No. 85-533 INTHE SUPREME COURT OF THE STATE OF MONTANA 1986

CLYDE R. BOEHM, JR., Plaintiff andAppellant,

-vsALANON CLUB, Defendant and Respondent.

APPEAL FROM: District Court of the Thirteenth JudicialDistrict, In and for the County ofYellowstone, The HonorableRobert Holmstrom,Judgepresiding.

COUNSEL OF RECORD:

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

For Respondent: Peterson,Schofield & Leckie;V. JoeLeckie, Billings, Montana

Submitted onBriefs: March 13, 1986 Decided: July 2911986 

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## 1986 Filed: <'Mr. Chief Justice J. A. Turnage delivered the Opinion of the Court.Clyde Boehm filed a complaint a-gainsthis 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 reverseand.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.nonClub, 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 onboth 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 thebills, collecting club dues, purchasing and serving snacksand 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 Boehmwas still an employee of the Club. Ithad 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 streetto the main entrance of the Club and put down a melting agent on thesidewalk to keep the icemelted. Additionally, therewas a build-up of ice and snow on both sides of the sidewalkwhich caused water to run down the sidewalk. Sometime thatmorning, Boehm returned to the Club after going to the bank and runningothererrands. As he was walking up the sidewalk, he slipped on some ice and fell,breaking his leg in twoplaces. Boehm fileda claim underworkers' compensation butwas 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 subjectof 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 theorybehind workers' compensation and the policy of construing statutes liberally in favor of the worker, he only needs to show hewas injured on the job in order to recover damages for his injuries. We cannot agree with thisproposition. Section 39-71-508, MCA (1983), provides in pertinent part: An employeewho 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 thewords "damageaction," as used in the statute, implies that an employee must prove some fault or breach of dutyby theuninsured 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 liabilitymay also apply in appropriate situations. The only other Montana case to consider this issueheld 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), 104Mont. 603, 69 P.2d 764. Furthermore, case law from other states supports the view that an employeemust 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 employeewas 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'provenegligence in order to recover, in upholding the judgment for the employee the court assumed that ordinary principlesofnegligenceapplied. 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 considerationhemustmake a prima facie showinq of negligence on the part of the defendaytwhich was the proximate cause of his injuries. [Emphasis added.] Bates, Therefore, case law from other states and a plain reading of the statute supportsourholding that in a damage action under 

### 5 39-71-508, MCA, an employee must make out a prima facie case ofbreach of duty by the employer before he

can recover forhis 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 theuninsured employers' fund andpursue 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' compensationplan on the date of injury. Appellant contends that these amendments apply to his case because they weredesigned 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 sodeclared." 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 JudicialDistrict (1966),148Mont. 22, 417P.2d 109. Therefore,we must determinewhether the amendment to § 39-71-508 and the enactment of § 39-71-515 areprocedural or remedial,

as appellant contends,orwhether they are substantive. The general definition of a substantive or retrospective lawhasbeen summarizedas 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 considerationsalreadypast. 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." Dunhamv. Southside NationalRank ofMissoula (1976), 169Mont. 466, 472, 548 P.2d 1383, 1386. Appellant contends that the intent of the legislature

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

an uninsured employer would not be able to completely escape liability. Thatmay be true; however,that doesnotmean 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 theirenactment. 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 retroactiveeffect. 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, sinceappellant'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 injuredworker are determined by the statutes in effect at the time of the injury." Iversonv. Argonaut Insurance Company (Mont. 1982), 645P.2d 1366, 1367,39 St.Rep. 1040, 1041;Trustyv. 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 therespondent's favor. A directed verdict is proper only "[wlhere, upon the trial of an issue by a jury, the case presents only questionsof law

# . .." Section 25-7-302,MCA. Elaborating on this rule,the Court in Santv. 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 isproper: Case authority in Montana has established three basic ruleswhich 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 plaintiffwill be considered in the light most favorable to plaintiff and. as proving whatever it tends toprove. 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-awand recovery cannot be had upon any viewwhich could be reasonablydrawn from the facts which the evidence tends toprove. 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 sufficientto 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 principlesas ourguide. 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, controlthe 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. TheCourtheld: [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. [Emphasisadded..] Luebeck, 446 P.2d at 924. Similarly, in 

## - Uhl, the plaintiff was injured when she fell indefendant's parking lotwhichwas coveredwith frozen rain. The Court found that the plaintiff "specificallyknew from observation immediatelyprior to getting out of the car that theparking lot and walkway were covered with ice. She recognized the condition as dangerous and knew that she had to be carefulor shemight falldown." 

## - Uhl, 503 P.2d at 28. Although the defendanthad 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 elementswas 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 defendanthad 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), 637P.2d 509, 38 St.Rep. 1986, representsthe latest statement from the Courton thispoint. InCereck, theplaintiffwas injuredwhen she attempted to cross over a snowbank thathad been created ondefendant'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 ofwater that had.formed in the passageway. In reversing the lower court's grant of summary judgment in defendant's favor, this Courtheld: A property ownermay 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 theproperty owner; evenwhere such a condition is actually known or obvious, a property owner may be held liable if he shouldhave 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 snowand ice and that thedefendants should have anticipated the injuries that Mrs. Cereck received as a resultof the dangerous condition. Cereck, 637 P.2d at 511-512. In reaching this result, the Court specifically distinguished Luebeck by finding that the natural accumulationof ice and snowhad been altered. Cereck is firmly supported by Willis v. St. Peter's Hospital (1971), 157 Mont. 417, 486 ~.2d 593. There, a patrolman was injuredwhen he slipped on thepavement at the emergency entrance to the hospital. Themaintenance crew at the hospitalhad been keepingthe entrance free from snowandice by plowing and using a chemicalde-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 entrancewas the result of a natural accumulation or the careless use of the deicer chemicalused." Willis, 486 P.2d at 595. We find thatCereck andWillis 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.ppellantknew 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 evidencemust 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 conclusionson the question ofwhether the hazard createdby the natural accumulationof snowand icewas 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 respondentused ordinary care to have the premises reasonably safe for persons coming on itsproperty. Reversed and remanded for a new trial.

Chief Justice

We concur: