Cooper v. Sisters of Charity of Leavenworth Health Services Corp., 93-642

• Decision Date: 25 May 1994
• Docket Number: No. 93-642,93-642
• Citation: 265 Mont. 205,875 P.2d 352
• Parties: Catherine J. COOPER, Plaintiff and Appellant, v. SISTERS OF CHARITY OF LEAVENWORTH HEALTH SERVICES CORPORATION, and St. James Community Hospital, Inc., Defendants and Respondents.
• Court: Montana Supreme Court

Page 352

875 P.2d 352

265 Mont. 205

Catherine J. COOPER, Plaintiff and Appellant, v. SISTERS OF CHARITY OF LEAVENWORTH HEALTH SERVICES CORPORATION, and St. James Community Hospital Inc., Defendants and Respondents.

No. 93-642.

Supreme Court of Montana.

Submitted on Briefs April 21, 1994.

Decided May 25, 1994.

John Leslie Hamner, Butte, for appellant.

Brendon J. Rohan, Poore, Roth & Robinson, Butte, for respondents.

HARRISON, Justice.

Catherine J. Cooper (Cooper) appeals an order of the Second Judicial District Court, Silver-Bow County, which granted summary judgment to the Sisters of Charity of Leavenworth Health Services Corp. and St. James Community Hospital, Inc. (St. James). We affirm.

On the morning of July 17, 1991, Cooper--then 80 years old--travelled to St. James to visit her daughter. Cooper parked her car behind the hospital and was walking toward the hospital when her right foot caught on something and caused her to fall. Cooper fell against the hospital's sidewalk and broke her arm. Cooper was not certain what she had caught her foot on, however, she maintained that her soft-soled shoes became "wedged" between the grate and the sidewalk or between the grate's bars, causing her to fall to the sidewalk. The sewer drain grate bars are situated parallel to the flow of pedestrian traffic and the bars are square and elevated above the grate's frame.

Cooper filed her complaint on November 18, 1992, alleging that St. James was negligent in its construction, maintenance and repair of its sidewalk, driveway and drain grate located at the rear entrance of the hospital. She asserted that St. James knew or should have known that the uneven conditions of the walkway, pavement, adjoining grill and the grate's bars--which were raised and parallel to the flow of pedestrian traffic--constituted a danger.

St. James answered the complaint and generally denied that it was negligent or that it caused her injuries. St. James then conducted discovery to determine the factual basis of Cooper's claim. Cooper did not conduct discovery nor did she obtain experts to support her claim that St. James was negligent in the construction, maintenance and repair of the sidewalk, pavement and drain grate.

Based on Cooper's deposition and Cooper's responses to interrogatories, St. James filed a motion for summary judgment on October 12, 1993. Cooper opposed the motion and submitted an affidavit signed by herself and her ex-husband.

The District Court granted St. James summary judgment on the basis that the hospital had no duty to warn Cooper of the storm drain grate because the condition of the grate, pavement and sidewalk was obvious to anyone who looked and Cooper, in fact, testified by deposition that she had noticed the condition of the grate, pavement and sidewalk prior to her fall. Cooper appeals and presents one issue:

Did the District Court err by granting St. James summary judgment on the basis that St. James had no duty to warn Cooper of the open and obvious danger presented by the storm drain grate, pavement and sidewalk?

Our standard of review on a grant of summary judgment is identical to that of the trial court's. Minnie v. City of Roundup (1993), 257 Mont. 429, 431, 849 P.2d 212, 214. We examine the record to determine whether genuine issues of material fact exist. Minnie, 849 P.2d at 214. If no genuine issues of fact exist, we must determine whether the moving party is entitled to judgment as a matter of law. Minnie, 849 P.2d at 214.

Initially the moving party has the burden to establish that no genuine issues of material fact exist. Minnie, 849 P.2d at 214. Here, St. James established that no genuine issues of material fact existed: Cooper testified that as she approached the rear door to the hospital, she saw a nurse come out of the door. The nurse spoke to her. Cooper looked up to say hello and she caught her right foot on something and fell. Cooper could see the sidewalk curb and she realized she needed to step up onto the sidewalk. She also saw the sewer grate "quite a ways before [she] got to it...." Cooper was also familiar with the area where she fell, having passed over the area three or four times prior to the accident.

Once the moving party establishes that no genuine issues of material fact exist, the burden shifts to the non-moving party to prove that a genuine issue of material fact exists. Minnie, 849 P.2d at 214. "To meet this burden, the non-moving party must proffer substantial evidence...." First Security Bank of Bozeman v. Jones (1990), 243 Mont. 301, 303, 794 P.2d 679, 681.

Cooper, in support of her contention that material issues of fact existed, submitted a compound affidavit signed by herself and her ex-husband, Earl C. Cooper. Rule 56(e), M.R.Civ.P., requires a summary judgment affidavit to contain certain elements:

[A]ffidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.... [A]n adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits ... must set forth specific facts showing that there is a genuine issue for trial.

Here, the affidavit is signed by both Cooper and her ex-husband and the affidavit does not specify which statements are based on Cooper's personal knowledge and which statements are based on her ex-husband's personal knowledge. Further, most of the alleged "facts" in Cooper's affidavit are only "opinions." No foundation was presented to establish either Cooper or her ex-husband as an expert in the construction, maintenance or placement of walking surfaces or sewer grates. Accordingly, neither Cooper nor her ex-husband could offer expert opinions to establish that the walking surface and the sewer...