No. 12301 

IN THE 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' S BURGER BAR, 

Defendants and Respondents. 

Appeal from: District Court of the Thirteenth Judicial District, 

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, 

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Submitted: October 27, 1972 

Decided : FOV 1 5 1,07: 
Mr. Justice Frank I. Haswell delivered the Opinion of the Court. 

This is an appeal by 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 of parking spaces facing each other. At the 

end of each parking space was an individual concrete curbing 

5" high and the width of a car. Between each individual parking 

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 

rest of the parking lot was covered or otherwise protected from 

the weather. Normal procedure at the establishment was 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 States Weather 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, the manager of the Burger Bar, opened 

the establishment for business that morning. At approximately 
9:30 a.m. he poured a product called Ice-Melt on the walkway 

area between the curbings to melt the ice. In his deposition 

he declared that he did not recall how much of this product he 

actually poured, although he stated that a very large quantity 

would have been needed to completely melt 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 familiar with the procedure at the Burger Bar and was 

aware of the icy conditions prevailing over the entire city on 

that day, as well as the icy condition of defendants' parking 

lot and walkway. The evidence indicates that Vera Uhl parked 

hurriedly against one row of curbings, but it is unclear whether 

the car was centered on any particular curbing. Since she was 

wearing curlers, she sent her children in by themselves, but 

after some minutes 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 sideways with her right leg. At the 

same time, and while still holding onto the tray of food with 

both hands, her left foot, which was 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 in her 

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 she was examined and released. 
Following pretrial discovery, defendanfsmoved for 

summary judgment which the district court granted. 

The issue on appeal is whether 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 causing plaintiff's injuries?, and (2) Was there contributory negligence or assumption of risk on the part of plaintiff? 

The authority for granting summary judgment is Rule 

56(c), M.R.Civ.P., which provides in pertinent part as follows: 

" * * * The judgment sought shall be rendered 

forthwith if the pleadings, depositions, 

answers to interrogatories, and admissions on 

file show 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. * * *I1 

In determining the burden of proof, this Court quoted 

with approval 6 Moore1stF.P.2d, 5 56.15[3], p. 2335, in Kober & 

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

" * * * the moving party for summary judgment 

has the burden of showing the absence of any 

genuine issue as to all the material facts, 

which, under applicable principles of substantive law, entitle him to judgment as a 

matter of law." See also Byrne v. Plante, 

154 Mont. 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 invitee of any hidden or lurking dangers therein, 

but he is not an insurer against all accidents and injuries to 

invitees on the premises. Cassady v. City of Billings, 135 Mont. 

390, 340 P.2d 509; Luebeck v. Safeway Stores, Inc., 152 Mont. 

88, 446 P.2d 921; and authorities cited therein. 
In Luebeck we directly held that " * * * 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. * * *" We based this holding on 

a line of cases from other jurisdictions so holding, particularly quoting with approval the following statement from Crawford 

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

" * * * However, the general rule seems 

clearly to be that a store owner cannot be 

charged with negligence by reason of natural 

accumulation of ice and snow where the condition is as well known to the plaintiff as the 

defendant." 

In accord see Watts v. Holmes, Wyo. (19631, 386 P.2d 718; Crenshaw v. Firestone Tire & Rubber Company, 72 N.M. 84, 380 P.2d 

828; Zide v. Jewel1 Tea Company, 39 Ill.App.2d 217, 188 N.E.2d 

383; Levine v. Hart Motors, 75 Ohio Law Abst. 265, 143 N.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 

is no evidence that the use of the de-icer on the walkway contributed to the slippery condition. In short, nothing but a 

natural icing condition due to the elements was involved and such 

condition prevailed throughout the city. Accordingly, Luebeck 

controls the situation in the instant case; there is no breach of 

duty, no negligence, and no liability as a matter of law. 

Plaintiff cites our holding in Willis v. St. Peter's 

Hospital, 157 Mont. 417, 486 P.2d 593, in support of her position 

in the instant case. Willis is readily distinguishable on the 
facts from the instant case. There we held there was a jury 

question on two material issues of fact: (1) whether the hospital had contributed to the slippery conditions at the emergency 

entrance by repeated applications of a chemical de-icer over a 

considerable period 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 knowledge by 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 

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Associate Justice 

Associate bqj3tices