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, 1976 
Mr. 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 Parrish was visiting the mobile home of 

Leo McDonald in early April 1973, to help a friend move her 

belongings. As he walked to the mobile home from his pickup, 

carrying a small child, a sudden rain began. He testified that 

as he trotted up the wooden walkway leading to the mobile home 

he slipped, slid two or three feet, the walkway tat;ed, his foot 

became anchored and as he twisted to keep the child from harm, 

he fell, suffering a severe broken leg. 

Plaintiff filed a complaint which set out two claims for 

relief. The first named Rodney D. and Shirley Witt, the owners 

of the mobile home court, as defendants. The second named the 

McDonalds as defendants. The second claim was settled out of 

court and trial was had on the first claim. 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 in the 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 spring progressed, the 

manager of the mobile home court constructed and delivered addit ional walkway sections. 
When the sections were delivered to the McDonald residence 

they were placed approximately in line with the other section 

of walkway but there was no attempt to put them in final position 

or stabilize them. This occurred four to six weeks prior to 

the accident. In the time between the delivery of the additional 

walkway sections and the accident, plaintiff visited the McDonald 

residence. Mrs. McDonald testified she had noticed these 

additional sections were unstable and that she had reported 

this to the court manager. 

The issue raised on appeal is whether the directed verdict 

was properly granted. 

In Slagsvold v. 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 contributory negligence 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 to be drawn from 

it; every fact will be deemed proved which the evidence 

tends to prove. "' 

Other cases have set out this general proposition in the 

form of three rules: 1) The evidence introduced by the plaintiff 

will be considered in the light most favorable to him. 2) The 

conclusions sought to be drawn from the facts must follow as a 

matter of law. 3) Only the evidence of the plaintiff will be 

considered. Hannifin v. Retail Clerks, 162 Mont. 170, 511 P. 

2d 982; Mueller v. Svejkovsky, 153 Mont. 416, 458 P.2d 265; 

Pickett v. Kyger, 151 Mont. 87, 439 P.2d 57; Johnson v. Chicago, 

M. & St. Paul Ry., 71 Mont. 390, 230 P. 52. 
The question Lhen becomes -- whether, considering only 

rhe plaintiff's evidence in a light most favorable to him, 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 in discussing liability of the landlord for 

injuries occurring on leased premises in Gray v. Fox West Coast 

Service Corp., 93 Mont. 397, 18 P.2d 797, said: 

11 I In the case of injuries to third persons resulting 

from the condition or use of these premises, it is 

a general rule that prima facie the breach of duty and 

therefore the liability, is that of the occupant.and not 

of the landlord, and that in order to render the latter 

liable more must be shown than merely that the premises 

on which or from which the injury arose were leased to 

him by another."' 

2'0 avoid this general rule plaintiff must show more, he must 

show that he falls within one of the exceptions to this rule. 

Ln this case plaintiff relies on the exception which holds the 

Lessor liable for repairs or improvements which are negligently 

made. The elements which must be shown in order to fall into 

this exception are set out in 2 Restatement of Torts 2d, $362, 

Negligent Repairs by Lessor: 

"A lessor of land who, by purporting to make repairs 

on the land while it is in the possession of his lessee, or 

the negligent manner in which 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 for physical 

harm caused by the condition to the 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 landlord must make a 

negligent repair or improvement. 2) That repair or improvement 

must make the land more dangerous or give 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 at least arguable he should have discovered the dangerous 

condition in the four to six weeks after the new sections were 

delivered. Once the tenants knew of the condition they have the 

responsibility to protect themselves and those who enter on 

to the premises from harm. The liability of the landlord remains 

only as long as the tenants had no knowledge of the danger, his 

duty was to warn of the danger, and once the tenants knew of the 

danger the warning is no longer necessary. After tenants know 

of the danger, they have the duty to either make the premises 

safe or to warn. It is from this fact the conclusion that the 

landlord had no duty running to the plaintiff, follows as a 

matter of law. 

The district court' s order directing a verdict for 

defendant owners is affirmed. 
We concur: 

Justices