No. 93-642
IN THE SUPREME COURT OF THE STATE OF MONTANA
CATHERINE J. COOPER,
Plaintiff and Appellant,
-vs-
SISTERS OF CHARITY OF LEAVENWORTH M A Y 2 5 1994
HEALTH SERVICES CORPORATION, and .; ,
ST. JAMES COMMUNITY HOSPITAL, INC., 2,ii B.._?,.c.l~4
id
CLERK CF i I i J i X M E COURT :
S i A T E OF '1' '
~b-.ITANA
Defendants and Respondents.
APPEAL FROM: District Court of the Second Judicial District,
In and for the County of Silver Bow,
The Honorable James E. Purcell, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
John Leslie Hamner, Attorney at Law,
Butte, Montana
For Respondents:
Brendon J. Rohan: Poore, Roth & Robinson,
Butte, Montana
Submitted on Briefs: April 21, 1994
Decided: May 25, 1994
Filed:
Justice John Conway Harrison delivered the Opinion of the Court.
Catherine J. Cooper (Cooper) appeals an order of the Second
Judicial District Court, Silver-Bow County, which granted summary
judgment to the Sisters of Charity of Leavenworth Health Services
Corp. and St. James Community Hospital, Inc. (St. James). We
affirm.
On the morning of July 17, 1991, Cooper--then 80 years old--
travelled to St. James to visit her daughter. Cooper parked her
car behind the hospital and was walking toward the hospital when
her right foot caught on something and caused her to fall. Cooper
fell against the hospital's sidewalk and broke her arm. Cooper was
not certain what she had caught her foot on, however, she
maintained that her soft-soled shoes became "wedged" between the
grate and the sidewalk or between the grate's bars, causing her to
fall to the sidewalk. The sewer drain grate bars are situated
parallel to the flow of pedestrian traffic and the bars are square
and elevated above the grate's frame.
Cooper filed her complaint on November 18, 1992, alleging that
St. James was negligent in its construction, maintenance and repair
of its sidewalk, driveway and drain grate located at the rear
entrance of the hospital. She asserted that St. James knew or
should have known that the uneven conditions of the walkway,
pavement, adjoining grill and the grate's bars--which were raised
and parallel to the flow of pedestrian traffic--constituted a
danger.
2
St. James answered the complaint and generally denied that it
was negligent or that it caused her injuries. St. James then
conducted discovery to determine the factual basis of Cooper's
claim. Cooper did not conduct discovery nor did she obtain experts
to support her claim that St. James was negligent in the
construction, maintenance and repair of the sidewalk, pavement and
drain grate.
Based on Cooper's deposition and Cooper's responses to
interrogatories, St. James filed a motion for summary judgment on
October 12, 1993. Cooper opposed the motion and submitted an
affidavit signed by herself and her ex-husband.
The District Court granted St. James summary judgment on the
basis that the hospital had no duty to warn Cooper of the storm
drain grate because the condition of the grate, pavement and
sidewalk was obvious to anyone who looked and Cooper, in fact,
testified by deposition that she had noticed the condition of the
grate, pavement and sidewalk prior to her fall. Cooper appeals and
presents one issue:
Did the District Court err by granting St. James summary
judgment on the basis that St. James had no duty to warn Cooper of
the open and obvious danger presented by the storm drain grate,
pavement and sidewalk?
Our standard of review on a grant of summary judgment is
identical to that of the trial court's. Minnie v. City of Roundup
(1993), 257 Mont. 429, 431, 849 P.2d 212, 214. We examine the
record to determine whether genuine issues of material fact exist.
Minnie, 849 P.2d at 214. If no genuine issues of fact exist, we
must determine whether the moving party is entitled to judgment as
a matter of law. Minnie, 849 P.2d at 214.
Initially the moving party has the burden to establish that no
genuine issues of material fact exist. Minnie, 849 P.2d at 214.
Here, St. James established that no genuine issues of material fact
existed: Cooper testified that as she approached the rear door to
the hospital, she saw a nurse come out of the door. The nurse
spoke to her. Cooper looked up to say hello and she caught her
right foot on something and fell. Cooper could see the sidewalk
curb and she realized she needed to step up onto the sidewalk. She
also saw the sewer grate "quite a ways before [she] got to it ..
. ." Cooper was also familiar with the area where she fell, having
passed over the area three or four times prior to the accident.
Once the moving party establishes that no genuine issues of
material fact exist, the burden shifts to the non-moving party to
prove that a genuine issue of material fact exists. Minnie, 849
P.2d at 214. "To meet this burden, the non-moving party must
proffer substantial evidence . . . . First Security Bank of
Bozeman v. Jones (1990), 243 Mont. 301, 303, 794 P.2d 679, 681.
Cooper, in support of her contention that material issues of
fact existed, submitted a compound affidavit signed by herself and
her ex-husband, Earl C. Cooper. Rule 56(e), M.R.Civ.P., requires
a summary judgment affidavit to contain certain elements:
[Alffidavits shall be made on personal knowledge, shall
set forth such facts as would be admissible in evidence,
and shall show affirmatively that the affiant is
competent to testify to the matters stated therein. ..
[A]n adverse party may not rest upon the mere
allegations or denials of the adverse party's pleading,
but the adverse party's response, by affidavits . . .
must set forth specific facts showing that there is a
genuine issue for trial.
Here, the affidavit is signed by both Cooper and her ex-
husband and the affidavit does not specify which statements are
based on Cooper's personal knowledge and which statements are based
on her ex-husband's personal knowledge. Further, most of the
alleged "facts" in Cooper's affidavit are only wopinions.~~No
foundation was presented to establish either Cooper or her ex-
husband as an expert in the construction, maintenance or placement
of walking surfaces or sewer grates. Accordingly, neither Cooper
nor her ex-husband could offer expert opinions to establish that
the walking surface and the sewer grate were defective and
dangerous. That testimony would not be admissible as evidence
since "the affiant[s are not] competent to testify to the matter
stated therein." Rule 56(e), M.R.Civ.P. Since Cooper's compound
affidavit does not comply with the requirements of Rule 56(e),
M.R.Civ.P., we conclude, as a matter of law, that Cooper's
affidavit does not raise a genuine issue of material fact.
Cooper failed to identify an uneven slope, defect or
irregularity in the walking surface. She failed to prove that the
construction or maintenance of the walking surface contributed to
her fall. Cooper admitted that she could not identify any "defect"
that caused her fall. In fact, in responding to an interrogatory
about the defective condition or irregularity of the walking
surface, Cooper responded:
At the time [Cooper] fell, she felt her foot catch on the
walking surface. The walking surface created by the
grate and surrounding pavement is uneven. The surprise
and suddenness of her fall precludes [Cooper] from
knowing precisely which defect in the walking surface of
the grate and surrounding pavement caught her shoe and
caused her fall. Inspection should reveal all
irregularities and defects of such walking surface.
Cooper also responded to an interrogatory that inquired about the
acts or omissions which she alleged constituted negligence in the
construction, maintenance and repair of the sidewalk, driveway and
drain grill. She stated:
[St. James] is better aware than [Cooper] as to specific
details regarding construction, maintenance and repair of
its sidewalk where [Cooper] fell. [St. James] ...
admits control and possession of the hospital properties,
which includes the area where [Cooper] fell. Further
details about the specific causes of the uneven walking
surface created by the grate and surrounding pavement
will be furnished by [Cooper] as those facts are
developed in discovery.
Cooper, however, failed to submit discovery and, thus, she failed
to present specific evidence to create a factual dispute as to St.
James' negligence and the alleged defects of the walking surface.
Even though Cooper speculated that her shoe may have become
"wedgedt1between the bars of the sewer grate, it is well settled
that "[mlere conclusory or speculative statements are insufficient
to raise a genuine issue of material fact.'I Lueck v. United Parcel
Service (1993), 258 Mont. 2, 9, 851 P.2d 1041, 1045. Moreover,
even if she would have proved that her shoe became wedged between
the bars of the sewer grate, that fact simply does not show that
the walking surface was defective or improperly maintained.
Cooper has failed to raise a genuine issue of material fact
that the walking surface was defective or improperly maintained.
Accordingly, we must examine whether St. James was entitled to
judgment as a matter of law.
It is well established that a business owner must use ordinary
care to keep its premises reasonably safe and warn people of any
hidden or lurking dangers. Kronen v. Richter (1984), 211 Mont.
208, 211, 683 P.2d 1315, 1317. In Kronen, a woman slipped and fell
in a beauty shop when she failed to see a "step-downn from a
carpeted level to a vinyl floor. The woman admitted that the step
was visible but she claimed that it seemed like the entire floor
"blended together." We upheld the district court's grant of
summary judgment to the defendant and stated that the woman did not
prove that there was a hidden danger or unsafe condition in the
area surrounding the step. Kronen, 683 P.2d at 1318. She had
passed over the step before and was aware of its existence. "She
failed to see and observe that which would be obvious through
reasonably expected use of an ordinary person's senses.!# Kronen,
683 P.2d at 1318. We held that the beauty shop owner had no duty
to warn the woman of the obvious danger presented by the step.
Kronen, 683 P.2d at 1318.
Similarly, here, Cooper admitted that she noticed the drain
grate from a considerable distance and knew the drain grate was in
her path. Cooper failed to show that the drain grate presented an
unsafe condition or hidden danger. An ordinary person reasonably
using her senses would have discovered any danger presented by the
drain grate. However, Cooper did not see and observe any danger
which the drain grate presented.
Cooper failed to prove that the drain grate was unsafe or that
the drain grate presented a hidden or lurking danger. On that
basis, we conclude that St. James was entitled to judgment as a
matter of law. We hold that the District Court properly granted
St. James summary judgment.
A f f inned.
We concur:
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