*1 SHIRLEY CALDER, Appellant, Plaintiff CARL ANDERSON and BONNIE ANDERSON, Respondents.

Defendants No. 95-288. February 8, Submitted on Briefs 1996. February 26, Decided 1996. St.Rep. 275 Mont. 273. 911 P.2d 1157. *2 Picotte, Attorney Law, Gene A. at Appellant: For Helena. Drake, Keller, Reynolds, Drake, G. Curtis Respondents: For & Gillespie, Johnson Helena. Opinion

JUSTICE TRIEWEILER delivered the of the Court. Calder, plaintiff, Shirley complaint filed a in the First Judicial County District Court Lewis and Clark in which alleged she landlords, Anderson, her Carl and Bonnie negligent. Andersons summary judgment moved for and the District granted Court their motion. We reverse the of the District Court.

The issue on appeal is whether the District Court erred when it summary granted judgment.

FACTUALBACKGROUND Shirley In March 1994 Calder and her husband rented an apart- ment from Carl and Bonnie Anderson. A set of steps leads from the apartment entrance of the Calders’ to a sidewalk which leads to the parking tenants’ area. The parking tenants’ area consists of gravel and dirt and is located near one side of the sidewalk. complaint,

In her Calder alleged May 3, that on the afternoon of apartment, staircase, she exited her descended the and fell on the sidewalk at the base of the steps. alleged She that as a result of fall, injuries she sustained back, neck, to her lower hip, shoulder, and required hospitalization for three and days. one-half *3 complaint

Calder also stated in her that the negligently Andersons failed to maintain the sidewalk in a safe condition and violated 70-24-303, MCA, in the following manner: §

At all times material herein negligently defendants failed to area, keep said common to wit: Said concrete walk in a clean and they safe condition required by 70-24-303(l)(c), as were to do § MCA, dirt, refuse, and permitted pebbles and other materials to accumulate and remain thereon so that said walk became and remained and was at the time of plaintiff’s injuries accident and alleged dangerous hereinafter upon. and unsafe to walk The Andersons the complaint allegations answered and denied all negligence. Shirley by deposition Calder testified that on the date of her stairway leading accident she had descended the from the door ofher sidewalk, onto the where her feet landed apartment stepped or which caused her to skid for some unexpectedly gravel on rocks under her and landed face distance before her feet flew out from she She further testified that she knew that she had skidded and down. felt the rocks the soles through lost control on small rocks because she stepped of her shoes when she down on them and because she and by her husband later observed the skid marks caused the rocks where occurred. her accident summary judgment

The Andersons moved for following Calder’s They that deposition. argued there was no hidden defect on the they and that had no to warn Calder of the premises presence on the sidewalk because the gravel clearly would have been had she looked. obvious

The District Court granted summary judgment Andersons’ that injuries motion. The court found Calder’s were not caused lurking danger subject which would hidden Andersons to further liability. The court stated that the rocks on the sidewalk have been obvious to Calder if she had looked at the would sidewalk Finally, she walked on it. the court stated that while there was no any that the Andersons took affirmative action aggravate evidence hazard, therefore, alleged or create the that there was no basis finding they negligent. that for

DISCUSSION granted summary Did the District Court err when it judgment? summary judgment This Court reviews a order entered M.R.Civ.R, 56, to Rule based on the same pursuant applied criteria Brinkman and Enterprises the district court. Lenon v. P & DLand 241, 1112, (1994), 238, 56(c), 263 Mont. 867 P.2d 1114. Rule M.R.Civ.R, provides summary judgment proper only that when fact genuine any moving “there is no issue as to material and ... the party is entitled to a as matter of law.” We look to the file, pleadings, depositions, interrogatories, answers admissions on genuine to determine the existence or nonexistence of a and affidavits (1995), 215], Ulrigg [274 issue of material fact. v. Jones Mont. 937, 940. P.2d first address the Andersons’ contention that because Calder

We 70-24-303, MCA, opposition failed to cite to the Andersons’ motion waived on summary judgment, appeal. she its consideration and, argument Court of Alaska considered a similar after Supreme rule, summary judgment Alaska’s which is identical reviewing Montana’s, applicable the law to a case could be disagreed (Alaska 1994), 872 P.2d 1215. That Magill waived. Newton *4 held that: court summary supe- oppose judgment, if a does not litigant

[E]ven only may grant “appropriate” the motion if otherwise rior court Bros., 684 P.2d Chappel, Rule 56. Weaver Inc. under (Alaska 1984). reason, supe- For this this court should review the summary rior court’s under the usual standard grant judgment of review. summary only

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

Newton, 872 P.2d at 1215. applicability controlling statute was raised in the when, Court in Paragraph complaint,

District IV ofher Calder alleged “[a]t that all times material herein defendants negligently failed to area, keep said common to wit: Said concrete walk in a clean and safe they required by 70-24-303(l)(c), condition as to do MCA.” § IV of Paragraph complaint specifically Calder’s denied defendants’ answer. 56(c), M.R.Civ.R, provides

Rule in relevant part that: The judgment sought shall be rendered forthwith if the pleadings, depositions, interrogatories, file, answers to and admissions on together affidavits, any, with the if genuine show that there is no any issue as to material fact and that the moving party is entitled a as matter of law. added.) (Emphasis

It clear from Rule 56 that the court must allegations consider pleadings they in the unless have been controverted evidence presented by opposing party. In this pre defendants no sented evidence that the sidewalk was clean and safe at the time injury. fact, of Calder’s fall and In neither the defendants’ motion for summary judgment, they nor the memorandum that submitted in motion, support of that addressed landlord’s to a tenant pursuant to the statute relied on in complaint. Calder’s Calder’s opposition memorandum in to the simply defendants’ motion re sponded to the issues raised in the defendants’ memorandum. alleged

Once Calder in District Court that the relevant statute had counsel, and cited opposing been violated that statute to the court and re-argue repeatedly preserve she did not have to claim in order to claim appeal and to avoid waiver. 70-24-303, MCA, Calder maintains that violation of constitutes directly se. Court addressed this negligence per This has not issue. However, statutory considering provisions, when identical the Su- they preme impose Court ofAlaska has held that duties different from *5 greater imposed by and than those common Magill law. Newton v. (Alaska 1994), case, 872 P.2d In Newton, 1213. Darlene the and fell plaintiff, slipped walkway which led to the front door of Newton, her home which was rented from the defendants. 872 P.2d allegation at 1214. She sued her landlords based on her that the walkway slippery and was hazardous and that the landlords had a Newton, duty to make it safe. at P.2d trial court by summary plaintiff’s complaint dismissed the based on that it the plaintiff’s duty keep walkway its conclusion was to the safe Newton, and clean. 872 P.2d at 1214. The Supreme Court noted that though even according to traditional notions of Alaska common law duty dangerous a landlord has no to tenants for the conditions on Alaska’s the property, adoption of Uniform Residential Landlord and changed obligations.

Tenant Act and added to a landlord’s That court imposed duty concluded that since Alaska’s act on the landlord to by even the keep occupied those areas and used tenant a clean and condition, duty the had safe landlord to use reasonable care to remedy and an presented discover conditions which unreasonable harm, walkway. slippery risk of and that included the condition ofthe the hidden apparent Whether condition was was irrelevant. New- ton, 872 P.2d at 1216-18. Based on the facts in that the Supreme of Alaska held failed Court that whether landlord to exercise light reasonable care in of all the circumstances with to the respect walkway presented by condition of the an issue of fact to be resolved jury. Newton, 872 P.2d at 1218. Montana, likewise, the Residential adopted Landlord Tenant 70-24-303, Act in 1977. MCA. Among provisions its is Montana’s § by that Act to the duties adoption changed property of added owed owners to their tenants. obviously by

Since -303 of the Act was intended the legisla § tenants, safety ture to be for the benefit and of a landlord’s failure to comply negligent per with the statute is se. We have held that: negligence

The violation of statutes is as a matter of law when protect persons, plaintiff to a class of purpose of the statute is class, person and the defendant is a against is a member of that (1979), 182 duty imposed. City Billings whom a Azure v. Mont. 460, 464. 234, 240-41, 596 purpose P.2d ofthe statute also must injury the kind received protect against plaintiff. be to (1973), P.2d 520. Rauh v. Jensen 161 Mont. 462, 468, 1329, 1333. (1986), LaCounte 219 Mont. 712 P.2d

Nehring v. Shirley Calder was a member of the class that 70-24-303, MCA, was intended protect; Andersons were members of the class on imposed; whom a and Calder’s slip and fall is the type of injury that the statute was designed prevent. The Supreme Court Michigan has held that violation of a similar statute established (Mich. negligence per se. See Morningstar v. Strich 1950), 40 N.W.2d agree 719. We with that holding.

Contrary the suggestion in the dissenting opinion, neither the Newton nor the opinion Morningstar opinion are cited in this similarity based on the of the facts in those cases to the facts in case. Newton is cited for the legal proposition that the Residential Landlord and Tenant Act creates duties in addition to and greater than imposed those on property owners the common law. Morn- ingstar is cited for the proposition that violation of statutes which *6 impose duties on a provide landlord to safety for the of his or her negligent tenants is per se. The facts of the cases are irrelevant. Furthermore, the Arizona and Ohio cases cited and relied on in the dissenting opinion are ofno assistance to us for purposes of resolving the presented issue in this case. Neither applies case interprets nor duty similar to the one which exists in Montana pursuant to 70-24-303, MCA, upon and which opinion § is based.

Finally, the dissenting opinion’s reliance on 70-24-32l(l)(b), § MCA, to that suggest actually it was the duty tenant’s to maintain the area where Calder fell misplaced. That section of the Residen- tial Landlord and Tenant Act pertains to that part of premises the which the tenant actually “occupies and uses.” It pertain does not to common areas. Common areas specifically are addressed in 70-24- § 303(l)(c), MCA, and place duty the solely of maintenance on the landlord.

According to the testimony Shirley of Calder, the sidewalk on which she fell was not in a condition, clean and safe and result, as a seriously she fell and injured herself. Calder testified that on the date her of accident she had stairway descended the leading from the door apartment of her stepped and sidewalk, onto the where her feet unexpectedly landed on rocks or 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 through rocks the soles of her shoes when she stepped them, down on and she and her husband later observed the skid marks caused the rocks where her accident testimony occurred. Calder’s was sufficient to raise an issue of fact duty pursuant breached their owed to her to the defendants whether Landlord and Tenant Act. the Residential injury which caused Calder’s was “hidden the condition Whether or the condition at the bottom of her lurking,” and whether not or looking should have been for and noticed are stairway was one she the of part question contributory to be considered as of simply issues negligence. suggests proper that it is a function of this dissenting opinion

The allowed to remain on decide as a matter of law when debris Court to obligation keep the to the walkway does or does not violate a common majority the dissenting opinion suggests that area clean and safe. However, that issue. that already passed judgment on has opinion simply recognizes that is incorrect. suggestion II, Constitution, Montana and to Article Section pursuant by juries offact tried 26-1-202, MCA, right there is a to have issues jury, right the district court when parties request when apply The dissent would have this Court jury trial is waived. the members of this impressed scale based on how right sliding However, to party’s of a claim or defense. are with merits Court the fact finder substantially blur the distinct functions of do would so review. appellate reasons, conclude that as landlords the Andersons For these we area where Calder fell in a clean and safe keep had a a matter they negligent to do so as they If failed condition. duty Calder, the Andersons breached their Whether or not law. any, duty, if was a cause Calder’s extent to which that breach by the trier of fact. of fact which must be decided are issues damages, of the District Court and reasons, we reverse the order For these opinion. with this consistent proceedings for further remand *7 NELSON, GRAY,HUNT and LEAPHART concur. JUSTICES TURNAGE, dissenting: JUSTICE CHIEF (1) duty; of four elements: negligence in consists A cause of action (3) (4) (2) v.State causation; damages. Dept. Hatch duty; of breach 729, 188, 192, P.2d 732. While the (1994), 269 Mont. Highways of element, law, the second whether a of duty question of a is existence fact breached, normally question a of to be has been (1985), Ditch Co. Big fact. Limberhand v. by the finder of determined 491, However, when a defect is 132, 144-45, 706 P.2d 498. 218 Mont. danger reasonably anticipate could prudent person that no slight so only guarded have been happens which could it, but an accident from extraordinary foresight, question care and with against Wiley City is one of law. Glendive responsibility defendant’s of 213, 217-19, 310, 313. (1995), 272 Mont. 900 P.2d that the deposition In the Calder stated sidewalk present usually dirty renters, and that apartment her the mail- outside man, walking graveled driveway from the to the persons and other building gravel tracked onto the sidewalk. She acknow- apartment however, gravel that she had never considered on the side- ledged, to the danger complained to her and had not Andersons walk be dirty Nothing supports sidewalk. in the record the idea that about in this alleged pieces gravel of on sidewalk case were the few lurking danger. hazard or a hidden or either a known acknowledged universally has the rule that known This Court Safeway should not be considered hazards. Luebeck v. conditions Stores, (1968), 88, 93, 921, 152 Mont. 446 P.2d 924. We have Inc. accident, happening itself, that the mere of an in recognized further (1987), 43, Clark v. negligence. is not evidence of Norris Mont. 182, require every injury 734 P.2d 185. The law does not that for recovery only damages, imposes liability there must be a of but for a Clark, legal duty proximately causing injury. 734 P.2d at breach of pieces gravel Can reasonable minds differ on whether on a gravel lot establish a breach of adjoining parking legal sidewalk duty by Appeals owner? The Court of ofArizona has said property (Ariz. 1979), App. v. Romo 601 P.2d 311. “No.”Forbes physical of land is not liable to his invitees for harm possessor [A] by any activity them or condition on the land whose caused to possessor unless the should danger is known or obvious to them despite knowledge the harm such and obviousness. The anticipate may expect have reason to harm to a visitor from possessor ... dangers, example possessor when the has known or obvious may distracted, that the invitee’s attention be so expect reason obvious, what he discov- forget not discover what is has he will against himself it. Since there is no such ered, protect or fail to awarding summary in here, the trial court was correct evidence of the Romos. favor slipped piece that she very most Forbes has shown is ... of time it was on the length Neither its size nor the gravel. lone, only has ever been shown. The record discloses sidewalk do not believe that on the sidewalk. We solitary piece *8 reasonable minds would differ. Forbes has not shown [the that of the store] lessee was negligent.

Forbes, 601 P.2d at 313-14. recently, Appeals

More the Court of of Ohio summary affirmed a gravel that a walkway on next to a gravel parking lot did walkway unreasonably not render the dangerous liability. or create walkway next gravel Gravel to a parking driveway is, lot or court, as held the trial a “minor imperfection, commonly encoun- tered and expected.” To hold defendants liable for such “trivial departures perfection” from would be to render them insurers for safety “the plaintiffs law does not that go far.” (Ohio v. H. & T.Enterprises 1993), Jones 9 Dist. App. 623 N.E.2d I agree reasoning with the of the Arizona and Ohio I courts. that conclude reasonable minds could not differ as to whether the presence grains of a few aon sidewalk next to a gravel driveway negligence part establishes on the of the property owner. yet eggshell society We do not live in an in which remedy there is a tort every injury. majority opinion, The in seeking to establish for the first time in Montana an actionable tort 70-24-303(l)(c), MCA, under part of Montana’s Residential Landlord and Tenant Act of (RLTA), has liability majority created a new that the upon rests negli- so, gence per doing majority se. In has stretched the RLTAto a that the mere point approaches happening of an accident as the basis by jury. for a tort claim to be decided Montana, streets, alleys In the State of on or in our and parking lots, by property by renters, owners and occupied owned there are to inevitably pieces gravel. be found small How this could be avoided by a owner defies reasonableness and property common sense. 70-24-303(l)(c), MCA, provides:

Section (1) A landlord shall:

(c) keep premises all common areas of the in a clean and safe condition!.] majority provision has taken this of our code and under the facts it. misapplied

of this case has ignored provisions place has also of the RLTAthat upon premises. and duties the tenant ofthe rented obligations certain 70-24-32l(l)(b), MCA, provides: Section (1) dwelling

Tenant to maintain unit. A tenant shall: (b) part that keep premises occupies the tenant reasonably uses as clean and safe as the condition premises permits[.] [Emphasis added.] *9 Calder admits in her brief that she and her specifically husband obligation assumed this under their written lease.

Certainly, if the tenant’s obligation keep premises is to the reason- ably clean and safe as the condition the premises permits of —which provision should, reasonableness, is reasonable as to not place —we any higher duty upon the landlord. duty The landlord’s should be to keep premises reasonably the clean and safe as the condition of the premises permits. majority opinion

The finds and comfort support in Newton v. (Alaska 1994), Magill 872 P.2d 1213.I find it informative, however, point to out that the facts involved in Newton entirely are different from the facts involved in the case before this Court. In Newton, the walkway landlord had constructed a wooden from the front door of house, the six feet long wide, and five feet handrail, without a virtually uncovered, “anti-slip” and with no material on its surface. The premises Alaska was located in Petersburg, persistent where rains resulted in a constant drizzle except in the summer when the rain intermittent and the wet climate fosters the growth plant of on organisms exposed causing wooden boards them to become dan gerously slippery when wet. permanent

In Newton the installation ofthe walkway wooden by landlord, the accomplished who had notice over a long period of time of the wet boards and the hazard created slipping. This is an entirely different fact scenario than that before this Court. major, important part has failed to cite a of the Newton, letting the Alaska court’s relevant holding slip comments by. The Alaska court stated: duty “keep of a tenant is to the part premises of by and used the tenant as clean and safe as the condition

occupied 34.03.120(1). permit[s].” obligation AS This premises of the exists obligation as the same statute which defines the landlord’s part of necessary repairs put keep to “make all and do whatever is to 34.03.100(a)(1). the in a fit and habitable condition.” AS premises legislature obligations It follows that the intended these to be by accomplished interpreting reconcilable. Reconciliation can be duty the tenant’s to pertain to activities such as cleaning, ice and removal, light snow other maintenance activities pertaining safety the the premises of which do not involve an alteration of premises, the whereas the duty landlord’s relates the physical of the premises. suggested by state This distinction is phrase 120(1). premises “as the condition of the permit[s]” in section In context must refer physical qualities this inherent premises. The legislature adopting

... the URLTA accepted has policy warranty reasons on which the habitability is based. are the need adequate These for safe and housing, recognition of inability many repairs, tenants to make and oftheir financial so, doing permanent disincentives for since the value of repairs fully not be realized occupant. will short-term ... rejection general immunity Our rule of landlord does not make landlords liable as insurers.6 accept [6Wedo not the New- that a argument liability govern tons’ rule of strict should case.] Their is to use reasonable care remedy to discover and *10 present which an conditions unreasonable risk harm under the Nor ruling questions circumstances. does our mean that as to dangerous condition existed in an occupied solely whether area area, by the tenant or in a common or whether the condition was hidden, are apparent or irrelevant. These are circumstances which customary analysis. They must be accounted for in negligence may the reasonableness of the the pertain to landlord’s or tenant’s foreseeability the magnitude conduct and to of the risk. In ordinarily gives up right a landlord the to enter particular, prem- ises under the exclusive control of the tenant without the tenant’s ability The landlord’s to tenant permission. inspect repair areas limited. In such cases “a landlord should is therefore not be liable reasonably negligence in unless he knew or should have known of repair Young to it.” opportunity the defect and had reasonable (1980). Garwacki, 1045, 380 Mass. 402 N.E.2d 1050 genuine In issues of material fact exist as whether our view duty to Darline Newton to exercise appellees the breached their the with to the light respect reasonable care in all circumstances walkway. condition Determination ofwhether that was be left for the trier breached should of fact. added).

Newton, P.2d at 1217-18 (emphasis support The also cites as for its the case of (Mich. 1950), Morningstar v.Strich 40 N.W.2d 719. This decided forty-six years ago Michigan, by majority over in is cited as the holding Supreme Michigan ofthe Court of that violation aof “similar” negligence per However, statute established se. that case involved a Michigan Housing statute under the State Michigan Law of “every provided, dwelling parts and all the thereof including plumb- ing, heating, ventilating and electrical wiring shall be kept good repair by the owner.” Morningstar, N.W.2d at 721. A statute not by any comparison 70-24-303(l)(c), similar MCA.

Further, the Michigan facts ofthe case have no resemblance to the facts of the case before this Court. The Michigan court recited the relevant as facts follows: plaintiff years was two February nine months old on

16, 1944, the date of the accident. He playing was at the dining room window near the radiator when the valve came off. He was severely so scalded that he hospitalized days. was for 76 Morningstar, 40 at N.W.2d

It is clear from the Morningstar opinion that a steam radiator remained in defective condition for a long period of time with knowledge of the landlord and that this defect permitted live steam to escape causing plaintiff injury. 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 plaintiff resulted from the wornout and stripped condi- tion of its threads. He further found that some inspection of the heating apparatus defendant, was made and that the Henry C. Strich, through agents his had notice of the defective valve and negligent taking necessary in not steps to correct the condition, dangerous and that this proximate was the cause of the accident.

Viewing testimony light in the most plaintiff, favorable to Henry Strich, the failure of through agent C. his to take the necessary steps heating system good remedial to maintain the in repair proximate accident, was the cause of the and the motions properly denied. question There is no Henry G. Strich had notice oftrouble with the valves and that he came to the house with a plumber. The defective condition of the valve in question, if radiator, it was on the should have apparent been upon the examination ofit that either was made or should have been made. Morningstar, N.W.2d at 721.

The facts ofthe Michigan Alaska and are strikingly cases different from the in facts the case before this Court.

The result of the that negligence per upon se can be visited a property renting owner facility residential subject can property jury owner to a trial because of a claimed pebble pebbles sidewalk, stretching the RLTAtoo gravels far. It me that this Court would do so. entry

I would hold that the summary judgment for the Ander- sons was correct. joins

JUSTICE ERDMANN in the foregoing dissent of CHIEF JUSTICE TURNAGE.