NO. 90-288 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1990 

CRAIG BERENS, 

Plaintiff and Appellant, 

-vsWILLIAM P. WILSON, 

Defendant and Respondent. 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, 

The Honorable G. Todd Baugh, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

George T. Radovich, Attorney at Law, Billings, 

Montana 

For Respondent: 

Donald L. Harris and Mary E. Duncan, Attorneys at 

Law, Billings, Montana 

Submitted on Briefs: September 13, 1990 

Filed: 

Decided: October 25, 1990 

* 
Justice John Conway Harrison delivered the Opinion of the Court. 

This is an appeal from the District Court of the Thirteenth 

Judicial District, in and for the County of Yellowstone. Plaintiff 

brought a negligence action against defendant. The District Court 

found in defendant's favor on a motion for summary judgment. 

Plaintiff appeals from that order. We affirm. 

The only issue before this Court on review is: 

Did the District Court err in entering summary judgment for 

the defendant? 

Plaintiff, Craig Berens, brought this negligence action in the 

District Court to recover damages for injuries he received when he 

jumped over a picket fence located on defendant William Wilson's 

property. Defendant moved for summary judgment. Subsequently, 

briefs were filed and the District Court granted the motion on 

April 16, 1990 in a memorandum order. 

The uncontroverted facts are as follows: 

A wooden picket fence contains defendant's property and a 

portion of the fence, which is the subject of this appeal, 

separates defendant's archery range from the rest of his property. 

It is this portion of the fence, adjacent to defendant Is archery 

range, which plaintiff jumped with incident of injury. The fence 

is approximately four feet high. Defendant built the fence around 

the year 1980, burying the posts in the ground with rocks tamped 

down solid on the sides for stability. 

Plaintiff and defendant have been neighbors since 1981 and 
often visited. On May 26, 1988, defendant invited plaintiff over 

to defendant's house to admire defendant's newly acquired bow. 

After a few minutes passed, they decided to witness the bow's 

performance and walked to defendant's backyard archery range. When 

they arrived at the subject wooden fence which separated them from 

the archery range, defendant handed plaintiff the bow and jumped 

over the fence without incident. As defendant jumped the fence, 

the fence did not l'wobblell nor did defendant fall. plaintiff then 

surrendered the bow to defendant, walked down a few feet along the 

fence line, placed his hands on the top of the fence rail next to 

a post and jumped over. while in mid-jump, the fence llwobbledll, 

plaintiff lost his balance, landed on his left foot and injured his 

knee. There were no rotted or broken posts on the fence line where 

either man jumped. 

Upon appeal the threshold question is whether there exists a 

genuine factual issue concerning the fence's alleged hazardous 

character. As his first assignment of error, plaintiff maintains 

that in granting summary judgment the District Court incorrectly 

concluded that defendant sustained his burden of demonstrating a 

complete absence of any genuine issue of material fact. 

The purpose of Rule 56, M.R.Civ.P., is to dispose of those 

actions which fail to raise genuine issues of material fact, 

thereby eliminating the burden and expense of an unnecessary trial. 

VanUden v. Hendricksen (1980), 189 Mont. 164, 615 P.2d 220. 

Summary judgment should be granted if the moving party successfully 

carries its burden to establish that there is no genuine basis of 
material fact and the moving party is entitled to judgment as a 

matter of law. Rule 56(c), M.R.Civ.P. To satisfy its burden of 

proof, the movant must provide the court with evidence which 

clearly indicates what the truth is, and which excludes any real 

doubt as to the existence of a genuine issue of material fact. 

VanUden at 167, 615 P.2d at 222. Once the movant has discharged 

its burden of proof under Rule 56(c), it becomes incumbent upon the 

party opposing the motion to come forward with substantial evidence 

raising a genuine issue of material fact. Rule 56(e), M.R.Civ.P.; 

Riley v. Carl (1981), 191 Mont. 128, 622 P.2d 228. 

We have reviewed the entire record before us. We find that 

the supporting documents filed by defendant discharged his burden 

of proof under Rule 56(c), M.R.Civ.P. We further find that 

plaintiff has failed to provide the District Court with substantial 

evidence raising a genuine issue of material fact. 

Plaintiff asserts that he has carried his burden by claiming 

that the fence constituted a "hidden or lurkingvv hazard. However, 

the substantial evidence which raises a genuine issue of material 

fact must be material and of a substantial nature, not fanciful, 

frivolous, gauzy or merely suspicious. VanUden at 169, 615 P.2d 

at 224. Here plaintiff concluded, based on his own speculation and 

opinion rather than objective evidence contained in the record, 

that the wooden fence was a "hidden or lurkingn hazard simply 

because it wobbled when he jumped over it. To paraphrase the 

irrefutable Gertrude Stein: A fence, is a fence, is a fence. 

Plaintiff would have us believe that a wooden fence should stand, 
as a brick wall, undaunted. We are not persuaded by plaintiff Is 

erroneous, if not completely arcane, reasoning that a wooden fence 

is a "hidden or lurking" hazard merely because it llwobbles" when 

one jumps over it. As such, we find that plaintiff's claim is 

not based on substantial evidence and that the fence was not a 

"hidden or lurking" hazard. 

As his second assignment of error, plaintiff maintains that 

in granting summary judgment the District Court incorrectly 

concluded that defendant was entitled to judgment as a matter of 

law. Plaintiff contends that defendant was not entitled to 

judgment as a matter of law because he breached his duty to warn 

plaintiff of the alleged hazardous fence. Plaintiff argues that 

from the existence of a "hidden or lurkingnf hazard emerges a legal 

duty to warn incumbent upon defendant landowner. Our finding that 

the fence was not a "hidden or lurkingv1 hazard absolves us of the 

need to rule on this issue. Without a hidden hazard, there exists 

no duty to warn of one. In conclusion, we hold that the defendant 

did not breach any duty owed plaintiff and was entitled to summary 

judgment as a matter of law under Rule 56(c), M.R.Civ.P. We 

therefore affirm the order of the District Court. 

We concur: 

Chief Justice