OSHA enforcement structure, how much weight an OSHA violation carries in a negligence case and whether an injured worker's own employer can be pulled back in.
Comparative / contributory negligence rule
Modified comparative fault, recovery barred above 50% fault (51% bar)
Recovery is reduced in proportion to fault and barred once the worker is more than 50% at fault. A worker exactly 50% at fault still recovers half.
Citation: Mont. Code Ann. § 27-1-702 (temporary version currently in force); § 27-1-703(4), (6)(c) (who may be compared)
Source: https://mca.legmt.gov/bills/2015/mca/27/1/27-1-702.htm
Verified against: statute text of Mont. Code Ann. ss 27-1-702 and 27-1-703 at mca.legmt.gov
Montana compares the worker against the combined negligence of the parties sued and bars only where the worker's share is greater. An even split recovers.
Montana forbids apportioning any fault to an immune employer and says so expressly. s 27-1-703(6)(c): 'Except for persons who have settled with or have been released by the claimant, comparison of fault with any of the following persons is PROHIBITED: (i) a person who is IMMUNE FROM LIABILITY to the claimant; (ii) a person who is not subject to the jurisdiction of the court; or (iii) any other person who could have been, but was not, named as a third party.'
On a construction site that removes the empty chair. An employer immune under workers' compensation cannot be put on the verdict form and neither can an absent subcontractor the defendant chose not to join. Under s 27-1-703(4) the fault is apportioned among the claimant, the defendants and any third-party defendants actually joined and nobody else. A defendant who wants a share allocated elsewhere has to join that person as a party.
This is the opposite of Louisiana, which names the workers' compensation exclusivity provision by section number and counts the immune employer's share and of Utah, Wyoming and Ohio, which all count non-parties. Same 'modified comparative fault' label, opposite mechanics.
One trap in the section itself. The comparative negligence provision on the books is headed (Temporary) and terminates on a contingency under sec. 11(2), Ch. 429, L. 1997. A second version, headed 'Comparative fault' rather than 'Comparative negligence', is printed below it and takes effect if that contingency occurs. Check which version you are reading. The temporary version is the one applied here.
Non-economic damages cap
No general cap on non-economic damages
Most states cap non-economic damages only in medical malpractice actions, which does not reach a third-party construction claim. Economic losses, medical bills, lost wages, future earning capacity, are not capped by these statutes.
OSHA plan
Federal OSHA (no state plan)
Montana has no OSHA-approved state plan; both public and private employers fall under federal OSHA jurisdiction. Under federal jurisdiction the citation is issued by an OSHA area office and contested before the federal Occupational Safety and Health Review Commission. Federal OSHA does not cover state and local government employees, so a public employee injured on a public job falls outside it. Reporting deadlines are a work-related fatality within 8 hours, an inpatient hospitalisation, amputation or loss of an eye within 24 hours. For a construction claim the inspection file matters more than the citation: photographs, measurements, witness statements and the inspector's narrative are usually obtainable and are often the best contemporaneous record of the site.
Citation: 29 U.S.C. § 667 (State Plan roster)
Source: https://www.osha.gov/stateplans
Weight of an OSHA violation in a negligence case
Montana is one of the minority of states whose high court accepts negligence per se for an OSHA violation
The Montana Supreme Court held that, although the OSH Act does not create a private right of action, OSHA violations can serve as the basis for a negligence per se claim; placing Montana among a minority of states willing to treat an OSHA violation as establishing breach of duty as a matter of law, rather than merely as evidence for the jury to weigh.
Citation: Trankel v. Department of Military Affairs, 938 P.2d 614, 625 (Mont. 1997)
Source: https://storage.googleapis.com/jnl-bcls-j-bclr-files/journals/1/articles/232/63a30c0a100a2.pdf
Third-party contribution against the employer
Statutory employer and co-employee questions are live in Montana. Third-party claims otherwise turn on premises control, retained control, negligent undertaking and product liability.
Limberhand v. Big Ditch Co. is Montana's foundational premises decision. It abolished the invitee, licensee and trespasser categories and set the landowner's duty as ordinary care in the circumstances. The facts are not construction, but the duty framework governs construction site claims.
Citation: Mont. Code §§39-71-101 et seq.; Limberhand v. Big Ditch Co., 218 Mont. 132, 706 P.2d 491 (1985).
Source: https://www.leagle.com/decision/19851197706p2d49111189
Injury-severity gate on contribution claims
Narrow specific-intent-to-injure exception; Montana has repeatedly declined to adopt the more lenient 'substantial certainty' doctrine used in many other states.
Great Western Sugar Co. v. District Court held that the exclusive remedy rule is not avoided unless the person injuring the employee specifically intended to do so , allegations of negligence, however wanton, are not enough. The Montana Supreme Court reaffirmed this in a later case (Noonan), acknowledging a hazardous workplace but still declining to adopt the substantial-certainty doctrine used elsewhere. In practice exclusivity takes the direct employer off the tort table entirely, whatever the OSHA file shows. The claim runs against the other parties on the site: the general contractor, the owner, another subcontractor, an equipment manufacturer. The employer or its carrier then asserts a lien against whatever the worker recovers from those parties, so the figure the worker actually keeps is the recovery less the lien, the fee and the costs. Whether the lien is reduced for the cost of obtaining the recovery is a separate state question worth asking early, because it moves the net more than most people expect.
Citation: Mont. Code § 39-71-101 et seq.; Great Western Sugar Co. v. District Court, 188 Mont. 1, 610 P.2d 717 (1980).
Source: https://archive.legmt.gov/content/publications/research/past_interim/wc-ex.pdf
Distinctive state doctrine
A general contractor that pays compensation for an uninsured subcontractor's injured worker does not get immunity in exchange and the intentional-harm exception requires specific intent
Montana requires an employer who contracts with an independent contractor for work that is a regular or recurrent part of the employer's own business to pay workers' comp to the subcontractor's employees if the subcontractor lacked its own coverage, but that paying employer/GC is not thereby entitled to exclusive-remedy immunity; only the actual immediate employer who provided coverage gets that protection. On the intentional-harm exception: Great Western Sugar Co. v. District Court, 188 Mont. 1, 610 P.2d 717 (1980), held that allegations of negligence, no matter how wanton, are insufficient to avoid exclusivity, requiring harm 'maliciously and specifically directed at an employee.' Three years later, Millers Mutual Ins. Co. v. Strainer, 204 Mont. 162, 663 P.2d 338 (1983), held the intentional-injury statute (Mont. Code Ann. section 39-71-413) 'refers to an intentional act without regard to intending the results of the act,' a real loosening of the standard. In 1985, Noonan v. Spring Creek Forest Products, Inc., 216 Mont. 221, 700 P.2d 623 (1985), 'ignored its holding in Millers Mutual and returned to its holding in Great Western Sugar,' declining to adopt the minority 'substantial certainty' doctrine even on facts the Court itself found troubling (a hazardous workplace with an unusual number of injuries). Sitzman v. Schumaker, 221 Mont. 304, 718 P.2d 657 (1986), then applied the strict rule successfully on true assault-and-battery facts. Blythe v. Radiometer America, Inc., 262 Mont. 464, 866 P.2d 218 (1993), reaffirmed the same Great Western Sugar/Noonan line (not a departure from it), while a dissent argued Millers Mutual had been the better-reasoned decision. Schmidt v. State, 286 Mont. 98, 951 P.2d 23 (1997), reaffirmed the strict rule once more, holding that a supervisor ordering an employee to use an unsafe tractor, even in violation of the Montana Safety Act, was negligence, not the specific intent required to pierce exclusivity.
Citation: Great Western Sugar Co. v. District Court, 188 Mont. 1, 610 P.2d 717 (1980); Millers Mutual Ins. Co. v. Strainer, 204 Mont. 162, 663 P.2d 338 (1983); Noonan v. Spring Creek Forest Products, Inc., 216 Mont. 221, 700 P.2d 623 (1985); Sitzman v. Schumaker, 221 Mont. 304, 718 P.2d 657 (1986); Blythe v. Radiometer America, Inc., 262 Mont. 464, 866 P.2d 218 (1993); Schmidt v. State, 286 Mont. 98, 951 P.2d 23 (1997); Mont. Code Ann. section 39-71-413.
Source: https://archive.legmt.gov/content/publications/research/past_interim/wc-ex.pdf
The point that a paying general contractor gets no immunity is not settled here against the statute. Check Mont. Code Ann. § 39-8-207 before relying on it. The case sequence below comes from a Montana Legislature research memo with reporter citations.
