NO. 81-93 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1981 

MARY CERECK, 

Plaintiff and Appellant, 

ALBERTSON'S INC., a corporation, 

and Holiday Village Shopping Center, 

a Montana corporation, 

Defendant and Respondent. 

Appeal from: District Court of the Eighth Judicial ~istrict, 

In and for the County of Cascade 

Honorable Joel G. Roth, Judge presiding. 

Counsel of Record: 

For Appellant: 

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 

NQV 2 5 t9Vt Filed: - 

Submitted: September 22, 1981 

Decided : ROV 2 5 1% 

// I I w Clerk 
Mr. Chief Justice Frank I. Haswell delivered the Opinion of 

the Court. 

In a damage action by a customer who slipped, fell and 

was injured on business premises, the District Court of 

Cascade County granted summary j udgment to defendants. 

Plaintiff appeals. We reverse. 

On February 25, 1979, a warm February day, Mrs. Cereck and 

her husband travelled by automobile to the Holiday Village 

Shopping Center in Great Falls, Montana, to do some shopping 

at the Albertsonl s grocery store. 

It had snowed in Great Falls prior to February 25 and the 

snow in the parking lot located north of the Albertsonls store 

had been plowed off the lot and pushed up along the north edge of 

the store, forming a snow bank several feet high. 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. Cereckls husband parked the car immediately west of 

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 left leg and hip. She 

was hospitalized for the injuries she sustained in the fall and 

was unable to work for several months. 

Holiday Village Shopping Center was responsible for maintaining 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 

service had been hired by the shopping center to keep the 

shopping center entrances, including the entrance to the 

Albertsonls store, free of ice and snow buildup. This job 
included cutting passageways through the snowbanks to allow 

customers access to the store entrances. It also included the 

removal of water and the spreading of ice melt at the store 

entrances when necessary. The Albertsonvs store personnel had 

also helped maintain the walkways leading to the entrances of the 

Albertsonv s store. 

The issue on appeal is whether the District Court 

erred in granting the defendantsv motion for summary 

j udgment . 

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., only when 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 well established that a party moving for summary judgment has the burden of showing a complete absence 

of any genuine issue as to all facts deemed material in 

light of the substantive principles that entitle that party 

to a judgment as a matter of law. Reaves, supra; Harland v. 

Anderson (1976), 169 Mont. 447, 548 P.2d 613; Bahm v. 

Dormanen (1975), 168 Mont. 408, 543 P.2d 379. All reasonable inferences that may 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), 149 Mont. 

99, 423 P.2d 294. 

When a duty is imposed upon the defendant and the 

plaintiff Is allegations, 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. 

In Montana the duty imposed upon a property owner depends 
upon the status of 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 

actually known. Rennick, supra; Luebeck v. Safeway Stores, 

Inc. (1968) 1 152 Mont. 88, 446 P.2d 921. Regedahl v. 

Safeway Stores, Inc. (1967), 149 Mont. 229, 425 P.2d 335. 

Several Montana cases have involved inj uries to invitees 

caused by icy conditions, and this Court 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 actually known. Rennick, supra; Dunham 

v. Southside National Bank (1976), 169 Mont. 466, 548 p.2d 1383; 

Luebeck, supra. 

The following statement from Crawford v. Soennichsen 

(1963), 175 Neb. 87, 120 N.W.2d 578, was cited with approval by 

this Court in Luebeck, 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 well known to the 

plaintiff as the defendant. " 

In Luebeck, this Court specifically rejected the rationale 

that natural conditions such as obvious snow and ice create such 

an unreasonably dangerous condition as to require the landowner 

to take certain precautions. 

The icy conditions discussed in the 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. 

In Willis v. St. Peter's Hospital (1971), 157 Mont. 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 

slippery condition 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 falls on 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 

actually known or obvious, a property owner may be held liable if 

he should have anticipated that injuries would result from the 

dangerous condition. Rennick, supra; Restatement (Second ) of 

Torts, S 343A (1) (1965). 

Mrs. Cereck claims that defendants' af f irmative 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 party opposing summary judgment is entitled to the 

benefit of all reasonable inferences that may be drawn from the 

offered proof. In this case it may reasonably be inferred 

that the piling of snow in front of 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 j udgment was improper. 

Reversed and remanded for trial. 
Chief Justice \ 

su- - - --------------- 
Mr. Justice Frank B. Morrison, Jr., concurs: 

I concur in the result, but not in all that is said 

therein. 

Specifically this Court has begun to depart from "status" 

in determining 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 

status of invitee in order to recover. A general duty of 

due care is owed. 

The majority opinion confines property owner liability 

for natural accumulations of ice and 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 is not liable to his 

invitees for physical harm caused to them 

by any activity or condition on the land 

whose danger is known 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 at bar. 

In my opinion, the restrictive ratio decidendi of this 

case is inadequate to meet situations such as failure to 

plow. If the parking lot in question had not been maintained 

in any fashion, and snow were allowed to accumulate so that 

customers were required to wade 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 lots are exposed. 
I believe such a restrictive duty does not adequately 

recognize the responsibilities owed by the business community, 

does not adequately protect a public dependent upon the 

services provided by that community, and does not promote 

sound public policy. 

For the foregoing reasons, I concur in the result but 

would adopt different legal principles to sustain the same 

outcome.