No. 85-533 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1986 

CLYDE R. BOEHM, JR., 

Plaintiff and Appellant, 

-vsALANON CLUB, 

Defendant and Respondent. 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, 

The Honorable Robert Holmstrom, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Nye & Meyer; Jerrold L. Nye, Billings, Montana 

For Respondent: 

Peterson, Schofield & Leckie; V. Joe Leckie, Billings, 

Montana 

Submitted on Briefs: March 13, 1986 

Decided: July 291 1986 

JeJL 2 2 1986 Filed: <' 
Mr. Chief Justice J. A. Turnage delivered the Opinion of the 

Court. 

Clyde Boehm filed a complaint a-gainst his former employer, Alanon Club, in the District Court of the Thirteenth 

Judicial District of the State of Montana, in and for the 

County of Yellowstone. The court granted defendant's motion 

for a directed verdict in its favor on Count I of the complaint, and Boehm has appealed. For the reasons stated 

below, we reverse and. remand for a new trial. 

Clyde Boehm, appellant, brought suit for damages he 

received as a result of falling on the property of the respondent, 204 Grand Ala.non Club, Inc. (Club) . In the second 

count of the complaint, Boehm claimed damages for wrongful 

termination from his employment with the Club subsequent to 

his fall. At the close of plaintiff's case, the Club moved 

for a directed verdict on both counts. The court granted the 

motion as to Count I, but denied it as to Count 11. Subsequently, the jury found in favor of Boehm on the wrongful 

termination claim, and neither party has appealed that 

finding. 

Boehm was hired by the Club as a steward in August 

1983. His duties included paying the bills, collecting club 

dues, purchasing and serving snacks and coffee, and cleaning 

and maintaining the premises. He was paid $100 per week and 

was allowed to live at the Club. 

The accident occurred on the morning of January 3, 

1984, while Boehm was still an employee of the Club. It had 

been raining and snowing that morning from around 8:30 to 

11:OO. Sometime before 9:00 or 10:OO that morning, Boehm 

shoveled off the sidewalk leading from the street to the main 

entrance of the Club and put down a melting agent on the 
sidewalk to keep the ice melted. Additionally, there was a 

build-up of ice and snow on both sides of the sidewalk which 

caused water to run down the sidewalk. Sometime that morning, Boehm returned to the Club after going to the bank and 

running other errands. As he was walking up the sidewalk, he 

slipped on some ice and fell, breaking his leg in two places. 

Boehm filed a claim under workers' compensation but was 

denied recovery because the Club did not have workers' compensation insurance, in violation of § 39-71-401, MCA. Boehm 

then brought an action for damages against the Club which is 

the subject of this appeal. 

Appellant has raised two issues on appeal: 

1. In an action for damages against an uninsured 

employer brought pursuant to § 39-71-508, MCA, must the 

employee prove negligence or breach of duty by the employer 

in order to recover? 

2. Under the facts established at trial, did the court 

err in granting respondent's motion for a directed verdict? 

I 

Appellant brought suit against respondent pursuant to 

S 39-71-508, MCA (1983). This statute allows an employee to 

maintain a damage action against his employer for injuries 

arising out of and in the course of employment. However, 

only employers who are uninsured, as defined by § 39-71-501, 

MCA, are subject to such an action. Appellant contends that 

he should not be required to prove negligence or breach of 

duty by the employer in order to recover under § 39-71-508. 

Rather, he seems to assert that because of the theory behind 

workers' compensation and the policy of construing statutes 

liberally in favor of the worker, he only needs to show he 
was injured on the job in order to recover damages for his 

injuries. We cannot agree with this proposition. 

Section 39-71-508, MCA (1983), provides in pertinent 

part : 

An employee who suffers an injury arising out of and in the course of employment while working for an uninsured 

employer as defined in 39-71-501 . . . may elect to either receive benefits 

from the uninsured employers' fund or 

pursue a damage action against the 

employer. . . . 

[This statute was amended after appellant was injured.] We 

hold that the words "damage action," as used in the statute, 

implies that an employee must prove some fault or breach of 

duty by the uninsured employer before the employee can recover for his injuries. Normally, the action will be one in 

negligence; however, negligence is not the only theory of 

liability encompassed by the statute. Strict or vicarious 

liability may also apply in appropriate situations. 

The only other Montana case to consider this issue held 

that negligence must be shown in order for an employee to 

recover for his injuries against an uninsured employer. 

Chancellor v. Hines Motor Supply Co. (1937), 104 Mont. 603, 

69 P.2d 764. Furthermore, case law from other states supports the view that an employee must affirmatively show some 

fault or breach of duty by the uninsured employer before 

recovery is allowed. 

In Arvas v. Feather's Jewelers (N.M. 1978), 582 ~.2d 

1302, an employee was injured in the course and scope of his 

employment with an uninsured employer. New Mexico has a 

statute which allows an employee to maintain an action for 

"damages" against an uninsured employer, and the employee 

brought suit against her employer pursuant to this statute. 
Although the employee did not contend that she did not have 

to'prove negligence in order to recover, in upholding the 

judgment for the employee the court assumed that ordinary 

principles of negligence applied. 

The same approach was taken by the Supreme Court of 

West Virginia in Bates v. Sirk (W.Va. 1976), 230 S.E.2d 738. 

In language relevant to Boehm's contention, the court stated: 

It is readily admitted by the plaintiff 

that it is - not enough for him to show 

that he suffered injuries and that the 

defendant failed to subscribe to the 

workmen's compensation fund. He acknowledges that before such a case 

warrants jury consideration he must make 

a prima facie showinq of negligence on 

the part of the defendayt which was the 

proximate cause of his injuries. [Emphasis added.] 

Bates, 

Therefore, case law from other states and a plain 

reading of the statute supports our holding that in a damage 

action under 5 39-71-508, MCA, an employee must make out a 

prima facie case of breach of duty by the employer before he 

can recover for his injuries. 

Subsequent to appellant's accident, the legislature 

amended 5 39-71-508 and enacted § 39-71-515, MCA, to close a 

gap that existed earlier. Unlike the old statute, the amended statute allows an employee to file a claim for benefits 

from the uninsured employers' fund and pursue a damage action 

against the uninsured employer at the same time without 

having to make an election. Furthermore, S 39-71-515 gives 

an employee an independent cause of action against an uninsured employer by imposing liability simply on the basis of 

the failure of the employer to be enrolled in a workers' 

compensation plan on the date of injury. Appellant contends 

that these amendments apply to his case because they were 
designed to remedy deficiencies in the prior law and are, 

therefore, remedial rather than substantive. 

The guiding principle in this area is § 1-2-109, MCA, 

which states: "No law contained in any of the statutes of 

Montana is retroactive unless expressly so declared." However, it has been held that where a statute is procedural, 

rather than substantive, § 1-2-109 has no application, and 

the statute will be applied to a cause of action arising 

before its enactment. State v. District Court of Fourth 

Judicial District (1966), 148 Mont. 22, 417 P.2d 109. Therefore, we must determine whether the amendment to § 39-71-508 

and the enactment of § 39-71-515 are procedural or remedial, 

as appellant contends, or whether they are substantive. 

The general definition of a substantive or retrospective law has been summarized as follows: 

A retrospective law, in the legal sense, 

is one which takes away or impairs 

vested rights acquired under existing 

laws, or creates a new obligation and 

imposes a new duty, or attaches a new 

disability, in respect to transactions 

or considerations already past. 

73 Am. Jur.2d Statutes, S 348 (1974). Similarly, this Court 

held that I' [a] substantive law may be defined as that law 

which creates duties, rights, obligations, and responsibilities." Dunham v. Southside National Rank of Missoula (1976), 

169 Mont. 466, 472, 548 P.2d 1383, 1386. 

Appellant contends that the intent of the legislature 

was to remedy the defects that existed in § 39-71-508 so that 

an uninsured employer would not be able to completely escape 

liability. That may be true; however, that does not mean the 

amendment is remedial. This statute, as amended, in addition 

to § 39-71-515, imposes a new liability or obligation upon 

uninsured employers that did not exist prior to their 
enactment. Furthermore, the statutes grant employees a new 

cause of action or right that did not exist prior to their 

enactment. Were we to allow appellant the benefit of these 

newly-enacted statutes, respondent would be subjected to a 

completely new and wholly independent liability from the one 

that existed under the statutes in effect at the time of 

appellant's injury. This result fits exactly within the 

definition of a substantive law. Thus, to apply the amended 

statute to appellant's cause of action would be to give it 

retroactive effect. 

A substantive law may be applied retroactively only 

when expressly so declared or intended by the legislature. 

Penrod v. Hoskinson, M.D. (1976), 170 Mont. 277, 552 P.2d 

325. Dunham, supra. There is no indication in S 39-71-508 

nor in 5 39-71-515 that the legislature intended these statutes to apply to injuries arising before their enactment. 

Had the legislature intended such a result, it could have 

easily indicated it in the statutes. Therefore, since appellant's injury occurred before the enactment of the statutes 

in question, his case is governed by the prior law. This 

holding is consistent with other cases in this area holding 

that "workers' compensation benefits to an injured worker are 

determined by the statutes in effect at the time of the 

injury." Iverson v. Argonaut Insurance Company (Mont. 1982), 

645 P.2d 1366, 1367, 39 St.Rep. 1040, 1041; Trusty v. Consolidated Freightways (Mont. 1984), 681 P.2d 1085, 41 St.Rep. 

973. 

I1 

Appellant contends next that it was error for the 

District Court to enter a directed verdict in the 
respondent's favor. A directed verdict is proper only 

"[wlhere, upon the trial of an issue by a jury, the case 

presents only questions of law . . ." Section 25-7-302, MCA. 

Elaborating on this rule, the Court in Sant v. Baril (1977) , 

173 Mont. 14, 20-21, 566 P.2d 48, 51, set forth the basic 

test to be applied in determining whether a directed verdict 

is proper: 

Case authority in Montana has established three basic rules which apply in 

interpreting section 93-5205 [ now 

§ 25-7-302, MCA] . 

1. Upon a motion for directed verdict 

in favor of defendant, the evidence 

introduced by plaintiff will be considered in the light most favorable to 

plaintiff and. as proving whatever it 

tends to prove. 

2. A cause should never be withdrawn 

from the jury unless the conclusion 

sought to be drawn from the facts must 

follow as a matter of I-aw and recovery 

cannot be had upon any view which could 

be reasonably drawn from the facts which 

the evidence tends to prove. 

3. In reviewing an order directing a 

verdict for defendant, the reviewing 

court will only consider the evidence 

introduced by the plaintiff and if that 

evidence, viewed in the light most 

favorable to the plaintiff, tends to 

establish the case made by the plaintiff's pleadings the order will be 

reversed. 

The test commonly employed to determine 

if the evidence is legally sufficient to 

withdraw cases and issues from the jury 

is whether reasonable men could draw 

different conclusions from the evidence. 

We must consider the propriety of the directed verdict with 

these principles as our guide. 

The District Court felt that the cases of Luebeck v. 

Safeway Stores, Inc. (1968), 152 Mont. 88, 446 P.2d 921, and 

Uhl v. Abrahams (1972), 160 Mont. 426, 503 P. 2d 26, control 
the law to be applied in this case. Luebeck, and later - Uhl, 

set forth the general rule which is applied in actions involving injuries caused by falling on ice or snow. In 

Luebeck, the plaintiff was injured when she fell on defendant's snow-covered lot. The Court held: 

[Wlhere danger created by the elements 

such as the forming of ice and the 

falling of snow are universal]-y known, 

or as here, actually known, there is no 

liability. [Emphasis added..] 

Luebeck, 446 P.2d at 924. 

Similarly, in - Uhl, the plaintiff was injured when she 

fell in defendant's parking lot which was covered with frozen 

rain. The Court found that the plaintiff "specifically knew 

from observation immediately prior to getting out of the car 

that the parking lot and walkway were covered with ice. She 

recognized the condition as dangerous and knew that she had 

to be careful or she might fall down." - Uhl, 503 P.2d at 28. 

Although the defendant had used a de-icer on the parking lot 

that morning to try to melt the ice, the Court held that 

" [tlhere is no evidence that the use of the de-icer on the 

walkway contributed to the slippery condition. In short, 

nothing but a natural icing condition due to the elements was 

involved and such condition prevailed throughout the city." 

- Uhl, 503 P.2d at 28. 

Thus, both of these cases involved situations where 

there was a natural accumulation of snow or ice, and the 

defendant had done nothing to alter this condition. However, 

there is a separate line of cases in this area which the 

court failed to give proper consideration to. Those cases 

hold that a property owner may be held liable for injuries 

occurring on his property due to ice or snow where he has 

altered the natural conditions in some way. Cereck v. 
Albertson's Inc. (Mont. 1981), 637 P.2d 509, 38 St.Rep. 1986, 

represents the latest statement from the Court on this point. 

In Cereck, the plaintiff was injured when she attempted 

to cross over a snowbank that had been created on defendant's 

property. The defendant plowed a passageway in the snow 

leading from the parking lot to the store entrance which 

created a snowbank along the passageway. The plaintiff had 

attempted to cross over the snowbank in order to avoid a 

large puddle of water that had. formed in the passageway. In 

reversing the lower court's grant of summary judgment in 

defendant's favor, this Court held: 

A property owner may be held liable for 

falls on accumulations of ice and snow 

where the hazard created by the natural 

accumulation is increased or a new 

hazard is created by an affirmative act 

of the property owner; even where such a 

condition is actually known or obvious, 

a property owner may be held liable if 

he should have anticipated that injuries 

would result from the dangerous 

condition. 

In this case it may reasonably be inferred that the piling of snow in front 

of the store entrance increased the 

hazard created by the natural accumulation of snow and ice and that the defendants should have anticipated the 

injuries that Mrs. Cereck received as a 

result of the dangerous condition. 

Cereck, 637 P.2d at 511-512. In reaching this result, the 

Court specifically distinguished Luebeck by finding that the 

natural accumulation of ice and snow had been altered. 

Cereck is firmly supported by Willis v. St. Peter's 

Hospital (1971), 157 Mont. 417, 486 ~.2d 593. There, a 

patrolman was injured when he slipped on the pavement at the 

emergency entrance to the hospital. The maintenance crew at 

the hospital had been keeping the entrance free from snow and 
ice by plowing and using a chemical de-icer. In reversing a 

directed verdict for the defendant, the Court held that "the 

evidence presented raises a jury question as to whether the 

slippery snow and ice pack at the emergency entrance was the 

result of a natural accumulation or the careless use of the 

deicer chemical used." Willis, 486 P.2d at 595. 

We find that Cereck and Willis state the applicable law 

in the present case. Appellant testified. that he shoveled 

the sidewalk daily and used a de-icer the morning he was 

injured. The combination of the build-up of snow and ice on 

both sides of the sidewalk and the possible careless use of 

the chemical de-icer could have increased the hazard created 

by the natural accumulation of snow and ice. Furthermore, 

the possible careless use of the de-icer may have created a 

hazard or condition completely different from the natural 

accumulation. Unlike the plaintiffs in Luebeck and - Uhl, 

there was no evidence that a.ppellant knew the sidewalk was 

slippery or had spots of ice on it, nor was there any evidence that this condition was obvious. In fact, it appears 

that appellant did not recognize the condition of the sidewalk as being dangerous. The fact that appellant was the 

only person to testify to these conditions is immaterial 

because on a motion for a directed verdict, the evidence must 

be considered "in the light most favorable to plaintiff and 

as proving whatever it tends to prove." Sant, 566 P.2d at 

51. 

Therefore, reasonable minds could draw different conclusions on the question of whether the hazard created by the 

natural accumulation of snow and ice was increased or altered 

by daily shoveling of the snow and by appellant's possible 

carelessness in using the de-icer on the sidewalk. 
Considering the evidence in the light most favorable to 

appellant, we cannot find that respondent is entitled to 

judgment as a matter of law. We hold that a jury question 

was presented on the issue of whether respondent used ordinary care to have the premises reasonably safe for persons 

coming on its property. 

Reversed and remanded for a new trial. 

Chief Justice 

We concur: