DA 09-0182

IN THE SUPREME COURT OF THE STATE OF MONTANA

2009 MT 381N

JOE KAPPHAN,

Plaintiff and Appellant,

v.

TOM VINCENT and DANIELLE VINCENT,

Defendants and Appellees.

APPEAL FROM: District Court of the First Judicial District,

In and For the County of Lewis and Clark, Cause No. BDV-2008-079

Honorable Jeffrey M. Sherlock, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Richard J. Pyfer, Patrick T. Fox, Doubek & Pyfer, LLP, Helena, Montana

For Appellee:

Curt Drake, Trevor L. Uffelman, Drake Law Firm, P.C., Helena, Montana

Submitted on Briefs: September 23, 2009

Decided: November 10, 2009

Filed:

__________________________________________

Clerk

November 10 2009
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Justice Patricia O. Cotter delivered the Opinion of the Court.

¶1 Pursuant to Section I, Paragraph 3(d)(v), Montana Supreme Court 1996 Internal

Operating Rules, as amended in 2006, the following memorandum decision shall not be

cited as precedent. It shall be filed as a public document with the Clerk of the Supreme

Court and its case title, Supreme Court cause number and disposition shall be included in

this Court’s quarterly list of noncitable cases published in the Pacific Reporter and

Montana Reports.

¶2 Joe Kapphan (Kapphan) appeals from a grant of summary judgment in the First

Judicial District Court. We affirm.

¶3 On May 26, 2007, Kapphan was playing a football-type game called “500” with a

group of children at the home of a friend. One of the children threw a long pass which

Kapphan attempted to catch. As Kapphan ran to catch the ball, he entered the property of

defendants Tom and Danielle Vincent (Vincents). Kapphan asserts that the boundary line

of the Vincents’ property was not clearly marked. Kapphan was looking back toward the

ball as he was running forward. As he ran forward, Kapphan struck a wellhead casing on

the Vincents’ property and sustained injuries. Kapphan asserts that he did not see the

wellhead casing because it was obscured by weeds.

¶4 On January 18, 2008, Kapphan filed suit against the Vincents. Kapphan asserted

that the Vincents had a duty to keep their property safe and warn him of any hidden or

lurking dangers. He asserted that the Vincents breached this duty because they permitted

weeds to obscure the wellhead casing which injured him.
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¶5 The Vincents moved for summary judgment, arguing that they were shielded from

liability under § 70-16-302(1), MCA, which reads in pertinent part as follows:

A person who uses property, including property owned or leased by a

public entity, for recreational purposes, with or without permission, does

so without any assurance from the landowner that the property is safe for

any purpose if the person does not give a valuable consideration to the

landowner in exchange for the recreational use of the property. The

landowner owes the person no duty of care with respect to the condition of

the property, except that the landowner is liable to the person for any

injury to person or property for an act or omission that constitutes willful

or wanton misconduct. For purposes of this section, valuable

consideration does not include the state land recreational use license fee

imposed under 77-1-802 or other funds provided under 77-1-815.

(Emphasis added).

¶6 The District Court granted summary judgment to the Vincents pursuant to this

statute. The District Court determined that the facts were not in dispute and that the only

pertinent question was whether the Vincents owed Kapphan a legal duty when he entered

their property. The District Court noted that § 70-16-301, MCA, defines “recreational

purposes” to include “hunting, fishing, swimming, boating, waterskiing, camping,

picnicking, pleasure driving, biking, winter sports, hiking, touring or viewing cultural and

historical sites and monuments, spelunking, or other pleasure expeditions. The term

includes the private, noncommercial flying of aircraft in relation to private land.” The

District Court concluded that the game of “500” which Kapphan was playing when he

was injured constituted a “recreational purpose” within the meaning of § 70-16-302,

MCA. Thus, the Vincents did not owe Kapphan a legal duty and his suit against them

was barred.
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¶7 Kapphan argues the District Court erred in granting summary judgment to the

Vincents. Kapphan argues § 70-16-302, MCA, does not apply in this case. First,

Kapphan claims that he never “used” the Vincents’ property because his entrance was

momentary, unintentional, and inadvertent. Kapphan claims that use of property must be

“intentional” for § 70-16-302, MCA, to apply. Second, Kapphan claims that the game of

“500” does not qualify as a “recreational purpose” within the meaning of the statute.

Kapphan argues that the term “recreational purpose” has a specific, technical meaning

which does not include ball-sports like “500.”

¶8 We review a grant of summary judgment de novo, applying the same evaluation as

the district court under M. R. Civ. P. 56(c). Bowyer v. Loftus, 2008 MT 332, ¶ 6, 346

Mont. 182, 194 P.3d 92. The moving party must establish both the absence of genuine

issues of material fact and entitlement to judgment as a matter of law. Bowyer, ¶ 6.

¶9 The District Court did not err in granting summary judgment to the Vincents. We

conclude that the plain language of § 70-16-302, MCA, is clear on its face and controls in

the instant case, requiring no resort to legislative history. See Haney v. Mahoney, 2001

MT 201, ¶ 7, 306 Mont. 288, 32 P.3d 1254. This statute states that a landowner does not

owe a duty of care—aside from acts of willful or wanton misconduct—to a person who

uses his or her property for a recreational purpose, unless that user gives the landowner

valuable consideration. Contrary to Kapphan’s assertion, the statute does not require that

the “use” of the property be intentional in nature, as opposed to inadvertent or

unintentional. Kapphan did not give the Vincents any valuable consideration for the use

of their land, even though his use was very brief in duration. Accordingly, § 70-16-302,
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MCA, applies to bar Kapphan’s suit if his use of the Vincents’ property was for a

“recreational purpose.”

¶10 As the Vincents note, the definition of a “recreational purpose” contained in

§ 70-16-301, MCA, is not exclusive. It lists a variety of activities, and then states “or

other pleasure expeditions.” Kapphan urges this Court to interpret the statute and the

phrase “other pleasure expeditions” in a highly technical manner to exclude ball-sports

such as the game of “500.” This argument is contrary to logic and the plain usage of

language. First, the statute specifically lists “winter sports” as included in its ambit.

Outdoor hockey is a winter sport, and uses a puck. It would be illogical to conclude that

outdoor hockey, played on a frozen neighborhood pond, would be included within the

ambit of the statute, but “500” or other like games would not, simply because one type of

activity uses a ball, and the other uses a puck. Secondly, the phrase “recreational

purpose,” as commonly understood and used in common parlance, would clearly include

games such as soccer, Frisbee, basketball, football, “500,” or a variety of other pursuits

which are “recreational” in nature.

¶11 We have determined to decide this case pursuant to Section 1, Paragraph 3(d) of

our 1996 Internal Operating Rules, as amended in 2006, which provides for

memorandum opinions. It is manifest on the record before us that the District Court did

not err in granting summary judgment to the Vincents. Affirmed.

/S/ PATRICIA O. COTTER
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We concur:

/S/ MIKE McGRATH

/S/ JIM RICE

/S/ BRIAN MORRIS

/S/ W. WILLIAM LEAPHART