No. 94-536

IN THE SUPREME COURT OF THE STATE OF MONTANA

1995

C. RON WILEY and AUDREY WILEY,

Husband and Wife,

Plaintiffs and Appellants,

v.

THE CITY OF GLENDIVE and

THE STATE OF MONTANA,

DEPARTMENT OF TRANSPORTATION,

Defendants and Respondents.

APPEAL FROM: District Court of the Seventh Judicial District,

In and for the County of Dawson,

The Honorable Dale Cox, Judge presiding.

COUNSEL OF RECORD:

For Appellants:

Richard A. Simonton, Kevin R. Peterson; Simonton,

Howe & Schneider, Glendive, Montana

For Respondents:

Kristi Blazer; Luxan & Murfitt, Helena! Montana

Gary L. Day; Lucas & Monaghan, Miles City, Montana

Filed:

Submitted on Briefs: March 2, 1995

Decided: August 3, 1995
Justice James C. Nelson delivered the Opinion of the Court.

Appellants, Ron and Audrey Wiley (the Wileys), filed a

negligence action on September 25, 1992, against the State of

Montana Department of Transportation (State) and the City of

Glendive (City). On October 17, 1994, the District Court Judge for

the Seventh Judicial District, Dawson County, granted summary

judgment in favor of the State and the City. The Wileys appeal the

District Court's final judgment dismissing the Wileys' complaint

with prejudice. We affirm.

The Wileys raise the following issue on appeal: Did the

District Court err in granting summary judgment?

BACKGROUND

On September 21, 1991, a rainy day, Audrey Wiley slipped on a

metal pullbox cover on a sidewalk in Glendive and fractured her

right ankle in several places. Subsequently, Audrey Wiley

underwent three surgeries.

The State installed the cast iron and checkered steel pullbox

cover on September 27, 1979. The pullbox was in substantially the

same condition on the date of Audrey Wiley's accident as on the

date of installation. The concrete surrounding the pullbox was

level, but the sidewalk sloped away from the building towards the

street. The installation met all applicable standards and

specifications. Similar pullboxes have been and continue to be

installed in sidewalks throughout Montana. In fact, there were no

previous reports regarding this cover, nor were there reports of a

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slip and fall regarding a pullbox in Montana or elsewhere.

The Wileys filed a negligence action on September 25, 1992,

against the State and the City. Following extensive discovery, the

State and the City moved for summary judgment, supporting their

motions with affidavits of five experts. Although the Wileys did

not support their opposition to summary judgment with affidavits,

they relied on their expert's deposition to establish a genuine

issue of material fact regarding the State and the City's

negligence. On September 26, 1994, the District Court Judge for

the Seventh Judicial District, Dawson County, granted the State and

the City's motions for summary judgment, finding that reasonable

minds could not differ concerning an absence of material fact and

that the State and the City were entitled to judgment as a matter

of law. The Wileys appeal the District Court's final judgment

dismissing their complaint.

The Wileys raise the following issue on appeal: Did the

District Court err in granting summary judgment?

DISCUSSION

Under Rule 56(c), M.R.Civ.P., summary judgment is proper only

when no genuine issue of material fact exists and when the moving

party is entitled to judgment as a matter of law. The moving party

has the initial burden to establish that there are no genuine

issues of material fact. Once that burden has been met, the burden

then shifts to the party opposing the motion to establish

otherwise. Spain-Morrow Ranch, Inc. v. West (1994), 264 Mont. 441,

444, 872 P.2d 330, 331-32. Our review of a grant of summary

3
judgment is de nova; we use the same criteria as the district

court. Minnie v. City of Roundup (1993), 257 Mont. 429, 431, 849

P.2d 212, 214.

Ordinarily, negligence actions involve questions of fact and

are not susceptible to summary judgment. Brohman v. State (19881,

230 Mont. 198, 201, 749 P.2d 67, 69. However, when reasonable

minds cannot differ, questions of fact can be determined as a

matter of law. Brohman, 749 P.2d at 70. For example, if the

moving party establishes that one element of a cause of action

lacks any genuine issue of material fact and the non-moving party

does not come forward with proof that a genuine issue does exist,

summary judgment is proper. Hatch v. State Dept. of Highways

(Mont. 1994), 887 P.2d 729, 732, 51 St.Rep. 1512, 1514.

The Wileys argue that reasonable minds could differ concerning

the absence of material fact and therefore summary judgment was not

appropriate. Specifically, the Wileys assert the State and the

City "installed, constructed, maintained, and/or operated the metal

plate in a dangerous, defective, and unsafe condition," and that

four questions of fact establishing the condition remain:

(1) the location of the pullbox cover in relation to

pedestrian traffic; (2) the use of the cast iron cover in

an outdoor application when it was known to be twice as

slippery as the surrounding cement; (3) lack of any nonskid material to increase the coefficient of friction;

and (4) there were no applicable guidelines which

establish a standard of minimum friction.

A negligence cause of action has four elements: (1) duty; (2)

breach of duty; (3) causation; and (4) damages. Hatch, 887 P.2d at

732. Duty is the first element of a negligence claim and is a

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question of law. Hatch, 887 P.2d at 733 (citing Geiger v.

Department of Revenue (1993), 260 Mont. 294, 297, 858 P.2d 1250,

1252). The State has the duty to keep its sidewalks and highways

in a reasonably safe condition for ordinary use and public travel.

Buck v. State (1986), 222 Mont. 423, 429, 723 P.2d 210, 214;

Sullivan v. City of Butte (1937), 104 Mont. 225, 226, 65 P.2d 1175,

1175. Furthermore, when the State has notice of a defect and

opportunity to act, it has the duty to cure, remove, or warn of

that defect. -,Buck 723 P.2d at 214. Thus, in the case before us,

the State and the City had the duty to keep the pullbox and the

surrounding sidewalk in a reasonably safe condition and cure,

remove, or warn of a defect if one existed.

The second element of a negligence claim is a breach of a

duty. Hatch, 887 P.2d at 732. In Sullivan, we applied the duty to

exercise ordinary care to keep sidewalks in a reasonably safe

condition for public travel to a negligence case involving a slip

on a coal-hole cover. Sullivan, 65 P.2d at 1175. To establish a

breach of the city's duty, the plaintiff had to show that a defect

in the coal-hole cover existed. The issue was whether a reasonable

person could have anticipated an accident on a coal-hole cover that

had the defect of a worn band around it and was at least an eighth

of an inch above the level of the surrounding sidewalk.

Noting that very few, if any, streets or highways can be kept

so safe as to preclude the possibility of accidents, we held that

when a defect is so slight that no prudent person could reasonably

anticipate danger from the defect, but an accident happens that

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could have been guarded against with extraordinary care and

foresight, the question of the defendant's responsibility is one of

law. Sullivan, 65 P.2d at 1176. We recognized that courts had

denied recovery where the testimony showed that a sidewalk free of

any defects was merely slippery and concluded that a reasonable

person would not have anticipated that such a slight defect as the

worn band around the coal-hole cover would likely cause an

accident. Sullivan, 65 P.2d at 1176-77.

In Cooper v. Sisters of Charity (1994), 265 Mont. 205, 209,

875 P.2d 352, 353, the plaintiff caught her foot on a drain gate

and fell. She did not come forward with expert testimony and thus

was unable to show that the drain gate was unsafe or defective. In

other words, she failed to raise a genuine issue of material fact.

We concluded that as a matter of law, she failed to prove that the

drain gate was unsafe or defective and was entitled to summary

judgment. Coooer, 875 P.2d at 355.

In the case before us, the facts are undisputed. The design

and construction of the sidewalk, including the pullbox, met all

standards and specifications published by all applicable sources.

In fact, the pullbox fell well within the range of acceptable

inserts; its metal construction also fell well within the range of

acceptable materials for inserts.

The Wileys' claim that Lee Ebeling's expert testimony on the

physical properties of the cover, the non-existence of code

violations, the decision on where to place the box, and the choice

of material for the cover raises a genuine issue of material fact.

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However, Lee Ebeling acknowledged that he was unable to state an

opinion on each of the four alleged issues of fact. Specifically,

he did not have the requisite background facts to form an opinion

on the placement of the pullbox. In summary, his testimony failed

to establish either a standard of care or a breach of any standard

of care.

Thus the issue before us is a question of law; did a defect or

dangerous condition exist in the sidewalk of sufficient magnitude

to cause a reasonable person to conclude that an accident was

likely to occur as a result of that condition and, if so, did the

State and the City have notice of the defect. See Sullivan, 65

P.2d at 1176. Although expert testimony established that the

pullbox was twice as slippery as the sidewalk, the Wileys were

unable to demonstrate that this condition fell below any acceptable

standard or constituted a defect. Without showing that a defect or

dangerous condition existed, the Wileys were not able to show that

the State or the City breached its duty to them.

Relying on Johnson v. State (Alaska 1981), 636 P.2d 47, 56,

the Wileys assert that it is not necessary for the State to have

notice when the asserted dangerous condition is caused by the State

or the City. Regardless, the Wileys must first show that a

dangerous condition or defect existed. The summary judgment record

before us does not establish a defect, much less a defect that a

reasonably prudent person would have anticipated to cause an

accident.

The District Court correctly found that reasonable minds could

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not differ concerning an absence of a genuine issue of material

fact and that the State and the City were entitled to summary

judgment as a matter of law. Because we hold that the State and

the City did not breach their duty of care, we need not discuss the

elements of causation and damages.

AFFIRMED.

We concur:
August 3, 1995

CERTIFICATE OF SERVICE

I hereby certify that the following certified order was sent by United States mail,

following named:

Richard A. Simonton

Kevin R. Peterson

SIMONTON, HOWE & SCHNEIDER

P.O. Box 1250

G.".."..l, a,11 _

Kristi Bh

Luxan &

P.O. Box

H

IZX, Esq.

Murfitt

: 1144

elena, MT 596261144

LN, P.C.

Gary L. Day

LUCAS & MONAGHA

P.O. Box 728

Miles City, MT 59620-1401

ED SMITH

CLERK OF THE SUPREhdE

STATE OF MONTANA

prepaid, to the

COURT

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