No. 92-134 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1992 

DORIS BARROWS, 

Plaintiff and Appellant, 

-vsBRIAN BARROWS, 

Defendant and Respondent. 

APPEAL FROM: District Court of the Eighth Judicial District, 

In and for the County of Cascade, 

The Honorable Thomas M. McKittrick, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Joseph C. Engel, 111, Attorney at Law, Great Falls, 

Montana 

For Respondent: 

Jeffrey T. McAllister; Conklin, Nybo, LeVeque & 

Murphy, Great Falls, Montana 

Piled: 

Submitted on Briefs: November 12, 1992 

Decided: December 22, 1992 
Justice John Conway Harrison delivered the Opinion of the Court. 

This is an appeal from an order in the Eighth Judicial 

District, Cascade County, granting a directed verdict in favor of 

responaent Brian Barrows (Brian). Appellant Doris Barrows (Doris) 

sued Brian, her son, for damages incurred when she slipped and fell 

on the floor of his home. At the close of Doris' evidence, Brian 

requested a ruling on his pretrial motion for summary judgment and 

moved for a directed verdict. After oral argument on the summary 

judgment issue, the court dismissed the jury and directed entry of 

final judgment in favor of Brian. We affirm. 

Doris, a 62 year-old widow, resides in Shelby, Montana. On 

December 21, 1989, she went to Texas to visit Brian, who was then 

an assistant elementary school principal in Clyde, Texas. She 

testified that the purpose of her visit was to spend the holidays 

with Brian and his family. She had visited them earlier that year, 

spending three weeks there in June shortly after her husband died. 

For her Christmas visit, she expected to stay until January 24, 

3.990. 

On January 15, 1990, Doris was alone in the house. Brian and 

his wife, a school teacher, were at work. They were attempting to 

sell. their house themselves, and they had asked Doris to show it 

that day to two sets of prospective buyers. Doris showed the house 

to the first set of buyers in the morning. Then, having several 

hours to wait for the other buyers, she decided to scrub and wax 

the linoleum floor in the kitchen. Brian and his wife had not 

asked her to do this, but she felt it would improve the appearance 
of the house for prospective buyers. 

After washing the floor with soap and water, using a string 

mop, Doris searched for and found a bottle of floor wax and a wax 

applicator. She dried the floor by going over it with the wrungout mop and then applied the wax in the manner prescribed by the 

manufacturer's instructions, squeezing a small puddle onto the 

floor and spreading it evenly with an applicator. She completed 

the task by waxing her way across the kitchen to an adjoining 

carpeted area where she waited half to three-quarters of an hour 

for the wax to dry. After touching the floor and finding that the 

wax seemed dry enough to walk on, she walked across the kitchen 

toward the area she had waxed first. Near the edge of the linoleum 

she slipped and fell, breaking her right hip. 

Doris required extensive surgery, for which she was 

hospitalized two weeks. She spent the next several months 

recuperating at Brian's house before returning to Montana in May 

1990. Only then did she have an opportunity to examine the pants 

she was wearing at the time of her accident. She found a stain on 

the right leg, which she believed to be floor wax. 

In her complaint, filed in November 1990, Doris alleged that 

she had fallen on Brian" floor because it was n*uneven'* and wax had 

accumulated in low spots, and that Brian's negligence, in failing 

either to correct the unevenness of the floor or to warn her about 

it, was the cause of her injury. Brian's answer denied these 

allegations and stated that Doris* contributory negligence either 

barred or diminished any recovery she might obtain. In an earlier 

deposition he acknowledged that the floor was uneven but stated 

3 
that he had not believed it to be unsafe and that he had not 

foreseen any hazard due to wax puddling on the floor. 

Brian moved for summary judgment four days before the 

scheduled trial date. In his brief supporting that motion he 

argued that because the injury and the alleged tortious conduct 

occurred in Texas, Texas law should apply. Accordingly, he relied 

on Texas case law for the proposition that because Doris was a 

licensee, not an invitee, in his home at the time of the accident, 

he owed her only a duty of reasonable care to correct or to warn 

her about a dangerous condition of which he had actual knowledge. 

The District Court, applying Texas law, found that as a matter 

of law Brian did not have actual notice of a dangerous condition 

and therefore had neither an opportunity to warn Doris nor an 

opportunity to remedy the condition. Therefore, the court 

concluded, the evidence was insufficient to take the case to the 

jury. 

A motion for a directed verdict is properly granted only in 

the absence of any evidence to warrant submission to the jury, and 

all inferences of fact must be considered in a light most favorable 

to the opposing party. Britton v. Farmers Insurance Group (1986), 

221 Mont, 67, 88, 721 P.2d 303, 317. The issue on appeal is 

whether the court failed to consider, or failed to consider in a 

light most favorable to Doris, evidence that warranted submission 

of the case to the jury. Questions of fact that Doris contends 

should have been given to the jury include: 

1. Whether Doris was a licensee or an invitee at the time she 

was injured. 

4 
2. Whether the condition of Brian's floor was inherently 

dangerous or posed an unreasonable risk of harm to Doris. 

I 

Doris argues that she was an invitee, not a licensee, because 

her activity in showing the house conferred an economic benefit on 

Brian. Since she was an invitee, she argues, Brian's duty under 

Texas law was to exercise reasonable care to eliminate a condition 

that posed an unreasonable risk of harm to her, of which he had 

either actual or constructive knowledge. 

Brian argues that Doris was only a licensee, because the 

primary purpose of her visit was to spend time with him and his 

family during the Christmas holiday, and that incidental chores 

undertaken by a licensee do not convert her status to that of 

invitee. We agree. 

Under Texas law, an invitee is "a person who is invited to 

enter or remain on land for a purpose directly or indirectly 

connected with business dealings with the possessor of the land. . 

. . Without this element of invitation, . . . the potentiality of 

benefit to the occupier is not enough to make the visitor an 

invitee." Prestwood v. Taylor (Tex. Ct. App. 1987), 728 S.W.2d 

455, 462. A social guest, "who comes on the premises for his own 

purposes with the occupier's permission or consent, rather than as 

a business invitee whose presence serves the occupieris economic 

interests,"is a licensee. Buchholz v. Steitz (Tex. Ct. App. 

1971), 463 S.W.2d 451, 453. 

Doris claims that her floor-waxing activity at the time she 

was injured was "exclusively related to her real estate agency of 

5 
showing the house to prospective customer^.^ She testified, 

however, that during this visit and her earlier visit to the same 

house she took it upon herself to help with cooking and general 

housekeeping, though she had never washed or waxed the kitchen 

floor. 

The District Court properly found that the primary purpose of 

Doris' presence in Brian's house was social. She was not invited 

to help sell the house. Her continuing presence was a result of a 

planned month-long visit and was not conditioned on her showing the 

house to prospective buyers. Further, her floor-waxing activity 

reflected her customary willingness to help out, not a new status 

as Brian" agent or employee. 

There is no evidence of business dealings between Doris and 

Brian, and no evidence that Doris' activities provided the direct 

pecuniary benefit to Brian that is required, under Texas law, to 

convert a social guest to a business invitee. Prestwood, 728 

S.W.2d at 464. The District Court properly held that as a matter 

of law, Doris was a licensee. 

Doris' status is important under Texas law because it 

determines the duty Brian owed her as landowner or possessor. 

Texas has adopted Restatement (Second) of Torts, 5 342, which makes 

a possessor liable for physical harm to a licensee caused by a 

condition on the possessor's property only if the possessor has 

-- actual knowleds that the condition exists and that it is 

dangerous. State v. Tennison (Tex. 1974)' 509 S.W.2d 560 (a duty 

to warn a licensee of a dangerous condition arises only when the 

licensor knows of the condition likely to cause harm; actual 

6 
knowledge rather than constructive knowledge is required). 

If Brian knew that the floor presented an unreasonable risk of 

harm to Doris, he had a duty either to remedy the defect in the 

floor or to warn Doris that it was dangerous. Brian testified, 

however, that he was not aware that wax would pool on the floor, 

and that he did not know Doris was going to wax the floor. The 

District Court properly ruled that as a matter of law Brian did not 

have actual knowledge of a dangerous condition. 

I1 

Doris argues that it was error for the District Court to 

concentrate on the waxing of the floor when expert testimony showed 

that the floor was "inherently dangerous." She relies on McKethan 

v. McKethan (Tex. Ct. App. 1972), 477 S.W.2d 357, 361, in which the 

court held that a licensee who slips and falls on a freshly washed 

floor cannot recover unless there is proof that the washing of the 

floor created a dangerous condition or that the floor was 

inherently dangerous and this fact was unknown to the licensee. 

The court in McKethan implied that the plaintiff would have 

recovered if the floor had been shown to be inherently dangerous. 

Doris contends that the unevenness of the floor created an 

inherently dangerous condition that was known to Brian but not to 

Doris, and that Brian had a duty to warn Doris or remedy the 

defect. She cites a letter from Brian to Dorisv lawyer, admitted 

in evidence and dated July 31, 1990, in which Brian acknowledged 

that the kitchen floor is "defective in places, as a result of the 

unevenness of the underlying concrete slab," and stated that he 

should have corrected the defect. 
Brian did not write this letter, however, and he testified 

that he had signed it without consulting an attorney and without 

knowing that it might make him legally responsible for Dorisv 

injuries. He also testified that the sentence in the letter 

stating that Doris had slipped on wet wax in an uneven part of the 

floor represented assumptions he had made after the accident, not 

knowledge that he had had before the accident. 

The expert testimony to which Doris referred was given by 

Dennis Parr, a civil and structural engineer. Dr. Parr testified 

that based on an investigator's measurements and photographs, the 

floor in Brian's kitchen sloped one-quarter inch in three feet and 

that %'generally accepted standardsn require no more than one-eighth 

lnch deviation in ten feet. He also testified that a homeowner who 

knew that the floor was "out of level this much" should re-level it 

because it was not safe. Doris contends that this testimony 

created a genuine issue of material fact regarding the inherent 

dangerousness of the floor, making summary judgment improper. 

While we agree that Dr. Parr's testimony does raise factual 

issues--e.g., whether the floor sloped in such a way as to create 

a pool of wet wax on the spot where Doris fell--it does not address 

the critical issue of Brian's knowledge. It was not the slope 

alone that caused the accident, but the combination of the slope 

and the wax. Brian had no knowledge of either the slope or the 

wax. 

If Brian did not have actual knowledge that the floor sloped 

and that the slope created an unreasonable risk for a guest in his 

home, he owed no duty to Doris to warn her or repair the defect. 

8 
Thus, a factual issue concerning the condition of the floor is 

immaterial, and the District Court did not err in concluding that 

Brian owed no duty to warn or repair. 

It is an elementary principle of law that before a claim 

for relief can be made against a defendant for 

negligence, the existence of a duty by the defendant to 

the plaintiff must be shown, along with the breach of the 

duty and a resulting injury. 

Rollins v. Blair (1989), 235 Mont. 343, 346, 767 P.2d 328, 330. 

A motion for a directed verdict or for a judgment 

notwithstanding the verdict "rests on a finding that the case of 

the party against whom it is directed is unsupported in some 

necessary particular. Nicholson v. United Pacific Ins. Co. 

(19851, 219 Mont. 32, 37, 710 P.2d 1342, 1345. Here, a directed 

verdict was proper because Doris failed to make a prima facie case 

of negliqence. The judgment of the District Court is affirmed. 

We concur: /i" 

/ 
December 22. 1992 

CERTIFICATE OF SERVICE 

I hereby certify that the following order was sent by United States mail, prepaid, to the 

following named: 

Gay L. Spaeth 

Spaeth Law Firm 

P.O. Box 1361 

Red Lodge, MT 59068 

Won. Marc Racicot, Attorney General 

Michael S. Wellenstein, Assistant 

Justice Bldg. 

Helena, M?' 59620 

Damon L. Gannett 

Gannett CL Ventrell 

175 No. 27th St., No. 1306 

Billings, h4T 59103 

A. W. "Tony" Kendall 

Carbon Cormty Attorney 

P.O. Drawer U 

Red Lodge, MT 59068 

ED SMITH 

CLERK OF THE SUPREME COURT 

STATE OF MONTANA