No. 1.3264 

### TN 'THE SUPKEME COUKT 9F THE STATE OF MONTAHA 1976

SCOTT PARKLSH, Plaintiff and Appellant,

-vs

## - LIODNEY 

### TI. WITT and SHIRIAY VITT, Defendants and Respondents.

Appeal from: District Court of the Eleventh Judicial District, Honorable Robert Sykes, Judge presiding. Courlsel of Record: For Appellant: Hash, Jellison & O'~rien, Kalispell, Montana Kenneth E. O'Brien argued, Kalispell, Montana F'or Respondents : Warden, Walterskirchen & Christiansen, Kalispell,

Montana Merritt N. \,Jarden argued, Kalispell, Montana

Submitted: August 31, 

### 1976Mr. Justice John Conway Harrison delivered the Opinion of the Court

# . This 

### is an appeal from a directed verdict for defendants by the district court, Flathead County. Plaintiff Scott Parrishwas visiting the mobile home of Leo McDonald in earlyApril 1973, tohelp a friendmove her belongings. 

### Ashe walked tothe mobile home from his pickup, carrying a small child, a sudden rainbegan. He testified that

ashe trotted up thewooden walkway leading to the mobile home he slipped, slid two or three feet, thewalkway tat;ed,his foot became anchored and as he twisted tokeep the child from harm, he fell, suffering a severebroken leg. Plaintiff filed a complaint which setout two claims for relief. The firstnamed Rodney 

### D. and Shirley

### Witt, the owners of themobile home court, as defendants. The second named the McDonalds as defendants. The second claim

### was settled out of court and trialwas had on the firstclaim. That 

### trial ended with



### a directed verdict for defendant owners. These defendants, 

### Mr. and 

### Mrs. Witt, are owners of the Greenwood Mobile Home Terrace near Whitefish, Montana. McDonalds

were tenants, living inthe newly constructed portion of the mobile home court. When McDonalds moved in they brought with them a section of wooden walkway which they installed in front of the steps leading to the mobile home. As a courtesy to the tenants, because the area would become muddy as springprogressed, the manager of the mobile home court constructed and delivered additionalwalkway sections.When the sections were delivered to the McDonald residence they were placed approximately in linewith the other section of walkway but therewas no attempt to put them in finalposition



### or stabilizethem. This occurred four to sixweeks prior to the accident. In the time between the delivery of the additional walkway sections and the accident, plaintiff visited theMcDonald residence. Mrs. McDonald testified she had noticed these additional sectionswere unstable and that she had reported this to the court manager. The issue raised on appeal 

### iswhether the directed verdict

was properly granted. In Slagsvoldv. Johnson, Mont

# . ,544 P.2d 442,443, 32 St. Rep. 1273, 1275, this Court quoted with approval a prior case as stating the law of Montana on directed verdicts: 

# '"*

# ** as a general rule, the issues of negligence and contributorynegligence must be decided by the jury under appropriate instructions

# **

# * and the settled rule 

### is that a case should not be taken from the jury unless it follows 

### as a matter of law that plaintiff cannot recover upon any view of the evidence, including the legitimate inferences tobe drawn from it; every fact

### willbe deemed proved which the evidence tends toprove.

## "' Other cases have set out this general proposition in the form of three rules: 1) The evidence introduced by the plaintiff willbe considered in the light most favorable tohim. 

### 2) The conclusions sought tobe drawn from the factsmust follow as a matter of law. 

### 3) Only the evidence of the plaintiff willbe considered. Hannifin v. Retail Clerks, 162Mont. 170, 511P. 2d 982; Mueller v. Svejkovsky, 153Mont. 416, 458 P.2d 265; Pickett v. Kyger, 151Mont. 87, 439 P.2d 57; Johnson v. Chicago, M. & St. Paul Ry., 

### 71Mont. 390, 230 P. 52.

### The question Lhen becomes 

## -- whether, considering only rhe plaintiff's evidence ina lightmost favorable tohim, it 

### rollows as a matter of law from the facts proven that there is no duty running from the landlord to the tenant's guest? This Court indiscussing liability of the landlord for injuries occurring on leased premises inGray v. Fox West Coast Service Corp., 93 Mont. 

### 397, 18 P.2d 797, said:

11I

### In the case of injuries to third persons resulting from the condition oruse of these premises, it 

### is a 

### general rule that prima facie thebreach of duty and therefore the liability, 

### is that of the occupant.andnot of the landlord, and that inorder torender the latter liablemore must be shown than merely that the premises on which or fromwhich the injury arosewere leased to him by another."' 2'0 

### avoid this generalrule plaintiff must show more, he must show 

### that he fallswithin one of the exceptions to this rule. Ln this case plaintiff relies on the exceptionwhich holds the Lessor liable for repairs or improvements which arenegligently made. The elements which must be shown inorder to fall into this exception are setout in

### 2 Restatement of Torts 2d, $362, Negligent Repairs by Lessor: "A 

### lessor of landwho, by purporting tomake repairs on the land while it 

### is in the possession of his lessee, or the negligent manner inwhich he makes such repairs has, as the lessee neither knows nor should know,made the land more dangerous for use or given it 

### a deceptive appearance of safety, 

### is subject to liability forphysical harm caused by the condition tothe lessee or to others upon the land with the consent of the lessee or sublessee." Lt

### is clear that to find a duty on the part of the landlord four elements must be present: 1) The landlordmust make 

### a negligent repair or improvement. 2) That repair or improvement must make the land more dangerous orgive a deceptive appearance of 

### safety. 

### 3) The lessee can neither know nor should he know of

### the danger. 

### 4) There must be physical harm caused by the condition to the lessee or those on the land with his consent. Here, it 

### is clear that the evidence shows the lessee knew of the condition that plaintiff claimed was dangerous. Even assuming that the lessee did not know the condition was present, it 

### is atleast arguablehe should have discovered the dangerous condition inthe four to sixweeks after the new sectionswere delivered. Once the tenants knew of the condition they have the responsibility toprotect themselves and those who enter on to the premises from harm. The liabilityof the landlord remains only as long as the tenants had no knowledge of the danger, his duty was towarn of the danger, and once the tenants knew of the danger the warning 

### isno longer necessary. After tenants know of the danger, they have the duty to eithermake the premises safe or towarn. It 

### isfrom this fact the conclusion that the landlord had no duty running to the plaintiff, follows 

### as a matter of law. The districtcourt'

### s order directing a verdict for defendant owners isaffirmed.

### We concur:

Justices