No. 13036 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1975 

STATE OF MONTANA ex re1 NORTHWEST 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.THWEST AIRLINES, 

Respondents. 

ORIGINAL PROCEEDING: 

For Rela tors : 

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 

C let 
Mr. 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 "George Gale, Plaintiff, vs. City of Great 

Falls a Municipal Corporation, and Northwest Airlines, a corporation, Defendants." 

This Court, after hearing relator Northwest Airlines ex 

parte, ordered an adversary hearing be held on May 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 nephew who 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 oil may have been 

that of Northwest Airlines from a leak in an engine or it may 

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 area 
where it customarily parks, are nonexclusive and established by 

an airport agreement with 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 lunch when the nephew's flight was 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, so plaintiff proceeded on through and headed for the plane to obtain the 

keys from his 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. I was looking 

straight ahead where I was going. 

"Q. You were looking at the airplane? A. Yes. 

"Q. And you hadn't seen it before you fell, because you were looking straight ahead; is that your 

testimony? 

"THE WITNESS: Right. 

"Q. * * * But it was clear to you after you fell 

there was 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 Northwest Airlines moved 

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, relators argued plaintiff was guilty of 

contributory negligence in that he failed to look where he was 

going and the puddle of unknown substance which 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 relators being this application for a 

writ of supervisory control. 

This Court, as recently as July 9, 1975, in its decision, 

Steen v. Grenz, Mont . -1 - P.2d , 32 St.Rep. 686, reaffirmed that the distinctions between invitee, licensee, and 

trespasser still exist in Montana. As stated in Steen, the long 

standing law of Montana is that when 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 from willful 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 doubt plaintiff, at the time of the accident, was engaged 

in an activity for his own pleasure, convenience and benefit, 

and therefore was a licensee. There was no benefit to the airlines or the city of Great Falls in plaintiff's retrieval of 

the car keys. Further, there was no showing of willful or wanton 
negligence 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 it was his employee who was aboard 

the plane and the bringing of the employee to the airlines was 

a mutual benefit for both the airlinestand plaintiff'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, that plaintiff's activity was 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 of mutual benefit to both plaintiff and relators, we 

would still be compelled to grant the writ of supervisory control as petitioned, for we find that at the time of the accident 

plaintiff was contributorily negligent. Here, Montana's controlling case is Fuchs v. Huether, 154 Mont. 11, 16, 459 P.2d 689. 

Plaintiff in Fuchs was an elderly lady who was walking through 

the dark of evening on defendant's sidewalk toward a lighted door, 

when she tripped over a seven inch step. She was looking ahead 

toward the lighted door, and not where she had to place her feet. 

This Court discussed her conduct and its legal effect: 

"It is not the duty of a host to warn his guests 

of a danger which could be seen if ordinary 

caution and circumspection were exercised. Here 

the plaintiff admitted that she did not watch 

where she was going. On cross-examination she 

testified as follows: 

"'Q. Well, now when you were walking did you 

look down at the sidewalk? A. I looked where 

the light is. 

"'Q. You didn't look down? A. No. 

"'Q. You were always looking up then as you were 
walking, 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 that means you 

didn't look down at the sidewalk? A. I didn't 

look down.' 

"While generally the question of contributory negligence is a question of fact and therefore one 

to be determined by a jury, this Court has 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.' [Citations omitted.] 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 case was 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 can be reached from the 

facts in the instant case; plaintiff was contributorily negligent. 

Finally, there is argument concerning whether the district 

court erred in granting plaintiff's motion to produce certain 

documents which are in relator Northwest Airlines' files. However, since this Court has granted the petition for writ, 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 negligence was established as a matter 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 a matter of law. 

Justice