No. 89-117 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1990 

RHONDA L. BLASKOVICH and MARK 

BLASKOVICH, 

Plaintiffs and Appellants, 

-vsNOREAST DEVELOPMENT CORP., d/b/a COTTONWOOD 

INN, 

Defendants and Respondents. 

APPEAL FROM: District Court of the Seventeenth Judicial District, 

In and for the County of Valley, 

The Honorable Leonard Langen, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Edward G. Beaudette, David M. McLean argued; night, 

Dahood, McLean & Everett, Anaconda, Montana 

For Respondent: 

t .- Matthew W. ~nierim argued, Glasgow, Montana 

ii isubmitted: November 2, 1990 

ti 

- I c- -> 1 

- - Decided: April 10, 1990 k '--I * . . ~iled:; . & - . I- . . ", - (- -1 c > c. -1 -: -- E. 

$lerk 
Justice Diane G. Barz delivered the Opinion of the Court. 

Plaintiffs, Rhonda L. and Mark Blaskovich, brought this action 

against defendant Noreast Development Corp., d/b/a Cottonwood Inn, 

to recover damages for injuries incurred when Rhonda slipped and 

fell in the Cottonwood Inn's parking lot. The District Court of 

the Seventeenth Judicial District, Valley County, granted Noreast's 

motion for summary judgment. The Blaskoviches appeal. We affirm. 

The following issues were raised on appeal. 

1. Whether the District Court erred in granting defendant's 

motion for summary judgment; 

2. whether a property owner is liable for injuries sustained 

by an individual who slips and falls as a result of natural 

accumulations of snow and ice located on the property owner's 

premises ; 

3. whether the District Court erred by not striking 

defendant's supplemental affidavits that were filed after the 

submission of the motion for summary judgment. 

On February 12, 1986, Rhonda L. Blaskovich and her husband, 

Mark, attended a mid-morning meeting at the Cottonwood Inn. The 

Cottonwood Inn, owned and operated by Noreast Development Corp., 

is a motel, restaurant and convention center located in Glasgow, 

Montana. The inn is surrounded by a sidewalk and a paved asphalt 

parking lot which are also owned by Noreast. At approximately 

11: 30 a.m. , the meeting ended and the Blaskoviches left the inn. 

As Rhonda stepped off the sidewalk and onto the parking lot she 
slipped and fell, fracturing her leg in four places. 

February 12, 1986--the day of the accident--was a cold and 

clear day. At the time of the accident, no pavement was showing 

through the snowpacked parking lot and a light dusting of snow 

covered the snowpack. On January 17, 1986, approximately four 

weeks prior to the accident, the parking lot had been sanded and 

on January 31, 1986, the parking lot had been plowed. The 

climatological report from the weather bureau indicated that 1.3 

inches of snow fell in the area between January 31, 1986 and 

February 12, 1986, the day of the accident. The lot was plowed 

again on February 16, 1986, four days after the accident and a 

small amount of snow was removed. 

The Blaskoviches brought this action against Noreast, alleging 

negligence in the maintenance of its parking lot. Rhonda sought 

damages that resulted from her physical injuries and Mark sought 

damages for loss of consortium. Noreast filed a motion for summary 

judgment. The District Court granted summary judgment in favor of 

Noreast. The Blaskoviches appeal, raising three issues. 

The first issue this Court will address on appeal is whether 

the District Court erred in granting Noreast's motion for summary 

judgment . 

Summary judgment is appropriate when no genuine issue exists 

as to any material fact and the moving party is entitled to 

judgment as a matter of law. Rule 56(c), M.R.Civ.P. The burden 

first rests with the party moving for summary judgment to 

demonstrate that a genuine issue of material fact does not exist. 
Once this is established, the burden shifts to the party opposing 

the motion to demonstrate otherwise. Rule 56(e), M.R.Civ.P.; State 

Med. Oxygen and Supply, Inc. v. American Med. Oxygen Co. (Mont. 

1989), 782 P.2d 1272, 1275, 46 St.Rep. 1951, 1955; Rumph v. Dale 

Edwards, Inc. (1979), 183 Mont. 359, 365-66, 600 P.2d 163, 167. 

In addition to establishing that no genuine issue of material fact 

exists, the moving party must also establish that it is entitled 

to judgment as a matter of law. Rule 56(c), M.R.Civ.P. 

The facts are undisputed that February 12, 1986, was a clear 

and cold day; that at approximately 11: 30 a.m. on February 12, 1986 

the Blaskoviches were leaving the Cottonwood Inn when Rhonda 

Blaskovich slipped and fell on the innts parking lot, fracturing 

her leg; that 1.3 inches of snow fell from the last time the lot 

was plowed until the day of the accident; and that the manager of 

the inn examined areas of the parking lot, but not the precise area 

where Rhonda fell. In light of these undisputed facts, Noreast 

met its burden under Rule 56(c), M.R.Civ.P., in demonstrating that 

a genuine issue of material fact did not exist. The burden then 

shifted to the Blaskoviches to demonstrate otherwise. Rule 56(e), 

M.R.Civ.P., specifically provides that an adverse party to a motion 

for summary judgment 

may not rest upon the mere allegations or 

denials of his pleading, but his response, by 

affidavits or as otherwise provided in this 

rule, must set forth specific facts showing 

that there is a genuine issue for trial. If 

he does not so respond, summary judgment, if 

appropriate, shall be entered against him. 

The Blaskovichest argument merely reiterates the facts that Noreast 
did not plow or sand the parking lot during the twelve days 

preceding Rhondals accident and that the innls manager did not 

examine the precise area where Rhonda fell. As already stated, 

these facts are undisputed. 

In addition to establishing that no genuine issue of material 

fact exists, Noreast must also establish that they are entitled to 

judgment as a matter of law. Rule 56(c), P4.R.Civ.P. In the 

present case, the District Court relied upon Luebeck v. Safeway 

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

Albertson's, Inc. (1981), 195 Mont. 409, 637 P.2d 509, as the 

applicable law in this case. In particular, the court relied upon 

the holding in Luebeck which stated that when "danger created by 

the elements such as the forming of ice and the falling of snow 

are universally known, or as here, actually known, there is no 

liability." Luebeck, 152 Mont. at 93, 446 P.2d at 924. The 

District Court then found that Noreast met its burden in 

establishing that no genuine issue of material fact existed; that 

the Blaskoviches failed to meet their burden of demonstrating that 

a genuine issue of material fact did exist; and that as a matter 

of law, Noreast was entitled to summary judgment. 

We affirm the District Courtls determination that Noreast was 

entitled to summary judgment as a matter of law, however, we do so 

on different grounds. In asserting that Noreast was negligent, the 

Blaskoviches must establish that Noreast had a duty to the 

Blaskoviches, that Noreast breached that duty, that Rhonda 

sustained damages, and that her damages or injury were proximately 
caused by Noreast's breach of its duty. Clark v. Norris (1987), 

226 Mont. 43, 48, 734 P.2d 182, 185. 

As previously stated, the facts pertaining to this case are 

undisputed. Rhonda stepped off the sidewalk and onto the inn's 

parking lot where she slipped and fell, fracturing her leg in four 

places. However, the mere happenstance of an accident does not 

impute negligence. Clark, 288 Mont. at 48, 734 P.2d at 185. 

Noreast clearly has a duty to its patrons--such as the 

Blaskoviches--to use ordinary care in maintaining its premises in 

a reasonably safe condition or to warn the Blaskoviches of any 

hidden or lurking dangers. Luebeck, 152 Mont. at 90, 446 P. 2d 922- 

23. The Blaskoviches must also demonstrate that Noreast breached 

that duty, that they suffered injury as a result of that breach and 

that the injury was proximately caused by the breach. The 

Blaskoviches failed to establish that Noreast breached its duty of 

exercising ordinary care in maintaining its premises in a 

reasonably safe condition and that this breach was the proximate 

cause of Rhondats injury. The Blaskoviches are not expected to 

bring in all their evidence at this juncture, however, as already 

stated, they cannot rely upon the fact that Rhonda slipped and fell 

to establish two elements of their case. As Rule 56(e), 

M.R.Civ.P., clearly provides, the Blaskoviches may not rest upon 

their pleading, but must set forth an affidavit or other specific 

facts showing that a genuine issue for trial exists. The 

Blaskoviches failed to follow this mandate of Rule 56(e), 

M.R.Civ.P. Therefore, in light of the present set of facts, we 
must affirm the District Court's decision to grant Noreast's motion 

for summary judgment. 

The second issue raised on appeal is whether a property owner 

is liable for injuries sustained by an individual who slips and 

falls as a result of natural accumulation of snow and ice located 

on the property owner's premises. 

In light of the disposition of the first issue, this Court 

does not need to address this question. 

The last issue raised on appeal is whether the District Court 

erred by not striking Noreast's supplemental affidavits that were 

filed after the submission of the motion for summary judgment. 

Noreast filed its motion for summary judgment on October 28, 

1988. On January 16, 1989, the motion was submitted to the court. 

On January 26, 1989, the District Court issued its order granting 

Noreast's motion for summary judgment. On the same day--January 

26, 1989--Noreast filed supplemental affidavits in support of its 

motion for summary judgment. The Blaskoviches argue that the 

supplemental affidavits "taintedIt the record in favor of Noreast 

and that the District Court should have granted their motion to 

strike and remove the supplemental affidavits at that time. We 

disagree. 

Rule 56(e), M.R.Civ.P., addresses supporting and opposing 

affidavits in regards to a motion for summary judgment. In 

particular, this rule provides that a "court may permit affidavits 

to be supplemented or opposed by . . . further affidavits.!' Rule 

56(e), M.R.Civ.P. In light of this rule, the District Court did 
not err by denying the Blaskoviches' motion to strike and remove 

the supplemental affidavits. 

Affirmed. 

We concur: / 

Justice 

Justices 
Justice John C. Sheehy, dissenting: 

By this Opinion, the majority demonstrate once again their 

inability to appreciate that, where a jury trial has been demanded, 

the jury, and not the District Court nor this Court, should 

determine whether the landowner acted reasonably to avoid physical 

harm to persons foreseeably coming upon the premises. 

There can be no quarrel with the majority that the facts as 

developed so far are undisputed. The quarrel lies in the 

assumption by the majority that on the undisputed facts, no duty 

of care arose from the landowner to Rhonda. The District Court 

likewise relied on Luebeck v. Safeway Stores, Inc. (1968), 152 

Mont. 88, 446 P.2d 921, and Cereck v. Albertson's, Inc. (1981), 195 

Mont. 409, 637 P.2d 509, to reach that assumption. The majority 

have ignored the issue of law raised by the plaintiffs in this case 

without discussing the movement of this Court away from the 

decisions in Luebeck and Cereck. 

In fact, the majority have ignored a portion of the Cereck 

decision that should have raised a flag here as to the duty of the 

property owner: 

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 

antici~ated that injuries would result from the danserous 

condition. (Emphasis added.) 

Justice Morrison, in Cereck, concurring specially, stated: 

The majority opinion confines property owner liability 

for natural accumulation of ice and snow to those 

situations where the property owner has increased or 

changed the hazard through some affirmative act. I would 

adopt 5 343A.(l) Restatement (Second) of Torts (1965) 

which provides as follows: 

A possessor of land is not liable to his invitees 

for physical harm caused to them by any activity or 
condition on the land whose danger is known or 

obvious to them, unless the possessor should 

anticipate the harm despite such knowledge or 

obviou~ness.~ 

Admittedly, the Restatement rule is applicable to 

invitees. However, though I would not recognize status 

in Illand possessorls liability," I feel the rule to be 

applicable to facts such as those at bar. 

The concurring opinion of Justice Morrison further stated: 

In my opinion, the restrictive ratio decidendi of this 

case is inadequate to meet situations such as failure to 

plow. If the parking lot in question had not been 

maintained in any fashion, and snow were allowed to 

accumulate so that customers were required to wade 

through knee deep snow, no duty would be owed by the 

possessor under the rule adopted by the majority. Those 

who do nothing incur no liability. Those who plow their 

parking lots are exposed. 

I believe such a restrictive duty does not adequately 

recognize the responsibilities owed by the business 

community, does not adequately protect a public dependent 

upon the services provided by that community, and does 

not promote sound public policy. 

For the foregoing reasons, I concur in the result, but 

would adopt different legal principles to sustain the 

same outcome. 

In Kronen v. Richter (1984), 211 Mont. 208, 683 P.2d 1315, 

this Court adopted 5 343A(1) Restatement (Second) of Torts (1965) 

saying: 

In the case at bar, the relationship between appellant 

and respondent was one of invitor-invitee. The duty owed 

to a business invitee is to exercise ordinary care to 

have the premises reasonably safe and to warn the invitee 

of any hidden or lurking dangers. (Citing cases. ) 

Section 343A(1) Restatement (Second) of Torts (1965) 

provides : 

I1A possessor of land is not liable to his invitees 

for physical harm caused to them by any activity or 

condition on the land whose danger is known or 
obvious to them, unless the possessor should 

anticipate the harm despite such knowledge or 

obviousness. 

In Kaiser v. Town of Whitehall (1986), 221 Mont. 322, 718 P.2d 

1341, this Court reversed a summary judgment in favor of the Town 

of Whitehall where the plaintiff stumbled over a public sidewalk 

where the concrete was raised and the raised portion was obvious. 

Writing for the majority, Justice Harrison stated: 

We agree with the District Court that 5 343A(1) is 

applicable to the facts of this case, but we find the 

lower court disregarded some critical language found in 

the provision. The last part of the provision states: 

". . . unless the possessor should anticipate the 

harm despite such knowledge or obviou~ness.~~ 

Justice Morrison in his specially concurring opinion in 

Kronen succinctly explained the effect of this last part 

of 5 343A(1) : 

[A] duty may be owed though the condition is open 

and obvious if the landowner has reason to believe 

that despite the open and obvious nature of the 

condition, that injuries will nevertheless result. 

Kronen, 683 P.2d at 1318. 

We find that although the condition of the sidewalk was 

known and obvious to Kaiser, a question of fact still 

remains as to whether or not the Town of Whitehall should 

have anticipated that someone (i.e. Kaiser) would be 

injured as a result of the defective condition of the 

sidewalk. The record shows the cracked and broken 

condition of the sidewalk had persisted for some time and 

that it was indeed a hazard to passing pedestrians. At 

the very least, a jury question is raised as to whether 

the Town of Whitehall should have anticipated the harm 

resulting from the sidewalk's condition. Therefore, 

summary judgment is not appropriate. 

Under the undisputed facts of the case now before us, the 

landowner neither plowed nor sanded the icy parking lot for at 

least 12 days, and made no inspection of the premises to ascertain 
any danger to the patrons on the parking lot. Is it not a jury 

question that he should have anticipated the harm that occurred to 

Rhonda? Did the landowner in the circumstances manage his 

properties in the exercise of ordinary care? 

Rhonda, coming upon the premises to attend a mid-morning 

meeting in the business premises of the defendant, was an invitee. 

Section 343A of Restatement (Second) of Torts concerns itself with 

the duty of landowners owed to invitees. That status, however, is 

not important after our holding in Limberhand v. Big Ditch Co. 

(1985), 218 Mont. 132, 706 P.2d 491. In Limberhand, we stated: 

. . . In Corrigan v. Janney (Mont. 1981), 626 P.2d 838, 

841, in construing 5 27-1-701, MCA, . . . we held that 

the statute prevented us from distinguishing between 

social guests and invitees in determining the liability 

of the landowner for injuries received. We regard the 

same statute as declaring the applicable law as to the 

duty of landowners to persons though they may be 

trespassers. The test is always not the status of the 

injured party but the exercise of ordinary care in the 

circumstances by the landowner. The statute provides: 

Everyone 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. 

Section 27-1-701, MCA. 

Although in a later case, Cereck v. Albertsonts, Inc. 

(1981), 195 Mont. 409, 412, 637 P.2d 509, 511, we stated 

that the duty imposed on the property owner depends on 

the status of the injured party, that statement is not 

correct in the light of 5 27-1-701, MCA, above quoted. 

In Kaiser v. Town of Whitehall, above, we affirmed that the 

categories of invitee, licensee and trespasser are not to be 

regarded, and that the test is always not the status of the injured 

party, but the exercise of ordinary care in the circumstances by 

the landowner. 718 P.2d at 1343. 
Because we have moved away from the categories of invitee, 

licensee, and trespasser, this Court should apply 5 343A(1) of 

Restatement (Second) of Torts to the rights of any person 

foreseeably upon the land who is injured. 

The majority opinion contains no reference to the cases 

subsequent to Luebeck and Cereck, and understandably so, because 

otherwise the majority would have to reach a different result. The 

majority opinion contains no reference to 5 343A of Restatement 

(Second) of Torts, though this dissent has been before the majority 

since November 2, 1989. The conflict between this holding and the 

cases of Limberhand, Kaiser, and Kronan is not discussed or 

explained. The majority opinion is a pursuit of head-in-sand 

methodology. 

In a slip and fall case, this Court should not itself slip and 

fall but occasionally we do. I would reverse this case and remand 

it for a determination by a jury as to whether under the undisputed 

facts a duty of care rested on the landowner to act reasonably so 

I concur with the foregoing dissent.