### No. 95-288 INTHESUPREME

COURTOFTHESTATEOFMONTANA 1996

SHIRLEYCALDER,

Plaintiff andAppellant,

v. CARLANDERSONandBONNIEANDERSON,

Defendants andRespondents.

APPEALFROM: District Court of the First Judicial District,

In andfor the County of Lewis andClerk, TheHonorable Dorothy McCarter, Judgepresiding.

COUNSELOFRECORD:

ForAppellant: GeneA. Picotte, Attorney at Law, Helena, Montana For Respondents: G.Curtis Drake, Keller, Reynolds, Drake, Johnson &Gillespie, Helena, MT 59601

Filed: Submitted onBriefs: February 8, 1996 Decided: February 26, 1996Justice Terry N. Trieweiler delivered the opinion of the Court.

Theplaintiff, Shirley Calder, filed acomplaint 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 onappeal 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 andBonnie Anderson. Aset of steps leads from the entrance of the Calders' apartment to asidewalk which leads to the tenants' parking area. Thetenants' 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, sheexited her apartment, descended the staircase, and fell onthe sidewalk at the base of the steps. Shealleged that as

aresult of the fall, she sustained injuries to her lower back, hip, neck, andshoulder, andrequired hospitalization for three and one-half days. Calder also stated in her complaint that the Andersons negligently failed to maintain the sidewalk in asafe condition and violated s70-24-303, MCA, in the following manner:

At all times material herein defendants negligently failed to keep said common area, to wit: Said concrete

### walk inaclean andsafe condition asthey were required

to do by §70-24-303(l) (c), MCA,andpermitted dirt, refuse, pebbles andother materials to accumulate 

### and remain thereon sothat said walk becameandremained and was at the time of plaintiff's accident and injuries hereinafter alleged dangerous andunsafe to walk upon. TheAndersons answered the complaint anddenied all allegations of negligence. Shirley Calder testified bydeposition that onthedate ofher accident shehaddescended the stairway leading from the door of her apartment andstepped onto the sidewalk, where her feet landed unexpectedly onrocks or gravel which caused her to skid for some 

### distance before her feet flew out from under her andshe landed face down. She further testified that she knew that she had skidded andlost control onsmall rocks because she felt the rocks 

### through the soles of her shoeswhenshestepped downonthem and because sheandherhusbandlater observed the skid marks causedby the rocks where her accident occurred. TheAndersons movedfor summaryjudgment following Calder's deposition. They argued that there wasnohidden defect onthe premises andthat they hadnoduty to warnCalder of the presence of gravel on the sidewalk because the gravel would have been clearly obvious hadshelooked. The District Court granted the Andersons' summaryjudgment motion. 

### Thecourt found that Calder's injuries werenot causedby

ahidden or lurking danger which would subject the Andersons to liability. Thecourt further stated that the rocks onthe sidewalk would havebeenobvious toCalder if shehadlooked at the sidewalk 3while 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 asummary judgment order entered pursuant to Rule 56, M.R.Civ.P., based onthe 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

agenuine issue of material fact. Uhiggv. Jones (Mont. 1995), 907 P.2d 937, 940, 52 St. Rep. 1198, 1199. Wefirst 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 asimilar argument and, after reviewing Alaska's summary judgment rule, which is identical to Montana's, disagreed that the law applicable to acase could bewaived. Newtonv.A4agill (Alaska 1994), 872 P.2d 1213, 1215. That court held that:

4[E]ven if alitigant does not oppose summary judgment,

the superior court maygrant the motion only if otherwise "appropriate" under Rule 56. WeaverBras., Inc.v.Chappel, 684 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 asummary judgment only if the record presents no genuine issues of material fact and "the moving party wasentitled to judgment onthe law applicable to the established facts." Newton, 872 P.2d at 1215. Theapplicability ofthe controlling statute wasraised 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 asthey 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 onfile, together with the affidavits, if any, show that there is nogenuine issue as to any material fact andthat the moving party is entitled to ajudgment as amatter 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 5they submitted in support of that motion, addressed alandlord's

duty to atenant 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 andto 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 andgreater than those imposed by

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

case, Darlene Newton, the plaintiff, slipped andfell onawalkway which led to the front door of her homewhich was rented from the defendants. Newton, 872P.2d at 1214. Shesued her landlords based

onher allegation that the walkway was slippery and hazardous and that the landlords had aduty 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, 872 P.2d at 1214. The Supreme Court noted that even though according

6to traditional notions of Alaska common law alandlord has noduty

to tenants for dangerous conditions on the property, Alaska's adoption of the Uniform Residential Landlord andTenant Act changed and added to alandlord'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 andremedy conditions which presented anunreasonable 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 onthe 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 anissue of fact to be resolved by the jury. Newton, 872 P.2d at 1218. Montana, likewise, adopted the Residential Landlord andTenant 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 wasobviously intended bythe legislature to be for the benefit and safety of tenants, a landlord's failure to comply with the statute is negligent per se. Wehave held that: The violation of statutes is negligence as amatter of lawwhenthe purpose of the statute is to protect aclass of persons, the plaintiff is amember of that class, and the defendant is aperson against whomaduty is imposed. 7Azurev.CityofBillings (1979), 182Mont. 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. Rauhv.Jensen (1973), 161 Mont. 443, 507 P.2d 520. Nehringv.LaCount (1986), 219 Mont. 462, 468, 712 P.2d 1329, 1333. Shirley Calder was amember of the class that 570-24-303, MCA, was intended to protect; Andersons were members of the class

onwhomaduty was imposed; andCalder'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. SeeMorningstarv.Strich (Mich. 1950), 40N.W.2d 719. Weagree 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 onthe similarity of the facts in those cases to the facts in this case. Newtonis cited for the legal proposition that the Residential Landlord andTenant Act creates duties in addition to and greater than those imposed onproperty owners bythe 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. Thefacts of the

cases are irrelevant. Furthermore, the Arizona andOhio cases cited andrelied onin the dissenting opinion are of no assistance to us for purposes of resolving the issue presented in this case. Neither case applies

### nor interprets aduty similar to the onewhich exists in Montana

pursuant to §70-24-303, MCA,anduponwhich this opinion isbased. Finally, the dissenting opinion's reliance on § 70-24- 321(1) lb), MCA,to suggest that it wasactually the tenant's duty tomaintain the area whereCalder fell is misplaced. That section of the Residential Landlord andTenant Actpertains tothat part of the premises which the tenant actually "occupies anduses." It does not pertain to commonareas. Commonareas are specifically addressed in 5 70-24-303(l) (c), MCA, and place the duty of maintenance solely onthe landlord. According to the testimony of Shirley Calder, the sidewalk on which she fell wasnot in aclean andsafe condition, andasa result, shefell andseriously injured herself. Calder testified that onthe date of her accident shehaddescended the stairway leading from the door of her apartment and stepped onto the sidewalk, where her feet landed unexpectedly onrocks or gravel which causedherto skid for somedistance before her feet flew out from under her and shelanded face down. Sheknewthat it was small rocks onwhich sheskidded andlost control because shefelt the rocks through the soles of her shoeswhenshestepped downon them, andsheandher husbandlater observed the skid marks caused bythe 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 andTenant Act.Whether the condition which caused Calder's injury was"hidden

or lurking," andwhether 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 aproper function of this Court to decide asamatter of law when debris allowed to remain onacommonwalkway 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 toArticle II, Section 26, of the Montana Constitution, and 526-l-202, MCA,there is aright to have issues of fact tried byjuries 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 onhowimpressed the members of this Court are with the merits of aparty's claim or defense. However, to doso would substantially blur the distinct functions of the fact finder and appellate review. For these reasons, weconclude that aslandlords the Andersons had aduty to keep the area where Calder fell in aclean and safe condition. If they failed to dosothey were negligent asamatter of law. Whether or not the Andersons breached their duty to Calder, andthe extent to which that breach of duty, if any, was a

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

by the trier of fact. For these reasons, wereverse the order of the District Court and remand for further proceedings consistent with this opinion.

Weconcur: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 aduty is aquestion of law, the second element, whether that duty has been breached, is normally aquestion of fact to bedetermined bythe finder of fact. Limberhand v. Big Ditch Co. (1985), 218Mont. 132, 144-45, 706P.2d 491, 498. However, when adefect is so slight that no prudent person could reasonably anticipate danger from it, but anaccident happens which could only have been guarded against with extraordinary care andforesight, the question of the defendant's responsibility is one of law. Wiley v. City of Glendive (Mont. 1995), 900 P.2d 310, 313, 52St.Rep. 714, 715. In the present case, Calder stated by deposition that the sidewalk outside her apartment wasusually dirty andthat 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 hadnever considered gravel onthe 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 onthe sidewalk in this case were either aknown hazard or ahidden or lurking danger. This Court has acknowledged the rule that universally known conditions should not be considered hazards. Luebeck v. Safeway stores, Inc. (1968), 152Mont. 88, 93, 446 P.2d 921, 924. Wehave

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

itself, is not evidence of negligence. Clark v. Norris (1987), 226 Mont. 43, 48, 734P.2d 182, 185. Thelaw does not require that for every injury there must bearecovery of damages, but only imposes liability for abreach of legal duty proximately causing injury. Clark, 734 P.2d at 185. Canreasonable minds differ onwhether pieces of gravel on a sidewalk adjoining agravel parking lot establish abreach 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 tothem byanyactivity 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 avisitor from known or obvious dangers, for example when the possessor has reason to expect that the invitee's attention may be distracted, sohewill not discover what is obvious, or forget what hehasdiscovered, orfail 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 onapiece 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 onthe sidewalk. Wedonot believe that reasonable minds would differ. Forbes hasnot shown that [the lessee of the store1 was negligent. Forbes, 601 P.2d at 313-14 More recently, the Court ofAppeals of Ohio affirmed asummary judgment that gravel onawalkway next to agravel parking lot did not render the walkway unreasonably dangerous or create liability. Gravel on awalkway next to a gravel parking lot or driveway is, as held by the trial court, a "minor 13imperfection, commonly encountered and expected." 'ro

hold defendants liable for such "trivial departures from perfection" would beto render them insurers for plaintiff's safety and "the law does not gothat far." Jones v. H. &T. Enterprises (Ohio App. 9Dist. 1993), 623 N.E.Zd 1329, 1333. Iagree with the reasoning of the Arizona andOhio courts. I conclude that reasonable minds could not differ asto whether the presence of afew grains of gravel onasidewalk next to agravel driveway establishes negligence onthe part of the property owner. Wedonot yet live in aneggshell society in which there is atort 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 anewliability 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 asthe basis for atort claim to bedecided by ajury. 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 befound inevitably small pieces of gravel. Howthis could be avoided by aproperty owner defies reasonableness and

common sense. Section 70-24-303(l) (c), MCA, provides: (1) Alandlord shall: (c) keep all commonareas of the premises in aclean and safe condition[. 1 14The 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 andduties 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 andsafe asthe condition of the premises permits- -which is areasonable provision--we should, asto 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 awooden walkway from the front door of the house, six feet long andfive feet wide, without ahandrail, virtually uncovered, and with no "anti-slip" material on its surface. The Alaska premises was located in Petersburg, where persistent rains resulted in aconstant drizzle 15except 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. InNewton the permanent installation of the wooden walkway was accomplished bythe landlord, whohadnotice over along period of time of the wet boards andthe hazard created for slipping. This is anentirely different fact scenario than that before this Court. Themajority hasfailed to cite amajor, important part of the holding in Newton, letting the Alaska court's relevant comments slip by. TheAlaska court stated:

The duty of atenant 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 aspart of the same statute which defines the landlord's obligation to "make all repairs anddowhatever 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 bereconcilable. 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 IIin 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 tomakerepairs, andof their financial disincentives for doing so, since the value of permanent repairs will not befully realized byashort-term occupant.

16Our rejection of the general rule of landlord

immunity does not make landlords liable as insurers.6 ['Wedonot accept the Newtons' argument that arule of strict liability should govern this case.] Their duty is to use reasonable care to discover andremedv conditions which present an unreasonable risk of harm under the circumstances. Nor does our ruling meanthat questions as to whether adangerous condition existed in an area occupied solely by the tenant or in acommon 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 andto the foreseeability andmagnitude of the risk. In particular, alandlord 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 beliable in negligence unless heknew or reasonably should have known of the defect and had a reasonable opportunity to repair it." Young v. Garwacki, 380Mass. 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 ofwhether that duty wasbreached should be left for the trier of fact. Newton, 872 P.2d at 1217-18 (emphasis added). Themajority also cites assupport 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 mawof Michigan that provided, "every dwelling andall the parts thereof including plumbing, heating, ventilating and

17electrical 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 570-24-303(l) (c), MCA. Further, the facts of the Michigan case have noresemblance to the facts of the case before this Court. The Michigan court recited the relevant facts as follows:

The plaintiff wastwo years and nine months old on February 16, 1944, the date of the accident. Hewas playing at the dining roomwindow near the radiator when the valve came off. Hewas soseverely scalded that he was hospitalized for 76days. Morninqstar, 40N.W.Zd at 720. It is clear from the Morninsstar opinion that asteam radiator remained in defective condition for along period of time with the knowledge of the landlord andthat this defect permitted live steam to escape causing the plaintiff injury. TheMichigan court went on to state: The trial court found that the Hoffman valve introduced in evidence hadbeen onthe radiator andthat 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 andwasnegligent in not taking the necessary steps to correct the dangerous condition, andthat this wasthe 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 wasthe proximate cause of the accident, and the motions were properly denied. There is noquestion that Henry G. Strich had notice of trouble with the valves and that he came to the house with aplumber. Thedefective condition of the valve in question, if it was on the radiator, should have been 18apparent upon the examination of it that either wasmade

or should have been made. Morninqstar, 40N.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 ajury trial because of a claimed pebble or pebbles of gravel on a sidewalk, is stretching the RLTAtoo far. It gravels methat 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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