Calder v. Anderson

No. 95-288
IN THE SUPREMECOURT OF THE STATE OF MONTANA
1996

SHIRLEY CALDER,
Plaintiff and Appellant,
v.
CARL ANDERSONand BONNIE ANDERSON,
Defendants and Respondents.

APPEAL FROM: District Court of the First Judicial District,
In and for the County of Lewis and Clerk,
The Honorable Dorothy McCarter, Judge presiding.

COUNSEL OF RECORD:
For Appellant:
Gene A. Picotte, Attorney at Law,
Helena, Montana
For Respondents:
G. Curtis Drake, Keller, Reynolds, Drake,
Johnson & Gillespie, Helena, MT 59601

Submitted on Briefs: February 8, 1996
Decided: February 26, 1996
Filed:
Justice Terry N. Trieweiler delivered the opinion of the Court.
The plaintiff, Shirley Calder, filed a complaint in the First

Judicial District Court in Lewis and Clark County in which she

alleged that her landlords, Carl and Bonnie Anderson, were

negligent. Andersons moved for summary judgment and the District

Court granted their motion. We reverse the judgment of the

District Court.

The issue on appeal is whether the District Court erred when

it granted summary judgment.

FACTUAL BACKGROUND

In March 1994 Shirley Calder and her husband rented an

apartment from Carl and Bonnie Anderson. A set of steps leads from

the entrance of the Calders' apartment to a sidewalk which leads to

the tenants' parking area. The tenants' parking area consists of

gravel and dirt and is located near one side of the sidewalk.

In her complaint, Calder alleged that on the afternoon of

May 3, 1994, she exited her apartment, descended the staircase, and

fell on the sidewalk at the base of the steps. She alleged that as

a result of the fall, she sustained injuries to her lower back,

hip, neck, and shoulder, and required hospitalization for three and

one-half days.

Calder also stated in her complaint that the Andersons

negligently failed to maintain the sidewalk in a safe condition and

violated s 70-24-303, MCA, in the following manner:

At all times material herein defendants negligently
failed to keep said common area, to wit: Said concrete
 walk in a clean and safe condition as they were required
to do by § 70-24-303(l) (c), MCA, and permitted dirt,
refuse, pebbles and other materials to accumulate and
remain thereon so that said walk became and remained and
was at the time of plaintiff's accident and injuries
hereinafter alleged dangerous and unsafe to walk upon.
The Andersons answered the complaint and denied all allega-
tions of negligence.
Shirley Calder testified by deposition that on the date of her
accident she had descended the stairway leading from the door of
her apartment and stepped onto the sidewalk, where her feet landed
unexpectedly on rocks or gravel which caused her to skid for some

distance before her feet flew out from under her and she landed
face down. She further testified that she knew that she had
skidded and lost control on small rocks because she felt the rocks

through the soles of her shoes when she stepped down on them and
because she and her husband later observed the skid marks caused by
the rocks where her accident occurred.
The Andersons moved for summary judgment following Calder's
deposition. They argued that there was no hidden defect on the
premises and that they had no duty to warn Calder of the presence
of gravel on the sidewalk because the gravel would have been
clearly obvious had she looked.
The District Court granted the Andersons' summary judgment
motion. The court found that Calder's injuries were not caused by
a hidden or lurking danger which would subject the Andersons to
liability. The court further stated that the rocks on the sidewalk
would have been obvious to Calder if she had looked at the sidewalk

3
while she walked on it. Finally, the court stated that there was
no evidence that the Andersons took any affirmative action to

aggravate or create the alleged hazard, and therefore, that there

was no basis for finding that they were negligent.
DISCUSSION

Did the District Court err when it granted summary judgment?

This Court reviews a summary judgment order entered pursuant

to Rule 56, M.R.Civ.P., based on the same criteria applied by the

district court. BrinkmanandLenonv. P&DLandEnterprises (1994), 263 Mont.

238, 241, 867 P.2d 1112, 1114. Rule 56(c), M.R.Civ.P., provides

that summary judgment is proper only when "t-here is no genuine

issue as to any material fact and . . . the moving party is

entitled to a judgment as a matter of law." We look to the

pleadings, depositions, answers to interrogatories, admissions on

file, and affidavits to determine the existence or nonexistence of

a genuine issue of material fact. Uhiggv. Jones (Mont. 1995) , 907

P.2d 937, 940, 52 St. Rep. 1198, 1199.

We first address the Andersons' contention that because Calder

failed to cite § 70-24-303, MCA, in opposition to the Andersons'

motion for summary judgment, she waived its consideration on

appeal. The Supreme Court of Alaska considered a similar argument

and, after reviewing Alaska's summary judgment rule, which is

identical to Montana's, disagreed that the law applicable to a case

could be waived. Newtonv.A4agill (Alaska 1994), 872 P.2d 1213, 1215.

That court held that:

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 [E]ven if a litigant does not oppose summary judgment,
the superior court may grant the motion only if otherwise
"appropriate" under Rule 56. Weaver Bras., Inc. v. Chappel, 6 84
P.Zd 123, 126 (Alaska 1984). For this reason, this court
should review the superior court's grant of summary
judgment under the usual standard of review.

This court will uphold a summary judgment only if
the record presents no genuine issues of material fact
and "the moving party was entitled to judgment on the law
applicable to the established facts."

Newton, 872 P.2d at 1215.

The applicability of the controlling statute was raised in the

District Court when, in Paragraph IV of her complaint, Calder

alleged that " [alt all times material herein defendants negligently

failed to keep said common area, to wit: Said concrete walk in a

clean and safe condition as they were required to do by § 70-24-

303(1) Cc), MCA." Paragraph IV of Calder's complaint was

specifically denied by the defendants' answer.

Rule 56(c), M.R.Civ.P., provides in relevant part that:

The judgment sought shall be rendered forthwith if the
pleadinqs, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any,
show 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.

(Emphasis added.)
It is clear from Rule 56 that the court must consider

allegations in the pleadings unless they have been controverted by

evidence presented by the opposing party. In this case, the

defendants presented no evidence that the sidewalk was clean and

safe at the time of Calder's fall and injury. In fact, neither the

defendants' motion for summary judgment, nor the memorandum that

5
they submitted in support of that motion, addressed a landlord's

duty to a tenant pursuant to the statute relied on in Calder's

complaint. Calder's memorandum in opposition to the defendants'

motion simply responded to the issues raised in the defendants'

memorandum.
Once Calder alleged in District Court that the relevant

statute had been violated and cited that statute to the court and

opposing counsel, she did not have to re-argue that claim
repeatedly in order to preserve the claim for appeal and to avoid

waiver.

Calder maintains that violation of 5 70-24-303, MCA,
constitutes negligence per se. This Court has not directly

addressed this issue. However, when considering identical

statutory provisions, the Supreme Court of Alaska has held that

they impose duties different from and greater than those imposed by

common law. Newton v. Magill (Alaska 1994), 872 P.2d 1213. In that

case, Darlene Newton, the plaintiff, slipped and fell on a walkway

which led to the front door of her home which was rented from the

defendants. Newton, 872 P.2d at 1214. She sued her landlords based

on her allegation that the walkway was slippery and hazardous and

that the landlords had a duty to make it safe. Newton, 072 P.2d at

1214. The trial court dismissed the plaintiff's complaint by

summary judgment based on its conclusion that it was the

plaintiff's duty to keep the walkway safe and clean. Newton, 8 72

P.2d at 1214. The Supreme Court noted that even though according

6
to traditional notions of Alaska common law a landlord has no duty

to tenants for dangerous conditions on the property, Alaska's
adoption of the Uniform Residential Landlord and Tenant Act changed

and added to a landlord's obligations. That court concluded that

since Alaska's act imposed a duty on the landlord to keep even

those areas occupied and used by the tenant in a clean and safe

condition, the landlord had a duty to use reasonable care to

discover and remedy conditions which presented an unreasonable risk

of harm, and that included the slippery condition of the walkway.

Whether the condition was hidden or apparent was irrelevant.

Newton, 872 P.2d at 1216-18. Based on the facts in that case, the

Supreme Court of Alaska held that whether the landlord failed to

exercise reasonable care in light of all the circumstances with

respect to the condition of the walkway presented an issue of fact

to be resolved by the jury. Newton, 872 P.2d at 1218.

Montana, likewise, adopted the Residential Landlord and Tenant

Act in 1977. Among its provisions is § 70-24-303, MCA. Montana's

adoption of that Act changed and added to the duties owed by

property owners to their tenants.
Since § -303 of the Act was obviously intended by the legisla-

ture to be for the benefit and safety of tenants, a landlord's

failure to comply with the statute is negligent per se. We have

held that:
The violation of statutes is negligence as a matter of
law when the purpose of the statute is to protect a class
of persons, the plaintiff is a member of that class, and
the defendant is a person against whom a duty is imposed.
7
 Azurev.CityofBillings (1979), 182 Mont. 234, 240-41, 596 P.2d
460, 464. The purpose of the statute also must be to
protect against the kind of injury received by the
plaintiff. Rauh v.Jensen (1973), 161 Mont. 443, 507 P.2d
520.

Nehringv.LaCount (1986), 219 Mont. 462, 468, 712 P.2d 1329, 1333.

Shirley Calder was a member of the class that 5 70-24-303,

MCA, was intended to protect; Andersons were members of the class

on whom a duty was imposed; and Calder's slip and fall is the type
of injury that the statute was designed to prevent. The Supreme

Court of Michigan has held that violation of a similar statute

established negligence per se. See Morningstar v. Strich (Mich. 1950) ,

40 N.W.2d 719. We agree with that holding.

Contrary to the suggestion in the dissenting opinion, neither

the Newton opinion nor the Morningstar opinion are cited in this

opinion based on the similarity of the facts in those cases to the

facts in this case. Newton is cited for the legal proposition that

the Residential Landlord and Tenant Act creates duties in addition

to and greater than those imposed on property owners by the common

law. Morningstar is cited for the proposition that violation of

statutes which impose duties on a landlord to provide for the

safety of his or her tenants is negligent per se. The facts of the

cases are irrelevant.

Furthermore, the Arizona and Ohio cases cited and relied on in

the dissenting opinion are of no assistance to us for purposes of
resolving the issue presented in this case. Neither case applies
nor interprets a duty similar to the one which exists in Montana
pursuant to § 70-24-303, MCA, and upon which this opinion is based.
Finally, the dissenting opinion's reliance on § 70-24-
321(1) lb), MCA, to suggest that it was actually the tenant's duty
to maintain the area where Calder fell is misplaced. That section
of the Residential Landlord and Tenant Act pertains to that part of
the premises which the tenant actually "occupies and uses." It
does not pertain to common areas. Common areas are specifically
addressed in 5 70-24-303(l) (c), MCA, and place the duty of
maintenance solely on the landlord.
According to the testimony of Shirley Calder, the sidewalk on
which she fell was not in a clean and safe condition, and as a
result, she fell and seriously injured herself. Calder testified
that on the date of her accident she had descended the stairway
leading from the door of her apartment and stepped onto the
sidewalk, where her feet landed unexpectedly on rocks or gravel
which caused her to skid for some distance before her feet flew out
from under her and she landed face down. She knew that it was
small rocks on which she skidded and lost control because she felt
the rocks through the soles of her shoes when she stepped down on
them, and she and her husband later observed the skid marks caused
by the rocks where her accident occurred. Calder's testimony was
sufficient to raise an issue of fact whether the defendants

breached their duty owed to her pursuant to the Residential
Landlord and Tenant Act.
 Whether the condition which caused Calder's injury was "hidden

or lurking," and whether or not the condition at the bottom of her

stairway was one she should have been looking for and noticed are

simply issues to be considered as part of the question of

contributory negligence.

The dissenting opinion suggests that it is a proper function

of this Court to decide as a matter of law when debris allowed to

remain on a common walkway does or does not violate the obligation

to keep the area clean and safe. The dissenting opinion suggests

that the majority opinion has already passed judgment on that

issue. However, that suggestion is incorrect. The majority

opinion simply recognizes that pursuant to Article II, Section 26,

of the Montana Constitution, and 5 26-l-202, MCA, there is a right

to have issues of fact tried by juries when the parties request a

jury, or by the district court when the right to jury trial is

waived. The dissent would have this Court apply that right on a

sliding scale based on how impressed the members of this Court are

with the merits of a party's claim or defense. However, to do so

would substantially blur the distinct functions of the fact finder

and appellate review.

For these reasons, we conclude that as landlords the Andersons

had a duty to keep the area where Calder fell in a clean and safe

condition. If they failed to do so they were negligent as a matter

of law. Whether or not the Andersons breached their duty to

Calder, and the extent to which that breach of duty, if any, was a

10
cause of Calder's damages, are issues of fact which must be decided

by the trier of fact.

For these reasons, we reverse the order of the District Court

and remand for further proceedings consistent with this opinion.

We concur:
Chief Justice J. A. Turnage, dissenting:

A cause of action in negligence consists of four elements:
(1) duty; (2) breach of duty; (3) causation; and (4) damages.

Hatch v. State Dept. of Highways (1994), 269 Mont. 188, 192, 887

P.2d 729, 732. While the existence of a duty is a question of law,

the second element, whether that duty has been breached, is

normally a question of fact to be determined by the finder of fact.

Limberhand v. Big Ditch Co. (1985), 218 Mont. 132, 144-45, 706 P.2d

491, 498. However, when a defect is so slight that no prudent

person could reasonably anticipate danger from it, but an accident
happens which could only have been guarded against with extraordi-

nary care and foresight, the question of the defendant's responsi-

bility is one of law. Wiley v. City of Glendive (Mont. 1995), 900

P.2d 310, 313, 52 St.Rep. 714, 715.

In the present case, Calder stated by deposition that the

sidewalk outside her apartment was usually dirty and that renters,

the mailman, and other persons walking from the graveled driveway

to the apartment building tracked gravel onto the sidewalk. She

acknowledged, however, that she had never considered gravel on the

sidewalk to be a danger to her and had not complained to the

Andersons about the dirty sidewalk. Nothing in the record supports

the idea that the few alleged pieces of gravel on the sidewalk in

this case were either a known hazard or a hidden or lurking danger.
This Court has acknowledged the rule that universally known

conditions should not be considered hazards. Luebeck v. Safeway

stores, Inc. (1968), 152 Mont. 88, 93, 446 P.2d 921, 924. We have

12
further recognized that the mere happening of an accident, in
itself, is not evidence of negligence. Clark v. Norris (1987), 226
Mont. 43, 48, 734 P.2d 182, 185. The law does not require that for

every injury there must be a recovery of damages, but only imposes

liability for a breach of legal duty proximately causing injury.

Clark, 734 P.2d at 185.

Can reasonable minds differ on whether pieces of gravel on a

sidewalk adjoining a gravel parking lot establish a breach of legal

duty by the property owner? The Court of Appeals of Arizona has

said "No." Forbes v. Romo (Ariz. App. 1979), 601 P.2d 311

[Al 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 and obviousness. The . . possessor may
have reason to expect harm to a visitor from known or
obvious dangers, for example when the possessor has
reason to expect that the invitee's attention may be
distracted, so he will not discover what is obvious, or
forget what he has discovered, or fail to protect himself
against it. Since there is no such evidence here, the
trial court was correct in awarding summary judgment in
favor of the Romos.
The very most Forbes has shown is that she
slipped on a piece of gravel. Neither its size nor the
length of time it was on the sidewalk has ever been
shown. The record discloses only this lone, solitary
piece of gravel on the sidewalk. We do not believe that
reasonable minds would differ. Forbes has not shown that
[the lessee of the store1 was negligent.

Forbes, 601 P.2d at 313-14

More recently, the Court of Appeals of Ohio affirmed a summary

judgment that gravel on a walkway next to a gravel parking lot did

not render the walkway unreasonably dangerous or create liability.

Gravel on a walkway next to a gravel parking lot or
driveway is, as held by the trial court, a "minor

13
 imperfection, commonly encountered and expected." 'ro
hold defendants liable for such "trivial departures from
perfection" would be to render them insurers for plain-
tiff's safety and "the law does not go that far."
Jones v. H. & T. Enterprises (Ohio App. 9 Dist. 1993), 623 N.E.Zd

1329, 1333.

I agree with the reasoning of the Arizona and Ohio courts. I

conclude that reasonable minds could not differ as to whether the

presence of a few grains of gravel on a sidewalk next to a gravel

driveway establishes negligence on the part of the property owner.
We do not yet live in an eggshell society in which there is a tort

remedy for every injury.

The majority opinion, in seeking to establish for the first

time in Montana an actionable tort under § 70-24-303(l) (c), MCA,

part of Montana's Residential Landlord and Tenant Act of 1977

(RLTA) , has created a new liability that the majority opinion rests

upon negligence per se. In doing so, the majority has stretched

the RLTA to a point that approaches the mere happening of an

accident as the basis for a tort claim to be decided by a jury.

In the State of Montana, on or in our streets, alleys and

parking lots, owned by property owners and occupied by renters,

there are to be found inevitably small pieces of gravel. How this

could be avoided by a property owner defies reasonableness and

common sense.

Section 70-24-303(l) (c), MCA, provides:
(1) A landlord shall:

(c) keep all common areas of the premises in a clean
and safe condition[. 1

14
The majority has taken this provision of our code and under the

facts of this case has misapplied it.
The majority has also ignored provisions of the RLTA that

place certain obligations and duties upon the tenant of the rented

premises. Section 70-24-321(l) (b), MCA, provides:

Tenant to maintain dwelling unit. (1) A tenant
shall:

(b) keep that part of the premises that the tenant
occupies and w as reasonably clean and safe as the
condition of the premises permitsL.1 [Emphasis added.]

Calder admits in her brief that she and her husband specifically

assumed this obligation under their written lease.

Certainly, if the tenant's obligation is to keep the premises

reasonably clean and safe as the condition of the premises permits-

-which is a reasonable provision--we should, as to reasonableness,

not place any higher duty upon the landlord. The landlord's duty

should be to keep the premises reasonably clean and safe as the

condition of the premises permits.

The majority opinion finds support and comfort in Newton v.

Magi11 (Alaska 1994), 872 P.2d 1213. I find it informative,

however, to point out that the facts involved in Newton are

entirely different from the facts involved in the case before this

Court. In Newton, the landlord had constructed a wooden walkway

from the front door of the house, six feet long and five feet wide,

without a handrail, virtually uncovered, and with no "anti-slip"

material on its surface. The Alaska premises was located in

Petersburg, where persistent rains resulted in a constant drizzle

15
except in the summer when the rain is intermittent and the wet

climate fosters the growth of plant organisms on exposed wooden
boards causing them to become dangerously slippery when wet.

In Newton the permanent installation of the wooden walkway was

accomplished by the landlord, who had notice over a long period of

time of the wet boards and the hazard created for slipping. This

is an entirely different fact scenario than that before this Court.

The majority has failed to cite a major, important part of the
holding in Newton, letting the Alaska court's relevant comments

slip by. The Alaska court stated:
The duty of a tenant is to "keep that part of the
premises occupied and used by the tenant as clean and
safe as the condition of the premises permit[sl .'I AS
34.03.120(l). This obligation exists as part of the same
statute which defines the landlord's obligation to "make
all repairs and do whatever is necessary to put and keep
the premises in a fit and habitable condition." AS
34.03.100(a) (1). It follows that the legislature
intended these obligations to be reconcilable. Reconcil-
iation can be accomplished by interpreting the tenant's
duty to pertain to activities such as cleaning, ice and
snow removal, and other light maintenance activities
pertaining to the safety of the premises which do not
involve an alteration of the premises, whereas the
landlord's duty relates to the physical state of the
premises. This distinction is suggested by the phrase
"as the condition of the premises permit[sl II in section
120(l). 1n context this must refer to the inherent
physical qualities of the premises.

.

. The legislature by adopting the URLTA has
accepted the policy reasons on which the warranty of
habitability is based. These are the need for safe and
adequate housing, recognition of the inability of many
tenants to make repairs, and of their financial disincen-
tives for doing so, since the value of permanent repairs
will not be fully realized by a short-term occupant.

16
 Our rejection of the general rule of landlord
immunity does not make landlords liable as insurers.6
['We do not accept the Newtons' argument that a rule of
strict liability should govern this case.] Their duty is
to use reasonable care to discover and remedv conditions
which present an unreasonable risk of harm under the
circumstances. Nor does our ruling mean that questions
as to whether a dangerous condition existed in an area
occupied solely by the tenant or in a common area, or
whether the condition WJ.23 apparent or hidden, are
irrelevant. These are circumstances which must be
accounted for in customary negligence analysis. They may
pertain to the reasonableness of the landlord's or the
tenant's conduct and to the foreseeability and magnitude
of the risk. In particular, a landlord ordinarily gives
up the right to enter premises under the exclusive
control of the tenant without the tenant's permission.
The landlord's ability to inspect or repair tenant areas
is therefore limited. In such cases "a landlord should
not be liable in negligence unless he knew or reasonably
should have known of the defect and had a reasonable
opportunity to repair it." Young v. Garwacki, 380 Mass.
162, 402 N.E.2d 1045, 1050 (1980).

In our view genuine issues of material fact exist as
to whether the appellees breached their duty to Darline
Newton to exercise reasonable care in liaht of all the
circumstances with respect to the condition of the
walkway. Determination of whether that duty was breached
should be left for the trier of fact.

Newton, 872 P.2d at 1217-18 (emphasis added).

The majority also cites as support for its opinion the case of

Morningstar v. Strich (Mich. 1950), 40 N.W.2d 719. This case,

decided over forty-six years ago in Michigan, is cited by the

majority as the holding of the Supreme Court of Michigan that

violation of a "similar" statute established negligence per se.

However, that case involved a Michigan statute under the State

Housing maw of Michigan that provided, "every dwelling and all the

parts thereof including plumbing, heating, ventilating and

17
electrical wiring shall be kept in good repair by the owner."
Morninqstar, 40 N.W.2d at 721. A statute not similar by any
comparison to 5 70-24-303(l) (c), MCA.

Further, the facts of the Michigan case have no resemblance to

the facts of the case before this Court. The Michigan court
recited the relevant facts as follows:

The plaintiff was two years and nine months old on
February 16, 1944, the date of the accident. He was
playing at the dining room window near the radiator when
the valve came off. He was so severely scalded that he
was hospitalized for 76 days.

Morninqstar, 40 N.W.Zd at 720.

It is clear from the Morninsstar opinion that a steam radiator

remained in defective condition for a long period of time with the

knowledge of the landlord and that this defect permitted live steam

to escape causing the plaintiff injury. The Michigan court went on

to state:

The trial court found that the Hoffman valve
introduced in evidence had been on the radiator and that
the accident and injuries to plaintiff resulted from the
wornout and stripped condition of its threads. He
further found that some inspection of the heating
apparatus was made and that the defendant, Henry C.
Strich, through his agents had notice of the defective
valve and was negligent in not taking the necessary steps
to correct the dangerous condition, and that this was the
proximate cause of the accident.

Viewing the testimony in the light most favorable to
plaintiff, the failure of Henry C. Strich, through his
agent to take the necessary remedial steps to maintain
the heating system in good repair was the proximate cause
of the accident, and the motions were properly denied.
There is no question that Henry G. Strich had notice of
trouble with the valves and that he came to the house
with a plumber. The defective condition of the valve in
question, if it was on the radiator, should have been

18
 apparent upon the examination of it that either was made
or should have been made.
Morninqstar, 40 N.W.2d at 721.

The facts of the Alaska and Michigan cases are strikingly

different from the facts in the case before this Court.

The result of the majority opinion in this case, that negli-

gence per se can be visited upon a property owner renting a
residential facility and can subject the property owner to a jury

trial because of a claimed pebble or pebbles of gravel on a
sidewalk, is stretching the RLTA too far. It gravels me that this
Court would do so.

I would hold that the entry of summary judgment for the
Andersons was correct.

Chief Justi

Justice Charles E. Erdmann joins in the foregoing dissent of Chief
Justice J. A. Turnage.

Justice

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