No. 95-006 INTHESUPREMECOURTOFTHESTATEOFMONTANA 1995

DARLENEM.VINCELETTE,

Plaintiff andAppellant,

v. METROPOLITAN LIFE INS. CO. andBILLINGS SHERATONHOTEL,

Defendants and Respondents.

APPEAL FROM: District Court of the Thirteenth Judicial District,

In and for the County of Yellowstone, The Honorable G.Todd Baugh, Judge presiding.

COUNSELOFRECORD:

For Appellant: Randy S. Laedeke, Laedeke Law Office, Billings, Montana For Respondent: Calvin J. Stacey, Stacey &Walen, Billings, Montana

Filed: Submitted onBriefs: July 27, 1995 Decided: October 12, 1995Justice William E. Hunt, Sr., delivered the Opinion of the Court.

Appellant brought suit against respondents in the Thirteenth Judicial District Court, Yellowstone County, seeking torecover for injuries sustained when she fell in the Billings Sheraton Hotel. At the close of discovery, respondents moved for summary judgment, claiming no material issues of fact remained in dispute, and therefore they were entitled to summary judgment as amatter of law. After the motion wasbriefed byboth parties, the District Court entered summary judgment in respondents' favor. Appellant appeals andwereverse. Thesole issue raised onappeal is whether the District Court erred in granting summary judgment. OnMarch 20, 1989, appellant fell while entering the Billings Sheraton Hotel (the Hotel). According toher complaint, shewasin the foyer of the parking lot entrance, between the inner andouter sets of doors. She approached the inner doors and then stepped backwards to allow them to be opened out towards her. As she stepped back, she fell and injured her back. Appellant believes shefell because shehadcaught the heel of her high-heeled shoe in

a small hole in the carpet and could not maintain her balance as she stepped back. She therefore alleges her fall was caused by either a defect in the carpet or negligent maintenance of the carpet.The Hotel generally denied the allegations, and both sides conducted discovery. At the end of discovery, respondents moved for summary judgment, which wasgranted bythe District Court. 2Did the District Court err in granting respondents' motion for

summary judgment? Summary judgment is proper whenthere are nogenuine issues of material fact andthe moving party is entitled to summary judgment

as amatter of law. Rule 56(c), M.R.Civ.P.; Brown v. Demaree (1995),

__ Mont. __, _, 52St.Rep. 819, 820; White v. Murdock (1994), 265Mont. 386, 389, 877P.2d 474, 476. In summary judgment cases, this Court's standard of review is identical to the trial court's, and wewill utilize the same criteria employed by the trial court to determine whether summary judgment should have been granted. Brown, 52 St.Rep. at 820; Minnie v. City of Roundup (1993), 257Mont. 429, 431, 849 P.2d 212, 214. The party seeking summary judgment bears the burden of demonstrating the absence ofgenuine factual issues. If the moving party demonstrates such anabsence, then the burden shifts to the non-moving party, who must showthat agenuine issue of fact does exist. First Security Bank of Bozeman v. Jones (1990), 243Mont. 301, 303, 794 P.2d 679, 681. All inferences which may be reasonably drawn from the record are to bedrawn in favor of the non-moving party. Simmons v. Jenkins (1988), 230Mont. 429, 432, 750P.2d 1067, 1069; Reaves v. Reinhold (1980), 189Mont. 284, 287, 615 P.2d 896, 898. Acause of action in negligence consists of four elements: (1) duty; (2) breach of duty; (3) causation; and (4) damages. Brown, 52St.Rep. at 820, citation omitted. Negligence cases are generally not susceptible to summary judgment. Brown, 52St.Rep.

3at 820; See also Dillard v. Doe (1992), 251Mont. 379, 382, 824

P.2d 1016, 1018-19; Brohman v. State (1988), 230 Mont. 198, 201, 749 P.2d 67, 69. In particular, negligence cases where the question of causation is in dispute are rarely amenable to summary judgment because "it is axiomatic that questions of causation are for the finder of fact to decide." Bossard v. Johnson (19941, 265 Mont. 272, 281, 876 P.2d 627, 632 (Nelson, J., dissenting). In the case at bar, appellant was at the Hotel as aguest, and, as such the Hotel owed to her aduty of due care. "[Tlhe

owner of apremises hasaduty to useordinary care in maintaining his premises in areasonably safe condition and to warn of any hidden or lurking dangers." -, Brown 52St.Rep. at 820 (citations omitted). Under this standard, the element of duty is clear and the parties do not contest it. Likewise, the parties do not contest that appellant fell while at the Hotel. But respondents contend the Hotel's carpet wasnot the cause of her fall. However, "when aduty is imposed upon the defendant and the plaintiff's allegations, if proven, would support afinding of abreach of the duty, summary judgment is improper." Cereck v. Albertson's Inc. (1991), 195Mont. 409, 412, 637 P.2d 509, 511, citing Rennick v. Hoover (19801, 186Mont. 167, 606P.2d 1079. "Liability should not be adjudicated upon amotion for summary judgment where factual issues concerning negligence and causation are presented." Dillard, 824 P.2d at 1018, citing Duchesneau v. Silver BowCounty (1971), 158Mont. 369, 377, 492 P.2d 926, 931. Because causationis the issue in dispute, this case is particularly ill-suited for

summary judgment. Respondents cite several cases where this Court has found summary judgment to be appropriate. See Cooper v. Sisters of Charity of Leavenworth Health Services Corp. and St. James Community Hospital, Inc. (1994), 265 Mont. 205, 075 P.2d 352; Fauerso v. Maronick Const. Co(1983), 203Mont. 106, 661 P.2d 20; andKrone v. McCann (1982), 196Mont. 260, 638P.2d 397. However, in both Cooper and Fauerso the issue wasduty, not causation, and they are therefore distinguishable. Causation was the issue in Krone, but that case is also distinguishable. The incident in Krone took place in arural open field, where the plaintiff acknowledged shehadseen commondebris such aslogs andmounds of dirt lying around before she fell. Krone, 638 P.2d at 400. Thecourt therefore agreed that the danger hadbeen open andobvious. The incident in this case took place in ahotel, and appellant contends her fall was caused by a small hole in the carpeting--a hole that was not obvious and that could not reasonably have been anticipated. Moreover, in Krone, the Court noted that the plaintiff hadbeen unable to specifically describe what caused her injury; she could not say what had caused her to trip. Krone, 638 P.2d at 400. In this case, appellant specifically alleges asmall hole in the carpet to bethe cause of her fall. Shehas therefore raised causation asagenuine issue, which the plaintiff in Krone apparently could not do.

5The court found appellant had not brought forth evidence

showing the carpet to bethe cause of her fall. But the initial burden in the summary judgment proceeding should have been on respondents. It wasupto them to show that nogenuine issue of material fact existed. Only when and if they successfully made such a showing would the burden properly shift to appellant. Absent such anaffirmative showing onthe part of respondents, the moving party, it was error to shift the burden of proof to appellant, the non-moving party. Respondents presented no evidence proving the fall was not caused bythe carpeting. Instead they focused onthe small amount ofproof appellant offered to showthat it wasthe carpeting. They correctly noted that appellant relied almost wholly on her own deposition and sworn affidavit. In response, respondents pointed out it was snowy and icy that night, and appellant had been drinking. Appellant has alleged it was the carpet that madeher fall, thereby creating agenuine issue of material fact asto what caused the fall. Respondents have not shown that it was not the carpet. They have failed to dispose of this genuine issue of material fact. If there is any genuine issue of material fact, summary judgment is inappropriate. "The question to bedecided on motion for summary judgment is whether there is agenuine issue of afact and not howthat issue should bedetermined. The hearing onthe motion is not atrial." Duchesneau, 492 P.Zd at 930 (citation omitted).

6

### Becauseappellant hasraised agenuine issue of material fact

that respondents have failed to rebut, summaryjudgment is not warranted. Reversed andremandedfor further proceedings.



### Weconcur: 

# ‘-‘\/ Chief Justiced