No. 85-532 INTHE SUPREME COURT OF THE STATE OF MONTANA 1986

GAYLE L. KAISER, Plaintiff andAppellant,

-vsTOWN OF WHITEHALL, MONTANA, Defendantand Respondent.

APPEAL FROM: DistrictCourtof the FifthJud.icia1District, Inand fortheCountyof Jefferson, The HonorableFrank Davis, Judge presiding.

COUNSEL OF RECORD:

For Appellant: Burgess, Joyce & Whelan; Thomas J. Joyce, Butte, Montana

For Respondent: Harrison, Loendorf & Poston; James T. Harrison, Jr., Helena, Montana

Submittedon Briefs: March 28, 1986 Decided: May 19, 1986 

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### Mr. Justice John C. Harrison delivered the Opinion of the Court.

This case comes on appeal froman order of the District Court of the Fifth Judicial District, Jefferson County, granting defendant Town of Whitehall summary judgment. We

reverse the summary judgmentof theDistrictCourt and remand this case for trial on themerits. On Kay 25, 1983, the plaintiff, Gayle Kaiser ("Kaiser"),age 69,

### waswalking to the Whitehall post office along with her unleashed dog. Kaiser lived several blocks from the post office and it was necessary for her to use a public sidewalk maintained by the Town ofWhitehall in order to reach her destination. On this date,theweatherwas good and theground was dry. There existed on the northwest corner of the sidewalk where Kaiser was travelling a crack orbreak in the concrete 

### of the sidewalk. The record indicates a section of the sidewalkhad been heaved up by the rootsof a large tree that

was cut down prior to May 25, 1983, and a rise in the concrete was created. This break or crack in the sidewalk had existed for a considerable length of time and was known to existby Kaiser. As Kaiser approached.the raisedportion of the sidewalk from about half a block away, she observed the defect in the sidewalk ahead. However, as she approached the rise in the sidewalk, shebegan looking to the street in frontofher for possible auto traffic inpreparation for crossing the street. Kaiser subsequently stumbled and fell on the raised portion of the sidewalk as shewalked over it. She did not see the break in the sidewa.lkas she walked over it, 

### since she wasscanning the street ahead for traffic. As a result of her fall,Kaiser sustained injuries. On March 16, 1984, Kaiser filed suit against the Town of Whitehall seeking damages for its alleged negligence in failing to maintain the public sidewalk in a reasonably safe condition. The Town of Whitehall filed its answer denying all of the allegationscontained in Kaiser's complaint. On September 5, 1985, the District Court granted the Town of Whitehall

### ' s motion for summary judgment ruling that the Town of Whitehall was not liable for Kaiser's injuries because "the [defective]condition of the sidewalk was known and obvious to the plaintiff" and "the defendant could not anticipate [the]harm resulting [top!-aintiff] in the face of the knowledge and obviousness of the condition of the sidewalk." It is from this judgment that Kaiser appeals. Kaiser, appellant, presents the following relevant issues for reviewby this Court: (1) Domaterial issues of fact exist in this case that preclude summary judgment as amatter of law pursuant to Rule 56,M.R.Civ.P.? (2) Is this Court's decision in Kronen v. Richter (Mont. 1984), 683 P.2d 1315, 41 St.Rep. 1312, binding authority on the courts of this state although only three Justices signed the majority opinion, one concurred, and three dissented, where the Montana Constitution, Art. VII, Sec. 3(I), provides that 

### "[a] majority shall join in and pronounce decisions, which must be inwriting?" With regard to issue no. 1,both parties recognize the appropriate standard for granting summary judgment. As this Court stated in Kronen v. Richter (Mont. 1984)

## , 683 P.

### 2d 1315, 1317, 41 St.Rep. 1312, 1314:Summary judgment is never to he used as a substitute for trial if a factual controversy exists. Reaves v. Reinbold

(Mont. 1980), 615 P.2d 896, 37 St.Rep. 1500. Summary judgment is onlyproper if the pleadings, depositions, answers to interrogatories and admissions on file show there is no genuine issue of material fact. Anderson v. Applebury

(1977),173 Mont. 411,567 P.2d 951. The standard that an appellate court applies in reviewing a grant or denial of a motion for summary judgment is the same as that utilized by the trial court initially under Rule 56, J5.R.Civ.P. --a summary judgment is proper when it appears "that there is no genuine issue as to any material fact and that the moving party is entitled to a judgmentas a matter of law." 10Wright,Miller and Kane, Federal Practice and Procedure, section 2716p. 643. Further, the defendant correctly recognizes the burden of proof which is required in 

### a summary adjudication. Initially the burden of proof must be carried by the moving party seeking summary judgment (TownofWhitehall). However, where the record disclosesno genuine issue ofmaterial fact, the burden of proof shifts to the party opposing themotion, who must come forward with substantial evidence raising an issue of fact. Once the burden has shifted in this fashion, the party opposing the motion (Kaiser)is held to a standard of proof about equal to that initially imposed upon the moving party und.er Rule 56(c)

## , M.R.Civ.P. Harland v. Anderson (1976), 169 Mont. 447, 548 P.2d 613; Kronen, 683

In light of the above standard and burden of proof,we hold Kaiser raised several genuine issuesofmaterial fact in this case. Therefore, summary judgment is not appropriate. In Montana, the sidewalk is owned by the city. Steen

TT. Grenz (1975), 167 Mont. 279, 538 P.2d 16. The general rule has been and still 

### is that the duty 

### to keep 

### a publicsidewalk in reasonable repair is on the city and when an accident occurs on a public sidewalk, liability, if any, attaches to the city. Steen, 538 P.2d at 18; State ex rel. J.C. Penny Co. v. District Court (1970), 154 Mont. 481, 465 P.2d 824. Further, the Town of Whitehall is a government entity in the State of Montana and is liable for its acts or omissions like an ordinary private party. Art. 11, Sec. 18, Montana Constitution; S 2-9-101, MCA; and S 2-9-102, MCA. Under Kronen,the duty owed by the Town ofWhitehall to Kaiser and to the general public lawfully travelling on a public sidewalk is a duty to exercise ordinary care and to keep the premises (sidewalk) reasonably safe. Kronen, 683 P.2d at 1317; Cereck v. Albertson's Inc. (1981), 195 Mont. 409, 637 P.2d 509. This duty owed by the Town of Whitehall to Kaiser is now governed by this Court's recent decision in Limberhand v. Big Ditch Co. (Mont. 1985), 706 P.2d 491, 42 St.Rep. 1460. Limberhand basically held that the duty owed by a landowner to an injured party iswhether the landowner exercised ordinary care under circumstances, regardless of the status of the injuredparty. As noted in a recent article in the Montana LawReview, this Court has had conflicting standards of reasonable care to be exercised by landowners to people who come upon their land and are injured. Comment, Landowner Liability 

## - in Montana, 47 Montana L. Rev. 109 (1986). Our previous decisions focused upon three entrant categories--invitee, licensee and trespasser. Our opinion in Corrigan

### v. Janney (Mont1981), 626 P.2d 838, 38 St.Rep. 545, abandoned the entrant categories and applied a single standard of reasonable care under the circumstances. A later opinion that year, Cereck, supra,

### appeared to be in conflict with ourholding in Corrigan. Our recent opinion in Limberhand, supra, reaffirmed our holding in Corrigan and commits us to a single standardof care. Mr. Justice Sheehywriting for the Courtnoted: 

### "

# ..

# .The test is always not the status of the injured party but the exercise of ordinary care in the circumstances by the landowner." Limberhand, 706 P.2d at 496. We note that the Limberhand case, like this case,came to the Court on summary judgment. In relation to the legal duty owed by the 

### Town of Whitehall toKaiser described above, thisCourt also recently adopted 5 

### 343A (1) Restatement (Second) of Torts (1965) whichprovides: A.

### possessor of land is not liable to his invitees for physicalharm caused to them by any activity or condition on the land whosedanger isknownor obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness. We agree with the District Court that S 

### 343A 

### (1) is applicable to factsof 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 obviousness." Justice Morrison in his specially concurring opinion in Kronen succinctly explained the effect of 

### this lastpart of S 

### 343 A 

### (1): [A]

### du-tymay be owed though the condition is open and obvious if the landowner has reason to believe that despite the open and obviousnature of 

### the condition,that injurieswill neverthelessresult. Kronen, 683

### P.2d at 1318. We find that although the conditionof the sidewalkwas knownand obvious to Kaiser, a questionof 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 conditionof 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'scondition. Therefore, summary judgment isnot appropriate. It should be noted that although we hold the summary judgment of the District Court is reversed for the reasons explained a.bove,a juryquestion isalso present on the issue of whether the Town of Whitehall sa.tisfied its legal duty owed to Kaiser. As discussed in the opinion above, the Town ofWhitehall owed a legal duty toKaiser to exercise ordinary

care to keep its sidewalk reasonably safe. We note it is undisputed in the record that the sidewalk was in an extreme stateofdisrepair at the time of the accident. We hold this information concerning the condition of the sidewalk at the very least raises a material issue of fact as to whether or not theTown ofWhitehall exercised ordinary care to keep the sidewalk "reasonably safe." As this Court recently stated: "[wlhat constitutes reasonably safe premises is generally considered to be a question of fact." Limberhand, 706 

### P.2d at 498. 

### In conclusion under this issue,we hold jury questions

arepresent in this case on the issues ofwhether the Town of Whitehall should have anticipated that ha.rmwould be caused by 

### the condition of the sidewalk despite the knowledge and obviousness of the condition, and whether the Town of Whitehall exercised ordinary care to keep the sidewalk"reasonably safe." The probability that Kaiser will not prevail under these issues is no justification for granting summary judgment. It may appear that recovery is very remote, but that is not the standard. If there is a genuine issue of material fact, summary judgment is not appropriate. Rule 56(c), M.R.Civ.P. Herewe have such a situation. With regard to issue no. 2, we hold this Court's decision in Kronen, supra, is binding authority under the Montana Constitution although the majority opinion was only signed by three Justices, with one Justice specially concurring, and three Justices dissenting. The Montana Constitution provides that "[a] majority [of the Supreme Court] shall join in and pronounce decisions,which must be in writing.

### " Montana Constitution Art. VII, Sec. 3(1)

# . Kaiser contends that because a majority of the members of this Court did not subscribe to the majority opinion in Kronen,the decision lacksprecedential forceupon the courts 

### of this state. Kaiser further argues that it was unconstitutional for the District Court to adhere to Kronen, since the split character of the decision robs it of constitutionalvalidity. Kaiser's argument ignores a literal reading of the constitutional provision at issue and common sense. The Constitution does not say the majority of this Court must join in opinions; rather, it says the majority must join in and pronounce decisions. In reaching their decision, the members of this Court are not constitutionally required to achieveunanimity in their reasoning. Themajority ismerely required to agree on the result, as was done in Kronen. The argument made by Kaiser ignores the text of the Constitutionitself. Therefore, Kaiser's argument under this issue must fail. The summary judgment of the District Court is reversed and this case is remanded for trial on themerits.

Justice

We Concur: L5- 

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