NO. 95-033 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1995 

CARL BROWN, 

plaintiff-~ppellant, 

-vGARY DEMAREE, 

Defendant-Respondent. 

APPEAL FROM: District Court of the First Judicial District, 

In and for the County of Lewis and Clark, 

The Honorable Jeffrey Sherlock, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Carl A. Hatch, Richard J. Pyfer, Kirk S. Bond, 

Small, Hatch, Doubek & Pyfer, Helena, Montana 

For Respondent: 

Jacqueline T. Lenmark, Keller, Reynolds, Drake, 

Johnson & Gillespie, Helena, Montana 

Submitted on Briefs: June 29, 1995 

Decided: August 21, 1995 

Filed: 
Justice James C. Nelson delivered the Opinion of the Court. 

Carl Brown (Brown) appeals from an order of the First Judicial 

District Court, Lewis and Clark County, granting summary judgment 

to Gary Demaree (Demaree) on Brown's complaint in negligence for 

personal injuries. We reverse and remand for further proceedings. 

Background 

In addition to the pleadings, motions and briefs, the record 

on appeal consists solely of Brown's deposition. On that record, 

the following material facts are not in dispute. On January 15, 

1994, between 4:30 a.m. and 5:00 a.m. or a little after, Brown, 

working as a substitute newspaper carrier for the Helena 

Independent Record, injured his knee when he fell while attempting 

to deliver a newspaper to Demaree's Helena residence. Brown's 

deposition indicates that he was unfamiliar with the route and the 

residence and that he was working from a computer listing of the 

residences to which he was to deliver newspapers. When Brown 

arrived at Demareels residence it was still dark and there were no 

street lights in the vicinity or lights illuminating the residence 

or porch. Brown carried a flashlight which he used to verify the 

house number but which, as a courtesy to the occupants, he turned 

off at the curb before approaching the residence. 

Brown stated in his deposition that, after turning off his 

flashlight, he approached the Demaree residence via the sidewalk. 

The sidewalk leading to the front door of the residence is designed 

in such a fashion that it terminates in two steps that dog-leg to 

the left down to a landing. From the landing three steps lead up 

2 
to the front porch and door. According to Brown, as he approached 

the house, he did not see the two-srep drop-off and injured his 

knee when he fell to the landing after missing the two steps in the 

dark. Brown also stated that he fell simply because he did not see 

the two-step drop-off . There were no obstructions or objects on the 

sidewalk and, aside from a possible light skiff of snow, the 

sidewalk surface was not icy or slippery* Brown testified: 

1 remember going straight up the sidewalk and I was 

looking -- going to the front door to put the paper by 

the front door or behind the storm door like we always 

do, and when I took -- I just run out of the sidewalk and 

that's when I took a fall. It had a drop-down, and I 

didn't expect a drop-down. 

In District Court, Brown contended that Demaree failed in his 

duty to maintain his premises in a reasonably safe condition and, 

further, to warn Brown of the hidden and lurking danger in the 

sidewalk/step-down/landing arrangement at the approach to Demareels 

home. 

While agreeing that a property owner has a duty to maintain 

his sidewalk in a reasonably safe condition and to warn of hidden 

and lurking dangers, in granting Demareels motion for summary 

judgment, the trial court concluded that Demaree had "done all that 

society can reasonably ask of him in this regard," and that Brown's 

position "would require a home owner to keep his premises 

constantly illuminated [which] places an unreasonable burden on the 

homeowner which the law does not c~nternplate.~~ The trial court 

also observed that Brown carried a flashlight but chose not to use 

it as he approached the house. In rendering its decision, the 

District Court relied on our opinion in Fuchs v. Ruether (l969), 
154 Mont. 11, 459 P.2d 689. 

Discussion 

The issue on appeal is whether the District Court erred in 

granting Demaree's motion for summary judgment. Summary judgment 

is proper only when no genuine issue of material fact exists and 

when the moving party is entitled to judgment as a matter of law. 

Rule 56 (c) M.R.Civ.P. Our review of the trial court's grant of 

summary judgment is de novo; we utilize the same criteria as the 

district court. Minnie v. City of Roundup (1993), 257 Mont. 429, 

431, 849 P.2d 212, 214. 

A cause of action in negligence consists of four elements: (1) 

duty; (2) breach of duty; (3) causation; and (4) damages. Hatch v. 

Dept. of Highways (Mont. 1994), 887 P.2d 729, 732, 51 St.Rep. 1512, 

1514. The first element of a negligence claim, duty, is a question 

of law. Hatch, 887 P.2d at 733 (citing Geiger v. Department of 

Revenue (1993), 260 Mont. 294, 297, 858 P.2d 1250, 1252) . Here, 

the District Court correctly acknowledged the rule that the owner 

of a premises has a duty to use ordinary care in maintaining his 

premises in a reasonably safe condition and to warn of any hidden 

or lurking dangers. Limberhand v. Big Ditch Co. (1985), 218 Mont. 

132, 144-45; 706 P.2d 491, 498; Davis v. Church of Jesus Christ of 

LDS (1990), 244 Mont. 61, 67, 796 P.2d 181, 184. Given this rule of 

law, it is clear, and the parties agree, that Demaree had a duty to 

provide that the sidewalk leading to his residence is reasonably 

safe. See Davis, 796 P.2d at 184. 

While, as pointed out above, the existence of a duty is a 

question of law for determination by the court, whether that duty 
has been breached, is a question of fact to be decided by the 

finder of fact--in this case, the jury. Limberhand, 706 P.2d at 

498-99. See also, Simmons v. Jenkins (19881, 230 Mont. 429, 435, 

750 P.2d 1067, 1071 (the breach of a duty [of good faith] is a 

question of fact not susceptible to summary judgment). 

Here, then, the critical issue is whether Demaree's failure to 

illuminate his sidewalk or to warn of the sidewalk/stepdown/landing arrangement constituted a breach of his duty to use 

ordinary care in maintaining his premises in a reasonably safe 

condition and to warn of any hidden or lurking dangers. While the 

trial court resolved that question as a matter of law in favor of 

Demaree, whether Demaree breached his duty was one of fact which 

should have been determined by the jury. As we stated in 

Limberhand, 

Appellant contends that the question of whether 

[defendants] breached the common law duty to keep the 

premises reasonably safe and to warn of any hidden or 

lurking danger is one a jury should decide. We agree. 

What constitutes reasonably safe premises is generally 

considered to be a question of fact [depending] to a 

large extent on what use the property is put to, its 

setting, location and other physical characteristics, and 

the type of person who would foreseeably visit the 

premises, as well as the specific type of hazard or 

unsafe condition alleged. These and other factors are 

embodied in the legal concept of "reasonable under the 

circumstances." 

Limberhand, 706 P.2d at 498-99. 

Ordinarily, negligence actions involve questions of fact and 

are not susceptible to summary judgment. Brohman v. State (1988), 

230 Mont. 198, 201, 749 P.2d 67, 69. Summary judgment is never to 
be used as a substitute for trial if a factual controversy exists. 

Hagen v. Dow Chemical Co. (1993) , 261 Mont. 487, 491, 863 P.2d 413, 

416. It is only where reasonable minds cannot differ, that 

questions of fact can be determined as a matter of law. Brohman, 

749 p.2d at 70. We conclude on the record here, that reasonable 

minds could differ on whether Demaree should have illuminated the 

sidewalk/step-down/landing area at the approach to his home or warn 

of that arrangement and that the District Court should have left 

the resolution of that question to the jury. 

In that regard, our decision in Fuchs is not dispositive. See 

Fuchs, 439 P.2d 689. while factually similar in some respects, we 

did not, in that case, articulate the same duty of care on the part 

of the landowner that our current case law requires. Rather, in 

reversing the trial court's refusal to grant a directed verdict and 

dismiss the plaintiff's complaint, we focused on the landowner's 

duty to social guests and his duty to refrain from acts of willful 

and wanton negligence. We concluded that the landowner was not 

liable for a danger (a step) that is only concealed by darkness of 

night and which is easily avoided by the exercise of ordinary care. 

Fuchs 459 P.2d at 691. While Fuchs may have correctly stated the 

law in 1969, it, nevertheless, does not comport with more current 

case law involving landowner premises liability, which, among other 

things, no longer recognizes the status of the party on the 

property as controlling the owner's duty. a, Limberhand, 706 

P.2d at 496, 498; Berge v. Boyne USA, Inc. (9th Cir. 1986), 779 

F. 2d 1445. As we stated in Corrigan v. Janney (1981) , 192 Mont. 

99, 626 P.2d 838, and then reaffirmed in Limberhand, "[tlhe 
direction the law is now taking clearly is toward ' " ' imposing on 

owners and occupiers a single duty of reasonable care in all 

circumstances' . . ." (citation omitted). Corrisan, 626 P.2d 

at 841; Limberhand, 706 P.2d at 496, 498. About the most that can 

be said for Fuchs is that we decided as a matter of law, rhen, an 

issue of fact that under current case law is properly left to the 

j ury . 

In the instant case, the District Court pointed out that the 

sidewalk/step-down/landing arrangement was concealed only by 

darkness and "was not one that was something unusual such as a hole 

in the sidewalk or abrupt protruding crack in the sidewalk. " In 

Limberhand, we held that a question of material fact existed as to 

whether the irrigation ditch (which in that case was open and 

obvious) could present sufficient danger to persons using the 

landowners1 property so that by not taking any remedial or warning 

measures the landowners may have breached their duty to keep the 

premises reasonably safe. We also held that whether this duty had 

been breached was a jury question. Limberhand, 706 P.2d at 499. 

In this case, application of the rule set out in Limberhand is 

even more compelling, where darkness concealed the manner in which 

the approach to Demaree's residence was constructed. Whether the 

sidewalk/step-downJlanding arrangement in Demaree's sidewalk is 

18unusual, " and whether he should have anticipated or had reason to 

believe that a person using the sidewalk in the darkness would be 

injured by stepping into the unlighted drop-down, are clearly 

factual questions which should have been resolved by the jury, and 

not by the trial court. See Limberhand, 706 P.2d at 499. 
Additionally, we disagree with Demaree and with the District 

Court that Brown's position would require a homeowner to keep his 

premises constantly illuminated. That is not the burden which the 

law imposes nor is that a rule for which this case can be cited. 

The law simply requires the homeowner to keep his premises 

reasonably safe and to warn of any hidden dangers while taking into 

consideration the use to which the property is put, its setting, 

location, and other physical characteristics, along with the type 

of person who would foreseeably visit the premises, as well as the 

specific type of hazard or unsafe condition alleged. Limberhand, 

706 P.2d at 498-99. That test is to be applied by the jury to the 

facts of this case; whether some other landowner under different 

factual circumstances is required or is not required to illuminate 

his particular property is not at issue. 

Demaree also argues that § 27-1-701, MCA (1993), governs this 

case. That section provides: 

Except as otherwise provided by law, everyone is 

responsible not only for the results of his willful acts 

but also for an injury occasioned to another by his want 

of ordinary care or skill in the management of his 

property or person except so far as the latter has 

willfully or by want of ordinary care brought the injury 

upon himself. 

Demaree, correctly, points out that Brown turned off his flashlight 

before approaching the house in the dark on an unfamiliar walkway, 

and concludes that, in so doing, Brown himself brought about the 

accident. We agree with Demaree that § 27-1-701, MCA, is 

applicable. We disagree, however, that application of this statute 

necessarily supports summary judgment. Whether, under the statute, 

Demaree breached his statutory duty to use "ordinary care or skill 
in the management of his property" and whether Brown, in turning 

off his flashlight, "by want of ordinary care brought ton his own] 

injury," are simply factual questions that are appropriately 

resolved by the finder of fact. It is up to the jury to determine 

whether and, if so, to what extent, either Demaree, Brown or both 

were negligent in this case. See_, Limberhand, 706 P.2d at 496-97, 

498-99. 

We have considered the other authorities and arguments raised 

by Demaree in his brief, but, nevertheless, conclude that, on the 

record here, there were genuine issues of material fact, as 

discussed above, that should have been decided by the jury. 

Accordingly, we hold that the summary judgment was improperly 

granted. 

Reversed and remanded for further proceedings consistent with 

this opinion. A