July 2 2008
DA 06-0708
IN THE SUPREME COURT OF THE STATE OF MONTANA
2008 MT 236
SHARON WILLDEN,
Plaintiff and Appellant,
v.
GERALD NEUMANN, d/b/a NEUMANN
PROPERTIES, CAROLE E. FISHBURN,
Defendants and Appellees.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and For the County of Yellowstone, Cause No. DV-04-0556
Honorable Russell C. Fagg, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Kenneth D. Peterson, Peterson and Schofield, Billings, Montana
For Appellee Neumann:
James R. Halverson and Jesse D. Cook, Halverson & Gilbert, Billings,
Montana
For Appellee Fishburn:
Calvin J. Stacey, Stacey & Funyak, Billings, Montana
Submitted on Briefs: June 26, 2007
Decided: July 2, 2008
Filed:
__________________________________________
Clerk
Justice John Warner delivered the Opinion of the Court.
¶1 Sharon Willden appeals from an order of the District Court of the Thirteenth Judicial
District, Yellowstone County, granting summary judgment in favor of Defendants Gerald
Neumann, d.b.a. Neumann Properties, and Carole E. Fishburn.
¶2 We restate the issues on appeal as follows:
¶3 Did Neumann or Fishburn violate a duty as landlords to keep safe all common areas
of their premises under § 70-24-303(1)(d), MCA (2003)?
¶4 Did Neumann or Fishburn violate a duty as landowners to remove snow and ice from
the adjoining alley, pursuant to Billings, Montana City Code (BMCC) § 22-406?
¶5 Did Neumann or Fishburn as owners of the adjacent premises have a duty to keep the
alley free of ice and snow that presented a hazard to guests visiting their tenants?
¶6 In January 2004, Willden slipped on ice in an alleyway in Billings and was injured.
Willden admitted in the District Court that she fell in an alley. Neither party presented
evidence that the alley where she fell was privately owned. On that basis we accept the
conclusion of the District Court that it is uncontested that the alley is owned by the City of
Billings (City). Two apartment buildings border the alley. Fishburn owns the building to the
north and Neumann owns the building to the south.
¶7 Snow had accumulated in the alley, as is typical in Billings in January, and cars had
driven over the snow, compacting it into ice. According to Willden, she was aware that the
alley was sloped and icy, and that the ice was slippery.
¶8 Willden was visiting her son who was a tenant in Neumann’s building. Her husband
and son were working on his car that was in the tenants’ parking area behind Neumann’s
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building. This parking area was accessible by the City alley. Willdon’s son had the right to
use one of three designated parking spaces behind the building. Willden was walking
through the alley towards her son’s car when she slipped on the ice. She suffered a
compression fracture of a vertebrae and a bruised tailbone.
¶9 Willden brought a claim against Neumann and Fishburn, alleging that they had a duty
as landlords to keep safe all common areas of their premises, pursuant to § 70-24-303(1)(d),
MCA (2003), a duty as landowners to remove snow and ice from abutting properties,
pursuant to BMCC § 22-406, and a duty as landowners to keep adjacent premises reasonably
free of dangers, even if clear and foreseeable, that presented a sufficient hazard to guests,
pursuant to this Court’s decision in Limberhand v. Big Ditch Co., 218 Mont. 132, 706 P.2d
491 (1985). Willden claimed that both defendants breached their duties by allowing snow
and ice to accumulate in the City alley. Willden asserts that the defendants had notice or
implied notice of the ice hazard.
¶10 Neumann contends that he had no control over or responsibility for the alley. He also
contends that tenants were not forced to walk down the alley to reach the parking area. His
uncontradicted deposition testimony was that tenants and their guests could access the
tenants’ parking area through the building and did not have to go through the alley.
Neumann also testified in his deposition that there are sidewalks and walking trails around
the apartment buildings to the north of the alley. Neumann claims that by electing to walk
through the City alley to her son’s car, instead of through the building or along the sidewalk,
Willden exposed herself to the danger of the icy alley for which he was not responsible.
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¶11 Fishburn likewise denies having any control over or responsibility for the City alley.
Fishburn’s property was managed by a property management company which hired a man to
plow two strips in the alley as a courtesy to Fishburn’s tenants who used the carports in back
of his building. These plowed strips were not close to where Willden fell. Fishburn also
contends that where Willden fell was much closer to Neumann’s building than her building.
¶12 Both defendants deny having any agreement with the City regarding use or
maintenance of the alley. Willden has presented no evidence to the contrary. Both
defendants deny responsibility for maintaining the alley. Both defendants moved for
summary judgment, which motions were granted. Willden appeals.
¶13 We review a district court’s grant of summary judgment de novo and apply the same
standard as the district court under M. R. Civ. P. 56. The moving party must establish the
absence of a genuine issue of material fact and entitlement to judgment as a matter of law.
Once the moving party establishes the lack of a material fact, the burden shifts to the non-
moving party (Willden) to prove, by more than mere speculation that a genuine issue of fact
exists. If the district court determines that no genuine issue of material fact exists, the
district court must then determine whether the moving party is entitled to judgment as a
matter of law. Grimsrud v. Hagel, 2005 MT 194, ¶ 14, 328 Mont. 142, ¶ 14, 119 P.3d 47, ¶
14.
¶14 Negligence claims generally are not susceptible to summary judgment determinations.
Smith v. Kerns, 281 Mont. 114, 119, 931 P.2d 717, 720 (1997). Yet, the record in a
negligence action must present facts which, if true, would show: (1) the existence of a legal
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duty from defendant to plaintiff; (2) a breach of that duty; (3) causation; and (4) damages to
the plaintiff. The threshold question of whether the defendant owed a legal duty to the
plaintiff is a question of law reserved for the district court rather than a question of fact
reserved for a jury. Webb v. T.D., 287 Mont. 68, 72, 951 P.2d 1008, 1011 (1997).
Therefore, if the record reveals that a defendant owed no duty to the plaintiff, that defendant
is entitled to judgment as a matter of law.
ISSUE ONE
¶15 Did Neumann or Fishburn violate a duty as landlords to keep safe all common areas
of their premises, under § 70-24-303(1)(d), MCA (2003)?
¶16 The Montana Residential Landlord and Tenant Act (the Act), § 70-24-303(1)(d),
MCA (2003), requires that a landlord keep all common areas of the premises in a clean and
safe condition.
¶17 The Act does not define what constitutes a “common area.” Where the legislature
provides no definition for a term used in a statute, we apply the plain meaning of the term.
Black’s Law Dictionary 291 (Bryan A. Garner ed., 8th ed., West 2004), defines “common
area” within landlord-tenant law as “realty that all tenants may use though the landlord
retains control and responsibility over it.” The Act defines premises as “a dwelling unit and
the structure of which it is a part, the facilities and appurtenances in the structure, and the
grounds, areas, and facilities held out for the use of tenants generally or promised for the use
of a tenant.” Section 70-24-103(10), MCA (2003).
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¶18 Section 70-24-303(1)(d), MCA (2003), enhances safety of tenants and their guests by
imposing a duty on landlords to keep common areas on his or her premises clean and safe. A
failure to comply with this section of the Act is negligence per se. Calder v. Anderson, 275
Mont. 273, 279-80, 911 P.2d 1157, 1160-61 (1996). The Act expressly extends its remedies
to any person who is aggrieved when the landlord breaches the duties embodied in Mont.
Code Ann. § 70-24-303 (2003).
¶19 Willden, citing Calder, contends that the defendants have a legal duty as landlords to
clear the ice and snow from the alley because it was a common area used by tenants and their
guests to access the parking area. Thus she argues, by virtue of § 70-24-303(1)(d), MCA
(2003), they are required to keep it in a clean and safe condition.
¶20 In Calder, 275 Mont. at 279-80, 911 P.2d at 1161, we held that the landlord,
Anderson, had a duty to maintain a sidewalk leading from the base of the apartment steps to
the tenant parking area. After exiting her apartment and descending the stairs, the tenant,
Calder, slipped and fell on the sidewalk leading to the parking area. She claimed that rocks
or gravel that had accumulated on the sidewalk caused her fall. We reversed the district
court’s summary judgment in favor of the landlord Anderson concluding that a failure to
comply with § 70-24-303, MCA, was negligence per se and the landlord had a duty to
maintain common areas regardless of who created the dangerous condition or how obvious it
was. However, in Calder questions concerning whether the sidewalk where Calder fell was
a common area or whether it was a part of the premises were neither raised nor discussed. In
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Calder, it was assumed that the sidewalk where Calder fell was a common area of the
premises.
¶21 To the contrary, in this case the alley where Willden fell is City property over which
the defendant landlords had no control. The alley was open to the public, and was used by
the City’s waste collection service in addition to being used by some tenants to access the
parking area. The fact that tenants, as members of the public, used the alley to suit their
convenience does not make it a part of the premises let to tenants, or a common area that a
landlord must maintain within the meaning of § 70-24-303(1)(d), MCA (2003).
¶22 Neither Neumann nor Hodges, Fishburn’s property manager, know when the alley
was paved or who paved it, and neither have any idea if it has ever been plowed or de-iced.
Neither landlord has any authority to allow, or to prohibit, use of any part of the alley by
their tenants or anyone else. Fishburn merely cleared a strip of it as a courtesy but was under
no legal obligation to do so. The facts that the City alley becomes a dead-end and that
tenants sometimes use the alley to access parking spaces do not impose a duty on either
Neumann or Fishburn to keep it clear of ice and snow under § 70-24-303(1)(d), MCA
(2003).
¶23 The City alley where Willden fell is not, under the Act, a common area of the
premises. The Act does not impose a duty on defendants.
ISSUE TWO
¶24 Did Neumann or Fishburn violate a duty as landowners to remove snow and ice from
the adjoining alley, pursuant to BMCC § 22-406?
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¶25 By ordinance, landowners in the City of Billings have a duty to remove snow, ice,
etc. from sidewalks in front of and adjoining his or her premises.
It shall be the duty of the occupant of any premises within the city limits, or in
case such premises are unoccupied, then the owner or his or her agent, to keep
the sidewalks in front of and adjoining his or her premises clean and safe for
pedestrians, and to repair the same from time to time; and such occupant,
owner or agent shall remove snow, ice, mud, slush and other impediment to
safe and convenient foot travel, within twenty-four (24) hours after such snow,
ice, slush or other impediment accumulates thereon, and prevent the
continuance and accumulation of the same.
BMCC § 22-406.
¶26 Willden argues that the alley where she fell should be considered a sidewalk and that
BMCC § 22-406 imposes a duty on Neumann and Fishburn to remove the ice and snow from
the alley. Defendants argue that because Willden did not fall on a sidewalk, BMCC § 22-
406 does not apply.
¶27 The terms “sidewalk” and “alley” are defined in § 1-102 of the BMCC.
Sidewalk. “Sidewalk” means that portion of a street between the curb line and
the adjacent property line intended for the use of pedestrians.
....
Street. “Street” includes any public ways, roads, highways, avenues, alleys
and lanes within the city.
BMCC § 1-102 (emphasis added).
¶28 Alleys are streets, not sidewalks, under the BMCC. BMCC § 22-406 does not apply
to this case. The District Court’s conclusion of law that the defendants owed no duty to
Willden under the BMCC is correct.
ISSUE THREE
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¶29 Did Neumann or Fishburn as owners of the adjacent premises have a duty to keep the
alley free of ice and snow that presented a hazard to guests visiting their tenants?
¶30 Montana recognizes that a property owner’s duty to keep his premises reasonably safe
may extend beyond his premises. Limberhand v. Big Ditch Co., 218 Mont. 132, 146, 706
P.2d 491, 499 (1985), citing Piedalue v. Clinton Elem. School Dist. No. 32, 214 Mont. 99,
692 P.2d 20 (1984). Piedalue involved a plaintiff who, after leaving defendant’s trailer
court, drove her car down a lane that was no longer used, but was allegedly open and
unmarked, into an irrigation ditch sixty to seventy feet away from defendant’s trailer court.
Limberhand involved a visiting child that drowned in an irrigation ditch some thirty feet
away from a parking lot provided for tenants of defendant’s apartment building. These cases
established the principle that when an instrumentality causing harm is located adjacent to a
landowner’s property and it poses a clear and foreseeable danger to persons properly using
the landowner’s premises, the landowner is not shielded from liability as a matter of law.
The fact that the instrumentality is not located on the landowner’s property does not as a
matter of law bar a plaintiff’s claim. Limberhand, 218 Mont. at 146, 706 P.2d at 499-500.
¶31 The question presented in this case is whether this principle shall be extended to a
publicly owned alley next to an apartment building. We conclude that a public alley covered
with ice and snow is different than the allegedly hidden and unmarked, privately-owned
irrigation ditch in Piedalue and the privately-owned irrigation ditch that was allegedly an
attractive nuisance in Limberhand.
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¶32 In both Piedalue and Limberhand, the dangerous instrumentality was only accessible
through the defendant landowners’ adjacent properties, whereas, in this case, the icy alley
was accessible not only to the defendants’ tenants and their guests but also to the general
public via a public street. Rather than a hidden or lurking danger or an attractive nuisance,
this case involves an open and obvious hazard. Rather than a man-made instrumentality, the
danger of which the defendant landowner alone was aware, this case involves a natural
condition of winter, the accumulation of ice and snow. The danger of falling on ice and
snow is or should be well known to everyone who uses the streets and alleys of Billings in
January, including Willden.
¶33 The defendant landowners can reasonably be charged with knowledge that their
tenants and their visitors may use the alley in question as pedestrians or in any other way, for
any lawful purpose, at any time and as often as they like. This is because anyone, and
everyone, may use the alley as pedestrians or in any other way, for any lawful purpose, at
any time, as often as they like. The Court sees no logical way to distinguish Willden from
another member of the general public who decided to use the alley. In essence, Willden asks
this Court to determine that adjacent landowners have a legal duty to keep a public way
owned by a municipality free from an accumulation of ice and snow, or to post a notice
warning persons using it that it is slippery. We decline to judicially enact such a
requirement.
¶34 For the aforementioned reasons, we affirm the District Court’s order granting
summary judgment in favor of Defendants Neumann and Fishburn.
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/S/ JOHN WARNER
We Concur:
/S/ KARLA M. GRAY
/S/ PATRICIA COTTER
/S/ JAMES C. NELSON
/S/ JIM RICE
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