No. 85-532
I N THE SUPREME COURT O F THE S T A T E O F MONTANA
1986
GAYLE L . KAISER,
Plaintiff and Appellant,
-vs-
TOWN O F WHITEHALL, MONTANA,
D e f e n d a n t and R e s p o n d e n t .
A P P E A L FROM: D i s t r i c t C o u r t of t h e F i f t h J u d . i c i a 1 D i s t r i c t ,
I n and f o r t h e C o u n t y of J e f f e r s o n ,
T h e H o n o r a b l e Frank D a v i s , Judge presiding.
COUNSEL O F RECORD:
For A p p e l l a n t :
Burgess, Joyce & Whelan; T h o m a s J . J o y c e , B u t t e ,
Montana
For R e s p o n d e n t :
Harrison, Loendorf & Poston; J a m e s T. Harrison, Jr.,
Helena, Montana
S u b m i t t e d on B r i e f s : March 28, 1986
Decided: May 1 9 , 1986
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Mr. Justice John C. Harrison delivered the Opinion of the
Court.
This case comes on appeal from an order of the District
Court of the Fifth Judicial District, Jefferson County,
granting defendant Town of Whitehall summary judgment. We
reverse the summary judgment of the District Court and remand
this case for trial on the merits.
On Kay 25, 1983, the plaintiff, Gayle Kaiser
("Kaiser"), age 69, was walking to the Whitehall post office
along with her unleashed dog. Kaiser lived several blocks
from the post office and it was necessary for her to use a
public sidewalk maintained by the Town of Whitehall in order
to reach her destination. On this date, the weather was good
and the ground was dry.
There existed on the northwest corner of the sidewalk
where Kaiser was travelling a crack or break in the concrete
of the sidewalk. The record indicates a section of the
sidewalk had been heaved up by the roots of a large tree that
was cut down prior to May 25, 1983, and a rise in the
concrete was created. This break or crack in the sidewalk
had existed for a considerable length of time and was known
to exist by Kaiser.
As Kaiser approached. the raised portion of the sidewalk
from about half a block away, she observed the defect in the
sidewalk ahead. However, as she approached the rise in the
sidewalk, she began looking to the street in front of her for
possible auto traffic in preparation for crossing the street.
Kaiser subsequently stumbled and fell on the raised portion
of the sidewalk as she walked over it. She did not see the
break in the sidewa.lk as she walked over it, since she was
scanning the street ahead for traffic. As a result of her
fall, Kaiser sustained injuries.
On March 16, 1984, Kaiser filed suit against the Town
of Whitehall seeking damages for its alleged negligence in
failing to maintain the public sidewalk in a reasonably safe
condition. The Town of Whitehall filed its answer denying
all of the allegations contained in Kaiser's complaint.
On September 5, 1985, the District Court granted the
Town of Whitehall ' motion for summary judgment ruling that
s
the Town of Whitehall was not liable for Kaiser's injuries
because "the [defective] condition of the sidewalk was known
and obvious to the plaintiff" and "the defendant could not
anticipate [the] harm resulting [to p!-aintiff] in the face of
the knowledge and obviousness of the condition of the
sidewalk." It is from this judgment that Kaiser appeals.
Kaiser, appellant, presents the following relevant
issues for review by this Court:
(1) Do material issues of fact exist in this case that
preclude summary judgment as a matter of law pursuant to Rule
56, M.R.Civ.P.?
(2) Is this Court's decision in Kronen v. Richter
(Mont. 1984), 683 P.2d 1315, 41 St.Rep. 1312, binding
authority on the courts of this state although only three
Justices signed the majority opinion, one concurred, and
three dissented, where the Montana Constitution, Art. VII,
Sec. 3 (I), provides that " [a] majority shall join in and
pronounce decisions, which must be in writing?"
With regard to issue no. 1, both parties recognize the
appropriate standard for granting summary judgment. As this
Court stated in Kronen v. Richter (Mont. 1984) , 683 P. 2d
1315, 1317, 41 St.Rep. 1312, 1314:
Summary judgment is never to he used as a
substitute for trial if a factual
controversy exists. Reaves v. Reinbold
(Mont. 1980), 615 P.2d 896, 37 St.Rep.
1500. Summary judgment is only proper if
the pleadings, depositions, answers to
interrogatories and admissions on file
show there is no genuine issue of
material fact. Anderson v. Applebury
(1977), 173 Mont. 411, 567 P.2d 951. The
standard that an appellate court applies
in reviewing a grant or denial of a
motion for summary judgment is the same
as that utilized by the trial court
initially under Rule 56, J5.R.Civ.P. --a
summary judgment is proper when it
appears "that there is no genuine issue
as to any material fact and that the
moving party is entitled to a judgment as
a matter of law." 10 Wright, Miller and
Kane, Federal Practice and Procedure,
section 2716 p. 643.
Further, the defendant correctly recognizes the burden
of proof which is required in a summary adjudication.
Initially the burden of proof must be carried by the moving
party seeking summary judgment (Town of Whitehall). However,
where the record discloses no genuine issue of material fact,
the burden of proof shifts to the party opposing the motion,
who must come forward with substantial evidence raising an
issue of fact. Once the burden has shifted in this fashion,
the party opposing the motion (Kaiser) is held to a standard
of proof about equal to that initially imposed upon the
moving party und.er Rule 56 (c), M. R.Civ. P. Harland v.
Anderson (1976), 169 Mont. 447, 548 P.2d 613; Kronen, 683
In light of the above standard and burden of proof, we
hold Kaiser raised several genuine issues of material fact in
this case. Therefore, summary judgment is not appropriate.
In Montana, the sidewalk is owned by the city. Steen
TT. Grenz (1975), 167 Mont. 279, 538 P.2d 16. The general
rule has been and still is that the duty to keep a public
sidewalk in reasonable repair is on the city and when a n
accident occurs on a public sidewalk, liability, if any,
attaches to the city. Steen, 538 P.2d at 18; State ex rel.
J.C. Penny Co. v. District Court (1970), 154 Mont. 481, 465
P.2d 824. Further, the Town of Whitehall is a government
entity in the State of Montana and is liable for its acts or
omissions like an ordinary private party. Art. 11, Sec. 18,
Montana Constitution; S 2-9-101, MCA; and S 2-9-102, MCA.
Under Kronen, the duty owed by the Town of Whitehall to
Kaiser and to the general public lawfully travelling on a
public sidewalk is a duty to exercise ordinary care and to
keep the premises (sidewalk) reasonably safe. Kronen, 683
P.2d at 1317; Cereck v. Albertson's Inc. (1981), 195 Mont.
409, 637 P.2d 509. This duty owed by the Town of Whitehall
to Kaiser is now governed by this Court's recent decision in
Limberhand v. Big Ditch Co. (Mont. 1985), 706 P.2d 491, 42
St.Rep. 1460. Limberhand basically held that the duty owed
by a landowner to an injured party is whether the landowner
exercised ordinary care under circumstances, regardless of
the status of the injured party.
As noted in a recent article in the Montana Law Review,
this Court has had conflicting standards of reasonable care
to be exercised by landowners to people who come upon their
land and are injured. Comment, Landowner Liability -
in
Montana, 47 Montana L. Rev. 109 (1986). Our previous
decisions focused upon three entrant categories--invitee,
licensee and trespasser.
Our opinion in Corrigan v. Janney (Mont 1981), 626 P.2d
838, 38 St.Rep. 545, abandoned the entrant categories and
applied a single standard of reasonable care under the
circumstances. A later opinion that year, Cereck, supra,
appeared to be in conflict with our holding in Corrigan. Our
recent opinion in Limberhand, supra, reaffirmed our holding
in Corrigan and commits us to a single standard of care. Mr.
Justice Sheehy writing for the Court noted: " . . . The test
is always not the status of the injured party but the
exercise of ordinary care in the circumstances by the
landowner." Limberhand, 706 P.2d at 496. We note that the
Limberhand case, like this case, came to the Court on summary
judgment.
In relation to the legal duty owed by the Town of
Whitehall to Kaiser described above, this Court also recently
adopted 5 343 A (1) Restatement (Second) of Torts (1965)
which provides:
A. possessor of land is not liable to his
invitees for physical harm caused to them
by any activity or condition on the land
whose danger is known or obvious to them,
unless the possessor should anticipate
the harm despite such knowledge or
obviousness.
We agree with the District Court that S 343 A (1) is
applicable to facts of this case, but we find the lower court
disregarded some critical language found in the provision.
The last part of the provision states ". . . unless the
possessor should anticipate the harm despite such knowledge
or obviousness." Justice Morrison in his specially
concurring opinion in Kronen succinctly explained the effect
of this last part of S 343 A (1):
[A] du-ty may be owed though the condition
is open and obvious if the landowner has
reason to believe that despite the open
and obvious nature of the condition, that
injuries will nevertheless result.
Kronen, 683 P.2d at 1318.
We find that although the condition of the sidewalk was
known and obvious to Kaiser, a question of fact still remains
as to whether or not the Town of Whitehall should have
anticipated that someone (i.e. Kaiser) would be injured as a.
result of the defective condition of the sidewalk. The
record shows the cracked and broken condition of the sidewalk
had persisted for some time and. that it was indeed a hazard
to passing pedestrians. At the very least, a jury question
is raised as to whether the Town of Whitehall should have
anticipated the harm resulting from the sidewalk's condition.
Therefore, summary judgment is not appropriate.
It should be noted that although we hold the summary
judgment of the District Court is reversed for the reasons
explained a.bove, a jury question is also present on the issue
of whether the Town of Whitehall sa.tisfied its legal duty
owed to Kaiser. As discussed in the opinion above, the Town
of Whitehall owed a legal duty to Kaiser to exercise ordinary
care to keep its sidewalk reasonably safe. We note it is
undisputed in the record that the sidewalk was in an extreme
state of disrepair at the time of the accident. We hold this
information concerning the condition of the sidewalk at the
very least raises a material issue of fact as to whether or
not the Town of Whitehall exercised ordinary care to keep the
sidewalk "reasonably safe." As this Court recently
stated: "[wlhat constitutes reasonably safe premises is
generally considered to be a question of fact." Limberhand,
706 P.2d at 498.
In conclusion under this issue, we hold jury questions
are present in this case on the issues of whether the Town of
Whitehall should have anticipated that ha.rm would be caused
by the condition of the sidewalk despite the knowledge and
obviousness of the condition, and whether the Town of
Whitehall exercised ordinary care to keep the sidewalk
"reasonably safe." The probability that Kaiser will not
prevail under these issues is no justification for granting
summary judgment. It may appear that recovery is very
remote, but that is not the standard. If there is a genuine
issue of material fact, summary judgment is not appropriate.
Rule 56(c), M.R.Civ.P. Here we have such a situation.
With regard to issue no. 2, we hold this Court's
decision in Kronen, supra, is binding authority under the
Montana Constitution although the majority opinion was only
signed by three Justices, with one Justice specially
concurring, and three Justices dissenting. The Montana
Constitution provides that "[a] majority [of the Supreme
Court] shall join in and pronounce decisions, which must be
in writing. " Montana Constitution Art. VII, Sec. .
3 (1)
Kaiser contends that because a majority of the members of
this Court did not subscribe to the majority opinion in
Kronen, the decision lacks precedential force upon the courts
of this state. Kaiser further argues that it was
unconstitutional for the District Court to adhere to Kronen,
since the split character of the decision robs it of
constitutional validity.
Kaiser's argument ignores a literal reading of the
constitutional provision at issue and common sense. The
Constitution does not say the majority of this Court must
join in opinions; rather, it says the majority must join in
and pronounce decisions. In reaching their decision, the
members of this Court are not constitutionally required to
achieve unanimity in their reasoning. The majority is merely
required to agree on the result, as was done in Kronen. The
argument made by Kaiser ignores the text of the Constitution
itself. Therefore, Kaiser's argument under this issue must
fail.
The summary judgment of the District Court is reversed
and this case is remanded for trial on the merits.
Justice
We Concur:
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