NO. 83-466 

IIJ THE SUPRCllE COURT OF THE STATE OF MONTANA 

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 Torts (1965) provides: 

"A possessor of land is not liable to his 

invitees for physical harm caused to them 

by any activity or condition on the land 

whose danger is know or obvious to them, 

unless the possessor should anticipate 

the harm despite such knowledge or 

obviousness." 

In the present case, there was no evidence presented of a 

hidden or lurking danger on the premises that the owner 

should have anticipated. 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. Demaree v. Safeway Stores, Inc. (1973), 

162 Mont. 47, 508 P.2d 570. 

The record before the District Court did not show that 

the respondent breached a duty of ordinary care to the 

appellant. Appellant did not come forth with evidence to 

show that there was a hidden danger or unsafe condition in 

the area surrounding the step. Appellant had passed over 

the step once and therefore had knowledge of its existence 

and location. She failed to see and observe that which 

would be obvious through reasonably expected use of an 

ordinary person's senses. Accordingly, respondent did not 

have a duty to warn appellant of an obvious danger. 

Demaree, supra. The appellant had the burden of coming 

forward with evidence that would place a genuine issue of 

fact before the court. Rule 56(c), M.R.Civ.P. 

In National Gypsum Co. v. Johnson (1979), 182 Mont. 

209, 595 P.2d 1188, this Court said that a party opposing a 

motion for summary judgment may not rest upon the mere 

allegations or denials of his pleadings. The party's 

response, by affidavits or otherwise as provided in the rule 
" . . . must set forth specific facts showing that there is 

a genuine issue for trial." In Barich v. Ottenstror (1976), 

170 Mont. 38, 550 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: 

~lumA #.aw 

Chief Justice 

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.