No. 133.03 

TN THE SUPREME COlJRT OF THE STA'I'E i)E' MONTANA 

1976 

MYRA A. DUNHAM, 

Plaintiff and Appellant, 

SOUTHSIDE NATIONAL BANK OF MISSOULA, 

and JIM O'HOYT AND TEDDY JOHNSON d/b/a 

JOHNSON BROTHERS, 

Defendants and Respondents. 

Appeal from: District Court of the Fourth Judicial District, 

Honorable E. Gardner Brownlee, Judge presiding . 

Counsel of Record: 

For Appellant: 

Boone, Karlberg, and Haddon, Missoula, Montana 

Sam Haddon argued, Missoula , Montana 

%or Sespondents: 

Garlington, Lohn and Robinson, Missoula, Montana 

Sherman V. Lohn argued and Larry E. Riley argued, 

Missoula , Montana 

Vor Amicus Curiae : 

Marra, Wenz and Iwen, Great Falls, Montana 

Joseph R. Marra argued, Great Falls, Montana 

Poore, McKenzie, Roth, Robischon and Robinson, Butte, Montana 

David Wing argued and James A. Poore, 111 argued, 

Butte, Montana 

Submitted: March 10, 1976 

--- 

Decided : *t- h 1, 2 r'fx; , b ;:j",'%- / yg 

b'iled : 
Mr. Justice Wesley Castles delivered the Opinion of the Court. 

This is an appeal from an order granting summary judgment 

entered in the district court, Missoula County. 

Plaintiff, Myra R. Dunham, went to Southside National 

Bank on January 4, 1972, for the purpose of making a loan payment. While walking through the bank parking lot, toward a 

customer entrance to the bank, she slipped and fell on an accumulation of ice and snow. 

It had been snowing in Missoula the night before the 

accident and continued to snow throughout the next day. The parking lot had been cleared before business hours by defendants 

Johnson Brothers under a maintenance agreement with the bank. 

The area where plaintiff fell was not cleared of ice or snow, as 

neither of the defendants considered this area a sidewalk or part 

of the parking lot. 

Plaintiff brought this action for personal injuries on 

May 15, 1974. Defendants' motion for summary judgment was granted 

on September 16, 1975, on the grounds (1) plaintiff was contributorily negligent as a matter of law, and (2) the Montana comparative negligence statute did not apply to accidents occurring prior 

to the effective date of the act. 

Plaintiff appeals the granting of summary judgment. 

Two issues are presented for review: 

(1) Does a genuine issue of material fact exist on the 

question of whether plaintiff was negligent thereby precluding 

summary judgment? 

(2) Does the Montana comparative negligence statute, 

section 58-607.1, R.C.M. 1947, apply to claims which arose prior 

to the effective date of the act, July 1, 1975? 

Rule 56(c), M.R.Civ.P., states a summary judgment shall 

be rendered only if: 

" * * * the pleadings, depositions, answers to 
interrogatories, and admissions on file show 

that there is no genuine issue as to any 

material fact and that the moving party is 

entitled to a judgment as a matter of law. * * *" 

The moving party has the burden of showing the absence 

of any genuine factual issue. As stated in 6 Moore's Federal 

Practice, 1156.15[31, p. 56-463: 

"The courts are in entire agreement that the moving 

party for summary judgment has the burden of showing 

the absence of any genuine issue as to all the 

material facts, which, under applicable principles 

of substantive law, entitle him to judgment as a 

matter of law." 

See Kober & Kyriss v. Billings Deaconess Hospital, 148 Mont. 117, 

In her deposition plaintiff admitted the slippery condition of the parking lot was "obvious" and that she believed the 

accumulation of ice and snow on the walkway was a natural accurnulation due to the prevailing conditions. She stated the condition 

was not hidden and agreed she must have stepped on an icy spot 

the wrong way. 

This Court recently stated the law regarding slip and 

fall under similar conditions in Uhl v. Abrahams, 160 Mont. 426, 

429, 430, 503 P.2d 26, the language there applies equally well 

here : 

"Directing our attention to the applicable substantive law, a possessor of land owes a duty to an 

invitee to use ordinary care to keep the premises 

in a reasonably safe condition and to warn the 

invitee of any hidden or lurking dangers therein, 

but he is not an insurer against all accidents 

and injuries to invitees on the premises. Cassady 

v. City of Billings, 135 Mont. 390, 340 P.2d 509; 

Luebeck v. Safeway Stores, Inc., 152 Mont. 88, 446 

P.2d 921; and authorities cited therein. 

"In Luebeck we directly held that '* * * where 

danger created by the elements such as the forming 

of ice and falling of snow are universally known, 

or as here, actually known, there is not liability. 

* * *' We based this holding on a line of cases 

from other jurisdictions so holding, particularly 

quoting with approval the following statement from 

Crawford v. Soennichsen, 175 Neb. 87, 120 N.W.2d 
"' * * * However, the general rule seems clearly 

to be that a store owner cannot be charged with 

negligence by reason of natural accumulation of 

ice and snow where the condition is as well known 

to the plaintiff as the defendant.' * * * 

" * * * In short, nothing but a natural icing 

condition due to the elements was involved and 

such condition prevailed throughout the city. 

Accordingly, Luebeck controls the situation in 

the instant case; there is no breach of duty, no 

negligence, and no liability as a matter of law." 

Appellant cites Willis v. St. Peter's Hospital, 157 Mont. 

417, 486 P.2d 593. Willis can be readily distinguished in the 

instant case, as it was in Uhl. - In Willis there was a jury question as to whether the hospital contributed to the slippery condition by attempting to melt the ice and whether the plaintiff 

had knowledge of the condition. Neither of these issues of 

material fact exist in the instant case. 

We find the district court properly granted respondents' 

motion for a summary judgment. 

On appeal appellant asks this Court to give the new 

Montana comparative negligence law retroactive effect. In other 

words, appellant argues comparative negligence should apply to an 

accident occurring prior to the effective date of the legislation 

but not tried until after the effective date. 

Prior to July 1, 1975, the law of contributory negligence 

in Montana was section 58-607, R.C.M. 1947: 

"Every one is responsible, not only for the 

result of his willful acts, but also for an injury 

occasioned to another by his want of ordinary care 

or skill in the management of his property or 

person, except so far as the latter has, willfully 

or by want of ordinary care, brought the injury 

upon himself. The extent of liability in such 

cases is defined by the title on compensatory 

relief. " 

On July 1, 1975, Montana's comparative negligence statute, section 58-607.1, R.C.M. 1947, (Chap. 60, Laws of 1975) 

became effective. It reads: 
"Contributory negligence shall not bar recovery 

in an action by any person or his legal representative to recover damages for negligence resulting in death or injury to person or property, 

if such negligence was not greater than the 

negligence of the person against whom recovery 

is sought, but any damages allowed shall be dismissed in the proportion to the amount of negligence attributable to the person recovering." 

Section 58-607.1, R.C.M. 1947, did not amend or repeal 

section 58-607, R.C.M. 1947. Section 58-607.1 modifies the 

total defense of contributory negligence by apportioning damages, 

if the plaintiff's negligence is not greater than that of the 

defendant. There is no legislative declaration that section 

58-607.1 shall be only prospective in operation, nor is there 

declaration the statute shall have retroactive effect. 

There is a presumption in Montana against construing a 

statute retroactively, unless specifically declared retroactive. 

Section 12-201, R.C.M. 1947,provides: 

"No law contained in any of the codes or other 

statutes of Montana is retroactive unless expressly 

SO declared." 

The foundation for this presumption was set forth in Sullivan 

v. City of Butte, 65 Mont. 495, 498, 211 P. 301, wherein the 

Court said: 

"While our Constitution does not forbid the enactment of retrospective laws generally, it is a 

rule recognized by the authorities everywhere 

that retrospective laws are looked upon with disfavor. It is a maxim said to be as old as the 

law itself that a new statute ought to be prospective, not retrospective, in its operation. * * * 

The maxim has its foundation in the presumption 

that the legislature does not intend to make a 

new rule for past transactions and every reasonable doubt will be resolved against a retrospective 

operation. " 

See State ex rel. Mills v. Dixon, 68 Mont. 526, 219 P. 637; State 

ex rel. City of Billings v. Osten, 91 Mont. 76, 5 P.2d 562; State 

ex rel. Whitlock v. State Board of Equalization, 100 Mont. 72, 

45 P.2d 684; State v. J. C. Maguire Const. Co., 113 Mont. 324, 

125 P.2d 433; 82 C.J.S. Statutes 8414; Anno. 37 ALR3d 1438, 1440; 
Schwartz, Comparative Negligence, S8.4. 

In City of Harlem v. State Highway Comm'n, 149 Mont. 281, 

284, 425 P.2d 718, this Court interpreted section 12-201, R.C.M. 

1947, stating: 

" * * * This section provides a rule of construction which requires that the intenti of the legislature is to be gained from the act itself and 

from no other source. I' 

We find nothing in section 58-607.1, R.C.M. 1947, (or 

Chap. 60, Laws of 1975), which expressly declares a legislative 

intent to apply the law retroactively. 

Appellant argues the comparative negligence law is 

procedural in nature, thus it may be applied retroactively. 

Respondents reply that the law is substantive in nature. A 

substantive law may be defined as that law which creates duties, 

rights, obligations, and responsibilities. State ex rel. Johnson 

v. District Court, 148 Mont. 22, 417 P.2d 109. 

This Court has held on more than one occasion, that procedural laws may be given retroactive effect, notwithstanding the 

presumption against retroactivity in section 12-201, R.C.M. 1947. 

State ex rel. Johnson v. District Court, supra; State Department 

of Highways v. Olsen, 166 Mont. 139, 531 P.2d 1330, 32 St.Rep. 110. 

The Oregon Supreme Court in Joseph v. Lowery, 261 Ore. 

545, 495 P.2d 273, 275, 276, faced the question of retroactivity 

of its comparative negligence law, which is identical to Montana's 

in all relevant areas. It stated: 

"Under the comparative negligence statute, a 

plaintiff whose negligence is less than that of 

the defendant is not barred from recovery by 

virtue of his contributory negligence, but is 

allowed recovery reduced by the degree of his 

fault. here fore, if applied retroactively, the 

act would affect legal rights and obligations 

arising out of past actions. As a result, strictly 

for the purposes under consideration here, the 

provisions of the act are 'substantive1 and 

not 'procedural or remedial' in nature. If applied 

retroactively, the statute could create a duty to 

pay which did not exist at the time the damage was 
in£ licted. * * * 

" * * * We believe there is merit in the prior view 

of this court * * * that, in the absence of an 

indication to the contrary, legislative acts 

should not be constructed in a manner which changes 

legal rights and responsibilities arising out of 

transactions which occur prior to the passage of 

such acts. " 

We agree with the reasoning of the Oregon court, and find the 

Montana comparative negligence law substantive in nature with 

a presumption against retroactive effect. 

The Montana and Oregon comparative negligence laws are 

nearly identical. These laws were copied from the Wisconsin 

statute first passed in 1931 and amended to its present form 

(copied by Montana and Oregon) in 1971. Montana follows the rule 

of statutory construction that in borrowing a statute from another 

state, the legislature presumably borrows the construction placed 

upon it by the highest court of the state from which it is borrowed. 

Stadler v. First National Bank, 22 Mont. 190, 56 P. 111; Esterly 

v. Broadway Garage Co., 87 Mont. 64, 285 P. 172; Roberts v. 

Roberts, 135 Mont. 149, 338 P.2d 719; Lowe v. Root, 166 ~ont.150 , 

531 P.2d 674, 32 St.Rep. 122. 

In 1931 Wisconsin became the first state to enact a 

modified comparative negligence law (the type enacted in Montana 

in 1975). Schwartz, Comparative Negligence, 53.5(A). In 1933 

the Wisconsin Supreme Court held the statute did not apply retroactively. Brewster v. Ludtke, 211 Wisc. 344, 247 N.W. 449; Crane 

v. Weber, 211 Wisc. 294, 247 N.W. 882. Both cases simply stated 

the accident occurred prior to the enactment of the comparative 

negligence act, thus contributory negligence was a total defense. 

These holdings were reaffirmed in 1935 by Peters v, Milwaukee 

Electric Ry. & Light Co., 217 Wisc. 481, 259 N.W. 724. 

In 1971 Wisconsin followed the lead of New Hampshire and 

adopted the 50% system of comparative negligence. Schwartz, 
Comparative Negligence, §3.5(B). In 1972 the Wisconsin Supreme 

Court held the 1971 modification could not operate retroactively, 

citing Brewster and Crane as precedent. Lupie v. Hartzheim, 54 

Wisc.2d 415, 195 N.W.2d 461; Holzem v. Mueller, 54 Wisc.2d 388, 

195 N.W.2d 635. These holdings were reaffirmed in Schuh v. Fox 

River Tractor Co., 63 Wisc.2d 728, 218 N.W.2d 279. See Jones 

v. Jones, 113 N.H. 553, 311 A.2d 522, holding the New Hampshire 

law not retroactive. 

In Joseph v. Lowery, supra, the Oregon Supreme Court 

cited the Wisconsin holdings as being highly persuasive on the 

construction of the Oregon statute. We feel equally persuaded 

in the construction of the Montana statute. 

Amicus on behalf of appellant, directs the Court to the 

many holdings of this Court that we will not blindly follow the 

construction given a particular statute by the court of another 

state from which the Montana 1,egislature borrowed the statute, 

when such court decision does not appear to be founded on right 

reasoning or when such decision would not be in harmony with the 

spirit and policy of the Montana legislature and decisions of 

this Court, e.g. Grady v. City of Livingston, 115 Mont. 47, 141 

P.2d 346; In re Kay's Estate, 127 Mont. 172, 260 P.2d 391; CahillMooney Const. Co. v. Ayres, 140 Mont. 464, 373 P.2d 703. In the 

instant case, we do not feel these objections are relevant, therefore we follow Wisconsin, New Hampshire and Oregon courts in denying retroactive effect to Montana's comparative negligence law. 

Appellant directs us to the leading cases giving comparative negligence statutes retroactive effect: Peterson v. City of 

Minneapolis, 285 Minn. 282, 173 N.W.2d 353, 355, 37 ALR3d 1431; 

Godfrey v. State, 84 Wash.2d 959, 530 P.2d 630, 633. 

Peterson is based on the Minnesota comparative negligence 

law which states the statute "shall be effective in any action the 
trial of which is commenced after July 1, 1969." Minnesota 

recognized the precedent value of the Wisconsin decisions, but 

parted from those decisions due to the different wording of 

the statutes. This wording distinction also distinguishes 

Peterson from the instant case. 

Godfrey, as did Peterson, dealt with legislative abrogation 

of the common law rule of contributory negligence. The Washington 

court referred to the common law status of its contributory negligence rule on more than one occasion in its opinion. In Montana 

the contributory negligence rule is statutory in nature, in 

effect until July 1, 1975, and remaining in effect after that 

date, although modified by the comparative negligence statute. 

The Washington legislature, although not providing a specific 

direction as to retroactive or prospective effect of the statute, 

did entitle the statute: "An Act relating to civil procedure." 

As stated above, the Montana comparative negligence law is substantive in nature and entitled to the presumption that it was 

meant to be prospective in effect. 

Appellant also refers to court decisions in Florida and 

California adopting comparative negligence as a part of the 

developing common law principles: Hoffman v. Jones, (Fla. 1973) 

280 So.2d 431; Nga Li v. Yellow Cab Company of California, 119 

Cal.Rptr. 858, 532 P.2d 1226. These decisions dealt with judgemade law modifying judge-made law. The courts were free to 

determine what effect their decisions would have on causes of 

action arising prior to the decisions. 

If this Court were to declare that the Montana comparative 

negligence law has retroactive effect, we would be legislating 

retroactively and hastening the modification of the contributory 

negligence law without specific legislative direction and contrary 

to the common law rules of statutory construction and section 
12-201, R.C.M. 1947. This Court recently said in Wilson v. 

Swanson, Mont . P. 2d , 33 St.Rep. 216, 221, f - 

regarding a request to declare the Montana guest statute, 

repealed effective July 1, 1975, retroactively unconstitutional: 

"Under these circumstances [repeal of the law] we 

decline to hasten its demise by judicial decision. 

We decline to legislate retroactively as condemned 

in Montana Horse Products Co. v. Great Northern 

Ry. Co., 91 Mont. 194, 7 P.2d 919; Sunburst 0. & 

R. Co. v. Great North. Ry. Co., 91 Mont. 216, 7 

P.2d 927, a££ 'd 28'7 U.S. 358, 53 S.Ct. 145, 77 

L ed 360, 85 ALR 254; 10 ALR3d 1371, Sec. 7(a)." 

Neither will we legislate retroactively in this matter. 

The order of the district court granting summary judgment 

is affirmed, as is the district court's conclusion that the Montana 

comparative negligence law section 58-607.1, R.C.M. 1947, shall 

not apply to a cause of action arising prior to July 1, 1975. 

I; Justice 

We concur: 

Hon. hrthur Martin, district judge, 

sitting in place of Mr. Chief Justice James T. Harrison. 
Mr. Justice John Conway Harrison dissenting: 

I respectfully dissent. As I view this case this Court 

had an opportunity to decide the case in such a manner as to provide 

for uniformity in the trial of all pending negligence cases. 

Admittedly the arguments of all parties to the case are legalistically 

sound. The issue, as I view it, is which argument is morally 

sound and just, To me, there can be but one choice. 

The majority, citing cases from this and other jurisdictions, 

namely Oregon, Wisconsin and New Hampshire, found that nothing 

in section 58-607.1, R.C.M. 1947, or Chapter 60, Laws of 1975, 

expressly declares a legislative intent to apply the law retroactively, on the basis that such a change would be a change in 

our substantive law. I believe the change is a procedural, not 

substantive change. State v. Olsen, 166 Mont. 139, 531 P.2d 1330, 

32 St.Rep. 110; State ex rel. Johnson v. District Court, 148 Mont. 

22, 417 P.2d 109; 82 C.J.S. Statutes § 422. As I view it, under 

~ontana's Rule 8 (b) , M.R.Civ. P., the defense of contributory 

negligence is a procedural matter which the defense must plead and 

prove. It affects the lai in tiff's remedy rather than the defendant's 

substantive obligation to the plaintiff. 

The adoption of ~ontana's civil rules of procedure, years 

after the enactment of section 58-607, R.C.M. 1947, to me clearly 

indicates that contributory negligence is a procedural matter 

affecting the remedy only. 

Recognizing that here we have a conflict of philosophies 

as set forth in the cited supporting cases of the majority, I believe 

the better reasoned and more desirable is set forth in the recent 

case of the Supreme Court of Washington holding that that state's 

statute on comparative negligence was applicable to pending cases. 

In Godfrey v. State, 84 Wash.2d 959, 530 P.2d 630, 634, that Court 

said : 
'It ~r~ouid be incongruous i-ncieed to frustrate 

inis dbvious legislative change in policy by adopting 

=i position that would permit the rejected bar to 

recovery to continue in operation for years to come 

,; * * if we were to accept respondent's areument that 

rhe statute is prospective in operation thls state would, 

for many years, face the probability of having litigants 

2nd our courts subjected to a dual system of recovery as 

these types of cases come to light. Such could hardly 

have been the intent or purpose of a legislature that 

clearly abolished contributory negligence as a bar to 

I-ec overy . 

"We hold 9: 9~ 9: that the statute was intended to be 

~perative on the effective date set forth therein; and, 

rhat the statute was designed to apply to all causes of 

action having arisen during the applicable period of 

limitation prior to that date though trials may have been 

<ommenced i': ik 9:. 

"We hold * * -i'c that the legislature intended RCW 

&.22.310 and 4.22.020 to operate retroactively. Accordingly, 

the statute applies to all causes of action having arisen 

during the applicable period of limitation prior to its 

effective date though trials based thereon may have been 

commenced thereafter. 9: 9: ik" 

>ee aisv !A v. Yellow Cab Company of California, 119 Cal.Rptr. 858, 

532 P.2d 1226; Peterson v. City of Minneapolis, 285 Minn. 282, 173 

N.W.2d 353; Schwartz, Comparative Negligence, $8.5, pp. 149-151. 

In finding that the comparative negligence statute recently 

adopted by the 1975 legislature is not retroactive, the majority, 

I feel, may well have created a state of confusion in ~ontana's law 

that will take years to overcome. To me it is not in the spirit 

of immediate social reform, so long in coming to this state, as was 

intended by the legislature. 

I would reverse the district court. 

Mr. Justice Sene R. Daly: /I 

I concur in the 

Zonway Harrison. 

foregoipg dihsent of Mr. Justice John 
Yr. !uscice 'ia~well, specially ~ollcurring: 

I concur in all that is said in the majority 3pinior1, 

Sut would add a short response to the dissenting opinion. 

The issue is not Itwhich argument is morally sound and 

just" as stated in the dissent. Neither party nor amicus contends this is the issue. If ~ontana's comparative negligence statute 

i-s not substantive as the dissent concludes, it is difficult to 

follow just how a mere procedural rule can be .justified on moral 

The issue is whether the Montana legislature intended 

co give our comparative negligence statute retroactive effect. 

The dissenting opinion does not cite a single rule of statutory 

construction to support such an intention by the Montana legislature. 

Llr only states that "the better reasoned and more desirable" 

~hilosophy of retroactivity is set forth in the Washington case of 

Jodfrey v. State, 84 Wash.2d 959, 530 P.2d 630; the California 

:dse of Li v. Yellow Cab Company of California, 119 Cal.Rptr. 858, 

532 P.2d 1226; and the Minnesota case of Peterson v. City of 

~lnneapolis, 285 Minn. 282, 173 N.W.2d 353. All three cases are 

distinguished from the situation in Montana in the majority 

2pinion. 

Additionally the supposed confusion that would result from 

!Jrospective rather than retroactive operation does not square 

with Montana experience. For decades Montana trial courts and 

iuries have been hearing accident cases involving comparative 

ilegligence under FELA during the same jury term as other accident 

cases involving contributory negligence principles without incident. 

!.'his basis is nothing but a puff of smoke. 

If the Montana legislature really intended to alter the 

liability >f parties to accidents that occurred prior to the 

odssage of our comparative negligence statute,it: would have been 

2 simple matter to say so. This Court's function is to construe the 

Law as it finds it, not to insert what has been omitted. Section 

93-401-15, X.C.M. 1947; Dunphy v. The Anaconda Company, 151 Mont. 76, 

t3d 1.2d 660, and cases cited therein.