### NO. 81-93 IN THE SUPREME COURT OF THE STATEOF MONTANA 1981

MARY CERECK, Plaintiff and Appellant,

ALBERTSON'S INC., 

### a corporation, and Holiday Village Shopping Center, aMontana corporation, Defendantand Respondent.

Appeal from: District Court of the Eighth Judicial ~istrict, In and for the County of Cascade Honorable Joel G. Roth, Judgepresiding. Counsel of Record: ForAppellant: Hoyt and Trieweiler,Gieat Falls,Montana John Hoyt argued, Great Falls,Montana For Respondent: 

### Church,Harris, Johnson & 

### Williams, Great Falls,

Montana Mike Anderson argued and Cresap S. McCracken argued,

Great Falls,Montana



## NQV25

## t9Vt Filed: - 

### Submitted: September 22, 

### 1981 Decided: 

### ROV251%

// I I w 

### ClerkMr. Chief Justice Frank I. Haswelldelivered the Opinion of the Court. In a damage action by a customer who slipped, felland



### was injured on business premises, the District Court of Cascade County granted summary judgment to defendants. Plaintiff appeals. We reverse. On February 25, 1979, a 

### warm February day, Mrs. Cereck and herhusband travelled by automobile to the HolidayVillage Shopping Center inGreat Falls, Montana, 

### to do 

### some shopping atthe Albertsonls grocery 

### store. It had snowed inGreat Falls prior 

### to February 25 and the

snow in the parking lot located north of the Albertsonls 

### store had been plowed off the lotand pushed up along the north edge of the store, forming a snow bank several feethigh. A passageway had been shoveled through the snowbank 

### to enable pedestrians to walk from the parking lot through the snowbank to the eastern entrance of the Albertson's store. Mrs. Cerecklshusband parked the 

### car immediately 

### westof the shoveled passageway. Mrs. Cereck got out of the 

### car, walked around behind it and approached the passageway. She observed a water-puddle in the passageway and believing she could not step
over it, she started over the snowbank 

### to the right side of it. While attempting 

### to 

### so make her way forward, she 

### lost her footing, slipped, fell, and injured her leftleg and hip. She


### was hospitalized for the injuries she sustained in the falland



### was unable 

### to work for several months. Holiday Village Shopping Center 

### was responsible formaintaining the parking 

### lot 

### area. The shopping center's manager 

### was
aware that a snowbank existed along the north side of the Albertson's store as a result of the snow plowing activities which had been conducted in the parking lot area. A janitorial servicehad been hired by the shopping center 

### to keep the shopping center entrances, including the entrance 

### to the Albertsonls store, freeof 

### ice and snow buildup. Thisjobincluded cutting passageways through the snowbanks 

### to allow customers access 

### to the storeentrances. It 

### also included the removal of 

### water and the spreading of ice melt at the 

### store entrances when necessary. The Albertsonvs

### store personnel had alsohelped maintain the walkways leading to the entrancesof the Albertsonv 

### s store. The issue on appeal is whether the District Court erred ingranting the defendantsvmotion for summary judgment

# . The purpose of the summary judgment procedure is 

### to encourage judicial economy by eliminating unnecessary 

### trials, and it 

### is proper under Rule 56(c),M.R.Civ.P., onlywhen there is no genuine issue of material fact and the moving party is entitled to a judgment as a 

### matter of 

### law. Reaves v. Reinbold (1980), Mont

# . ,615 P.2d 896, 37 St.Rep. 1500. It 

### is 

### wellestablished that a partymoving for summary judgment has the burden of showing a complete absence of any genuine issue 

### as to all factsdeemed material in lightof the substantive principles thatentitle thatparty 

### to a judgment as a 

### matter of 

### law. Reaves, supra; Harland v. Anderson (1976), 169Mont. 447, 548 P.2d 613; Bahm v. Dormanen (1975), 168Mont. 408, 543 P.2d 379. All

### reasonable inferences thatmay be drawn from the offered proof


### are to be drawn in favor of the party opposing the summary judgment. Reaves, supra; Mally

### v. Asanovich (1967), 149Mont. 99, 423 P.2d 294. When a duty is imposed upon the defendant and the plaintiffIsallegations, if proven, would support a finding of a breach of the duty, summary judgment is improper. Rennick v. Hoover (1980), Mont

# . r 606 P.2d 1079, 37 St.Rep. 308. InMontana the duty imposed upon a property owner dependsupon the statusof the injured party on the premises. In this

### case Mrs. Cereck

### was a business invitee. Montana 

### cases have held that the property owner's duty toward an invitee is 

### to use ordinary

### care to keep the premises reasonably 

### safe and to warn the invitee of any hidden or lurking dangers; the duty is satisfied if the condition 

### is obvious or actuallyknown. Rennick, supra; Luebeck v. Safeway Stores, Inc. (1968)1 152Mont. 88, 446 P.2d 921. Regedahl v. Safeway Stores, Inc. (1967), 149Mont. 229, 425 P.2d 335. Several Montana 

### cases have involved inj uries 

### to invitees caused by icyconditions, and thisCourt has held that there is no liability imposed upon the landowner where the danger created by the elements such 

### as the forming of 

### ice and the falling of snow is universally known or actuallyknown. Rennick, supra; Dunham



### v. SouthsideNational Bank (1976), 169Mont. 466, 548 p.2d 1383; Luebeck, supra. The following statement from Crawford v. Soennichsen (1963), 175Neb. 87, 120N.W.2d 578, 

### was cited with approval by thisCourt inLuebeck, supra:

"I[Tlhe 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 wellknown to the plaintiff 

### as the defendant. 

### " InLuebeck, this Court specificallyrejected the rationale that natural conditions such as obvious snow and 

### ice create such

an unreasonablydangerous condition 

### as 

### to require the landowner to take certainprecautions. The icyconditions discussed inthe 

### cases cited above 

### were natural conditions caused by the elements. The case before us differs in that the natural accumulation of 

### ice and snow had been altered. The plaintiff contends that the hazard created by the natural accumulation of ice and snow was increased when the snow 

### was piled near the 

### store entrance. InWillisv. St. Peter's Hospital (1971), 157Mont. 417,486 P.2d 593, a patrolman brought an action for injuries sustained when he allegedly slipped on an accumulation of ice and

snow near a hospital s emergency entrance. This Court held that the granting of summary judgment 

### was improper in that 

### case and stated that one question for the jury 

### to decide 

### was whether the slipperycondition of the snow and ice 

### was the result of a natural accumulation 

### or the result of the defendant's carelessness. A property owner may be held liable for fallson accumulations of 

### ice and snow where the hazard created by the natural accumulation is increased or a new hazard 

### is created by an affirmative act of the property owner; even where such a condition is actuallyknown 

### or obvious, a property owner may be held liable if he should have anticipated that injurieswould result from the dangerous condition. Rennick, supra; Restatement (Second) of Torts, S 343A (1)(1965). Mrs. Cereck claims that defendants' affirmative acts increased the hazard caused by the natural accumulation of snow and ice and that the defendants should have anticipated the injuries that resulted. The partyopposing summaryjudgment is entitled 

### to the benefit of all reasonable inferences thatmay be drawn from the offered proof. In this case it may reasonably be inferred that the piling of snow in frontof the store entrance increased the hazard created by the natural accumulation of snow and ice and that the defendants should have anticipated the injuries that Mrs. Cereck received as a result of the dangerous condition. Since the claim made by Mrs. Cereck would support a finding of breach of defendantst duty toward her, the granting of summary judgment 

### was improper. Reversed and remanded for 

### trial.Chief Justice 

### \



# su- -----------------Mr. JusticeFrank B. Morrison, Jr., concurs: I concur inthe result, but not inallthat is said therein. Specifically thisCourt has begun to depart from "status" indetermining the degree of care owed by a property owner. See Corrigan v. Janney (1981),Mont., 626 P.2d 838, 38 St.Rep. 545. The plaintiff, Mrs. Cereck, need not enjoy the statusof invitee inorder torecover. A general duty of due care isowed. The majority opinion confines property owner liability for natural accumulations of iceand snow to those situations where the property owner has increased or changed the hazard through some affirmative act. I would adopt Section 343 A. (1)Restatement (Second) of Torts (1965)which provides as follows: "A possessor of land isnot liable tohis invitees for physical harm caused to them by any activity or condition on the land whose danger isknown or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness." Admittedly, the restatement rule is applicable to invitees. However, though I would not recognize status in "land possessor's liability," I feel the rule to be applicable to facts such as those atbar. Inmy opinion, the restrictive ratio decidendi of this

case isinadequate tomeet situations such as failure to plow. If the parking lotinquestion had not been maintained inany fashion, and snow were allowed to accumulate so that customers were required towade through knee deep snow, no duty would be owed by the possessor under the rule adopted by the majority. Those who do nothing incur no liability. Those who plow their parking lotsareexposed.I believe such a restrictiveduty does not adequately recognize the responsibilities owed by the business community, does not adequatelyprotect a public dependent upon the servicesprovided by thatcommunity, and does notpromote sound public policy. For the foregoing reasons, I concur inthe resultbut would adopt different legal principles to sustain the same outcome.