NO. 94-560 IN THE SUPREME COURT OF THE STATE OF MONTANA 1996

DONALD WEIBERT,

Plaintiff and Appellant,

v. BRUCE BOOTHE and DENISE BOOTHE,

Defendants and Respondents.

APPEAL FROM: District Court of the Thirteenth Judicial District,

In and for the County of Yellowstone, The Honorable William J. Speare, Judge presiding.

COUNSEL OF RECORD:

Filed: For Appellant:

Paul E. Toennis (argued), Oliver, Graves, Toennis & Gustafson, Billings, Montana For Respondent: K. Kent Koolen (argued), Moulton, Bellingham, Longo & Mather, Billings, Montana For Amicus: L. Randall Bishop, Jarussi & Bishop, Billings, Montana (Montana Trial Lawyers Assn.); Maxon R. Davis, Cure, Borer & Davis, Great Falls, Montana; Ward E. Taleff, Alexander, Baucus, Taleff & Paul, Great Falls, Montana (Montana Defense Trial Lawyers, Inc.) Heard: December 12, 1995 Submitted: December 14, 1995 Decided: May 14, 1996Justice William E. Hunt, Sr. delivered the Opinion of the Court.

Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1995 Internal Operating Rules, the following decision shall not be cited as precedent and shall be published by its filing as a public document with the Clerk of this Court and by a report of its result to State Reporter Publishing Company and West Publishing Company. Appellant, Donald Weibert (Weibert), appeals an order of the Thirteenth Judicial District Court, Yellowstone County, granting Respondents', Bruce and Denise Boothe (Boothes), motion for summary judgment in a negligence action for personal injury. We affirm. Appellant raises several issues on appeal, which we restate as follows: 1. Did the District Court fail to apply the appropriate standard of review for a summary judgment motion in a negligence action? 2. Did the District Court err in concluding that Boothes did not owe Weibert a duty of care as a possessor of land? 3. Did the District Court err by not finding that a genuine issue of material fact existed as to the Boothes' creation of an unreasonable risk? 4 . Did the District Court err in granting summary judgment because there were genuine issues of material fact as to the proximate cause of Weibert's injury?m a NBoth parties agree on what happened; the Boothes placed a hay

grapple in the farm yard along with other farm equipment. The Boothes did not start the fire, nor did they have anything to do with the injury which occurred when Weibert attempted to stamp out the flames. In this case, the moving party, the Boothes, had satisfied their burden and the District Court found the basic facts of the case to be undisputed. A cause of action in negligence consists of four elements: (1) duty; (2) breach of duty; (3) causation; and (4) damages. Hatch v. Dept. of Highways (19941, 269 Mont. 188, 192, 887 P.2d 729, 732. The plaintiff must produce evidence from which it can be reasonably inferred that negligent conduct on the part of the defendant was a cause of the plaintiff's injuries. Krone, 638 P.2d at 400. In this case, as in Krone - I the plaintiff is not exactly sure what caused his injury. He alleges that "during the time he was attempting to stamp out the fire, something happened to his leg. 1' Weibert has failed to produce evidence from which the element of causation can be inferred. After the Boothes satisfied the burden of showing that no material issues of genuine fact were in dispute, the burden shifted to Weibert to proffer evidence and raise an issue of material fact. Krone, 638 P.2d at 401. We conclude that Weibert has failed to meet this burden, the only ambiguity in this case stems from Weibert's inability to recall the details of the injury. Since Weibert was unable to provide either the District Court or this Court with any material issue of fact in this case, and the

5**m**