall about twenty-two feet high. Lorraine testified that Mr. Galarneau told her scaffolding was not necessary and that Robert should use a ladder, which he denied. On December 3, 1992, Robert fell from a borrowed ladder while preparing the wall and died later that day (911 P.2d at 1146).

Lorraine and her sons sued for wrongful death under negligence, the Scaffolding Act and the duty to provide a safe place to work. The District Court granted summary judgment to Mr. Galarneau (911 P.2d at 1146). Because the District Court had assumed Robert was an employee for purposes of the motion, the Supreme Court did the same (911 P.2d at 1147). It decided five issues:

1. Scaffolding Act (reversed). Under the pre-1995 Act, a ladder is a scaffold. As Robert’s employer, Mr. Galarneau “was the only individual who could provide direction and supervision,” so he had direct and immediate supervision or control of the work (911 P.2d at 1147–48).
2. The 1995 amendment (not applied). House Bill 158, signed April 13, 1995, excluded an ordinary ladder from the definition of scaffolding. Applying it to the 1992 fall would give the accident “a different legal effect from that which the accident had under the law when it occurred,” so H.B. 158 “is therefore a ‘retroactive law’ and cannot be applied in this case” (911 P.2d at 1148–49).
3. Safe place to work (reversed). Mr. Galarneau had a common law duty to provide a safe place to work. Whether Robert was covered by the Safety Act, which excludes household, domestic and some casual employees, is a question of fact for the jury (911 P.2d at 1150–51).
4. Landowner duty (affirmed). The record showed no breach of a landowner’s duty to keep the premises reasonably safe and warn of hidden dangers (911 P.2d at 1151).
5. Amending the complaint (reversed). On remand, Lorraine could plead alternative theories based on Robert being either an employee or an independent contractor (911 P.2d at 1151–52).

What did Tom Boland and co-counsel argue, and how did the Court differ?

Where the Court agreed. The family argued that a ladder falls within the Court’s definition of scaffolding and that the employment relationship itself established control (911 P.2d at 1147). They argued that H.B. 158 could not reach back to the 1992 fall under § 1-2-109, MCA, because the Legislature did not expressly make it retroactive and because it “alters the legal relationship” between the parties (911 P.2d at 1148). They also argued for a common law and Safety Act duty to provide a safe workplace (911 P.2d at 1150). The Court agreed on each point and allowed the complaint to be amended.

Where the Court differed. The family argued that Mr. Galarneau breached a landowner’s duty by creating a hazardous condition, because Robert was rushed to finish before holiday guests arrived. The Court held that his duty as a landowner went no further than keeping the premises reasonably safe and warning of hidden dangers, and it found no evidence of a breach (911 P.2d at 1151).

A note of caution in the concurrence. Justice Gray joined the opinion but wrote that she was “not convinced” the Scaffolding Act applied to painting a wall in a residence. That threshold question had not been raised below, so the Court did not decide it (911 P.2d at 1152).

What did Porter change in Montana law?

Porter is known mainly for clearing up Montana retroactivity law. Two canons had been cited side by side “with no effort to harmonize the two” (911 P.2d at 1148):

• the rule in § 1-2-109, MCA, that a statute is not retroactive unless expressly declared; and
• the Thorpe/Bradley rule that a court applies the law in effect when it decides a case.

The Court adopted Justice Scalia’s analysis and limited Thorpe and Bradley to judicial decisions (911 P.2d at 1149–50). It overruled West-Mont, Lee and Haines Pipeline to the extent they applied that rule to state statutes or administrative rules. A footnote also overruled, to the same extent, Ihler v. Chisholm, Brockie v. Omo Construction, In re Marriage of Elser and AgAmerica, FCB v. Robson (911 P.2d at 1150 & n.2).

The result is a two-part rule Montana courts still apply:

1. New statutes look forward. A statute that would change the legal effect of past events applies only if the Legislature expressly says so.
2. Court decisions look back. The Montana Supreme Court gives its decisions retroactive effect, in line with Harper (911 P.2d at 1150).

Later Montana Supreme Court decisions cite Porter on both points. They include Kleinhesselink v. Chevron, U.S.A. (1996) and Lacock v. 4B’s Restaurants (1996) on the retroactivity of judicial decisions, Carelli v. Hall (1996) on the definition of a retroactive law, Wilson v. Vukasin (1996) on applying the version of the Scaffolding Act in effect at the time of an accident, and Thrivent Financial for Lutherans v. Andronescu, 2013 MT 13.

Which Montana laws and rules apply?

• § 1-2-109, MCA: “No law contained in any of the statutes of Montana is retroactive unless expressly so declared.” The text is unchanged.
• § 50-77-101, MCA: the Scaffolding Act. The version the Court applied (MCA 1991) did not exclude ladders. The current version, as amended in 1995 (Ch. 404, L. 1995), defines a scaffold as a temporarily elevated platform on a construction site. It excludes ladders other than one that is the only route of access to the scaffold, and it places liability on a contractor, subcontractor or builder who negligently uses or builds a scaffold, subject to comparative negligence.
• § 50-77-102, MCA: the duty of the person with “direct and immediate supervision or control” of construction or remodeling (911 P.2d at 1147). Justice Gray noted this section refers to buildings “having more than three framed floors” (911 P.2d at 1152).
• § 50-71-201, MCA: the Montana Safety Act’s duty of each employer to furnish a safe place of employment (911 P.2d at 1150–51).
• Mont. R. Civ. P. 15(a) (leave to amend “shall be freely given when justice so requires”) and Rule 56 (summary judgment) (911 P.2d at 1146, 1151).
• Landgraf v. USI Film Products, 511 U.S. 244 (1994) and Harper v. Virginia Dept. of Taxation, 509 U.S. 86 (1993)

When might Porter apply to you?

• The law changed after you were hurt. If the Legislature changes a safety or liability statute after your accident, the question is whether the change would give your accident a different legal effect. If it would, it does not apply unless the Legislature expressly made it retroactive.
• A court decision comes down while your case is pending. A new Montana Supreme Court decision generally applies to pending cases, whether it helps or hurts you.
• A worker is hurt on a job at someone’s home or property. Whether the worker was an employee or an independent contractor can decide which duties apply. Porter allowed the family to plead both theories (911 P.2d at 1151–52).

Every case turns on its own facts, and today’s Scaffolding Act is narrower than the version applied in Porter.

How hard is it to win a summary judgment appeal in Montana?

Summary judgment appeals turn on the record that was built in the trial court.

• Standard of review. The Supreme Court reviews summary judgment de novo, applying the same Rule 56 test as the trial court (911 P.2d at 1146).
• Burdens. The party seeking summary judgment must establish “a complete absence of any genuine factual issues.” The opposing party must then present “material and substantial evidence, rather than conclusory or speculative statements” (911 P.2d at 1146).
• Inferences. “All reasonable inferences” are drawn in favor of the party opposing summary judgment (911 P.2d at 1146).
• Denial of leave to amend is reviewed only for abuse of discretion (911 P.2d at 1151–52).

In Porter, the landowner-duty claim failed for want of evidence, while the claims tied to the employment relationship survived. The practical lesson is to build the factual record before the motion is argued.

The Boland Aarab Way

Thomas E. Boland was counsel for Lorraine Porter and her sons in this appeal, with James P. Molloy, who argued it. Tom was admitted in 1974 and practiced in Great Falls from 1979. His daughter, Caitlin Boland Aarab, and Samir F. Aarab founded Boland Aarab PLLP in 2017 as the successor to his practice. Porter began as a family’s wrongful death claim after a fall at work, and it became one of Montana’s leading decisions on retroactivity. That same careful work on the record and the law goes into the serious trucking and injury cases the firm handles today. When you hire Boland Aarab, you work directly with the attorneys who carry that practice forward.

Frequently Asked Questions

Does a new Montana statute apply to an accident that happened before it was passed? Not if it would change the legal effect of what already happened, unless the Legislature expressly declares it retroactive (Porter, 911 P.2d at 1150; § 1-2-109, MCA).

Do Montana Supreme Court decisions apply retroactively? Yes. The Court said in Porter that it “will continue to give retroactive effect to judicial decisions,” following Harper v. Virginia Dept. of Taxation (911 P.2d at 1150).

Is a ladder a scaffold under Montana’s Scaffolding Act? Under the pre-1995 version, yes (Porter, 911 P.2d at 1147). The 1995 amendment excludes ordinary ladders, and the current § 50-77-101(1), MCA, covers only a ladder that is the exclusive route of access to a scaffold.

Work With the Lawyers Behind These Cases

Boland Aarab is a Great Falls trial firm built on Tom Boland’s practice. The same attorneys who brief and argue before the Montana Supreme Court handle our clients’ serious injury, trucking and wrongful-death cases from the first call. Contact Boland Aarab PLLP for a free consultation at (406) 315-3737.

About Boland Aarab PLLP: Boland Aarab PLLP is a Great Falls, Montana trial firm. Its attorneys, Caitlin Boland Aarab and Samir F. Aarab, have appeared in more than 40 matters before the Montana Supreme Court and have argued twice before the U.S. Court of Appeals for the Ninth Circuit. The firm carries on the Great Falls practice Thomas E. Boland began in 1974. Meet our attorneys.

Sources:

• Porter v. Galarneau, 275 Mont. 174, 911 P.2d 1143 (1996) (CourtListener PDF)
• Porter v. Galarneau (Google Scholar text with P.2d page numbers)
• § 1-2-109, MCA
• § 50-77-101, MCA
• § 50-77-102, MCA
• § 50-71-201, MCA
• Landgraf v. USI Film Products, 511 U.S. 244 (1994)
• Harper v. Virginia Dept. of Taxation, 509 U.S. 86 (1993)

Disclaimer: This article is for informational purposes only and does not constitute legal advice. Reading it does not create an attorney-client relationship.