NO. 83-466 IIJ THE SUPRCllE COURTOF THE STATEOF MONTANA 1984

ALBERTA R. KRONEN, Plaintiff andAppellant,

VICKI RICHTERd/b/a THE HAIR BENDER, Defendant and Respondent.

APPEAL FROM: District Court of the Fourth Judicial District, Inand for the County of Missoula, TheHonorableJohn S. Henson,Judgepresiding.

COUNSEL OF RECORD: ForAppellant: Tipp,Hoven, Skjelset & Frizzell;Raymond P. Tipp, Missoula,Montana For Respondent: Garlington, Lohn & Robinson: CandaceC. Fetscher, Missoula,Montana

SubmittedonBriefs: February 16, 1954 i)ecided: July 10,1984

.jd

## :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 therewere 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 accompaniedher up the step to the carpeted drying area. The plaintiff sat under a hair dryer for forty-fiveminutes after which plaintiff was motioned to the front of the shop by Bell. In her deposition, the plaintiff described an accidentas follows:

'I. 

# .. [Tlhenwhen Iwas 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..thesteps visibility, the plaintiff explained: "Q. 

### You got up yourself, then, without waiting 

### forher [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 onepart 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 itmore 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. Theplaintiff'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 factsdid not show that the defendant breached a duty of ordinary care to an invitee and that the plaintiff had failed to show that therewas: "a hidden danger in the area surrounding the step or any unsafe condition. Plaintiff had passed over the step onceand 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 amotion for summary judgment is the same as that utilized by the trial court initiallyunder 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 amatter of law." 10 Wright, Miller and Kane, Federal Practice and Procedure, section 2716p. 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),149Mont. 229, 425 P.2d 335. Section 343A (1)Restatement (Second)of Torts (1965)provides: "A possessor of land isnot liabletohis invitees forphysicalharm causedtothem by any activityor condition on theland whose danger is know or obvious tothem, 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), 162Mont. 47, 508 P.2d 570. The record before theDistrictCourtdidnot 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 factbefore thecourt. Rule 56(c),M.R.Civ.P. In National Gypsum Co. v. Johnson (1979), 182 Mont. 209, 595 P.2d 1188, thisCourt said that a partyopposing a motion for summary judgment may not rest upon the mere allegations or denials of his pleadings. The party's response, by affidavitsorotherwiseasprovided intherule

### " 

# . .

# .must set forth specific facts showing that there is a genuine issue for trial." InBarich 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 fallendown 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

JusticesMr. 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 343A (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 rulebe ad.opted. Certainly the rationaleofCereck is tha.tadutymay be owed though the condition isopen and obvious if the land ownerhas 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 followsthe restatement quotationand 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 conditionwas open and obvious. There is

a duty to warn if the land owner anticipates that injuries will neverthelessresult. In this case plaintiff has failed to come forth with evidence creating aduty on thepart of the landpossessor 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, Ivote to affirmMr. Justice JohnC. Sheehy,dissenting:

I dissent. This plaintiff is entitled to have a jury determine whether the defendant was liable for her fall on thebusinesspremises 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 thebusinesspremises 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'tsee it," as an indication that she did not look to determine the stairwas 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. Themajority decides,as theDistrictCourtdecided that because the plaintiff had passed over the same stepwhen 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 interpretationestablishes a test that goesbeyond whatmight be expected of a reasonablyprudent, ordinary person; it is a test for superhumans. Idoubt 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. Thiswoman rose from thehair dryer,and returned to the step at the beckoning of the attendant in the business. She sustained a dangerous fallwhich 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 actuallywas 6 inches higher than the linoleum. It shouldbea jury decision as to whether she was trapped by these innocent lookingpremises. 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-orationof the linoleum and the carpet so as the raise a duty to warn customersor alter thepremises. One need only read themajority 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 theplaintiff. Interpretationof facts is jurybusiness,not courtbusiness. Theprobability thatplaintiffwill notprevail 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 ofmaterial fact, summary judgment isnotappropriate. 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 thedissent ofMr. Justice Sheehy.