No. 85-532 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1986 

GAYLE L. KAISER, 

Plaintiff and Appellant, 

-vsTOWN OF WHITEHALL, MONTANA, 

Defendant and Respondent. 

APPEAL FROM: District Court of the Fifth Jud.icia1 District, 

In and for the County of Jefferson, 

The Honorable Frank 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 

Submitted on Briefs: March 28, 1986 

Decided: May 19, 1986 

:dAl L u idbb 

Filed: 

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

Court. 

This case comes on appeal from an order of the District 

Court of the Fifth Judicial District, Jefferson County, 

granting defendant Town of Whitehall summary judgment. We 

reverse the summary judgment of the District Court and remand 

this case for trial on the merits. 

On Kay 25, 1983, the plaintiff, Gayle Kaiser 

("Kaiser"), age 69, was walking 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 of Whitehall in order 

to reach her destination. On this date, the weather was good 

and the ground was dry. 

There existed on the northwest corner of the sidewalk 

where Kaiser was travelling a crack or break in the concrete 

of the sidewalk. The record indicates a section of the 

sidewalk had been heaved up by the roots of 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 exist by Kaiser. 

As Kaiser approached. the raised portion 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, she began looking to the street in front of her for 

possible auto traffic in preparation for crossing the street. 

Kaiser subsequently stumbled and fell on the raised portion 

of the sidewalk as she walked over it. She did not see the 

break in the sidewa.lk as she walked over it, since she was 
scanning 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 allegations contained 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 [to p!-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 review by this Court: 

(1) Do material issues of fact exist in this case that 

preclude summary judgment as a matter 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 in writing?" 

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 only proper 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 judgment as 

a matter of law." 10 Wright, Miller and 

Kane, Federal Practice and Procedure, 

section 2716 p. 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 (Town of Whitehall). However, 

where the record discloses no genuine issue of material fact, 

the burden of proof shifts to the party opposing the motion, 

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 issues of material 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 public 
sidewalk 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 of Whitehall 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 is whether the landowner 

exercised ordinary care under circumstances, regardless of 

the status of the injured party. 

As noted in a recent article in the Montana Law Review, 

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 (Mont 1981), 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 our holding in Corrigan. Our 

recent opinion in Limberhand, supra, reaffirmed our holding 

in Corrigan and commits us to a single standard of care. Mr. 

Justice Sheehy writing for the Court noted: " . . . 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 to Kaiser described above, this Court also recently 

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

which provides: 

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 

obviousness. 

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

applicable to 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 obviousness." Justice Morrison in his specially 

concurring opinion in Kronen succinctly explained the effect 

of this last part of S 343 A (1): 

[A] du-ty 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. 

It should be noted that although we hold the summary 

judgment of the District Court is reversed for the reasons 

explained a.bove, a jury question is also 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 

of Whitehall owed a legal duty to Kaiser 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 

state of disrepair 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 the Town of Whitehall 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 

are present in this case on the issues of whether the Town of 

Whitehall should have anticipated that ha.rm would 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. Here we 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 lacks precedential force upon 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 

constitutional validity. 

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 

achieve unanimity in their reasoning. The majority is merely 

required to agree on the result, as was done in Kronen. The 

argument made by Kaiser ignores the text of the Constitution 
itself. 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 the merits. 

Justice 

We Concur: 

L5- 4 1'7 I/)?, ief Justice