No. 13279 INTHE SUPREME COURT OF THE STATE OF MONTANA 1977

THOMAS MASCARENA, a Minor Child and URBAN0 TORRES, guardian and litem, Plaintiff and Appellant,

-vsDARRELL BOOTH et al., Defendants and Respondents.

Appeal from: District Court of the Thirteenth Judicial District, Honorable Robert PJilson, Judge presiding. Counsel of Record: For Appellant: Cate, Lynaugh, Fitzgerald & Huss, Billings, Montana Thomas Lynaugh argued, Billings, Montana For Respondents: Crowley, Kilbourne, Haughey, Hanson and Gallagher,

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

Submitted: March 18, 1977 Decided:

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Filed: J3\j i' " I)!Mr.'Justice Gene B. Daly delivered the Opinion of the Court.

This 

### isan appeal from an order and finaljudgment of the district court, Yellowstone County,granting defendants' motion for summaryjudgment and decreeing thatjudgment be entered in favor of defendants and against plaintiff. The sole issue

on appeal 

### iswhether defendants are entitled to summary judgment considering the underlying question of whether 339(b)(c)

## , Restatement, Second, Torts, presentsquestions of law or fact. Plaintiff, an eleven year old child atthe time this action arose, and his grandfather, the child's duly appointed guardian ad litem, filed a complaint in the district court alleging that

on September 

### 1;?, 1973, atapproximately 6:00 p.m., plaintiff slipped from a monkey bar or parallel bar apparatus located at Orchard School, within School District No. 

### 2, Billings, Montana. Atthe time of the accident plaintiff and two friendswere engaged inan activitywhere they would take turns riding their stingraybicycles beneath the monkey bar, reaching up and grabbing the horizontal bar, while swinging off theirbicycles, allowing the bicycles to continue in a forward direction. On the fifthor sixthoccasion on which plaintiff engaged in this activity on the day inquestion, plaintiff grabbed the horizontal bar as he rode beneath it on hisbicycle, but hishands slipped and he felltothe asphalt surface, striking the right rear side of his head, fracturinghis skull. Inhis complaint plaintiff contends defendants were negligent inmaintaining a monkey bar or parallel bar apparatus anchored in

an asphalt surface and in allowing such a dangerous condition to exist on school premises in an area where defendants knew the apparatuswas freely accessible to children. Plaintiff further contends defendants were negligent in failing to supervise and control the use of the monkey bar or parallel bar apparatus and in failing to limitaccess to the apparatus during after-school hours. ~efendants' answer generally denied plaintiff's allegations, specifically denying any negligence on the part of the Board of Trustees and asserted the affirmative defenses of contributorynegligence and assumption of the risk. Subsequent to the filing of plaintiff'

### s complaint and defendants' answer, motions were filed, interrogatories were submitted and answered, stipulationswere filed and depositions

were taken. On March 20, 1975, defendants filed a motion for summary judgment asserting therewere no genuine issues as to any material facts and defendants were entitled tojudgment asa matter of law. Plaintiff took additional depositions and briefs

were filed in support of and inopposition to the motion for summary judgment. On August 29, 1975, the district court issued 

### its order granting defendants

## ' motion for summaryjudgment and judgment was entered in favor of defendants on September 4, 1975. Rule 56, M.R.Civ.P. 

### is controlling on the granting or denial of a motion for summary judgment. Inpertinent part Rule 56 provided: "(c) MOTION AND PROCEEDINGS THEREON. 

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

# ***" The general rule of law as stated in 6 Pt.2 Moore's Federal Practice 756.17 [42], p. 56-946, 

### is that: 

# "*** issues of negligence, including such related issues as wanton or contributorynegligence, are ordinarilynot susceptible of summary adjudication either for or against the claimant, but should be resolved by trialin the ordinarymanner."See: Mally v. Asanovich, 149Mont. 99, 423 P.2d 294 (1967). However, where the district court finds it appropriate to grant a defendant's motion for summaryjudgment ina negligence action, the moving party must clearly establish there areno genuine issues of material fact and the moving party 

### is entitled See tojudgment as a matter of law. /~arland v. Anderson, 169Mont. 447, 548 P.2d 613, 33 St. Rep. 363 (1976), for a discussion of summaryjudgment under Rule 56(c), M.R.Civ.P. This Court notes here that the district court failed to issue any opinion or memorandum of decision in support of 

### its ruling in the instant

case. Sincewe do not have the benefit of the district court's rationale, we willexamine defendants' briefs in support of the motion for summary judgment and from them determine those arguments asserted in support of the motion. Defendants contend that forplaintiff to recover against defendants on a negligence theory plaintiff must establish a duty of care owed the plaintiff by defendants. Any duty of care isdetermined by the relationshipbetween plaintiff and the school district atthe time of the accident, i.e., the status of the plaintiff while playing on the school ground after school hours, Defendants assert that from the three possibilities of status

# - trespasser, licensee and invitee, plaintiff stands as
a licensee, i.e,, one who enters the property by implied permission orby sufferance, but only forhis own pleasure, convenience

or benefit. Defendants contend that absent application of the doctrine of attractive nuisance, defendants would not be liable for plaintiff's injuries since, under Montana law, a landowner's duty of care to a licensee 

### is simply to refrain from acts of willful orwanton negligence. Furthermore, even if the doctrine of.attractivenuisance 

### is applicable, plaintiff has failed to establishelements of the doctrine and as a matter of law defendants are entitledto summary judgment. We note defendants' interest indistinguishing plaintiff's status atthe time of the accident. If the child could recover ifhe were trespassing he would be inno worse position if he were a licensee or an invitee on the premises. The effect is that consideration must be given to the child's ability

or inability tounderstand and appreciate the purported danger and to the child's propensity formeddling. See: Ranard v. OINeil, 166Mont. 177, 531P.2d 1000; 62 Am.Jur.2d Premises Liability, 

### 5143. The American.Law Institutedrafted

### 5339, Restatement, Second, Torts, that sectiondeparted from the theory of allurement to trespass and treated the rule asone of ordinary negligence liability. Restatement, Second, Torts 5339, provides: "339. Artifical Conditions Highly Dangerous To Trespassing Children. "A possessor of land 

### is subject to liabilityfor physical harm tochildren trespassing thereon caused by an artificialcondition upon the land if "(a) the placewhere the condition exists 

### is one upon which the possessor knows orhas reason toknow that children are likely to trespass, and "(b) the condition 

### isone which the possessor knows orhas reason toknow and whdch he realizes or should realize willinvolve an unreasonable riskof death or seriousbodily harm to such children, and"(c) the childrenbecause of their youth do not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it, and "(d) the utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved

## ,and 

## ''(e) the possessor failsto exercise reasonable care to eliminate the danger or otherwise to protect the children

# ." Restatement, Second, Torts, 5339 was adopted by Montana as part of the attractivenuisance rule previously ineffect. Gagnier v. Curran Const. Co., 151Mont. 468,'443 P.2d 894; Nichols 

### v. Consolidated Dairies of Lake County, Inc., 125 

# g Mont. 460, P.2d \ Defendants contend "substantial questions exist as to several of the elements of the doctrine of attractivenuisance." Defendants insist "elements (b) and (c) [of $3391 do not exist

as a matter of law and consequently the defendants were entitled to summary judgment1,' since recovery 

### ispremised on plaintiff establishing each of the elements. Subparagraph (b) of 9339 requires the condition to be one which involves an unreasonable risk of death or seriousbodily harm. While defendants admit there 

### is some risk of bodily harm attributed to activity involving the monkey bar apparatus, they conclude it 

### isnot an unreasonable risk of death or serious bodily harm. Defendants further argue subparagraph (c) of 

### 5339 requires that the child not discover the condition or realize the risk involved. In the instant case, defendants contend plaintiff

was of such an age or mentality that he should, or could reasonably be expected to, understand, appreciate and avoid the danger

or hazard of the condition towhich he was exposed or that plaintiff did in factunderstand and appreciate the condition, but nevertheless exposed himself to it.Defendants summarize their argument by listing three criteriawhich purportedly entitle defendants tojudgment

as a matter of law: 

### 1. The monkey bar apparatus, as it existed on the day of the accident, did not, as a matter of law, involve an unreasonable risk of death or serious bodily harm toan eleven year oldboy. 2. As a matter of law, an eleven year oldboy of the intelligence of plaintiff should have perceived the danger of fallingand hurting himself. 3. Plaintiff did perceive the danger of falling and hurting himself. We note defendants' conclusions of law arebased upon determinations of fact involving the character of the instrumentality which caused the injury and plaintiff's ability to observe, understand, appreciate and avoid the danger of the instrumentality. These are the very questions of factwhich 5339 considers. Our inquiry atthisjuncture 

### iswhether the plaintiff's abilityor failure to establish the elements of 5339 

### isa question of fact or a question of law. Our researchmrraled the majority of jurisdictions which have considered this question concluded that whether the conditions of Restatement, Second, Torts 5339 were met 

### is a question of fact for thejury todetermine. MacNeil v. Perkins, 84 Ariz. 74, 324 P.2d 211; Greene v. DiFazio, 148Conn. 419, 

### 171A.2d 411; Ridgewood Groves, Inc. v. Dowel1 (Fla.App.) 

## , 189 So.2d 188; Harris v. Mentes-Williams Co., 11N.J. 559, 95 A.2d 388; Cliftonv. Patroon Operating Corp., 271App.Div. 122, 63 N.Y.S.2d 597; Stanolind Oil& Gas Co. v. Jamison, 204 Okla. 93, 227 P.2d 404, 23 ALR2d 1141; Nechodomu v. Lindstrom, 273 Wis.313, 

### 77 N.W.2d 707, 62 ALR2d 884, rehoden. 273 Wis. 327a, 78 N.W.2d 417, 62 ALR2d 

### 896.

### Furthermore,we find additional questions ofmaterial fact which remainunresolved and act to defeat defendants' motion for summary judgment. An example of such a fact question is whether the schoolcustodian's observation of the children's afterschoolactivities on the monkey bar apparatus put defendants

on notice childrenwere engaging in activities involvinga risk of serious bodily harm. This issue concerns subparagraphs (a) and (b) of 5339which seek a determination of the land possessor's knowledge of the presence of the trespassing children and realization the dangerous condition exists. Another factual question to be resolved is whether the burden of defendants eliminating the dangerous conditionby procuring protective ground coverings,which aremanufactured for use beneathplayground equipment,was slight as compared to the risk of children being injured by defendants maintaining the monkey bar apparatus in its present condition. This issue concerns subparagraph (d) of 5339whichbalances the utility of the possessor maintaining the condition and the burden of eliminating the danger, as compared to the risk ofharm. We find genuine issues ofmaterial fact exist. Such a holding defeatsdefendants' conclusion thatno genuine issues ofmaterial fact remain to be determined and defendants are entitled to judgment as amatter of law. Defendants rely heavily on Callahanv. Buttrey, 

### 186 F.Supp, 715 (D.C.Mont. 1960), affirmed 300F.2d 899 (9th Cir. 1962), for the proposition thatwhether the conditions of Restatement, Second, Torts 5339 have beenmet is a question of law. We distinguish Callahan from the present case. 

### InCallahan a seven year old boy was attempting to recover against landlords forinjuries sustainedwhen theboy fellfrom a second story roof deck to asphalt paving below, The deck was protected by 

### a guardrailwhich plaintiff allegedwas negligently constructed. Atthe close of the evidence defendants moved for a directed verdict and were denied. The court submitted the case to the jury and when the jury failed toreturn a verdict, thejury was discharged. Defendants then moved the court forjudgment in accordance with their motion for directed verdict previously made and denied. The motion was granted and judgment was entered for defendants. After a careful review of Judge Jameson's opinion in Callahan, it 

### is clear the presiding judge's concern atthe time the jury failed toreturn a verdict was to review the sufficiency of the evidence indetermining whether the motion for directed verdict had merit. Inweighing the sufficiency of the evidence the court was sitting the trier of fact aswell as the trier of law. The concluding paragraph of the opinion supports the position that, had thejury been able to arrive ata verdict

or had the trialjudge seen fitto grant a new trial, questions of factwould have properly been determined by thejury and not by thejudge: 

### "I am unable to find that Joe's injurywas proximately caused by thebreach of any duty owed tohim by the defendants. The motion for directed verdict accordingly must be granted. Prior to submission to the jury, it seemed advisable todefer a ruling on the legal questions herein discussed. Now that thejury has failed toagree, no useful purpose would be served by a retrialprior to finaldetermination of the questions considered 

### Yn this opinion. If my conclusions are erroneous and the appellate court should order a new trial, allissuesmay then be submitted to thejury in accordance with the views of the appellatecourt

# ." 186 F.Supp. 715, 

### 723. Our evaluation of the significance of the United States District Court opinion 

### is further supported by the United States Court of Appeals' comment on the district court opinion:I1Inessence, the opinion held that under Montana law there was no evidence that the defendants breached a duty owing toJoe. The trialjudge thought the facts did not lay the basis forliability either outside orwithin the attractivenuisance doctrine." 300 

### F.2d 899, 900. Thus, we distinguish this federal casewhere the trial court ruled on the sufficiency of the evidence indeciding the merit of a motion for directedverdict and the instant case where the district court granted a motion for summary judgment when genuine issues of material fact remained tobe decided and the moving party was not entitled to a judgment asa matter of law. Therefore, the order andjudgment of the district court 

### is reversed and the cause is remanded for trialon the merits, consistent with this opinion.

### We Concur: I /#, #,Z.-->

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# ,&:iC4[,-4d Chief Justice t, 

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Mr. Justice John Conway Harrison dissenting: 

### I dissent.