Kronen v. Richter

NO. 83-466

IJ THE SUPRCllE COURT OF THE STATE OF MONTANA
I
1984

ALBERTA R. KRONEN,
Plaintiff and Appellant,

VICKI RICHTER d/b/a THE
HAIR BENDER,
Defendant and Respondent.

APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Missoula,
The Honorable John S. Henson, Judge presiding.

COUNSEL OF RECORD:
For Appellant:

Tipp, Hoven, Skjelset & Frizzell; Raymond P. Tipp,
Missoula, Montana
For Respondent:
Garlington, Lohn & Robinson: Candace C. Fetscher,
Missoula, Montana

Submitted on Briefs: February 16, 1954
i)ecided: July 10, 1984

. j d :Y84
Filed:

Clerk
Mr. Justice L. C. Gulbrandson delivered the Opinion of the
Court.

This case comes on appeal from an order of the
District Court of the Fourth Judicial District, Missoula
County, granting defendant Vicki Richter, d/b/a, The Hair
Render, summary judgment. We affirm.
On August 31, 1976, while visiting her parents in
Missoula, the plaintiff Alberta R. Kronen had her hair done
at The Hair Bender beauty salon. She had never visited the
shop before. The Hair Bender had a linoleum covered floor
area for washing, cutting and styling and an elevated
carpeted area towards the back of the shop where there were
five hair dryers. The carpeted area was one step higher
than the linoleum area of the shop.
Carol Bell, an employee of the defendant, washed and
set appellant's hair and accompanied her up the step to the
carpeted drying area. The plaintiff sat under a hair dryer
for forty-five minutes after which plaintiff was motioned to
the front of the shop by Bell. In her deposition, the
plaintiff described an accident as follows:
'I... [Tlhen when I was dry, I got out
from under the hairdryer and walked
toward the chair, operator's chair, and
the step down from the dryer area just
didn't even see it, and fell just really
on the linoleum, just fell, kind of
twisting my leg apparently hard."
Deposition of Alberta Kronen, 11:14-18.
Regarding..the steps visibility, the plaintiff explained:
"Q. You got up yourself, then, without
waiting for her [Carol]?
"A. Yes.
"Q. And walked, prepared to walk down the
step and that's when you fell; is that
correct?
 "A. Right, I didn't really see the step.
It seemed like the whole floor blended
together.
"Q. But the one part was carpet and the
one part was linoleum; is that correct?
"A. Right.

"Q. If you had been looking for it, you
could see that there was a step there as
you can in these photographs; is that
correct?
"A. I think it's more obvious going this
direction toward the dryers that there is
a step than it is when you are looking
the other direction, as I remembered it.
"Q. You saw it more readily when you went
up; is that correct?
"A. Yeah, right.
"Q. But it wasn't something that was
completely hidden from view?

"Q. What I'm asking is whether or not the
step was completely hidden from your
view.
"A. Well, it may not have been hidden. I
just didn't see it." Deposition of
Alberta Kronen, 26:15-27:21.
On October 12, 1977, plaintiff filed suit against the
defendant seeking damages cause by the defendant's alleged
negligence. The plaintiff's complaint alleged that she "had
no knowledge of, nor was she advised by the operator of the
difference in said [floor] level."
On July 11, 1983, the District Court granted the
defendant's motion for summary judgment ruling that the
undisputed facts did not show that the defendant breached a
duty of ordinary care to an invitee and that the plaintiff
had failed to show that there was:
"a hidden danger in the area surrounding
the step or any unsafe condition.
Plaintiff had passed over the step once
 and therefore has knowledge of its
existence and location."
The plaintiff appeals, arguing the District Court
erred in granting defendant's motion for summary judgment
because there existed genuine issues of material fact
regarding defendant's duty to warn plaintiff of a danger
caused by the step in defendant's beauty salon. Similarly,
the plaintiff asserts there was a genuine issue of material
fact concerning comparative negligence.

Summary judgment is never to be 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,
M.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.
In the case at bar, the relationship between appellant
and respondent was one of invitor-invitee. The duty owed to
a business invitee is to exercise ordinary care to have the
preinises reasonably safe and to warn the invitee of any
hidden or lurking dangers. Rennick v. Hoover (Mont. 1980),
606 P.2d 1079, 37 St.Rep. 308; Regedahl v. Safeway Stores
Inc. (1967), 149 Mont. 229, 425 P.2d 335. Section 343 A (1)
Restatement (Second) of T o r t s (1965) p r o v i d e s :
"A p o s s e s s o r of l a n d is n o t l i a b l e t o h i s
i n v i t e e s f o r p h y s i c a l harm c a u s e d t o them
by a n y a c t i v i t y o r c o n d i t i o n o n t h e l a n d
whose d a n g e r i s know o r o b v i o u s t o them,
unless t h e possessor should a n t i c i p a t e
t h e harm d e s p i t e s u c h knowledge o r
obviousness."

In the present case, t h e r e was n o e v i d e n c e p r e s e n t e d o f a
hidden or lurking danger on t h e premises that t h e owner
should have a n t i c i p a t e d . The owner i s e n t i t l e d t o a s s u m e

t h a t t h e i n v i t e e w i l l see and o b s e r v e t h a t w h i c h would b e
obvious through reasonably expected use of an ordinary
person's senses. Demaree v . Safeway S t o r e s , Inc. (1973),

1 6 2 Mont. 4 7 , 508 P.2d 570.
The r e c o r d b e f o r e t h e D i s t r i c t C o u r t d i d n o t show t h a t

the respondent breached a duty of ordinary care to the
appellant. A p p e l l a n t d i d n o t come f o r t h w i t h e v i d e n c e t o

show t h a t t h e r e was a h i d d e n d a n g e r o r u n s a f e c o n d i t i o n i n
t h e area surrounding t h e step. A p p e l l a n t had p a s s e d o v e r

t h e s t e p o n c e and t h e r e f o r e had knowledge o f i t s e x i s t e n c e
and location. She f a i l e d t o see a n d o b s e r v e t h a t w h i c h

would be obvious through reasonably expected use of an
ordinary person's senses. Accordingly, respondent d i d n o t
have a duty to warn appellant of an obvious danger.
Demaree, supra. The appellant had the burden of coming
f o r w a r d w i t h e v i d e n c e t h a t would p l a c e a g e n u i n e i s s u e o f
f a c t before the court. R u l e 5 6 ( c ) , M.R.Civ.P.

I n N a t i o n a l Gypsum Co. v. Johnson ( 1 9 7 9 ) , 1 8 2 Mont.
2 0 9 , 595 P.2d 1188, t h i s Court s a i d t h a t a p a r t y opposing a
motion for summary judgment may not rest upon the mere
allegations or denials of his pleadings. The party's
r e s p o n s e , by a f f i d a v i t s o r o t h e r w i s e a s p r o v i d e d i n t h e r u l e
" . . . must set forth specific facts showing that there is
a genuine issue for trial." In Barich v. Ottenstror (1976),
1 7 0 Mont. 38, 5 5 0 P.2d 395, this Court held that conclusory
or speculative statements are insufficient to raise a
genuine issue of material fact.
Appellant's assertions that others had fallen down the
step and that the step blended with the floor are not
supported by the record. Appellant did not produce any
additional evidence that would raise a genuine issue of
material fact. If the appellant possessed such evidence she
had the burden of producing it and could not rely on
conclusory or speculative statements. National Gypsum Co.,
supra. Accordingly, the District Court properly determined
that the appellant's fall was due to her own negligence and
there were no genuine issues of material fact concerning
respondent's duty to warn and respondent's comparative
negligence.
Affirmed.

We concur:

~ l u m A
Chief Justice
#.aw

Justices
Mr. Justice Frank B. Morrison, Jr. specially concurring as
follows:
I concur in affirming the summary judgment entered in
favor of defendant. I further agree with adoption of the
principle set forth in section 343 A (1) Restatement (Second)
of Torts (1965). I advocated in a specially concurring
opinion filed in Cereck v. Albertson's, Inc., 38 St.Rep.
1986, P.2d , that this rule be ad.opted. Certainly
the rationale of Cereck is tha.t a duty may be owed though the
condition is open and obvious if the land owner has reason to
believe that despite the open and obvious nature of the
condition, that injuries will nevertheless result. The
language in the majority opinion which I find objectionable
follows the restatement quotation and is as follows:
"The owner is entitled to assume that the invitee
will see and observe that which would be obvious
through reasonably expected use of an ordinary
person's senses."
This formerly was the law in Montana. The law was
changed in Cereck where summary judgment for defendant was
reversed though the condition was open and obvious. There is
a duty to warn if the land owner anticipates that injuries
will nevertheless result.
In this case plaintiff has failed to come forth with
evidence creating a duty on the part of the land possessor to
warn because there is no evidence showing that the land
possessor, respondent here, should have anticipated
plaintiff's injuries. There is a total failure of proof to
show that the condition of the premises was defective or
unreasonably dangerous. For these reasons, I vote to affirm
Mr. Justice John C. Sheehy, dissenting:

I dissent. This plaintiff is entitled to have a jury
determine whether the defendant was liable for her fall on
the business premises of the defendant.
It is clear from the evidence here, and it is admitted
in the defendant's brief on appeal that the color of the
carpet on the raised portion of the business premises blended
with the linoleum on the lower portion of the business
premises. The majority have interpreted the plaintiff's
statement that she "just d-idn't see it," as an indication
that she did not look to determine the stair was there. It
is as easy to interpret the statement to mean that having
looked she could. not see it because the carpet blended with
the linoleum.
The majority decides, as the District Court decided that
because the plaintiff had passed over the same step when she
went in the opposite direction 45 minutes to one hour
earlier, that she had knowledge of the step and therefore
knew of its existence on the return trip. That
interpretation establishes a test that goes beyond what might
be expected of a reasonably prudent, ordinary person; it is a
test for superhumans. I doubt that any of us could remember
in detail the elevations in a strange business premises one
hour after we had passed over the same for the first time.
This woman rose from the hair dryer, and returned to the
step at the beckoning of the attendant in the business. She
sustained a dangerous fall which injured her and resulted in
a fracture to a bone in her ankle because she "just did not
see" that the carpet was blended with the linoleum, and
actually was 6 inches higher than the linoleum. It should be
a jury decision as to whether she was trapped by these
innocent looking premises.
This case should be submitted to the jury on the issue
of whether the business operator of the premises should have
anticipated the danger lurking in the col-oration of the
linoleum and the carpet so as the raise a duty to warn
customers or alter the premises.
One need only read the majority opinion to realize that
a fact issue exists in this case. Most of the majority
opinion is an interpretation of the facts, and always against
the plaintiff. Interpretation of facts is jury business, not
court business.
The probability that plaintiff will not prevail at trial
is no justification for granting summary judgment. It may
appear that recovery is very remote, but that is not the
test. If there is a genuine issue of material fact, summary
judgment is not appropriate. Rule 56(c), M.R.Civ.P.
 Mr. Justice Fred J. Weber dissents as follows:
I respectfully dissent from the majority opinion. I

agree with Justice Sheehy that because there are genuine
issues of material fact, summary judgment is not appropriate

Mr. Justice Daniel J. Shea:

I join in the dissent of Mr. Justice Sheehy.