*1 409 INC., corporation, ALBERTSON’S CERECK, MARY Plaintiff, corporation, shopping holidayvillage montana center dants. Defen 81-93. No. Sept. 1981. Submitted 25, 1981. Decided Nov.
Rehearing Dec. 1981. Denied P.2d 509. *2 Hoyt Hoyt argued Falls, for Trieweiler, & John Great plaintiff. Anderson
Church, Harris, Williams, Johnson & Mike argued, argued, Cresap Falls, S. McCracken Great and defendants. opinion
MR. CHIEF JUSTICE HASWELL delivered the of the Court. damage slipped,
In a action a customer who fell and was injured premises, on business the District Court Cascade of County granted summary judgment to defendants. Plaintiff appeals. We reverse. February February day, Cereck
On a warm Mrs. Holiday and her husband travelled automobile to the Village Shopping Falls, Montana, some Center Great to do shopping grocery at the Albertson’s store. February prior
It had
in Great Falls
to
25 and the
snowed
parking
snow in the
lot located north of the Albertson’s store
up along
plowed
pushed
had been
off the lot and
the north
forming
high.
edge
A
store,
a snow bank several feet
of the
through
passageway
the
to
had been shoveled
snowbank
through
parking
pedestrians
enable
to walk from the
lot
store.
to the eastern entrance of the Albertson’s
snowbank
immediately
parked
car
west of
Mrs. Cereck’s husband
got
passageway.
car,
Mrs. Cereck
out of
shoveled
She
the passageway.
it and approached
around behind
walked
believing
and
she
in the passageway
observed water-puddle
to
snowbank
it,
over the
she started
could not
over
step
forward,
her way
so make
of it.
to
side
While
right
attempting
her left
and
leg
and
fell,
injured
she
her footing, slipped,
lost
in the
was
for the
she sustained
She
hip.
hospitalized
months.
fall
was unable to work for several
and
for main-
Center was
Holiday Village
responsible
Shopping
lot area. The
center’s
shopping
manager
the parking
taining
existed
the north side
was
snowbank
along
aware
activities
result
the snow plowing
Albertson’s store
in the
lot area.
janitorial
which had been conducted
parking
center
keep
had been hired
shopping
service
entrances,
the entrance
including
center
shopping
free
ice
This
in-
store,
buildup.
job
and snow
Albertson’s
the snowbanks
allow
cutting
through
cluded
passageways
also included
to the store entrances.
It
customers access
of ice melt at the store en-
removal of water
the spreading
had
necessary.
trances when
The Albertson’s store personnel
*3
the
also
maintain the
entrances of
walkways leading
helped
store.
Albertson’s
The issue on
is whether
the District Court erred
appeal
summary judgment.
the defendants’ motion for
granting
is to
summary judgment procedure
of the
purpose
The
trials,
unnecessary
judicial economy by eliminating
encourage
M.R.Civ.P.,
there
56(c),
only
and it
under Rule
when
is proper
and
is en
is no
issue of material fact
genuine
moving party
law. Reaves v. Reinhold
a
a matter of
titled to
as
judgment
37
(1980), Mont.,
896,
P.2d
1500.
St.Rep.
615
a
summary judg-
It is
established that
party moving
well
a
absence of
showing
any ge-
ment
the burden of
complete
as
all facts deemed material
light
nuine issue
a
entitle that
party
judgment
principles
substantive
Harland v. Anderson
Reaves,
(1976),
a
law.
supra;
matter of
v. Dormanen
Bahm
(1975), 168
447,
613;
169
548 P.2d
Mont.
bemay
All
inferences that
408,
412 duty upon imposed
When a
is
the defendant and the
allegations,
support
finding
plaintiffs
proven,
a
if
duty, summary judgment
improper. Rennick
breach of the
is
(1980),
St.Rep.
,
1079,
v.
606 P.2d
37
308.
Hoover
Mont.
duty imposed upon
In
Montana
depends upon
injured party
premises.
the status of the
on the
In this case Mrs. Cereck was a business invitee. Montana
duty
cases have held that the
owner’s
toward an in-
ordinary
reasonably
keep
premises
vitee is to use
care to
any
lurking dangers;
safe and to warn the invitee of
or
hidden
actually
if
is satisfied
condition is
or
obvious
Safeway
supra;
Rennick,
known.
Luebeck v.
Stores, Inc.
(1968),
Regedahl
Safeway
88,
152 Mont.
Several Montana cases have involved to invitees by icy conditions, caused this Court has held that there is liability imposed upon danger no the landowner where the forming created the elements such as the ofice and the fall- ing universally actually of snow is Rennick, known or known. (1976), supra; v. Dunham Southside National Bank 169Mont. supra. 466, 1383;Luebeck, 548 P.2d following The statement from Soennichsen Crawford (1963), approval Neb. N.W.2d was cited with supra: in Luebeck, Court “[T]he general clearly rule seems to be that store owner charged negligence by cannot be with reason of natural ac- cumulation of ice and snow where as well the condition is plaintiff known to the as the defendant.’” rejected specifically Luebeck, this Court the rationale that natural conditions such as obvious snow and ice create unreasonably dangerous require such an condition as to precautions. landowner to take certain icy conditions discussed the cases cited above were *4 by natural conditions caused the elements. The case before us in of differs that the natural accumulation ice and snow had plaintiff been The contends that the hazard created altered. by ice the natural accumulation of and snow was increased piled was near the store entrance. when the snow (1971), Hospital v. St. Peter’s 157 Mont. Willis brought injuries patrolman an sustained P.2d a action for allegedly slipped when he on an accumulation of ice and snow emergency hospital’s near a entrance. This Court held that granting summary judgment improper was case that jury question and stated that one was to decide slippery whether the a condition of the snow and ice was a result of natural accumulation the result of the or defendant’s carelessness. may be held liable for falls on accumula- by
tions iceof and snow where the hazard created the natural by accumulation is a increased or new hazard is created an af- property owner; firmative act of the such a even where condi- actually may obvious, tion is known or owner injuries be anticipated held liable if he should have that would dangerous supra; result from the Rennick, condition. Restate- (Second) (1X1965). § ment Torts, 343A
Mrs. Cereck claims that defendants’ acts in affirmative creased the hazard caused the natural accumulation of anticipated snow and ice and that the defendants should have that resulted. party opposing summary judgment is entitled to the may all benefit of reasonable inferences that be drawn from proof. may reasonably the offered In this case it be inferred piling that the of snow front of the store entrance increased the hazard created the natural accumulation snow and anticipated ice and that the defendants in- should have juries dangerous that Mrs. Cereck received as result of the condition. support finding
Since the claimmade Mrs. Cerck granting of breach of her, defendants’ toward of sum- mary judgment improper. was
Reversed and remanded for trial. concurring: MR. JUSTICE MORRISON result, in all is said therein. Uconcur Specifically, but not begun depart from Court “status” *5 of care owed owner. determining degree by property Corrigan Janney 838, 38 (1981), Mont., See 626 P.2d St.Rep. in Cereck, 545. The Mrs. need the status of enjoy not plaintiff, care is to of due owed. general vitee order recover. duty liability confines owner majority opinion ice and those situations natural accumulations of snow to changed where the increased or some affirmative act. I Section through hazard would adopt (1) (Second) (1965) 343A. which provides Restatement Torts as follows:
“A of land is not liable to his invitees for physical possessor them on the activity harm caused to or condition land by any unless them, whose is known or obvious danger harm should such knowledge possessor anticipate despite or obviousness.” rule is the restatement to invitees.
Admittedly, applicable I However, would not status “land though recognize I feel rule to to facts liability”, applicable be possessor’s such at bar. as those the restrictive ratio decidendi case is my opinion, meet such failure to If the situations
inadequate plow. had not been maintained any lot parking question to accumulate so fashion, and snow were allowed that snow, wade knee no deep customers were required through rule would be owed under duty by possessor adopted incur who do no nothing liability. Those majority. are their lots Those who parking exposed. plow I not adequately such restrictive does believe communi- owed the business recognize responsibilities upon the public dependent does not ty, adequately protect not community, promote and does services provided public policy. sound but reasons, I concur in result foregoing
For the to sustain the same outcome. legal different adopt principles