NO. 91-361 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1992 

LORI MOFFATT, 

Plaintiff and Appellant, 

-vsUNIVERSITY OF MONTANA, 

STATE OF MONTANA, 

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: 

Kenneth H. Grenfell, McChesney, Grenfell & Ogg, 

Missoula, Montana 

For Respondent: 

Norman C. Peterson, ~ssistant Attorney General, 

Agency Legal Services Bureau, Helena, Montana 

Submitted on Briefs: March 26, 1992 
Justice William E. Hunt, Sr., delivered the opinion of the Court. 

Appellant Lori Moffatt brought a negligence action in the 

Fourth Judicial District Court, Missoula County against the 

University of Montana for injuries she received when she slipped 

and fell down a staircase. The University filed a motion for 

summary judgment. The District Court granted the University's 

motion for summary judgment pursuant to Rule 56 (c) , M.R. Civ. P. 

Moffatt appeals the decision of the District Court. 

We reverse and remand. 

The only issue for this Court to consider is whether the 

~istrict Court erred when it found there were no genuine issues of 

material fact and granted summary judgment in favor of respondent, 

the University of Montana. 

The uncontested facts are as follows. Appellant was a 

chemistry student who attendedthe University of Montana located in 

Missoula. On March 16, 1987, appellant, who was carrying books 

with her left arm, slipped, and fell down a staircase in the 

Pharmacy-Psychology Building, fracturing her left wrist. 

On July 24, 1989, appellant filed a complaint in District 

Court against the University for failure to properly maintain its 

premises. In the complaint, she alleges that at the time of the 

accident, the stairway was slick and highly polished and not 

treated with an anti-slip material or any non-skid protective 

material and thus constituted a hidden and lurking danger and that 

the University knew or should have known of the danger and failed 
to warn persons of the danger. In its answer the University denied 

the allegations. 

On July 1, 1990, the University filed a motion for summary 

judgment and attached three affidavits by University personnel in 

support of its motion. For the purposes of the motion, the 

University did not dispute appellant's assertions that she 

descended the steps in a safe and prudent manner, and that she was 

wearing tennis shoes with adequate soles to insure proper traction 

and footing. In addition, the University admits that no "anti-slip 

grip stripw material was placed on the stairs prior to the accident 

and that no warning signs were in place to caution persons of the 

allegedly dangerous condition. Appellant responded with a reply 

brief. 

On May 10, 1991, the District Court issued its opinion and 

order, concluding that there were no genuine issues of material 

fact and ruling that the University was entitled to judgment as a 

matter of law. It is from this order that appellant appeals. 

In a motion for summary judgment, the moving party has the 

burden of showing a complete absence of any genuine material issue 

of fact which would entitle him to judgment as a matter of law. 

Cereck v. Albertson's Inc. (1981), 195 Mont. 409, 411, 637 P.2d 

509, 511. The party opposing a motion for summary judgment is 

entitled to all reasonable inferences that may be drawn from the 

offered proof. Cereck, 637 P.2d at 511. For a genuine issue of 

material fact to exist in a negligence case, the defendant must owe 
a duty to the plaintiff. Rennick v. Hoover (1980), 186 Mont. 167, 

170, 606 p.2d 1079, 1081. If appellant's allegations, if proven, 

support a finding of a breach of duty, then the granting of summary 

judgment is improper. Rennick, 606 P.2d at 1081. 

In her complaint and brief in opposition to the motion for 

summary judgment, appellant alleged that at the time of the 

accident the stairway was slick, highly polished, and not treated 

with any anti-slip or non-skid protective material. 

The University filed three affidavits in support of its motion 

for summary judgment. In his affidavit, Ken Willett, Manager of 

the Safety and Security Section of the Physical Plant Department, 

stated that because he had not received any previous complaints 

relating to the condition of the stairs, he had no reason to 

anticipate the possibility of harm to anyone. 

In another affidavit, Tom Wheatly, Supervisor of the Building 

Trades Section of the Physical Plant, explained that he had no 

knowledge of any previous accidents involving the stairs in the 

Pharmacy-Psychology Building. 

In the third affidavit, Clarence Hester, Bureau Chief of the 

Department of Administration's Design and Construction Bureau, 

stated that the composition of the stairs met with building code 

standards for acceptable stair materials. 

The statements by the University's employees do not meet the 

burden of proof imposed upon the University in a motion for summary 

judgment. In addition, the affidavit of Clarence Hester does not 
prove that there is not a complete lack of a genuine issue of a 

material factual dispute. The fact-finder should be given the 

opportunity to determine whether the University was negligent in 

failing to maintain the stairs, and whether it was negligent in 

failing to warn of a hazardous condition. 

The order granting summary judgment is reversed and the matter 

is remanded for further proceedings. 

We reverse and remand. / 

Justice -~I 

We concur: 

Chief Justice , 

Justices 

5 
Justice Fred J. Weber dissents as follows: 

The majority opinion refers to the filing of a complaint 

alleging that the stairway was slick and highly polished and not 

treated with anti-slip material, and thus, constituted a hidden and 

lurking danger and that the University knew or should have known of 

the danger and failed to warn. The majority opinion again refers 

to the complaint and brief in opposition to the motion for summary 

judgment where the plaintiff alleged that the stairway was slick, 

highly polished, and not treated with anti-slip or non-skid 

protective material. 

I would first emphasize that the complaint is not a sworn 

complaint. It is merely a complaint signed by the attorney for 

plaintiff, without any statement under oath as to its truthfulness. 

The majority opinion briefly refers to the three affidavits 

filed by the University and then concludes as follows: 

The statements by the University's employees do not 

meet the burden of proof imposed upon the University in 

a motion for summary judgment. In addition, the 

affidavit of Clarence Hester does not prove that there is 

not a complete lack of a genuine issue of a material 

factual dispute. The fact-finder should be given the 

opportunity to determine whether the University was 

negligent in failing to maintain the stairs, and whether 

it was negligent in failing to warn of a hazardous 

condition. 

I suggest that the majority opinion has disregarded both our rules 

with regard to summary judgment as well as the controlling 

decisions of this Court. 

The ~istrict Court entered a thirteen page opinion and order 

setting forth in detail its reasons for entry of summary judgment 
for the defendant. I believe the summary by the District Court is 

enlightening: 

In summary, the principle holding of the Court is 

that the Defendant's Motion for Summary Judgment is 

granted. The undisputed facts show that no defect 

existed; that no prior injuries or complaints existed; 

and that the stairs were constructed within guideline 

specifications. The undisputed facts do not show that 

the Defendants breached a duty of ordinary care to 

Moffatt and do not show the existence of a step which 

constituted a hidden danger in the step itself or the 

area surrounding the step or any other unsafe condition. 

Moffatt's negligence claim rests entirely on the 

assumption that the subject stairs constitute a hidden or 

lurking, or otherwise dangerous condition. Moffatt has 

failed to provide this Court with any objective evidence, 

whatsoever, which tends to prove or disprove the 

existence of any genuine issue of material fact regarding 

the alleged dangerous conditions. On the other hand, 

this Court finds that UM has satisfied its burden under 

Rule 56(c), M.R.Civ.P., that no genuine issue of material 

fact exists, and that UM is entitled to summary judgment 

as a matter of law. 

I believe the record before the District Court supports the 

foregoing analysis and conclusion. I emphasize that the references 

to the pleading in an unsworn complaint and to the brief are 

inappropriate because the statements in such unsworn instruments 

are not admissible for summary judgment purposes. Rule 56(e), 

M.R.Civ.P., sets forth key aspects of the affidavits to be used 

with regard to summary judgment: 

Form of affidavits - further testimony - defense 

required. Supporting and opposing affidavits shall be 

made on personal knowledge, shall set forth such facts as 

would be admissible in evidence, and shall show 

affirmatively that the affiant is competent to testify to 

the matters stated therein. Sworn or certified copies of 

all papers or parts thereof referred to in an affidavit 

shall be attached thereto or served therewith. . . . When a motion for summary judgment is made and supported 

as provided in this rule, an adverse uartv mav not rest 

upon the mere alleqations or denials of the adverse 

party's pleadinq, but the adverse uartv's response, by 
affidavits or as otherwise ~rovided in this rule, must 

set forth specific facts showins that there is a qenuine 

issue for trial. If the adverse ~artv does not so 

resvond, summarv iudment, if a~~ropriate, shall be 

entered asainst the adverse ~artv. (Emphasis supplied.) 

The provisions of Rule 56, with regard to summary judgment, 

have been considered in many cases. In particular, we have 

concluded that resting upon allegations of a pleading is not 

sufficient. As stated in Mayer Bros. v. Daniel Richard Jewelers, 

Inc. (1986), 223 Mont. 397, 400, 726 P.2d 815, 817: 

We have recently held that a party opposing a motion 

for summary judgment may not rest upon the mere 

allegations of the pleadings, but has an affirmative duty 

to respond by affidavits or sworn testimony with specific 

facts that show there is a genuine issue of fact for 

trial. B.M. Bv Berqer v. State (Mont. 1985), [215 Mont. 

1751, 698 P.2d 399, 401, 42 St.Rep. 272, 274-75; Rule 

56(e), M.R.Civ.P. Without such specific factual 

evidence, we are unable to determine that any real 

factual controversy exists. . . 

In analyzing the very extensive affidavits submitted by the 

defendant, the District Court referred first of all to the 

testimony of Mr. Willett, the Safety and Security Manager. It 

points out that he testified that after an exhaustive and complete 

examination of the files, he did not find any reports or complaints 

of problems or falls on any staircase in this particular building 

prior to the report of the plaintiff. The record shows that he and 

his staff made regular inspections and that he had no personal 

knowledge, nor had he received any knowledge from the staff of any 

dangerous condition created by the alleged slippery metal nose of 

any stairs, or otherwise. 

The District Court also referred to the affidavit of Mr. 

Wheatley who is the supervisor of the building trades section of 
the Physical Plant at the University. He is responsible for doing 

the actual work. He was not aware of any prior accident caused by 

a slippery metal nose piece, and was not aware of any previous 

complaints that the stairs were in a dangerous condition. 

The court also referred to the affidavit of Clarence Hester, 

which the majority opinion apparently concludes was somehow 

incomplete. I don't understand that. In substance, Mr. Hester 

testified that he is the Bureau Chief of the Design and 

Construction Bureau of the Department of Administration and that he 

has been the Bureau Chief for twenty-three years; and that he has 

an architectural engineering degree and is a registered architect. 

 is sworn affidavit established that the responsibility of his 

bureau was to review all construction plans to ensure to that all 

designs meet with appropriate building code standards and that the 

final plan for the pharmacy-psychology building at the University 

was reviewed by the Bureau. With regard to the composition and 

construction, he then stated: 

5. That the composition of the stairs in the 

building as planned and as completed is of concrete and 

metal. Specifically, the stairs are brushed concrete 

with metal nose plates. 

6. That the composition of the stairs is within the 

Building Code Standards for acceptable stair materials. 

7. That it is a customary and acceptable practice 

in the building construction trade to build stairs of the 

above composition and in the above manner. 

8. That there are no building code provisions which 

either require or recommend that "no-slip grip strips" or 

any similar material or device be placed on the metal 

nose plates of stairs composed of the above materials. 

After consideration of the affidavits submitted by the 

defendant University, the District Court pointed out that there is 
a total lack of objective evidence submitted by the plaintiff or 

otherwise presented which raises any material issue of fact. As 

stated by the District Court: 

This Court has reviewed the entire record. The 

evidence consists of three affidavits, all proposed by 

UM. These affidavits establish that UM was not aware of 

any alleged dangerous steps because there had never been 

any previous complaints, that inspections by its own 

staff did not reveal any hazards, and that the steps were 

built within industry accepted standards. No evidence in 

the form of depositions, affidavits or pictures were 

presented by Moffatt which might have established the 

existence of a condition that was not visibly safe. . . . Moffatt's mere recitation of her opinions and 

allegations is not sufficient to existence of a aenuine 

issue of material fact. . . . 

I believe the record fully supports the conclusions and summary 

judgment entered by the District Court. Where the plaintiff has 

failed to present anything in the nature of a sworn pleading, 

affidavit or deposition, which tends to establish that the 

University was negligent in failing to maintain the stairs or that 

it was negligent in failing to warn of a hazardous condition, I am 

unable to understand how the majority remands for a determination 

of those issues. 

Under Rule 56, M.R.Civ.P., and our Montana cases, I believe 

this Court is required to affirm the summary judgment entered by 

the District Court.