No. 81-50 INTHE SUPREME COURT OF THE STATE OF MONTANA 1981

MAXINE M. KRONE

## , Plaintiff and Appellant,

REX T. McCANN and DOROTHY G. McCANN, individually and as officers of, and d/b/a SUPERIOR HOMES REALTORS, INC., Defendants and Respondents.

Appeal from: ~istrict Court of theFourteenth JudicialDistrict, Inand fortheCounty of Musselshell, The Honorable NatAllen, Judge presiding.

Counsel of Record: For Appellant: Boschert & Zoschert, Billings, Montana

For Respondents: Keefer, Roybal, and Hanson, Billings, Montana

Submittedon Briefs? August 6, 1981 ~ecided:

### \Ah!

## 5.. 

# 1374

8brtiKj4*

## 1782 Filed: -

vClerkMr. JusticeGene B. Daly delivered the Opinion of the Court. This 

### is an action in negligence with the plaintiff, Maxine Krone, seeking recovery of damages for an injury she received while shewas a business inviteeon theproperty of the defendants. Defendants moved for summary judgment on all issues; plaintiff moved for summary judgment on the issue of liability only. The District Court of the Fourteenth Judicial District, Musselshell County, granted the defendants' motion. The plaintiff appeals. On June 13, 1976, appellant wrenched her knee while she was walking on rural property owned by respondents. Respondent Rex McCann, as a realtor for Superior Homes, was showing theproperty toappellant for her possiblepurchase. At the time of the injury, McCann was looking for a well located on the property, and the appellant was following him. In her deposition the appellant gave the following account of how her injuryoccurred: "Q. Would you explain to 

### me what happened thatday that resulted in some injury toyou? A. Mr. McCann was showing us the place. Is thatwhat you mean? "Q. Um-hum, and what happened? A. We 

### -- He was drivingus around inhisvehicle. And we stopped on the road, got out and looked at one 

### wellthatwe could see. Or what you want to call it. And then he was to show us another 

### well that was right 

### -- right around there. 

### "Q. Go ahead. What happened? A. Well, I was following him, and 

# . . . hurtmy leg. "U. Well, how didyou come tohurtyour leg? A. Like I said, I was following him, 'cause he couldn't find this one 

### well. And 

# . . . I stumbled or fell over some 

### -- I really_ 

## _--_-___--___---__------------------- couldn't tellyou what 

### -- some debris or



## ..................... whatever itwas. "Q. When you say it was 'debris,' do you

### mean tosay that

### -- Can you describewhat it 

### was interms of 

### --Was it

### metal? Was it 

### wood? Was it 

### dirt? What was it? A. I 

### reallydon't know. It 

### was 

# . . . something that was 

### -- There had been an old corral at one time that had been 

# . 

# .. oh, I 

### suppose what I 

### would call the 'home corral place' where they branded the cattle or whatever, and therewas a lotof thatlaying around. "Q. It

### was inthevicinityof an oldcorral, 

### is that right? A. 

### Yes. Well, I 

### mean there was a lotof logsand stuff laying around.

I'Q

# . Now was there a path? Were you following something, or were you-- A. I 

### was followingMr. McCann. "Q. Okay. Now, was he immediately in front of you? Was he 50 

### feetin frontof you? How much distance separated you from Mr. McCann? A. I 

### don't remember exactly, about 15feet. "Q. Was your son with you? A. 

### My son was with

### me, yes. "Q. Was he atyour side, or was he behind you or in front of you? A. 

### He was walking besideme, I 

### think. "Q. Now, did you fall to the ground? A. 

### No, I 

### didn't go clear totheground. "Q. 

### Sowhat you're saying is

### -- kind of like 

### you 

### twistyour ankle, you twisted your knee? Would that be a fair statement? A. Yes. Well it 

### happened awful fast-like. And so I 

### just

### --And that's been a few years ago, and I 

### just 

# . . .Whatever happened, it 

### hurt like 

## -- terrible atthe time.

"Q. What time of the day was this? A. It 

### was about 2:00 

### o'clock in the afternoon. Approximately. NOW, I 

### couldn't put it 

### right on the

### -- pinpoint it 

### right attheminute. "Q. Any problem with visibility in that area? A. 

### No. Hum-um* (*negative response). "Q. 

### Were you wearing your glasses at the time? A. 

### Yes. Um-hum. "Q. Was thisan areathatwas overgrown with bushes or shrubs or 

# . . .? A. 

### There was tallgrassand weeds.

3 

### "Q. And was it 

### deep grass, or was it

# .... A. I 

### don't remember, but I 

### think about kneehigh ormore. "Q. There wasn't anything thatpreventedyou from seeing the ground asyou walked over 

### it, was there? A. Yes, but I just walked and was following Mr. McCann and 

### we were looking for this well. And he should have been where the well was right away. And if we'd have gone right from the car up to where it was, the well was at, 

### it wouldn't have happened. And there 

### -- if he had had all that stuff cleaned off, cleared off, like we did afterwards, itwouldn't have happened. "Q. So what you're saying is that therewas something that was on the ground that was what you tripped on, but you don'

### t remember -- what 

## it was? A. Well, Iwouldn't know what it was exactly, but apparently itwas an old 

## - corralpole, or mound of dirt. "Q. And you don't know if it was a natural accumulation of dirtor rock or if it was an unnatural accumulation, 

### is thatright? A. A natural

## -- Natural or unnatural. Could have been both.

"Q. It wasn't something that you fell in? A. No. "Q. that what It'ssomething thatyou tripped over, 

### is right? A. I 

### just cannot really say it was, because it happened, like I said, so fast that 

### -- that 

### -- And when it happened, it was very painful. Let's put it thatway.

### " (Emphasis added.) After twisting her knee, appellant went back to McCann's car and returned toBillings. She did not go to a doctor atthat time. About a year later, she went to see a doctor for a checkup and to ask about her knee. She was referred to another doctor who later operated on her knee. She was in the hospital for five days and was in a castfor about six weeks. She stated in her deposition that the surgerydid not stopthepain she stillhas fromher knee. The parties agree that the only issue on review 

### is whether the District Court erred by granting respondents' motion for summary judgment.

### Under Rule 56(c), M.R.Civ.P., a summary judgment is proper only if the record discloses no genuine issue of material fact and that themovant is entitled to judgment as
amatter of law. Reaves v. Reinbold (1980), Mont

# . I 

## - 615 P.2d 896, 37 St.Rep. 1500; Rumph v. Dale Edwards, Inc. (19791,

## -Mont

# .- , 600 P.2d 163, 36 St.Rep. 1022. The party moving for summary judgment has the burden of showing the complete absence of any genuine issue as to all facts which are deemed material in light of those substantive principles which entitle him to a judgment as a matter of law. Big Man v. State (1981),

## -Mont

# .- , 626 P.2d 235, 38 St-Rep. 362; Harland 

### v. Anderson (1976), 169 Mont. 447, 548 P.2d 613. Once the movant has established that no material issues of fact exist, the burden shifts to the opposing party to raise an issue of fact. As we stated in Rumph: "While the initial burden of proof must attach to the moving party, that burden shifts where the record discloses no genuine issue ofmaterial fact. Under these circumstances, the party opposing the motion must come forward with substantial evidence raising the issue. [Citations omitted.

## 1 Once the burden has shifted, theparty opposing the motion is held to a standard of proof which is as substantial as that initially imposed upon the moving party. [Citation ommitted.]

### " 600 P.2d at 167. It is also well established in Montana that 

## "[a] ctionable negligence arises only from a breach of legal duty." Rennick v. Hoover (1980), Mont. 

## , 606 P.2d 1079, 1081, 37 St.Rep. 308, 310, quoting Jonosky v. Northern Pacific Ry. Co. (1920), 57 Mont. 63, 72, 187 P. 1014, 1015, and Cassady v. City of Billings (1959), 135 Mont. 390, 393, 340 P.2d 509, 510. As we stated recently inRennick:

# ".

. . in order for there to be a genuine issue of material fact 

### in a neql-iqence case theremust be a duty imposed upon the defen- 

## -- dant and allegationswhich, ifproven, would 

### --- support a finding of a breach of the duty." 

## -- - 606 P.2d at1081. The parties agree that the appellant was a business invitee when she wrenched her knee while walking on the respondents' property. It 

### is well settled in this state that a 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. Cassady, supra, 340 P.2d at 510, quoting Milasevich v. Fox Western Montana Theatre Corp. (1946), 1.18 Mont. 265, 165 P.2d 1.95, 197. While the property owner has the above-stated duty, it has been recognized many times by this Court that the property owner 

### is not an insurer against all accidents and injuries to invitees. Scott v. Robson (1979), Mont.



## , 597 P.2d 1150, 1155, 36 St.Rep. 1273, 1279-1280, citingDunham v. Southside National Bank of Missoula (1976), 169 Mont. 466, 548 P.2d 1383, and Cassady, supra, 340 P.2d at510-511. InRennick, we noted: "'The true ground of liability 

### is his [the property owner

## 's] superior knowledge over that of business invitees of the dangerous condition and his failure to give warning of the risk, however, 

## --- he 

### is not an insurer against 

### --

allaccidents which may befall them upon hispremises.' 

# .

# .. McIntosh v. LinderKind Lumber Co. (19641, 144 Mont. 1, 6, 393 P.2d 782, 785." 606 ~..2d atl(J81. (.~rn~hasis added.) In ~la6ey v. Associated Subdivisions, Inc. (1963), 97 R.I. 34, 195 A.2d 234, 3 A.L.R.3d 970, a real estate agency was held liable for injuries to the plaintiff when she fell in 

### a rodent hole while looking 

### at 

### a partiallycleared lotoffered for saie~ythe dgency. ilhislotwas in the City of Cranston, Rhode Island, and was being developed tor home 

### sites. Blahey 

### is readily distinguishable from the case before us. InBlak-ney, theplaintiff's injuriesoccurred on

a citylot. Shewas not aware thatrodent holeswere inthe lot. Here, tne appellant was walking through an open field In rural country. She stumbled over something she characterized as "debris," a "mound of dirt," or an "old corral pole." while she was unsure of exactly what she tripped over, she could 

### see that there were "logs and stuff lying arouna." Since she knew of the general condition of the ground, no duty restson the defendant towarn her of it. More importantly, the fact 

### is undisputed that the appellant cannot describe what caused her injury. She does not know if it was merely a mound of dirt or an old corral pole. Inan action for negligence, a plaintiff must produce evldence from which it can be reasonably inferred that negligentconduct on thepartof thedefendant or its agents

was the proximate cause of the plaintiff's injuries. Flansbergv. Montana Power Company (1969), 154Cfiont. 53, 460 P.2d 263, approved in Scott v. Robson, supra, 597 P.2d at 1155. Here, the appel-lantsimply doesnot know exactlywhat caused her injury. As noted above, the respondents cannot be the insurers of the appel-lant and held liable for her injurymerely because an accident happened on their land. Upon respondents' showing that no material issues of genuine fact were still in dispute, the burden shifted to 

### tne appellant to come forward by affidavit and substantialevidence and raise an issue

### ot naterlal tact. Hppel.l~nt has failed tomeet thisburden. She has presented no substantial evidence indicating that respondents had breached a duty owed to her or that respondents' actions were a proximate

cause of her injury. The summary judgment 

### is affirmed.



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4 Justice

vlVe concur:

2A 

# 444 & Chief Justice