No. 13279 

IN THE 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: hbc 24 ,sln 

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

This is an appeal from an order and final judgment of the 

district court, Yellowstone County,granting defendants' motion 

for summary judgment and decreeing that judgment be entered 

in favor of defendants and against plaintiff. The sole issue 

on appeal is whether 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 at the 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, at approximately 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. 

At the time of the accident plaintiff and two friends were 

engaged in an activity where they would take turns riding their 

stingray bicycles beneath the monkey bar, reaching up and grabbing 

the horizontal bar, while swinging off their bicycles, allowing 

the bicycles to continue in a forward direction. On the fifth or 

sixth occasion on which plaintiff engaged in this activity on 

the day in question, plaintiff grabbed the horizontal bar as 

he rode beneath it on his bicycle, but his hands slipped and he 

fell to the asphalt surface, striking the right rear side of his 

head, fracturing his skull. 

In his complaint plaintiff contends defendants were negligent 

in maintaining 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 apparatus 
was 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 limit access 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 

contributory negligence and assumption of the risk. 

Subsequent to the filing of plaintiff' s complaint and 

defendants' answer, motions were filed, interrogatories were 

submitted and answered, stipulations were filed and depositions 

were taken. On March 20, 1975, defendants filed a motion for 

summary judgment asserting there were no genuine issues as to 

any material facts and defendants were entitled to judgment as a 

matter of law. Plaintiff took additional depositions and briefs 

were filed in support of and in opposition to the motion for 

summary judgment. On August 29, 1975, the district court issued 

its order granting defendants ' motion for summary judgment 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. In pertinent part Rule 56 

provided : 

"(c) MOTION AND PROCEEDINGS THEREON. * * * 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. * * *" 

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 contributory negligence, are 

ordinarily not susceptible of summary adjudication 

either for or against the claimant, but should be 

resolved by trial in the ordinary manner." 
See: Mally v. Asanovich, 149 Mont. 99, 423 P.2d 294 (1967). 

However, where the district court finds it appropriate to 

grant a defendant's motion for summary judgment in a negligence 

action, the moving party must clearly establish there are no 

genuine issues of material fact and the moving party is entitled 

See 

to judgment as a matter of law. /~arland v. Anderson, 169 Mont. 

447, 548 P.2d 613, 33 St. Rep. 363 (1976), for a discussion of 

summary judgment 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. Since we do not have the benefit of the district court's 

rationale, we will examine 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 for plaintiff to recover against 

defendants on a negligence theory plaintiff must establish a 

duty of care owed the plaintiff by defendants. Any duty of care 

is determined by the relationship between plaintiff and the school 

district at the 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 or by sufferance, but only for his 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 or wanton negligence. Furthermore, even if the doctrine of 
.attractive nuisance is applicable, plaintiff has failed to 

establish elements of the doctrine and as a matter of law 

defendants are entitled to summary judgment. 

We note defendants' interest in distinguishing plaintiff's 

status at the time of the accident. If the child could recover 

if he were trespassing he would be in no 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 to understand and appreciate the purported danger 

and to the child's propensity for meddling. See: Ranard v. 

OINeil, 166 Mont. 177, 531 P.2d 1000; 62 Am.Jur.2d Premises 

Liability, 5 143. 

The American. Law Institute drafted 5 339, Restatement, 

Second, Torts, that section departed from the theory of allurement 

to trespass and treated the rule as one of ordinary negligence 

liability. Restatement, Second, Torts 5339, provides: 

"339. Artifical Conditions Highly Dangerous To 

Trespassing Children. 

"A possessor of land is subject to liability for 

physical harm to children trespassing thereon 

caused by an artificial condition upon the land if 

"(a) the place where the condition exists 

is one upon which the possessor knows or has 

reason to know that children are likely to 

trespass, and 

"(b) the condition is one which the possessor 

knows or has reason to know and whdch he 

realizes or should realize will involve an unreasonable risk of death or serious bodily 

harm to such children, and 
"(c) the children because 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 fails to 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 attractive nuisance rule previously in effect. 

Gagnier v. Curran Const. Co., 151 Mont. 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 attractive nuisance." 

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 is premised 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 serious bodily harm. While defendants admit 

there is some risk of bodily harm attributed to activity 

involving the monkey bar apparatus, they conclude it is not 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 to which he was exposed or that 

plaintiff did in fact understand and appreciate the condition, 

but nevertheless exposed himself to it. 
Defendants summarize their argument by listing three 

criteria which purportedly entitle defendants to judgment 

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 to an eleven year old boy. 

2. As a matter of law, an eleven year old boy of the 

intelligence of plaintiff should have perceived the danger of 

falling and hurting himself. 

3. Plaintiff did perceive the danger of falling and hurting 

himself. 

We note defendants' conclusions of law are based 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 fact which 

5339 considers. Our inquiry at this juncture is whether the 

plaintiff's ability or failure to establish the elements of 

5339 is a question of fact or a question of law. 

Our research mrraled 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 the jury to determine. MacNeil v. Perkins, 

84 Ariz. 74, 324 P.2d 211; Greene v. DiFazio, 148 Conn. 419, 

171 A. 2d 411; Ridgewood Groves, Inc. v. Dowel1 (Fla.App.) , 189 

So.2d 188; Harris v. Mentes-Williams Co., 11 N.J. 559, 95 A.2d 

388; Clifton v. Patroon Operating Corp., 271 App.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 of material fact 

which remain unresolved and act to defeat defendants' motion 

for summary judgment. An example of such a fact question is 

whether the school custodian's observation of the children's 

afterschool activities on the monkey bar apparatus put defendants 

on notice children were engaging in activities involving a risk 

of serious bodily harm. This issue concerns subparagraphs (a) 

and (b) of 5 339 which 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 condition by 

procuring protective ground coverings, which are manufactured 

for use beneath playground 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 5339 which balances the utility of 

the possessor maintaining the condition and the burden of 

eliminating the danger, as compared to the risk of harm. 

We find genuine issues of material fact exist. Such a 

holding defeats defendants' conclusion that no genuine issues 

of material fact remain to be determined and defendants are 

entitled to judgment as a matter of law. 

Defendants rely heavily on Callahan v. Buttrey, 186 F.Supp, 

715 (D.C.Mont. 1960), affirmed 300 F.2d 899 (9th Cir. 1962), 

for the proposition that whether the conditions of Restatement, 

Second, Torts 5339 have been met is a question of law. We distinguish Callahan from the present case. In Callahan a seven 

year old boy was attempting to recover against landlords for 
injuries sustained when the boy fell from a second story roof 

deck to asphalt paving below, The deck was protected by a 

guardrail which plaintiff alleged was negligently constructed. 

At the 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 to return a verdict, the jury was 

discharged. Defendants then moved the court for judgment 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 at the time 

the jury failed to return a verdict was to review the sufficiency 

of the evidence in determining whether the motion for directed 

verdict had merit. In weighing the sufficiency of the evidence 

the court was sitting the trier of fact as well as the trier 

of law. The concluding paragraph of the opinion supports the 

position that, had the jury been able to arrive at a verdict 

or had the trial judge seen fit to grant a new trial, questions 

of fact would have properly been determined by the jury and 

not by the judge: 

"I am unable to find that Joe's injury was proximately 

caused by the breach of any duty owed to him by the 

defendants. The motion for directed verdict accordingly 

must be granted. Prior to submission to the jury, it 

seemed advisable to defer a ruling on the legal questions 

herein discussed. Now that the jury has failed to agree, 

no useful purpose would be served by a retrial prior to 

final determination of the questions considered Yn this 

opinion. If my conclusions are erroneous and the appellate 

court should order a new trial, all issues may then be 

submitted to the jury in accordance with the views of 

the appellate court ." 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: 
I1 In essence, the opinion held that under Montana 

law there was no evidence that the defendants 

breached a duty owing to Joe. The trial judge 

thought the facts did not lay the basis for liability 

either outside or within the attractive nuisance 

doctrine." 300 F.2d 899, 900. 

Thus, we distinguish this federal case where the trial 

court ruled on the sufficiency of the evidence in deciding the 

merit of a motion for directed verdict and the instant case 

where the district court granted a motion for summary judgment 

when genuine issues of material fact remained to be decided 

and the moving party was not entitled to a judgment as a matter 

of law. 

Therefore, the order and judgment of the district court 

is reversed and the cause is remanded for trial on the merits, 

consis tent with this opinion. 
We Concur: 

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Chief Justice t, / 1 

Mr. Justice John Conway Harrison dissenting: 

I dissent.