Better Roads Digital Magazine
Issue link: https://read.dmtmag.com/i/85913
overhang that caused concern. On February 28, 2007, AJC and the project owners met on site to discuss how to deal with the overhang. One idea was for AJC's crews to come in from above using ropes and drills so they could safely get to the over- hang and bring it down. However, since this would take several days, the owners opposed this idea. On March 1, 2007, when Patterson's superinten- dent arrived for work, he moved his excavator near the overhang and began excavating the blasted rock. AJC's crew arrived sometime later and checked on the progress. AJC's driller did not advise or warn the overhang was still dangerous because, accord- ing to the driller, Patterson's superintendent knew it was dangerous. When AJC's driller stopped by the area more than an hour later, he noticed the super- intendent was working directly below the overhang so he signaled for him to exit the excavator. Almost immediately after exiting, an entire section of rock above the excavator collapsed and crushed it. The superintendent was not injured. AJC denied liability for the accident. On September 11, 2007, Patterson filed suit. AJC denied all charges and counterclaimed for breach of contract and money owed. The case proceeded to a jury trial. The jury returned a verdict that AJC's blasting caused Patterson's damages regard- ing the crushed excavator, but Patterson and its employees assumed the risk of harm. The jury allocated fault 51 percent to AJC and 49 percent to Patterson, and awarded damages to Patterson of $50,000. The jury also ruled in favor of AJC's breach of contract claim and awarded damages to AJC of $19,255.16. Patterson appealed the jury's verdict regard- ing assumption of the risk. The Montana Supreme Court examined the doctrine of assumption of the risk. The court determined that given Patterson's superin- tendent's knowledge of the danger of op- erating his excavator beneath the rock overhang, he possessed subjective knowledge of the danger the overhang posed. AJC's per- sonnel expressed concern to the superintendent about the rock overhang that eventually fell on the exca- vator and told him "it was a very hazardous" condition. Patterson's superintendent testified that he "also, Better Roads February 2012 36 Better Roads April 2012 15b felt it was very hazardous." In fact, he testified that placing the excavator "right underneath" the over- hang would have been "very dangerous." As a re- sult, the court upheld the jury's verdict. This case illustrates the intersection of the doc- trines of abnormally dangerous activities and assumption of the risk. Blasting is an abnor- mally dangerous activity resulting in strict liability. However, in Patterson, the superintendent's subjective knowledge of the danger of operating his excavator beneath the rock overhang was enough to apply as- sumption of the risk. As a result, the blasting sub- contractor, AJC, avoided what otherwise could have been a crushing defeat. Assumption of the risk is a legal doctrine that can be used in a variety of contexts, including blasting and other activities involving an inherent risk of injury to voluntary participants. Its proper applica- tion, which varies depending upon the jurisdiction, can result in offsetting, and even negating, plain- tiff's claims. Brian Morrow is a partner in Newmeyer & Dillion LLP, a law firm in California. He is a licensed California Civil Engineer, and specializes in the field of construction law, including road and heavy construction. Contact him at brian.morrow@ndlf.com