No. 95-288 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1996 

SHIRLEY CALDER, 

Plaintiff and Appellant, 

v. 

CARL ANDERSON and BONNIE ANDERSON, 

Defendants and Respondents. 

APPEAL FROM: District Court of the First Judicial District, 

In and for the County of Lewis and Clerk, 

The Honorable Dorothy McCarter, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Gene A. Picotte, Attorney at Law, 

Helena, Montana 

For Respondents: 

G. Curtis Drake, Keller, Reynolds, Drake, 

Johnson & Gillespie, Helena, MT 59601 

Filed: 

Submitted on Briefs: February 8, 1996 

Decided: February 26, 1996 
Justice Terry N. Trieweiler delivered the opinion of the Court. 

The plaintiff, Shirley Calder, filed a complaint in the First 

Judicial District Court in Lewis and Clark County in which she 

alleged that her landlords, Carl and Bonnie Anderson, were 

negligent. Andersons moved for summary judgment and the District 

Court granted their motion. We reverse the judgment of the 

District Court. 

The issue on appeal is whether the District Court erred when 

it granted summary judgment. 

FACTUAL BACKGROUND 

In March 1994 Shirley Calder and her husband rented an 

apartment from Carl and Bonnie Anderson. A set of steps leads from 

the entrance of the Calders' apartment to a sidewalk which leads to 

the tenants' parking area. The tenants' parking area consists of 

gravel and dirt and is located near one side of the sidewalk. 

In her complaint, Calder alleged that on the afternoon of 

May 3, 1994, she exited her apartment, descended the staircase, and 

fell on the sidewalk at the base of the steps. She alleged that as 

a result of the fall, she sustained injuries to her lower back, 

hip, neck, and shoulder, and required hospitalization for three and 

one-half days. 

Calder also stated in her complaint that the Andersons 

negligently failed to maintain the sidewalk in a safe condition and 

violated s 70-24-303, MCA, in the following manner: 

At all times material herein defendants negligently 

failed to keep said common area, to wit: Said concrete 
walk in a clean and safe condition as they were required 

to do by § 70-24-303(l) (c), MCA, and permitted dirt, 

refuse, pebbles and other materials to accumulate and 

remain thereon so that said walk became and remained and 

was at the time of plaintiff's accident and injuries 

hereinafter alleged dangerous and unsafe to walk upon. 

The Andersons answered the complaint and denied all allegations of negligence. 

Shirley Calder testified by deposition that on the date of her 

accident she had descended the stairway leading from the door of 

her apartment and stepped onto the sidewalk, where her feet landed 

unexpectedly on rocks or gravel which caused her to skid for some 

distance before her feet flew out from under her and she landed 

face down. She further testified that she knew that she had 

skidded and lost control on small rocks because she felt the rocks 

through the soles of her shoes when she stepped down on them and 

because she and her husband later observed the skid marks caused by 

the rocks where her accident occurred. 

The Andersons moved for summary judgment following Calder's 

deposition. They argued that there was no hidden defect on the 

premises and that they had no duty to warn Calder of the presence 

of gravel on the sidewalk because the gravel would have been 

clearly obvious had she looked. 

The District Court granted the Andersons' summary judgment 

motion. The court found that Calder's injuries were not caused by 

a hidden or lurking danger which would subject the Andersons to 

liability. The court further stated that the rocks on the sidewalk 

would have been obvious to Calder if she had looked at the sidewalk 

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while she walked on it. Finally, the court stated that there was 

no evidence that the Andersons took any affirmative action to 

aggravate or create the alleged hazard, and therefore, that there 

was no basis for finding that they were negligent. 

DISCUSSION 

Did the District Court err when it granted summary judgment? 

This Court reviews a summary judgment order entered pursuant 

to Rule 56, M.R.Civ.P., based on the same criteria applied by the 

district court. BrinkmanandLenonv. P&DLandEnterprises (1994), 263 Mont. 

238, 241, 867 P.2d 1112, 1114. Rule 56(c), M.R.Civ.P., provides 

that summary judgment is proper only when "t-here is no genuine 

issue as to any material fact and . . . the moving party is 

entitled to a judgment as a matter of law." We look to the 

pleadings, depositions, answers to interrogatories, admissions on 

file, and affidavits to determine the existence or nonexistence of 

a genuine issue of material fact. Uhiggv. Jones (Mont. 1995) , 907 

P.2d 937, 940, 52 St. Rep. 1198, 1199. 

We first address the Andersons' contention that because Calder 

failed to cite § 70-24-303, MCA, in opposition to the Andersons' 

motion for summary judgment, she waived its consideration on 

appeal. The Supreme Court of Alaska considered a similar argument 

and, after reviewing Alaska's summary judgment rule, which is 

identical to Montana's, disagreed that the law applicable to a case 

could be waived. Newtonv.A4agill (Alaska 1994), 872 P.2d 1213, 1215. 

That court held that: 

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[E]ven if a litigant does not oppose summary judgment, 

the superior court may grant the motion only if otherwise 

"appropriate" under Rule 56. Weaver Bras., Inc. v. Chappel, 6 8 4 

P.Zd 123, 126 (Alaska 1984). For this reason, this court 

should review the superior court's grant of summary 

judgment under the usual standard of review. 

This court will uphold a summary judgment only if 

the record presents no genuine issues of material fact 

and "the moving party was entitled to judgment on the law 

applicable to the established facts." 

Newton, 872 P.2d at 1215. 

The applicability of the controlling statute was raised in the 

District Court when, in Paragraph IV of her complaint, Calder 

alleged that " [alt all times material herein defendants negligently 

failed to keep said common area, to wit: Said concrete walk in a 

clean and safe condition as they were required to do by § 70-24- 

303(1) Cc), MCA." Paragraph IV of Calder's complaint was 

specifically denied by the defendants' answer. 

Rule 56(c), M.R.Civ.P., provides in relevant part that: 

The judgment sought shall be rendered forthwith if the 

pleadinqs, depositions, answers to interrogatories, and 

admissions on file, together with the affidavits, if any, 

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. 

(Emphasis added.) 

It is clear from Rule 56 that the court must consider 

allegations in the pleadings unless they have been controverted by 

evidence presented by the opposing party. In this case, the 

defendants presented no evidence that the sidewalk was clean and 

safe at the time of Calder's fall and injury. In fact, neither the 

defendants' motion for summary judgment, nor the memorandum that 

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they submitted in support of that motion, addressed a landlord's 

duty to a tenant pursuant to the statute relied on in Calder's 

complaint. Calder's memorandum in opposition to the defendants' 

motion simply responded to the issues raised in the defendants' 

memorandum. 

Once Calder alleged in District Court that the relevant 

statute had been violated and cited that statute to the court and 

opposing counsel, she did not have to re-argue that claim 

repeatedly in order to preserve the claim for appeal and to avoid 

waiver. 

Calder maintains that violation of 5 70-24-303, MCA, 

constitutes negligence per se. This Court has not directly 

addressed this issue. However, when considering identical 

statutory provisions, the Supreme Court of Alaska has held that 

they impose duties different from and greater than those imposed by 

common law. Newton v. Magill (Alaska 1994), 872 P.2d 1213. In that 

case, Darlene Newton, the plaintiff, slipped and fell on a walkway 

which led to the front door of her home which was rented from the 

defendants. Newton, 872 P.2d at 1214. She sued her landlords based 

on her allegation that the walkway was slippery and hazardous and 

that the landlords had a duty to make it safe. Newton, 072 P.2d at 

1214. The trial court dismissed the plaintiff's complaint by 

summary judgment based on its conclusion that it was the 

plaintiff's duty to keep the walkway safe and clean. Newton, 8 72 

P.2d at 1214. The Supreme Court noted that even though according 

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to traditional notions of Alaska common law a landlord has no duty 

to tenants for dangerous conditions on the property, Alaska's 

adoption of the Uniform Residential Landlord and Tenant Act changed 

and added to a landlord's obligations. That court concluded that 

since Alaska's act imposed a duty on the landlord to keep even 

those areas occupied and used by the tenant in a clean and safe 

condition, the landlord had a duty to use reasonable care to 

discover and remedy conditions which presented an unreasonable risk 

of harm, and that included the slippery condition of the walkway. 

Whether the condition was hidden or apparent was irrelevant. 

Newton, 872 P.2d at 1216-18. Based on the facts in that case, the 

Supreme Court of Alaska held that whether the landlord failed to 

exercise reasonable care in light of all the circumstances with 

respect to the condition of the walkway presented an issue of fact 

to be resolved by the jury. Newton, 872 P.2d at 1218. 

Montana, likewise, adopted the Residential Landlord and Tenant 

Act in 1977. Among its provisions is § 70-24-303, MCA. Montana's 

adoption of that Act changed and added to the duties owed by 

property owners to their tenants. 

Since § -303 of the Act was obviously intended by the legislature to be for the benefit and safety of tenants, a landlord's 

failure to comply with the statute is negligent per se. We have 

held that: 

The violation of statutes is negligence as a matter of 

law when the purpose of the statute is to protect a class 

of persons, the plaintiff is a member of that class, and 

the defendant is a person against whom a duty is imposed. 

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Azurev.CityofBillings (1979), 182 Mont. 234, 240-41, 596 P.2d 

460, 464. The purpose of the statute also must be to 

protect against the kind of injury received by the 

plaintiff. Rauh v.Jensen (1973), 161 Mont. 443, 507 P.2d 

520. 

Nehringv.LaCount (1986), 219 Mont. 462, 468, 712 P.2d 1329, 1333. 

Shirley Calder was a member of the class that 5 70-24-303, 

MCA, was intended to protect; Andersons were members of the class 

on whom a duty was imposed; and Calder's slip and fall is the type 

of injury that the statute was designed to prevent. The Supreme 

Court of Michigan has held that violation of a similar statute 

established negligence per se. See Morningstar v. Strich (Mich. 1950) , 

40 N.W.2d 719. We agree with that holding. 

Contrary to the suggestion in the dissenting opinion, neither 

the Newton opinion nor the Morningstar opinion are cited in this 

opinion based on the similarity of the facts in those cases to the 

facts in this case. Newton is cited for the legal proposition that 

the Residential Landlord and Tenant Act creates duties in addition 

to and greater than those imposed on property owners by the common 

law. Morningstar is cited for the proposition that violation of 

statutes which impose duties on a landlord to provide for the 

safety of his or her tenants is negligent per se. The facts of the 

cases are irrelevant. 

Furthermore, the Arizona and Ohio cases cited and relied on in 

the dissenting opinion are of no assistance to us for purposes of 

resolving the issue presented in this case. Neither case applies 
nor interprets a duty similar to the one which exists in Montana 

pursuant to § 70-24-303, MCA, and upon which this opinion is based. 

Finally, the dissenting opinion's reliance on § 70-24- 

321(1) lb), MCA, to suggest that it was actually the tenant's duty 

to maintain the area where Calder fell is misplaced. That section 

of the Residential Landlord and Tenant Act pertains to that part of 

the premises which the tenant actually "occupies and uses." It 

does not pertain to common areas. Common areas are specifically 

addressed in 5 70-24-303(l) (c), MCA, and place the duty of 

maintenance solely on the landlord. 

According to the testimony of Shirley Calder, the sidewalk on 

which she fell was not in a clean and safe condition, and as a 

result, she fell and seriously injured herself. Calder testified 

that on the date of her accident she had descended the stairway 

leading from the door of her apartment and stepped onto the 

sidewalk, where her feet landed unexpectedly on rocks or gravel 

which caused her to skid for some distance before her feet flew out 

from under her and she landed face down. She knew that it was 

small rocks on which she skidded and lost control because she felt 

the rocks through the soles of her shoes when she stepped down on 

them, and she and her husband later observed the skid marks caused 

by the rocks where her accident occurred. Calder's testimony was 

sufficient to raise an issue of fact whether the defendants 

breached their duty owed to her pursuant to the Residential 

Landlord and Tenant Act. 
Whether the condition which caused Calder's injury was "hidden 

or lurking," and whether or not the condition at the bottom of her 

stairway was one she should have been looking for and noticed are 

simply issues to be considered as part of the question of 

contributory negligence. 

The dissenting opinion suggests that it is a proper function 

of this Court to decide as a matter of law when debris allowed to 

remain on a common walkway does or does not violate the obligation 

to keep the area clean and safe. The dissenting opinion suggests 

that the majority opinion has already passed judgment on that 

issue. However, that suggestion is incorrect. The majority 

opinion simply recognizes that pursuant to Article II, Section 26, 

of the Montana Constitution, and 5 26-l-202, MCA, there is a right 

to have issues of fact tried by juries when the parties request a 

jury, or by the district court when the right to jury trial is 

waived. The dissent would have this Court apply that right on a 

sliding scale based on how impressed the members of this Court are 

with the merits of a party's claim or defense. However, to do so 

would substantially blur the distinct functions of the fact finder 

and appellate review. 

For these reasons, we conclude that as landlords the Andersons 

had a duty to keep the area where Calder fell in a clean and safe 

condition. If they failed to do so they were negligent as a matter 

of law. Whether or not the Andersons breached their duty to 

Calder, and the extent to which that breach of duty, if any, was a 

10 
cause of Calder's damages, are issues of fact which must be decided 

by the trier of fact. 

For these reasons, we reverse the order of the District Court 

and remand for further proceedings consistent with this opinion. 

We concur: 
Chief Justice J. A. Turnage, dissenting: 

A cause of action in negligence consists of four elements: 

(1) duty; (2) breach of duty; (3) causation; and (4) damages. 

Hatch v. State Dept. of Highways (1994), 269 Mont. 188, 192, 887 

P.2d 729, 732. While the existence of a duty is a question of law, 

the second element, whether that duty has been breached, is 

normally a question of fact to be determined by the finder of fact. 

Limberhand v. Big Ditch Co. (1985), 218 Mont. 132, 144-45, 706 P.2d 

491, 498. However, when a defect is so slight that no prudent 

person could reasonably anticipate danger from it, but an accident 

happens which could only have been guarded against with extraordinary care and foresight, the question of the defendant's responsibility is one of law. Wiley v. City of Glendive (Mont. 1995), 900 

P.2d 310, 313, 52 St.Rep. 714, 715. 

In the present case, Calder stated by deposition that the 

sidewalk outside her apartment was usually dirty and that renters, 

the mailman, and other persons walking from the graveled driveway 

to the apartment building tracked gravel onto the sidewalk. She 

acknowledged, however, that she had never considered gravel on the 

sidewalk to be a danger to her and had not complained to the 

Andersons about the dirty sidewalk. Nothing in the record supports 

the idea that the few alleged pieces of gravel on the sidewalk in 

this case were either a known hazard or a hidden or lurking danger. 

This Court has acknowledged the rule that universally known 

conditions should not be considered hazards. Luebeck v. Safeway 

stores, Inc. (1968), 152 Mont. 88, 93, 446 P.2d 921, 924. We have 

12 
further recognized that the mere happening of an accident, in 

itself, is not evidence of negligence. Clark v. Norris (1987), 226 

Mont. 43, 48, 734 P.2d 182, 185. The law does not require that for 

every injury there must be a recovery of damages, but only imposes 

liability for a breach of legal duty proximately causing injury. 

Clark, 734 P.2d at 185. 

Can reasonable minds differ on whether pieces of gravel on a 

sidewalk adjoining a gravel parking lot establish a breach of legal 

duty by the property owner? The Court of Appeals of Arizona has 

said "No." Forbes v. Romo (Ariz. App. 1979), 601 P.2d 311 

[Al 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 and obviousness. The . . possessor may 

have reason to expect harm to a visitor from known or 

obvious dangers, for example when the possessor has 

reason to expect that the invitee's attention may be 

distracted, so he will not discover what is obvious, or 

forget what he has discovered, or fail to protect himself 

against it. Since there is no such evidence here, the 

trial court was correct in awarding summary judgment in 

favor of the Romos. 

The very most Forbes has shown is that she 

slipped on a piece of gravel. Neither its size nor the 

length of time it was on the sidewalk has ever been 

shown. The record discloses only this lone, solitary 

piece of gravel on the sidewalk. We do not believe that 

reasonable minds would differ. Forbes has not shown that 

[the lessee of the store1 was negligent. 

Forbes, 601 P.2d at 313-14 

More recently, the Court of Appeals of Ohio affirmed a summary 

judgment that gravel on a walkway next to a gravel parking lot did 

not render the walkway unreasonably dangerous or create liability. 

Gravel on a walkway next to a gravel parking lot or 

driveway is, as held by the trial court, a "minor 

13 
imperfection, commonly encountered and expected." 'ro 

hold defendants liable for such "trivial departures from 

perfection" would be to render them insurers for plaintiff's safety and "the law does not go that far." 

Jones v. H. & T. Enterprises (Ohio App. 9 Dist. 1993), 623 N.E.Zd 

1329, 1333. 

I agree with the reasoning of the Arizona and Ohio courts. I 

conclude that reasonable minds could not differ as to whether the 

presence of a few grains of gravel on a sidewalk next to a gravel 

driveway establishes negligence on the part of the property owner. 

We do not yet live in an eggshell society in which there is a tort 

remedy for every injury. 

The majority opinion, in seeking to establish for the first 

time in Montana an actionable tort under § 70-24-303(l) (c), MCA, 

part of Montana's Residential Landlord and Tenant Act of 1977 

(RLTA) , has created a new liability that the majority opinion rests 

upon negligence per se. In doing so, the majority has stretched 

the RLTA to a point that approaches the mere happening of an 

accident as the basis for a tort claim to be decided by a jury. 

In the State of Montana, on or in our streets, alleys and 

parking lots, owned by property owners and occupied by renters, 

there are to be found inevitably small pieces of gravel. How this 

could be avoided by a property owner defies reasonableness and 

common sense. 

Section 70-24-303(l) (c), MCA, provides: 

(1) A landlord shall: 

(c) keep all common areas of the premises in a clean 

and safe condition[. 1 

14 
The majority has taken this provision of our code and under the 

facts of this case has misapplied it. 

The majority has also ignored provisions of the RLTA that 

place certain obligations and duties upon the tenant of the rented 

premises. Section 70-24-321(l) (b), MCA, provides: 

Tenant to maintain dwelling unit. (1) A tenant 

shall: 

(b) keep that part of the premises that the tenant 

occupies and w as reasonably clean and safe as the 

condition of the premises permitsL.1 [Emphasis added.] 

Calder admits in her brief that she and her husband specifically 

assumed this obligation under their written lease. 

Certainly, if the tenant's obligation is to keep the premises 

reasonably clean and safe as the condition of the premises permits- 

-which is a reasonable provision--we should, as to reasonableness, 

not place any higher duty upon the landlord. The landlord's duty 

should be to keep the premises reasonably clean and safe as the 

condition of the premises permits. 

The majority opinion finds support and comfort in Newton v. 

Magi11 (Alaska 1994), 872 P.2d 1213. I find it informative, 

however, to point out that the facts involved in Newton are 

entirely different from the facts involved in the case before this 

Court. In Newton, the landlord had constructed a wooden walkway 

from the front door of the house, six feet long and five feet wide, 

without a handrail, virtually uncovered, and with no "anti-slip" 

material on its surface. The Alaska premises was located in 

Petersburg, where persistent rains resulted in a constant drizzle 

15 
except in the summer when the rain is intermittent and the wet 

climate fosters the growth of plant organisms on exposed wooden 

boards causing them to become dangerously slippery when wet. 

In Newton the permanent installation of the wooden walkway was 

accomplished by the landlord, who had notice over a long period of 

time of the wet boards and the hazard created for slipping. This 

is an entirely different fact scenario than that before this Court. 

The majority has failed to cite a major, important part of the 

holding in Newton, letting the Alaska court's relevant comments 

slip by. The Alaska court stated: 

The duty of a tenant is to "keep that part of the 

premises occupied and used by the tenant as clean and 

safe as the condition of the premises permit[sl .'I AS 

34.03.120(l). This obligation exists as part of the same 

statute which defines the landlord's obligation to "make 

all repairs and do whatever is necessary to put and keep 

the premises in a fit and habitable condition." AS 

34.03.100(a) (1). It follows that the legislature 

intended these obligations to be reconcilable. Reconciliation can be accomplished by interpreting the tenant's 

duty to pertain to activities such as cleaning, ice and 

snow removal, and other light maintenance activities 

pertaining to the safety of the premises which do not 

involve an alteration of the premises, whereas the 

landlord's duty relates to the physical state of the 

premises. This distinction is suggested by the phrase 

"as the condition of the premises permit[sl II in section 

120(l). 1n context this must refer to the inherent 

physical qualities of the premises. 

. 

. The legislature by adopting the URLTA has 

accepted the policy reasons on which the warranty of 

habitability is based. These are the need for safe and 

adequate housing, recognition of the inability of many 

tenants to make repairs, and of their financial disincentives for doing so, since the value of permanent repairs 

will not be fully realized by a short-term occupant. 

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Our rejection of the general rule of landlord 

immunity does not make landlords liable as insurers.6 

['We do not accept the Newtons' argument that a rule of 

strict liability should govern this case.] Their duty is 

to use reasonable care to discover and remedv conditions 

which present an unreasonable risk of harm under the 

circumstances. Nor does our ruling mean that questions 

as to whether a dangerous condition existed in an area 

occupied solely by the tenant or in a common area, or 

whether the condition WJ.23 apparent or hidden, are 

irrelevant. These are circumstances which must be 

accounted for in customary negligence analysis. They may 

pertain to the reasonableness of the landlord's or the 

tenant's conduct and to the foreseeability and magnitude 

of the risk. In particular, a landlord ordinarily gives 

up the right to enter premises under the exclusive 

control of the tenant without the tenant's permission. 

The landlord's ability to inspect or repair tenant areas 

is therefore limited. In such cases "a landlord should 

not be liable in negligence unless he knew or reasonably 

should have known of the defect and had a reasonable 

opportunity to repair it." Young v. Garwacki, 380 Mass. 

162, 402 N.E.2d 1045, 1050 (1980). 

In our view genuine issues of material fact exist as 

to whether the appellees breached their duty to Darline 

Newton to exercise reasonable care in liaht of all the 

circumstances with respect to the condition of the 

walkway. Determination of whether that duty was breached 

should be left for the trier of fact. 

Newton, 872 P.2d at 1217-18 (emphasis added). 

The majority also cites as support for its opinion the case of 

Morningstar v. Strich (Mich. 1950), 40 N.W.2d 719. This case, 

decided over forty-six years ago in Michigan, is cited by the 

majority as the holding of the Supreme Court of Michigan that 

violation of a "similar" statute established negligence per se. 

However, that case involved a Michigan statute under the State 

Housing maw of Michigan that provided, "every dwelling and all the 

parts thereof including plumbing, heating, ventilating and 

17 
electrical wiring shall be kept in good repair by the owner." 

Morninqstar, 40 N.W.2d at 721. A statute not similar by any 

comparison to 5 70-24-303(l) (c), MCA. 

Further, the facts of the Michigan case have no resemblance to 

the facts of the case before this Court. The Michigan court 

recited the relevant facts as follows: 

The plaintiff was two years and nine months old on 

February 16, 1944, the date of the accident. He was 

playing at the dining room window near the radiator when 

the valve came off. He was so severely scalded that he 

was hospitalized for 76 days. 

Morninqstar, 40 N.W.Zd at 720. 

It is clear from the Morninsstar opinion that a steam radiator 

remained in defective condition for a long period of time with the 

knowledge of the landlord and that this defect permitted live steam 

to escape causing the plaintiff injury. The Michigan court went on 

to state: 

The trial court found that the Hoffman valve 

introduced in evidence had been on the radiator and that 

the accident and injuries to plaintiff resulted from the 

wornout and stripped condition of its threads. He 

further found that some inspection of the heating 

apparatus was made and that the defendant, Henry C. 

Strich, through his agents had notice of the defective 

valve and was negligent in not taking the necessary steps 

to correct the dangerous condition, and that this was the 

proximate cause of the accident. 

Viewing the testimony in the light most favorable to 

plaintiff, the failure of Henry C. Strich, through his 

agent to take the necessary remedial steps to maintain 

the heating system in good repair was the proximate cause 

of the accident, and the motions were properly denied. 

There is no question that Henry G. Strich had notice of 

trouble with the valves and that he came to the house 

with a plumber. The defective condition of the valve in 

question, if it was on the radiator, should have been 

18 
apparent upon the examination of it that either was made 

or should have been made. 

Morninqstar, 40 N.W.2d at 721. 

The facts of the Alaska and Michigan cases are strikingly 

different from the facts in the case before this Court. 

The result of the majority opinion in this case, that negligence per se can be visited upon a property owner renting a 

residential facility and can subject the property owner to a jury 

trial because of a claimed pebble or pebbles of gravel on a 

sidewalk, is stretching the RLTA too far. It gravels me that this 

Court would do so. 

I would hold that the entry of summary judgment for the 

Andersons was correct. 

Chief Justi 

Justice Charles E. Erdmann joins in the foregoing dissent of Chief 

Justice J. A. Turnage. 

Justice 

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