### 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 theFourth 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. JusticeWesley Castles delivered the Opinion of the Court.

This 

### isan 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 tothe bank, she slipped and fellon an accumulation of ice and snow. It had been snowing inMissoula the night before the accident and continued to snow throughout the next day. The parking lothad been cleared before business hours by defendants Johnson Brothers under 

### a maintenance agreement with the bank. The 

### area where plaintiff fellwas 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 comparativenegligence statutedid not apply to accidents occurring prior tothe effective dateof 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 toclaims which arose prior tothe effective dateof 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 tointerrogatories, and admissions on file show that there 

### is no genuine issue asto any material fact and that themoving party 

### is entitled toa 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 themoving 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, entitlehim tojudgment asa 

### matter of law." See Kober & Kyriss v. Billings Deaconess Hospital, 148 Mont. 117,

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

### ice and snow on the walkway was a natural accurnulation due tothe 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 

### lawregarding slipand fallunder similar conditions inUhl v. Abrahams, 160Mont. 426, 429, 430, 503 P.2d 26, the language there applies equally 

### well here: "Directing our attention tothe applicable substantive 

### law, 

### a possessor of land owes 

### a duty to an invitee touse ordinary 

### care tokeep the premises in

### a reasonably safecondition and towarn the invitee of any hidden or lurking dangers therein, but he is not an insurer against allaccidents and injuries toinvitees on the premises. Cassady v. City of Billings, 135Mont. 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 fallingof snow 

### are universally known, or 

### as here, actually known, there 

### isnot liability. 

## * * 

## *' Webased thisholding on a line of cases from other jurisdictions so holding, particularly quoting with approval the following statement from Crawford v. Soennichsen, 175Neb. 87, 120N.W.2d

## "'

## * * * However, the general rule 

### seemsclearly tobe that a store owner cannot be charged with negligence by reason of natural accumulation of 

### ice and snow where the condition is aswell known tothe plaintiff as thedefendant.' 

## * * * " 

## * * * In short, nothing but a natural icing condition due tothe 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 Willisv. St. Peter's Hospital, 157 Mont. 

### 417, 486 P.2d 593. Williscan be readily distinguished inthe instant case, as 

### it 

### was inUhl. - InWillisthere

### was a jury question 

### as towhether the hospital contributed tothe slippery condition by attempting to

### meltthe 

### ice and whether the plaintiff had knowledge of the condition. Neither of these issues of material fact exist inthe instant 

### case. We find the district court properly granted respondents' motion for a summary judgment. On appeal appellant asks thisCourt togive the new Montana comparative negligence 

### lawretroactive effect. In other words, appellant argues comparative negligence should apply toan accident occurring prior to the effective date of the legislation but not tried until after the effectivedate. Prior to July 

### 1, 1975, the 

### lawof contributory negligence inMontana was section 58-607, R.C.M. 1947: "Every one 

### isresponsible, not only for the result of his willful acts, but also for an injury occasioned toanother by hiswant of ordinary 

### care or skill inthemanagement 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 liabilityin such cases 

### isdefined 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 inan action by any person or his legal representative torecover damages for negligence resulting indeath or injury toperson 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 tothe amount of negligence attributable tothe 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 

### isnot greater than that of the defendant. There 

### isno legislativedeclaration that section 58-607.1 shall be only prospective inoperation, nor 

### is there declaration the statute shall have retroactive effect. There 

### is a presumption inMontana against construing 

### a statuteretroactively, unless specifically declared retroactive. Section 12-201, R.C.M. 1947,provides: "No 

### lawcontained in any of the codes or other statutes of Montana 

### isretroactive unless expressly SO declared." The foundation for thispresumption 

### was set forth in Sullivan

v. City of Butte, 65 Mont. 495, 498, 211 P. 301, wherein the Court said: "While our Constitutiondoes not forbid the enactment of retrospective laws generally, 

### it 

### is 

### a rule recognized by the authorities everywhere that retrospective 

### lawsarelooked upon with disfavor. It 

### is 

### a maxim said tobe asold asthe 

### lawitself that a new statute ought tobe prospective, not retrospective, in

### its operation. 

## * 

# * * The maxim has 

### its foundation inthepresumption that the legislature does not intend tomake a new rule for past transactions and every reasonable doubt 

### willbe 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. StateBoard of Equalization, 100Mont. 72, 45 P.2d 684; Statev. J. C. Maguire Const. Co., 113Mont. 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. StateHighway Comm'n, 149 Mont. 281, 284, 425 P.2d 718, this Court interpreted section 12-201, R.C.M. 1947, stating: 

### " 

## * * * This sectionprovides 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 

### lawis procedural innature, thus 

### it may be applied retroactively. Respondents reply that the 

### law is substantive innature. A substantive lawmay 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. DistrictCourt, supra; StateDepartment of Highways v. Olsen, 166 Mont. 139, 531 P.2d 1330, 32 St.Rep. 110. The Oregon Supreme Court inJoseph v. Lowery, 261 Ore. 545, 495 P.2d 273, 275, 276, faced the question of retroactivity of 

### its comparative negligence law, which is identical toMontana's in 

### allrelevant 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 actwould 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' innature. If applied retroactively, the statutecould create a duty to pay which did not exist atthe 

### timethe damage wasin£ licted. 

## * * *

" 

## * * * We believe there 

### ismerit intheprior view of this court

## * * 

## * that, in the absence of an indication tothe 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 

### lawswere copied from the Wisconsin statute firstpassed in 1931and amended to

### its present form (copied by Montana and Oregon) in 1971. Montana follows the rule of statutory construction that inborrowing a statute from another state, the legislature presumably borrows the construction placed upon 

### it by the highest court of the 

### state from which it 

### isborrowed. Stadler v. FirstNational Bank, 22 Mont. 190, 56 P. 111; Esterly



### v. Broadway Garage Co., 87 Mont. 64, 285 P. 172; Roberts v. Roberts, 135Mont. 149, 338 P.2d 719; Lowe 

### v. Root, 166~ont.150 

## , 531 P.2d 674, 32 St.Rep. 122. In 1931Wisconsin became the first 

### state to enact a modified comparative negligence 

### law (thetype enacted inMontana in 1975). Schwartz, Comparative Negligence, 53.5(A). In 1933 theWisconsin Supreme Court held the statutedid not apply retroactively. 

### Brewster v. Ludtke, 211 Wisc. 344, 247 N.W. 449; Crane

v. Weber, 211Wisc. 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 1971Wisconsin followed the lead of New Hampshire and adopted the 50%system of comparative negligence. Schwartz,Comparative Negligence, §3.5(B). In 1972 theWisconsin Supreme Court held the 1971modification could not operate retroactively, citing

### Brewster and Crane asprecedent. 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 theWisconsin holdings asbeing highly persuasive on the construction of the Oregon statute. We feel equallypersuaded in the construction of the Montana statute. Amicus on behalf of appellant, directs the Court tothe many holdings of thisCourt that

### we willnot blindly follow the construction given 

### a particular statuteby the court of another 

### state from which the Montana 1,egislatureborrowed the statute, when such court decision does not appear tobe founded on right reasoning or when such decision would not be inharmony with the spiritand policy of theMontana legislature and decisions of this Court, e.g. Grady v. City of Livingston, 115Mont. 

### 47, 141 P.2d 346; In 

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

### case, we do not feel these objections arerelevant, therefore

### we followWisconsin, New Hampshire and Oregon courts indenying retroactive effect toMontana's comparative negligence 

### law. Appellant directsus to the leading 

### cases giving comparative negligence statutesretroactive effect: Peterson v. City of Minneapolis, 285 Minn. 282, 173N.W.2d 353, 355, 37 ALR3d 1431; Godfrey v. State, 84 Wash.2d 959, 530 P.2d 630, 633. Peterson 

### isbased on theMinnesota comparative negligence 

### lawwhich states the statute "shall be effective inany action thetrial of which 

### is commenced after July 

### 1, 1969." Minnesota recognized the precedent value of theWisconsin decisions, but parted from those decisions due to the differentwording of the statutes. This wording distinction alsodistinguishes Peterson from the instant case. Godfrey, asdid Peterson, dealt with legislative abrogation of the common law ruleof contributory negligence. The Washington court referred to the common law statusof 

### its contributory negligence rule on more than one occasion in 

### its opinion. InMontana the contributory negligence rule 

### is statutory innature, in effect until July 1, 1975, and remaining ineffect after that date, althoughmodified by the comparative negligence statute. The Washington legislature, although not providing 

### a specific direction 

### as toretroactive or prospective effect of the statute, did entitlethe statute: "An Actrelating tocivilprocedure." As stated above, the Montana comparative negligence 

### law

### is substantive innature and entitled to the presumption that 

### it was meant tobe prospective in effect. Appellant also refers tocourt decisions inFlorida and California adopting comparative negligence 

### as a part of the developing common law principles: Hoffman v. Jones, (Fla. 1973) 280 So.2d 431; Nga Liv. Yellow Cab Company of California, 119 Cal.Rptr. 858, 532 P.2d 1226. These decisions dealt with judgemade law modifying judge-made 

### law. The courtswere free to determine what effect their decisions would have on causes of action arising prior tothe decisions. If thisCourt 

### were todeclare that theMontana comparative negligence law has retroactive effect, 

### we would be legislating retroactively and hastening themodification of the contributory negligence law without specific legislativedirection and contrary to the common law rules of statutory construction and section12-201, R.C.M. 1947. This Court recently said inWilson v. Swanson, Mont

# . P.2d 

## , 33 St.Rep. 216, 221, f 

### - regarding 

### a request todeclare the Montana guest statute, repealed effective July 

### 1, 1975, retroactively unconstitutional: "Under these circumstances [repeal of the law] 

### we decline tohasten 

### itsdemise by judicial decision. Wedecline tolegislateretroactively ascondemned inMontana 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; 10ALR3d 1371, Sec. 7(a)." Neither 

### will

### we legislate retroactively inthismatter. The order of the districtcourt granting summary judgment 

### is affirmed, as

### is the districtcourt's conclusion that theMontana comparative negligence law section 58-607.1, R.C.M. 1947, shall not apply to a cause of action arising prior toJuly 1, 1975.

I;Justice We concur:

Hon. hrthur Martin, districtjudge, sitting inplace of Mr. Chief Jus

### tice James T. Harrison.

### Mr. 

### Justice John Conway Harrison dissenting:

I 

### respectfully dissent. As I 

### view this case this Court had an opportunity todecide the case in such a manner as toprovide foruniformity in the trialof allpending negligence cases. Admittedly the arguments of allparties to the case are legalistically sound. The issue, as 

### I view it, 

### is

### which argument ismorally sound and just, To me, there can be but one choice. The majority, citing cases from this and otherjurisdictions, 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 isa procedural, not substantive change. Statev. Olsen, 166Mont. 139, 531 P.2d 1330, 32 St.Rep. 110; Stateex rel. Johnson v. District Court, 148Mont. 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 

### isa 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 civilrules of procedure, years after the enactment of section 58-607, R.C.M. 

### 1947, tome clearly indicates that contributorynegligence isa 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 thebetter 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 applicabletopending 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 inpolicy by adopting =i 

### position that would permit the rejected bar to recovery tocontinue in operation for years tocome ,; 

# ** ifwe were to accept respondent's areument that rhe statute is prospective inoperation thls statewould, for many years, face the probability of having litigants 2nd our courts subjected toa 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 statutewas intended tobe ~perative on the effectivedate set forth therein; and, rhat the statutewas designed to apply to allcauses of action having arisen during the applicable period of limitation prior to that date though trialsmay 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 toallcauses of action having arisen during the applicable period of limitation prior to

### its effective date though trialsbased thereon may have been commenced thereafter. 9: 9: ik" 

### >eeaisv 

### !Av. 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 isnot retroactive, the majority, I 

### feel, may well have created a stateof confusion in~ontana's law that will

### take years to overcome. To me it 

### isnot in the spirit of 

### immediate socialreform, so long incoming to this state, aswas 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 allthat is said in the majority 3pinior1, Sut

### would add a short response to the dissenting opinion. The issue 

### isnot Itwhich argument 

### ismorally 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 

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

The issue 

### iswhether the Montana legislature intended

co give 

### our comparative negligence statute retroactive effect. The 

### dissenting opinion does not cite a singlerule 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, 173N.W.2d 353. 

### Allthree cases are distinguished from the situation in Montana in the majority 2pinion. Additionally the supposed confusion that would result from !Jrospectiverather than retroactive operation does not square with Montana experience. For decades Montana trialcourts 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. !.'hisbasis isnothing but a puff of smoke. If the Montana legislaturereally intended to alter the liability 

### >fparties 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, 151Mont. 76, 

### t3d 1.2d 

### 660, and cases cited therein.