No. 13036 INTHE SUPREME COURT OF THE STATE OF MONTANA 1975

STATE OF MONTANA ex re1NORTHWEST AIRLINES, Relator, -vs

## - THE DISTRICT COURT OF THE EIGHTH JUDICIAL DISTRICT AND THE HON. TRUMAN G. BRADFORD, JUDGE THEREOF, GEORGE GALE AND THE CITY OF GREAT FALLS, Respondents.



## ................................................... No. 

### 13040 STATE OF MONTANA ex rel, THE CITY OF GREAT FALLS, Relator, -vs

# - THE DISTRICT COURT OF THE EIGHTH JUDICIAL DISTRICT AND THE HON. TRUMAN G. BRADFORD, JUDGE THEREOF, GEORGE GALE AND NOR.THWESTAIRLINES, Respondents.

ORIGINAL PROCEEDING: For Relators: Smith, Emmons and Baillie, Great Falls, Montana William L. Baillie argued, Great Falls, Montana Church, Harris, Johnson and Williams, Great Falls,

Montana Cresap S. McCracken argued and R. Keith Strong

appeared, Great Falls, Montana For Kespondents: Hoyt and Bottomly, Great Falls, Montana 1i.V. Bottomly argued, Great Falls, Montana Church, Harris, Johnson and Williams, Great Falls,

Montana Cresap S. McCracken argued and R. Keith Strong

appeared, Great Falls, Montana



## -- .- Submitted: May 23, 1975

CletMr. Chief Justice James T. Harrison delivered the Opinion of the Court.

This is an application for a writ of supervisory control seeking an order to grant summary judgments to relators as applied for, or alternatively, should summary judgment not be granted, that an order be entered vacating a discovery order entered by respondent court in civil action 75146B,Cascade County, entitled "GeorgeGale, Plaintiff,vs. City of Great Falls a Municipal Corporation,and Northwest Airlines, a corporation, Defendants." This Court, after hearing relatorNorthwestAirlines ex parte, ordered an adversary hearing be held onMay 23, 1975. The city of Great Falls,another named defendant in the same civil case,made application to this Court for the same relief to join and requested/with Northwest as joint relators which was granted. Civil action 75146B arose out of a personal injury suit by plaintiff George Gale against relators Northwest Airlines and the city of Great Falls. The injury occurred when plaintiff fell and injured himself in the vicinity of Northwest's airplane which

was parked for passenger boarding at Great Falls International Airport, June 28, 1972. The undisputed facts reveal that plaintiff approached the airplane from the Great Falls terminal building for the sole purpose of retrieving a set of car keys from his nephewwho was then his employee and who was on board the airplane as a passenger. Near the airplane he fell and fractured an ankle and twisted his back. He may have slipped in an oil spot; the oilmay have been that of NorthwestAirlines from a leak in an engine or itmay have been from other unknown sources, inasmuch as the area was used by others from time to time for the transit and parking of vehicles and airplanes. The rights of the airline to the use of the ramp areawhere it customarilyparks, are nonexclusive and established by

an airport agreementwith the city of Great Falls,which owns and operates the airport. The events leading up to the actual injury show that plaintiff took his nephew, Bill Gale, to the airport in order for his nephew to take a flight. Plaintiff and his nephew were eating lunchwhen the nephew's flightwas called. The nephew went to board the flight. After the nephew was on board the plane,plaintiff discovered his nephew had the keys to the car which plaintiff was to use to get back from the airport to his place of business. Plaintiff then got up and quickly proceeded to the gate where his nephew's plane was positioned for boarding. At the time of this accident, there were no security precautions as there are today. No one was at the gate, soplaintiff proceeded on through and headed for the plane to obtain the keys fromhis nephew. Plaintiff slipped in a puddle of unknown substance. Plaintiff testified: "Q. Well, it was apparent to you that it was a puddle after this happened? A. Right. "Q. But you had seen this prior to the time you fell? A. No. "Q. Where were you looking? A. Iwas looking straight ahead where Iwas going. "Q. You were looking at the airplane? A. Yes.

"Q. And you hadn't seen itbefore you fell,because youwere looking straight ahead; is that your testimony?

"THEWITNESS: Right.

"Q. 

### * * * But itwas clear to you after you fell therewas a puddle there? A. Right. "Q. At least approximately six feet long,you described approximately? A. Right."After all the discovery was completed and hearing was had, relators,city of Great Falls and NorthwestAirlinesmoved for summary judgment. They asserted plaintiff at the time he proceeded to go to the plane,was at best a licensee and the only duty owed to him was to refrain from willful and wanton negligence. Further, relatorsargued plaintiff was guilty of contributory negligence in that he failed to look where he was going and the puddle of unknown substancewhich he slipped in

was clearly in sight as evidenced by plaintiff's own testimony. Relators argue that plaintiff cannot collect, therefore, as a matter of law. The district court denied the motion for summary judgment. From that denial relatorsbeing this application for a writ of supervisory control. This Court, as recently as July 9, 1975, in itsdecision, Steenv. Grenz, Mont

# . P.2d -1 

### - 

## , 32 St.Rep. 686,reaffirmed that the distinctions between invitee, licensee,and trespasser still exist inMontana. As stated in Steen, the long standing law of Montana is thatwhen a person enters another person's property for his own pleasure, convenience,or benefit, he is a licensee and the owner of the property has a duty to the licensee to refrain fromwillful and wanton negligence. In the instant case,plaintiff, George Gale,proceeded to the airplane to obtain the keys to his nephew's car, so that he would have transportation from the airport to his place of business. There is no doubtplaintiff, at the time of the accident,was engaged in an activity for his own pleasure, convenience and benefit, and thereforewas a licensee. Therewas no benefit to the airlines or the city of Great Falls inplaintiff's retrievalof the car keys. Further, therewas no showing of willful or wantonnegligence on the part of the airlines or the city of Great Falls. We find, therefore, that neither the city of Great Falls,nor Northwest Airlines can be held liable for the injuries suffered by plaintiff. Plaintiff argues itwas his employee who was aboard the plane and the bringing of the employee to the airlineswas a mutual benefit forboth the airlinestandplaintiff's business. Therefore,plaintiff argues,he was engaged in an activity of mutual benefit to the airlines and himself at the time of the accident,and relators owed him a higher duty of care than a licensee. We find however, thatplaintiff's activitywas too far removed from the airlines'activity at the time of the accident to find any mutual benefit to both plaintiff and the airlines, and again find no liability. However,even if this Court had found plaintiff's activity to be ofmutual benefit toboth plaintiff and relators,we would still be compelled to grant the writ of supervisory control as petitioned, forwe find that at the time of the accident plaintiff was contributorilynegligent. Here,Montana's controlling case is Fuchs

### v. Huether, 154Mont. 11, 16, 459 P.2d 689. Plaintiff in Fuchs was an elderly ladywho was walking through the dark of evening on defendant's sidewalk toward a lighted door, when she tripped over a seven inch step. Shewas looking ahead toward the lighted door, and notwhere she had to place her feet. This Courtdiscussed her conduct and its legal effect: "It is not the duty of a host to warn his guests of a dangerwhich could be seen if ordinary caution and circumspectionwere exercised. Here the plaintiff admitted that shedid notwatch where shewas going. On cross-examination she testified as follows: "'Q. Well, nowwhen youwere walking did you look down at the sidewalk? A. I lookedwhere the light is. "'Q. You didn't look down? A. No. 

### "'Q. You were always looking up then asyouwerewalking, looking at a light? A. Yah. "'Q. When you got to the corner then you looked up at the light,you didn't look down? A. That is right. "'Q. When you say that is right thatmeans you didn't look down at the sidewalk? A. Ididn't look down.' "Whilegenerally the question of contributory negligence is a question of fact and therefore one to be determined by a jury, this Courthas often held 'it is only when but one reasonable conclusion can be reached from the facts that the court will determine the question as a matter of law.' [Citationsomitted.] Here the Plaintiff was contributorily negligent as a matter of law and the trial court erred in refusing to direct a verdict in favor of defendants." Plaintiff's conduct in Fuchs and plaintiff's conduct in the instant casewas the same. By plaintiff's own admission the puddle was approximately 6 feet long. He further testified he

was looking straight ahead,rather than where he was walking. Therefore,but one reasonable conclusion canbe reached from the facts in the instant case;plaintiffwas contributorilynegligent. Finally, there is argument concerningwhether the district court erred in granting plaintiff's motion to produce certain documents which are in relatorNorthwestAirlines' files. However, since this Court has granted the petition forwrit, it is unnecessary to discuss that issue. This case is, therefore, remanded to the district court with instruction that it gr 

# / / Chief Justice We concur:Mr. Justice Haswell, specially concurring: I concur in the result on the sole basis that plaintiff's contributory negligencewas established as amatter of law. Plaintiff either did not see that which was directly in his line of vision, or he did not look where he was walking. In either event,plaintiff was guilty of contributory negligence barring any recovery as amatter of law.

Justice