Brown v. Demaree

NO. 95-033

IN THE SUPREME COURT OF THE STATE OF MONTANA

1995

CARL BROWN,

plaintiff-~ppellant,

-v-

GARY DEMAREE,

Defendant-Respondent.

APPEAL FROM: District Court of the First Judicial District,

In and for the County of Lewis and Clark,

The Honorable Jeffrey Sherlock, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Carl A. Hatch, Richard J. Pyfer, Kirk S. Bond,

Small, Hatch, Doubek & Pyfer, Helena, Montana

For Respondent:

Jacqueline T. Lenmark, Keller, Reynolds, Drake,

Johnson & Gillespie, Helena, Montana

Submitted on Briefs: June 29, 1995

Decided: August 21, 1995

Filed:

Justice James C . Nelson delivered the Opinion of the Court.

Carl Brown (Brown) appeals from an order of the First Judicial

District Court, Lewis and Clark County, granting summary judgment

to Gary Demaree (Demaree) on Brown's complaint in negligence for

personal injuries. We reverse and remand for further proceedings.

Background

In addition to the pleadings, motions and briefs, the record

on appeal consists solely of Brown's deposition. On that record,

the following material facts are not in dispute. On January 15,

1994, between 4 : 3 0 a.m. and 5:00 a.m. or a little after, Brown,

working as a substitute newspaper carrier for the Helena

Independent Record, injured his knee when he fell while attempting

to deliver a newspaper to Demaree's Helena residence. Brown's

deposition indicates that he was unfamiliar with the route and the

residence and that he was working from a computer listing of the

residences to which he was to deliver newspapers. When Brown

arrived at Demareelsresidence it was still dark and there were no

street lights in the vicinity or lights illuminating the residence

or porch. Brown carried a flashlight which he used to verify the

house number but which, as a courtesy to the occupants, he turned

off at the curb before approaching the residence.

Brown stated in his deposition that, after turning off his

flashlight, he approached the Demaree residence via the sidewalk.

The sidewalk leading to the front door of the residence is designed

in such a fashion that it terminates in two steps that dog-leg to

the left down to a landing. From the landing three steps lead up

2

to t h e f r o n t porch and door. According to Brown, as he approached

the house, he did not see the two-srep drop-off and injured his

knee when he fell to the landing after missing the two steps in the

dark. Brown also stated that he fell simply because he did not see

the two-step drop-off. There were no obstructions or objects on the

sidewalk and, aside from a possible light skiff of snow, the

sidewalk surface was not icy or slippery* Brown testified:

1 remember going straight up the sidewalk and I was

looking - - going to the front door to put the paper by

the front door or behind the storm door like we always

do, and when I took - - I just run out of the sidewalk and

that's when I took a fall. It had a drop-down, and I

didn't expect a drop-down.

In District Court, Brown contended that Demaree failed in his

duty to maintain his premises in a reasonably safe condition and,

further, to warn Brown of the hidden and lurking danger in the

sidewalk/step-down/landing arrangement at the approach to Demareels

home.

While agreeing that a property owner has a duty to maintain

his sidewalk in a reasonably safe condition and to warn of hidden

and lurking dangers, in granting Demareels motion for summary

judgment, the trial court concluded that Demaree had "done all that

society can reasonably ask of him in this regard," and that Brown's

position "would require a home owner to keep his premises

constantly illuminated [which] places an unreasonable burden on the

The trial court

homeowner which the law does not c~nternplate.~~

also observed that Brown carried a flashlight but chose not to use

it as he approached the house. In rendering its decision, the

District Court relied on our opinion in Fuchs v. Ruether ( l 9 6 9 ) ,

154 Mont. 11, 459 P.2d 689.

Discussion

The issue on appeal is whether the District Court erred in

granting Demaree's motion for summary judgment. Summary judgment

is proper only when no genuine issue of material fact exists and

when the moving party is entitled to judgment as a matter of law.

Rule 56 (c) M.R.Civ.P. Our review of the trial court's grant of

summary judgment is de novo; we utilize the same criteria as the

district court. Minnie v. City of Roundup (1993), 257 Mont. 429,

431, 849 P.2d 212, 214.

A cause of action in negligence consists of four elements: (1)

duty; (2) breach of duty; (3) causation; and (4)damages. Hatch v.

Dept. of Highways (Mont. 1994), 887 P.2d 729, 732, 51 St.Rep. 1512,

1514. The first element of a negligence claim, duty, is a question

of law. Hatch, 887 P.2d at 733 (citing Geiger v. Department of

Revenue (1993), 260 Mont. 294, 297, 858 P.2d 1250, 1252) . Here,

the District Court correctly acknowledged the rule that the owner

of a premises has a duty to use ordinary care in maintaining his

premises in a reasonably safe condition and to warn of any hidden

or lurking dangers. Limberhand v. Big Ditch Co. (1985), 218 Mont.

132, 144-45; 706 P.2d 491, 498; Davis v. Church of Jesus Christ of

LDS (1990),244 Mont. 61, 67, 796 P.2d 181, 184. Given this rule of

law, it is clear, and the parties agree, that Demaree had a duty to

provide that the sidewalk leading to his residence is reasonably

safe. See Davis, 796 P.2d at 184.

While, as pointed out above, the existence of a duty is a

question of law for determination by the court, whether that duty

has been breached, is a question of fact to be decided by the

finder of fact--in this case, the jury. Limberhand, 706 P.2d at

498-99. See also, Simmons v. Jenkins (19881, 230 Mont. 429, 435,

750 P.2d 1067, 1071 (the breach of a duty [of good faith] is a

question of fact not susceptible to summary judgment).

Here, then, the critical issue is whether Demaree's failure to

illuminate his sidewalk or to warn of the sidewalk/step-

down/landing arrangement constituted a breach of his duty to use

ordinary care in maintaining his premises in a reasonably safe

condition and to warn of any hidden or lurking dangers. While the

trial court resolved that question as a matter of law in favor of

Demaree, whether Demaree breached his duty was one of fact which

should have been determined by the jury. As we stated in

Limberhand,

Appellant contends that the question of whether

[defendants] breached the common law duty to keep the

premises reasonably safe and to warn of any hidden or

lurking danger is one a jury should decide. We agree.

What constitutes reasonably safe premises is generally

considered to be a question of fact [depending] to a

large extent on what use the property is put to, its

setting, location and other physical characteristics, and

the type of person who would foreseeably visit the

premises, as well as the specific type of hazard or

unsafe condition alleged. These and other factors are

embodied in the legal concept of "reasonable under the

circumstances."

Limberhand, 706 P.2d at 498-99.

Ordinarily, negligence actions involve questions of fact and

are not susceptible to summary judgment. Brohman v. State (1988),

230 Mont. 198, 201, 749 P.2d 67, 69. Summary judgment is never to

be used as a substitute for trial if a factual controversy exists.

Hagen v . Dow Chemical Co. (1993), 261 Mont. 4 8 7 , 491, 863 P.2d 413,

416. It is only where reasonable minds cannot differ, that

questions of fact can be determined as a matter of law. Brohman,

749 p . 2 d at 70. We conclude on the record here, that reasonable

minds could differ on whether Demaree should have illuminated the

sidewalk/step-down/landingarea at the approach to his home or warn

of that arrangement and that the District Court should have left

the resolution of that question to the jury.

In that regard, our decision in Fuchs is not dispositive. See

Fuchs, 439 P.2d 689. while factually similar in some respects, we

did not, in that case, articulate the same duty of care on the part

of the landowner that our current case law requires. Rather, in

reversing the trial court's refusal to grant a directed verdict and

dismiss the plaintiff's complaint, we focused on the landowner's

duty to social guests and his duty to refrain from acts of willful

and wanton negligence. We concluded that the landowner was not

liable for a danger (a step) that is only concealed by darkness of

night and which is easily avoided by the exercise of ordinary care.

Fuchs 459 P.2d at 691. While Fuchs may have correctly stated the

law in 1969, it, nevertheless, does not comport with more current

case law involving landowner premises liability, which, among other

things, no longer recognizes the status of the party on the

property as controlling the owner's duty. a,Limberhand, 706

P.2d at 496, 498; Berge v. Boyne USA, Inc. (9th Cir. 1986), 779

F.2d 1445. As we stated in Corrigan v . Janney (1981), 192 Mont.

99, 626 P.2d 838, and then reaffirmed in Limberhand, "[tlhe

direction the law is n o w taking clearly is toward ' " ' imposing on

owners and occupiers a single duty of reasonable care in all

circumstances' . . . " (citation omitted). Corrisan, 626 P.2d

at 841; Limberhand, 706 P.2d at 496, 498. About the most that can

be said for Fuchs is that we decided as a matter of law, rhen, an

issue of fact that under current case law is properly left to the

jury .

In the instant case, the District Court pointed out that the

sidewalk/step-down/landing arrangement was concealed only by

darkness and "was not one that was something unusual such as a hole

in the sidewalk or abrupt protruding crack in the sidewalk." In

Limberhand, we held that a question of material fact existed as to

whether the irrigation ditch (which in that case was open and

obvious) could present sufficient danger to persons using the

landowners1 property so that by not taking any remedial or warning

measures the landowners may have breached their duty to keep the

premises reasonably safe. We also held that whether this duty had

been breached was a jury question. Limberhand, 706 P.2d at 499.

In this case, application of the rule set out in Limberhand is

even more compelling, where darkness concealed the manner in which

the approach to Demaree's residence was constructed. Whether the

sidewalk/step-downJlanding arrangement in Demaree's sidewalk is

"

18unusual, and whether he should have anticipated or had reason to

believe that a person using the sidewalk in the darkness would be

injured by stepping into the unlighted drop-down, are clearly

factual questions which should have been resolved by the jury, and

not by the trial court. See Limberhand, 706 P.2d at 499.

Additionally, we disagree with Demaree and with the District

Court that Brown's position would require a homeowner to keep his

premises constantly illuminated. That is not the burden which the

law imposes nor is that a rule for which this case can be cited.

The law simply requires the homeowner to keep his premises

reasonably safe and to warn of any hidden dangers while taking into

consideration the use to which the property is put, its setting,

location, and other physical characteristics, along with the type

of person who would foreseeably visit the premises, as well as the

specific type of hazard or unsafe condition alleged. Limberhand,

706 P.2d at 498-99. That test is to be applied by the jury to the

facts of this case; whether some other landowner under different

factual circumstances is required or is not required to illuminate

his particular property is not at issue.

Demaree also argues that § 27-1-701,MCA (1993), governs this

case. That section provides:

Except as otherwise provided by law, everyone is

responsible not only for the results of his willful acts

but also for an injury occasioned to another by his want

of ordinary care or skill in the management of his

property or person except so far as the latter has

willfully or by want of ordinary care brought the injury

upon himself.

Demaree, correctly, points out that Brown turned off his flashlight

before approaching the house in the dark on an unfamiliar walkway,

and concludes that, in so doing, Brown himself brought about the

accident. We agree with Demaree that § 27-1-701, MCA, is

applicable. We disagree, however, that application of this statute

necessarily supports summary judgment. Whether, under the statute,

Demaree breached his statutory duty to use "ordinary care or skill

in the management of his property" and whether Brown, in turning

off his flashlight, "by want of ordinary care brought ton his own]

injury," are simply factual questions that are appropriately

resolved by the finder of fact. It is up to the jury to determine

whether and, if so, to what extent, either Demaree, Brown or both

were negligent in this case. See_, Limberhand, 706 P.2d at 496-97,

498-99.

We have considered the other authorities and arguments raised

by Demaree in his brief, but, nevertheless, conclude that, on the

record here, there were genuine issues of material fact, as

discussed above, that should have been decided by the jury.

Accordingly, we hold that the summary judgment was improperly

granted.

Reversed and remanded for further proceedings consistent with

this opinion. A