No. 84-060
IN THE SUPREME COURT OF THE STATE OF MONTANA
1984
LYNETTE PIEDALUE,
Plaintiff and Appellant,
CLINTON ELEMENTARY SCHOOL DISTRICT NO. 32
and AL BAIDE, d/b/a LEFJIS & CLARK COURTS,
Defendants and Respondents.
APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Missoula,
The Honorable Jack L. Green, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Ferguson & Mitchell, Missoula, Montana
For Respondents:
Garlington, Lohn & Robinson, Missoula, Montana
Submitted on Briefs: Oct. 11, 1984
Decided: December 13, 1984
nrc i 1984
Filed:
Clerk
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.
Lynette Piedalue appeals from an order of the District
Court, Fourth Judicial District, Missoula County, granting
defendant A1 Baide's motion for summary judgment, and
dismissing him with prejudice from the action.
Baide operates a trailer park on property adjacent to
the Clinton Elementary School. In the past a loop road
provided access to the trailer park to and from Mullan
Avenue, situated east of the trailer park property. The loop
proceeded west from Mullan Avenue on Third Street, south on a
private dirt road through the trailer park, then ea.st by a
right angle turn, over a bridge spanning an irrigation ditch,
to intersect again with Mullan Avenue. From Third Street to
the southern intersection with Mullan Avenue, the dirt road
was on Baide's private property.
The irrigation ditch and bridge were originally part of
Baide's property. When the bridge was destroyed by a heavy
truck, Baide removed the bridge and barricaded. the road. He
piled gravel in front of the ditch and put up railroad-tie
barricades and a warning sign.
About four months after the bridge was removed, Baide
conveyed the property containing the ditch to the school
district. After the conveyance there was a distance of about
60 to 70 feet from Baide's property line to the irrigation
ditch.
About 3 % months after the property had been conveyed to
the school, on June 3, 1979, Lynette Piedalue drove her 1965
Volkswagen automobile to deliver a tenant of the trailer
court to his home located in the trailer court. She then
proceeded south and east on the dirt road loop, intending to
return to Mullan Avenue. She drove her automobile into the
irrigation ditch, for which she claims damages for personal
injuries and property damages from the defendants.
The District Court granted Baide's motion for summary
judgment and dismissed Lynette's complaint against him. The
court based its ruling on the legal theory that one is not
responsible as a matter of law for dangerous conditions which
exists on the land of another. The District Court reasoned
that since it was uncontested that Baide sold the land to the
school district, and that the school district took possession
of the land and was aware of the dangerous condition of the
land, there were no issues of material fact involving Faide.
The District Court entered summary judgment and dismissed the
action against him.
The issue presented is whether a landowner owes another
lawfully upon the landowner's property a duty to warn, or
take reasonable precautions to abate a dangerous condition
which exists on an egress road from the premises, though the
dangerous condition exists on property not owned by the
landowner.
We hold in this case there is a genuine issue of
material fact with respect to the landowner's duty which must
be resolved by a fact-finder. We therefore reverse the
District Court.
The District Court relied on its undisputed findings
that the accident occurred on June 3, 1979; that at the time
Clinton Elementary School District was the owner of the
property in question; that the property was conveyed to the
school district on February 13, 1979, 3 % months before the
time of the accident; that the school officials had
sufficient opportunity between the time of the conveyance a-nd
the accident to acquaint themselves with the property
purchased.
The District Court was led to the dismissal of the
action against Baide by reason of Restatement (Second) of
Torts, S 373, which states:
"Dangerous Conditions Created. Before Vendor
Transfers Possession.
l1 ( I. ) A vendor of land who has created or
negligently permitted to remain on the land. a
structure or other artificial condition which
involves an unreasonable risk of harm to others
outside of the land, because of its plan,
construction, location, disrepair, or otherwise, is
subject to liability to such persons for physical
harm caused by the condition after his vendee has
taken possession of the land.
" (2) If the vendor has created the condition, or
had actively concealed it from the vendee, the
liability stated in Subsection (1) continues until
the vendee discovers it and has reasonable
opportunity to take effective precautions against
it. Otherwise the liability continues only until
the vendee has had reasonable opportunity to
discover the condition and to take such
precautions. "
The decision of the District Court in dismissing the action
against Baide by reason of the Restatement rule foregoing
would be upheld if Baide were simply a vendor of the land,
and had no further legal obligations toward Lynette. As the
landowner, and the operator of the trailer park, however,
Baide owed a duty to invitees on his premises to have the
premises reasonably safe or to warn the invitees of any
hidden or lurking danger. Scott v. Robson (1979), 182 Mont.
528, 597 P.2d 1150; Suhr v. Sears Roebuck and Co. f1969), 152
Mont. 344, 450 P.2d 87, 36 A.L.R.3d 602 (1969). Baide may
yet be liable for the injuries JJynette sustained if his duty
as the property owner to maintain the premises in said
condition or to warn of danger includes a duty to warn of an
unsafe ingress and an unsafe egress from his property, beyond
the premises actually owned by Baide. We hold there is such
a duty.
Clearly in Montana, the owner of a business premises,
though not an insurer against all accidents which might
befall business invitees on the premises, owes a duty to an
invitee to use ordinary care to keep his premises in
reasonably safe condition and to warn invitees of any hidden
dangers therein. Scott, supra; Suhr, supra; Uhl v. Abrahams
(1972), 160 Mont. 426, 503 P.2d 26. Indeed, we have said
that the proprieter of a business to which the public is
invited, expressly or impliedly, has a duty to use due care
to keep in reasonably safe condition those portions of the
premises where pa-tronsmay be expected to come and go, and is
liable to those who are injured by his failure to do so, and
if there is a dangerous place on his premises he must
safeguard those who lawfully come thereon by warning them of
the danger. MacIntosh v. Linderkind Lumber Co. (1964), 144
Mont. 1, 393 P.2d 782. We said in MacIntosh that the true
ground of liability of a business proprietor to an invitee
for iniuries sustained on the premises is the superior
knowledge of the business proprietor over that of the
business invitee of the dangerous condition and the
proprietor's failure to give warning of the risk.
The duty of a business property owner certainly
includes providing business invitees a safe ingress and
egress from the property. While this point has not been
before this Court until now, we are persuaded by the logic of
similar case. In Rockefeller v. Standard Oil. Company (1974),
11 Wash. App. 520, 523 P.2d 1207, 1.208-09, the court said:
"Standard Oil owed a duty to his business invitees
of safe ingress and egress from its property.
(Citing authority. ) [W]
hether this duty was
discharged was a proper question for the jury. To
incur 1-iability, Standard Oil need not own or
control the propertv on o~hich the hazard was
Located, nor is it required that Standard Oil
create the hazard. The record contains evidence
from which the jury can reasonably have concluded
that the hazard created a foreseeable risk of harm
to Standard Oil's business invitees and that
Standard Oil knew of its presence and should have
taken reasonable precautions to eliminate it by for
example posting warnings or barriers or providing
adequate illumination. Nothing more was required .
.. II
In the application of that rule, it has been held that
the duty of an occu-pier of premises extends beyond the
premises to the entrances into and exits from such premises
and it is his duty to warn his customers of hidden hazards
upon, around or beyond his premises, if he would reasonably
expect use of an adjacent area by his customers in connection
with the invitation. To incur liability to a business
invitee, it is not necessary that the owner or occupier own
or control the property on which the hazardous ingress or
egress exists or that the owner or occupier create the
hazard, if the hazard created a foreseeable risk of harm to
business invitees and the owner or occupier knew of its
presence and should have taken reasonable precautions to
eliminate it by such measures as posting warnings, or
barriers or providing adequate illumination.
The foregoing cases adequately express the rule and
logic is on their side.
In the case before us, Baide testified that at the time
the bridge was removed., he placed railroad ties horizontally
to create a barrier to the irrigation ditch, and also posted
a warning sign. He stated that on occasions he had to
replace the tie barriers as apparently they were pushed into
the ditch by unknown persons. The record is not clear as to
how long after the conveyance to the school district he
continued to replace the barriers. Raide also testified that
he placed grave1 as an obstruction to automobil-e traffic
across the former bridge and provided a cul-de-sa.c for a
turn-around. Evidence contravening Baide's statements are
that at the time of the accident there were no barriers
present, no warning signs, no gravel and the apparent
invitation to persons driving through the trailer park to
make a left turn on the dirt road and to proceed toward the
irrigation ditch which was some 60 to 70 feet away from
Baide's property after the conveyance.
Thus a significant fact question exists, which must be
determined by a fact-finder, as to whether Baide provided a
safe egress to an unsuspecting person lawfully upon Baide's
premises.
Recause of the presence of a material issue of fact as
between Baide and the plaintiff, Lynette Piedalue, we
therefore reverse the summary judgment and dismissal in favor
of Raide and remand the cause to the District Court for
further proceedings.
Justice
We Concur:
q&, k&
Chief Justice