No. 12069 INTHE SUPREME COURT OF THE STATE OF MONTANA 1972

BEVERLY J, OLSON, Plaintiff and Appellant as to Defendant Shaefer Plumbing and Heating,

JAMES KAYSER and SHAEFER PLUMBING AND HEATING, Defendants, James Kayser theAppellant as to Plaintiff Beverly J. Olson.

Appeal from: District Court of theFifthJudicial District, Honorable Frank E. Blair, Judge presiding. Counsel of Record: For Appellant

### : Bolinger and Wellcome, Bozeman, Montana. G. Page Wellcome argued, Bozeman, Montana. Brown and Gilbert, Bozeman, Montana. Gene I. Brown argued, Bozeman, Montana, For Respondent: Berg, ~'Connell, Angel and Andriolo, Bozeman, Montana, Charles 

### I?. Angel argued, Bozeman, Montana.

Submitted: September 

### 18, 1972 Decided:

### JAN 

### 18

### 19n-

### Mr. 

### Justice Gene B. 

### Daly delivered the Opinion of the Court.
This is

### an appeal from the district court of the fifth judicial district, county of Madison. Plaintiff, Beverly 

### J. Olson (hereinafter calledplaintiff) brought suit against defendants James Kayser (hereinafter called Kayser) the property owner, and Shaefer 

### Plumbing and Heating (hereinafter called Shaefer) the contractor. Plaintiff alleged shewas injured in
a fallon August 29, 1969, occasioned by stepping intoa hole which appeared on Kayser's property as the result of either negligent excavation, construction ormaintenance of a ditch,
or thenegligent backfilling and compaction of the soilin the ditch, which allowed thehole toappear as soil settled in the ditch. The casewas tried toa jury and atthe close of allthe evidence the trialcourt directed a verdict infavor of Shaefer
on February 

### 4, 1971. Thereafter, the casewas submitted to the jury on the question of the liability of the property owner Kayser, and on the same day thejury returned a verdict against the plaintiff and in favor of Kayser. Upon motion of plaintiff, the trialcourt on March 1, 1971, entered an order grantingplaintiff a new trialas to Kayser, but denied plaintiff's motion for a new trialagainst Shaefer. Kayser appeals from the court's order granting a new trialto plaintiff. Plaintiff appeals the court's order denying plaintiff's motion for 

### a new trialagainst Shaefer. Kayser purchased the property inquestion on April 1, 1969, The property is 

### located inEnnis, Montana, and consists of two buildings with four units, two of which were occupied by renters, One of the renters atthe time Kayser bought the property was Deborah Herman, daughter of plaintiff. Due to septic tanks which would not drain and water contamination, Kayser decided tohave the units connected with thecitywater and sewer. The plumbing work was contracted to Shaefer, The work required a trench be dug from the buildings, through a driveway and parking area, to the city street to connect the city services. After the pipes were installed, the trench was refilled and tamped inthe area where plaintiff claims tohave fallen. The agreement between Kayser and Shaefer was described
asa cost plus job or on a time and material basis. Shaefer started towork on the project around July 

### 1, 1969, and completed it on July 

### 9, 1969, afterwhich Shaefer moved his equipment and
men off the premises. On the date of completion the front part of the property, which was a parking area adjacent to the street,
was filled in and made level. In addition to the expected normal fillsettlement inthe ditch, Kayser wanted toraise the parking
area with gravel, due to the mud condition that followed rainy periods caused by the parking area being lower than the street. Kayser firstattempted toobtain gravel forhis premises sometime around August 

### 1, 1969, by contacting Shaefer again but
was notified by Shaefer that itcould not do thejob because it did not have the equipment nor a gravel pit, Thereafter, Kayser contacted a Steve Hubner who owned a gravel pit and asked him ifhe could bring in the gravel. Hubner agreed tobring inthe gravel and spread it in the parking area and by subsequent contactswith Shaefer, Shaefer was tohelp spread the gravel to fillother holes on the property. However, before the gravel was brought to the property, plaintiff felland sustained the injuries which are the basis of this action. On the night of August 29, 1969, approximately two days before the gravelwas spread on the property, plaintiff while going tovisither daughter, Deborah Herman, stepped in a hole inthe driveway, pitched forward, and struck her face on the edge of a cement sidewalk. The area of the fallwas unlighted, except for
a city street lightwhich was obstructed by 

### a large tree in full
summer foliage

# .Varying descriptions of the hole are found in the testimony. Plaintiff described the hole asbeing the depth of the length of her leg, or atleast past her knee, and somewhat larger than the diameter of her leg. Kayser testified he was on the property
a week before the accident and therewas no such hole. Steve Hubner, who delivered gravel to the premises two days after the fall, testified that he'*notsee any such hole. Marilyn Olson, another daughter of plaintiff, testified she observed a hole approximately eighteen inches deep inthe area. The Ennis night marshal1 Fred Rankin, who investigated the area after the accident, testified to seeing a hole and described it asbeing eight and possibly ten inches deep. From allindications, the hole appeared from three to four days or possibly 

### a week before plaintiff's fall. Fred Rankin testified as to the apparent cause of the hole. He statedthere
was a period of heavy rain several days before plaintiff's fall, and itwas his opinion the hole was caused by the rain. His explanation 

### isnot inconflictwith Kayser's testimony--that he was last on the property a week before the accident and at that time there was no hole. Additionally, 

### an kin's explanation is given further credenceby the testimony of Marilyn Olson, who was livingwith her sister Deborah atthe time, and who did observe the hole but testified that two weeks prior to the accident therewas no hole. The trialcourt's order granting a new trialagainst Kayser stated: "The motion of the plaintiff for a new trialas to the defendant James Kayser 

### is granted. "The basis for granting this motion in the opinion of the Court is that: 

### "1. The evidence is insufficient tojustify the verdict. "2. The verdict is against the law of the case. If The trialcourt's order denying plaintiff's motion for


### a new trial against Shaefer stated:"The motion of the plaintiff for a new trial 

### is denied as tothe defendant Shaefer Plumbing and Heating

# . "The reasons for the ruling are as follows: "On July 9, 1969, defendant Shaefer Plumbing and Heating Company had completed the work forMr. Kayser and on that day removed hismen, materials and equipment from thejob. Said defendant had refilled the trench he had dug completely from the front line of the property of 

### Mr. Kayser back to the second septic tank using allthe materials excavated from the trench in doing so. The front portion of the trench where the accident occurred was by him completely filled and compacted. Both 

### Mr. Kayser and 

### Mr. Shaefer realized the trench ground 'would settle,1 "Mr. Kayser accepted the Shaefer Plumbing and Heating Company work completed on July 9, 1969, and upon presentation of a billpaid him for hiswork, machine use and materials. "~ifty days later the accident to the plaintiff occurred on August 28, 1969, There 

### isno evidence that Shaefer Plumbing and Heating incurred any liabilitybetween July 

### 9, 1969,and August 28, 1969, the date of the plaintiff's accident. There was therefore no issue for thejury. Moreover there was no conflicting evidence and therewas but one conclusion tobe drawn from the evidence. 11 In the firstappeal, plaintiff seeking a new trialagainst Shaefer, the law on the subject of control of premises was statedby this Court inUlmen v. Schwieger, 92 Mont. 331, 354, 12 P.2d 856, and most recently reaffirmed inHannifin v. CahillMooney Construction Co., Mont

# . 9- P.2d 

## , 29 St. Rep. 493, 496. In Ulmen, plaintiff drove an automobile into an open excavation and against a concrete culvert, which plaintiff supposed
was a regularly established and used highway. There were two defendantq the general contractor and a subcontractor for the concretework. At the time of the accident the concrete work
was complete, but had not been accepted by the general contractor
or the statehighway commission. A judgment of $10,000 was entered against both defendants and they appealed. This Court inaffirming as to the general contractor, but reversing as to the subcontractor, Roscoe, held:"It 

### is alsounimportant that Roscoe's work had not been 'accepted'. It was completed and he had withdrawn allcontrol over it, so that itwas atthe time of the accident but an integralpart of the unfinished highway, no part of which would be accepted until ~chwieger's[general contractor] entirecontract had been fully executed.

"'The general rule is

### well established that an independent contractor 

### isnot liable for injuries to third persons, occurring after the contractor has completed the work and turned it over to the owner or employer and the same has been accepted by him

# **

# * the latter 

### is substituted asthe responsible party. The reason for the substitution of liability 

### is found inthe general doctrine that an action fornegligence

### willnot lieunless the defendant was under some duty to the injured party atthe timeand place where the injury occurred which he omitted toperform.' (14 R.C.L. 107)". Ulmen contains an indepth discussion with citations in support of theholding which was reiterated verbatim in Hannifin, decided by this Court June 

### 30, 1972. InHannifin, the defendant, Cahill-Mooney Construction Company, was given a contract by the Stauffer Chemical Company toremove certain equipment from a building at

### itsplant near Butte, Montana. Following termination of the work and approximately two months following Cahill-~ooney'sdeparture from the premises, plaintiff Hannifin, an employee of Stauffer Chemical Company, fellthrough a hole in flooringwhich had been created
as the result of the removal of equipment. This Court held, citingUlmen, that the duty toprotect third persons attaches to independent contractors "only when he has such control over 

### the property as the master or contracteewould otherwise have. II In the instant case, the trialcourt's order of March 

### 1, 1971, made the clear observation that the accident occurred fiftydays after defendant Shaefer surrendered care of the premises toKayser. Shaefer incurred no liability following its departure from the premises and therewas no issue for thejury. Accordingly, the trialcourt properly denied plaintiff's motion for a new trialagainst Shaefer.The court's order granting a new trial as todefendant Kayser isvery brief and assigns two grounds: 

### "1. The evidence 

### isinsufficient tojustify the verdict

# . "2. The verdict 

### is against the law of the case.II After briefs and argument, it can onlybe concluded that the trialcourt considered itself inerrorwhen it instructed the jury as to the duty the defendant landowner owed the plaintiff. There were four rental units and one driveway and parking area for the use of the tenants. The fact that only two tenants were inresidence, and one did not use the facility available to the tenants, does not alter the situation that therewas a common
area for the use of the tenants. The alleged injury occurred inthis area and the arguments concerning the lack of proof of
common usage or that pedestrian travelwas allowed in the area does not resolve the question, as therewas likewise no proof to the contrary. Instruction No. 14properly instructed thejury inregard to an inviteewithout using the term itself:

11

An owner who leases or rents a portion of his property and retains control of another part which a tenant 

### isentitled touse inconnection with the portion leased or rented tohim, 

### is subject to liability to others lawfully on the premises with the consent of the tenant for injuries caused by a dangerous condition existing on the part of the premises under the owner's control if,by the exercise of reasonable care, he could have discovered the condition and made it safe. 

### "An owner 

### isnot liable to others lawfully on the premises with the consent of the tenant for injuries resulting from a condition of the premises the danger of which 

### isknown to the person lawfully on the premises or 

### is obvious, unless the owner should anticipate the harm despite such knowledge or obvious danger. 11 See Lake v. Emigh, 121Mont. 87, 190 P.2d 

### 550; Callahan v. Buttrey, 186 F.Supp. 715 (D.C.Mont. 1960). Instructions No. 26 and No. 27 were inerror: "INSTRUCTION NO. 26. One of the issues tobe determined by you in this case 

### is the duty of care owed to Plaintiff at the time and place the accident occurred. Determination of this issue depends upon whether plaintiff was a licensee or an invitee.II A 

### licensee isa person who, forhis own pleasure, convenience, orbenefit, enters orremains upon premises inthe possession of anotherwith express or implied permission of the possessor.
If



### An invitee is

### a person who entersupon land in the possession of another atthe invitation of the possessor or for the common interest or mutual advantage of both the possessor and the person entering. It 

### "INSTRUCTION NO, 

### 27. 

### Ifyou find that plaintiff was a licensee, then I 

### instruct you that the only duty owed toher was to refrain from willful or wanton acts of misconduct, or activenegligence as distinguished from passive negligence, or to warn plaintiff of any hidden orconcealed dangers, if any.
If



### If you find that plaintiff was an invitee, then the duty owed toher was that of ordinary care. 11 

### Duty is

### a legal question tobe determined by the trial court and submitted to thejury, under proper instructions, If there 

### isa conflict inthe facts thatwould change or alter the duty owed to the plaintiff, depending on which facts the jury accepts, then the court must instruct thejury inthe alternative tomake a 

### fact determination and then apply the correct duty or standard furnished by the court. That was not done inthiscase, We do not reject defendant Kayser's argument based on Berthelotev. Loy Oil

### Co,, 95 Mont. 434, 28 P.2d 187, however, the errorhere does affect the substantial rights of the moving party. Tigh 

### v. College Park Realty Co., 149Mont. 358, 427 P.2d

The determination by the trialcourt on a motion for a
new trialinvolves the exercise of judicial discretion and may not be disturbed on review, unless it 

### isclearly shown that the trialcourt manifestly abused its 

### discretion. This has not been shown here. 

### Accordingly, the orders of the trialcourt appealed from
are affirmed.

/ 

### Associate Justice 

# 4

# ................................ Associate Justices.