No. 81-50 

IN THE 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 the Fourteenth Judicial District, 

In and for the County of Musselshell, The Honorable 

Nat Allen, Judge presiding. 

Counsel of Record: 

For Appellant: 

Boschert & Zoschert, Billings, Montana 

For Respondents : 

Keefer, Roybal, and Hanson, Billings, Montana 

Submitted on Briefs? August 6, 1981 

~ecided: \Ah! 5.. 1374 

8brti Kj4* 1782 Filed: - 

vClerk 
Mr. Justice Gene 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 she was a business invitee on the property 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 the property to appellant for her possible purchase. 

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 injury occurred: 

"Q. Would you explain to me what happened 

that day that resulted in some injury to you? 

A. Mr. McCann was showing us the place. Is 

that what you mean? 

"Q. Um-hum, and what happened? A. We -- He was driving us around in his vehicle. And 

we stopped on the road, got out and looked at 

one well that we 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 . . . hurt my leg. 

"U. Well, how did you come to hurt your 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 tell you what -- some debris or ..................... whatever it was. 

"Q. When you say it was 'debris,' do you 
mean to say that -- Can you describe what it 

was in terms of -- Was it metal? Was it 

wood? Was it dirt? What was it? A. I 

really don'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 there was a lot of that laying around. 

"Q. It was in the vicinity of an old corral, 

is that right? A. Yes. Well, I mean there 

was a lot of logs and stuff laying around. 

I'Q . Now was there a path? Were you 

following something, or were you-- A. I was 

following Mr. McCann. 

"Q. Okay. Now, was he immediately in front 

of you? Was he 50 feet in front of you? How 

much distance separated you from Mr. McCann? 

A. I don't remember exactly, about 15 feet. 

"Q. Was your son with you? A. My son was 

with me, yes. 

"Q. Was he at your side, or was he behind 

you or in front of you? A. He was walking 

beside me, I think. 

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

No, I didn't go clear to the ground. 

"Q. So what you're saying is -- kind of like 

you twist your 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 at the 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 at the minute. 

"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 this an area that was overgrown with 

bushes or shrubs or . . .? A. There was 

tall grass and weeds. 

"Q. And was 3 it deep grass, or was it . . .. A. I don't remember, but I think about knee 
high or more. 

"Q. There wasn't anything that prevented you 

from seeing the ground as you 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, it wouldn't have happened. 

"Q. So what you're saying is that there was 

something that was on the ground that was 

what you tripped on, but you don' t remember - - what it was? A. Well, I wouldn' t know what 

- it was exactly, but apparently it was an old 

corral pole, or mound of dirt. 

"Q. And you don't know if it was a natural 

accumulation of dirt or rock or if it was an 

unnatural accumulation, is that right? 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's something that you 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 

that way. " (Emphasis added. ) 

After twisting her knee, appellant went back to 

McCann's car and returned to Billings. She did not go to a 

doctor at that 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 cast for 

about six weeks. She stated in her deposition that the 

surgery did not stop the pain she still has from her 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 the movant is entitled to judgment as 

a matter 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 

of material 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, the party 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 in Rennick: 
". . . in order for there to be a genuine 

issue of material fact in a neql-iqence case 

there must be a duty imposed upon the -- defen- 

--- dant and allegations which, if proven, would 

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

606 P.2d at 1081. 

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, 

citing Dunham v. Southside National Bank of Missoula (1976), 

169 Mont. 466, 548 P.2d 1383, and Cassady, supra, 340 P.2d 

at 510-511. In Rennick, 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 -- all accidents which may befall them 

upon his premises.' . . . McIntosh v. LinderKind Lumber Co. (19641, 144 Mont. 1, 6, 393 

P.2d 782, 785." 606 ~..2d at l(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 partially 
cleared lot offered for saie ~y the dgency. ilhis lot was in 

the City of Cranston, Rhode Island, and was being developed 

tor home sites. 

Blahey is readily distinguishable from the case 

before us. In Blak-ney, the plaintiff's injuries occurred on 

a city lot. She was not aware that rodent holes were in the 

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 rests on the defendant to warn 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. 

In an action for negligence, a plaintiff must produce 

evldence from which it can be reasonably inferred that 

negligent conduct on the part of the defendant or its agents 

was the proximate cause of the plaintiff's injuries. 

Flansberg v. Montana Power Company (1969), 154 Cfiont. 53, 460 

P.2d 263, approved in Scott v. Robson, supra, 597 P.2d at 

1155. Here, the appel-lant simply does not know exactly what 

caused her injury. As noted above, the respondents cannot 

be the insurers of the appel-lant and held liable for her 

injury merely 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 substantial 
evidence and raise an issue ot naterlal tact. Hppel.l~nt has 

failed to meet this burden. 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. 

- 

4 Justice 

vlVe concur: 

2A 444 & 

Chief Justice