No. 12301 INTHE SUPREME COURT OF THE STATE OF MONTANA 1972

VERA L. UHL and CHARLES WL, husband and wife, Plaintiffs and Appell~nts,

LaVERN ARRAHAMS and CLIFF BROWN, d/b/a GRIFF'SBURGER BAR, Defendants and Respondents.

Appeal from: District Court of theThirteenth JudicialDistrict, Honorable Charles Luedke, Judge presiding. Counsel of Record: For Appellants: Jeffrey J. Scott argued, Omaha, Nebraska. G. Todd Baugh appeared, Billings, Montana. For Respondents: Crowley, Kilbourne, Haughey, Hanson and Gallagher,

Billings, Montana. Jack S. Ramirez argued, Billings, Montana,

-- - Submitted: October 27, 1972 Decided:

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## 51,07:Mr. JusticeFrank I. Haswell delivered the Opinion of the Court. This is an appealby plaintiffs from a summary judgment awarded defendants by the district court of Yellowstone County, the Hon. Charles Luedke,district judge. On February 21, 1968,plaintiff Vera Uhl, accompanied by her children, drove to defendants' Burger Bar, located on Billings' west side, to buy lunch for her children and brother, and to redeem a birthday coupon which entitled her son to a free lunch there. On defendants'blacktop parking lot there were two parallel rows ofparking spaces facing each other. At the end of each parking spacewas an individual concrete curbing 5" high and the width of a car. Between each individualparking space, the curbings were separated to enable a person to enter a walkway area between the two parallel rows of parking spaces and on into the Burger Bar building. This walkway was simply

a section of the blacktop parking area,utilized to provide pedestrian access to the building. Neither the walkway nor the restof theparking lot was covered or otherwiseprotected from the weather. Normal procedure at the establishmentwas to park against one of these curbings,and to proceed onto the walkway between the curbings,and then along the walkway and into the building. United StatesWeather Bureau records indicated that prevailing conditions throughout ~illings on the day of the accident were extremely icy due to rain from the previous night which had frozen on the ground. Defendants' parking lot, including the walkmy area between the curbings,was thus completely icy by morning.Defendant Abrahams, themanager of the Burger Bar, opened the establishment for business thatmorning. At approximately9:30 a.m. he poured a product called Ice-Melt on the walkway
area between the curbings tomelt the ice. In his deposition he declared that he did not recallhowmuch of this product he actually poured, although he stated that a very large quantity would have been needed to completelymelt all the ice which had formed on the parking lot. Shortly before noon on that day,Vera Uhl picked up her children at school and was to return them there by 1:00 p.m. She was familiarwith the procedure at the Burger Bar and was
aware of the icy conditionsprevailing over the entire city on that day, as well as the icy condition of defendants' parking lot and walkway. The evidence indicates thatVera Uhl parked hurriedly against one row of curbings,but it is unclear whether the car was centered on any particular curbing. Since shewas wearing curlers, she senther children in by themselves, but after someminutes decided to go in herself. She stepped out of the car, over one of the curbings, onto the walkway, and went inside. She received her order on a tray which she carried in both hands back to her car. When she approached her car she stepped over the curbing sidewayswith her right leg. At the same time, and while stillholding onto the tray of food with both hands, her left foot,whichwas still on the walkway, slipped causing her to fall on the curbing, striking her head and back against the adjacent car and the ground. She got up and got into her car,waiting while her children went back inside to replace two milk shakes which had been ruined inher fall. Afterwards she drove away and picked up her brother; they then picked up her husband, and drove to the emergency room at the hospital where shewas examined and released.Followingpretrial discovery,defendanfsmoved for summary judgment which the district court granted. The issue on appeal iswhether the district court was correct in granting defendants a summary judgment. The issues of substantive law involved in this determination are twofold:

(1)Did the defendants breach any duty owed the plaintiff proximately causingplaintiff's injuries?,and (2)Was there contributory negligence or assumption of risk on the part of plaintiff? The authority for granting summary judgment isRule 56(c), M.R.Civ.P., which provides inpertinent part as follows: 

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## * * * The judgment sought shallbe rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file show that there isno genuine issue as to any material fact and that themoving party is entitled to a judgment as a matter of law. 

## * * *I1 In determining the burden of proof, this Court quoted with approval 6Moore1stF.P.2d, 

### 5 56.15[3], p. 2335, in Kober & Kyriss

### v. Billings Deac. Hosp., 148Mont. 117, 121, 417 P.2d


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## * * * themoving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicableprinciples of substantive law, entitle him to judgment as a matter of law." See also Byrne v. Plante, 154Mont. 6, 459 P.2d 266. Directing our attention to the applicable substantive law, a possessor of land owes a duty to an invitee to use ordinary care to keep the premises in a reasonably safe condition and to warn the inviteeof any hidden or lurking dangers therein, but he isnot an insurer againstall accidents and injuries to inviteeson the premises. Cassady v. City of Billings, 135Mont. 390, 340 P.2d 509; Luebeck v. Safeway Stores, Inc., 152Mont. 88, 446 P.2d 921; and authorities cited therein.In Luebeck we directly held that 

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## * * where 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. 

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## * *" We based this holding on
a line of cases from other jurisdictions so holding, particularly quotingwith approval the following statement from Crawford

v. Soennichsen, 175Neb. 87, 120N.W.2d 578, 581:

"

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## * However, the general rule seems clearly to be that a store owner cannotbe chargedwith negligenceby reason of natural accumulation of ice and snowwhere the condition is as well known to the plaintiff as the defendant." In accord see Watts 

### v. Holmes,Wyo. (19631, 386 P.2d 718; Crenshawv. Firestone Tire & Rubber Company, 72N.M. 84, 380 P.2d 828; Zidev. Jewel1 Tea Company, 39 Ill.App.2d 217, 188 N.E.2d 383; Levine v. Hart Motors, 75 Ohio LawAbst. 265, 143N.E.2d

Such are the undisputed facts here. The icy condition of the streets and sidewalks was general throughout Billings due to precipitation, temperature and atmospheric conditions. Plaintiff knew this and specifically knew from observation immediately prior to getting out of the car that the parking lot and walkway

were covered with ice. She recognized the condition as dangerous and knew that she had to be careful or she might fall down. There isno evidence that the use of the de-icer on the walkway contributed to the slippery condition. In short,nothing but a natural icing conditiondue to the elements was involved and such conditionprevailed throughout the city. Accordingly, Luebeck controls the situation in the instant case; there is no breach of duty,no negligence,and no liability as amatter of law. Plaintiff cites our holding in Willis v. St. Peter's Hospital, 157Mont. 417, 486 P.2d 593, in support of her position in the instant case. Willis is readily distinguishable on thefacts from the instant case. There we held therewas a jury question on twomaterial issues of fact: (1)whether the hospital had contributed to the slippery conditionsat the emergency entrance by repeated applications of a chemical de-icer over a considerableperiod of time causing partial melting, refreezing, and accumulation of successive layers of ice, and (2) knowledge of this condition by plaintiff. In the instant case the undisputed facts reveal a natural icing condition due to the elements, and an actual knowledgeby plaintiff of such icy conditions and the danger therefrom. There being no breach of duty by defendantsin the first instance,we find it unnecessary to reach the issues of contributory negligence or assumption of risk on the part of plaintiff. The judgment of the district court is affirmed.

Chie Justice /'--j--:-&+ Associate Justice

Associatebqj3tices