Dunham v. Southside Nat. Bank of Missoula

Decision Date12 April 1976
Docket NumberNo. 13203,13203
Citation33 St.Rep. 372,548 P.2d 1383,169 Mont. 466
PartiesMyra A. DUNHAM, Plaintiff and Appellant, v. SOUTHSIDE NATIONAL BANK OF MISSOULA et al., Defendants and Respondents.
CourtMontana Supreme Court

Boone, Karlberg & Haddon, Sam E. Haddon (argued), Missoula, for plaintiff-appellant.

Garlington, Lohn & Robinson, Sherman V. Lohn and Larry E. Riley (argued), Missoula, for defendants-respondents.

Marra, Wenz & Iwen, Joseph R. Marra (argued), Great Falls, Poore, McKenzie, Roth, Robischon & Robinson, David Wing and James A. Poore, III (argued), Butte, amicus curiae.

CASTLES, Justice.

This is an appeal from an order granting summary judgment entered in the district court, Missoula County.

Plaintiff, Myra R. Dunham, went to Southside National Bank on January 4, 1972, for the purpose of making a loan payment. While walking through the bank parking lot, toward a customer entrance to the bank, she slipped and fell on an accumulation of ice and snow.

It had been snowing in Missoula the night before the accident and continued to snow throughout the next day. The parking lot had been cleared before business hours by defendants Johnson Brothers under a maintenance agreement with the bank. The area where plaintiff fell was not cleared of ice or snow, as neither of the defendants considered this area § sidewalk or part of the parking lot.

Plaintiff brought this action for personal injuries on May 15, 1974. Defendants' motion for summary judgment was granted on September 16, 1975, on the grounds (1) plaintiff was contributorily negligent as a matter of law, and (2) the Montana comparative negligence statute did not apply to accidents occurring prior to the effective date of the act.

Plaintiff appeals the granting of summary judgment.

Two issues are presented for review:

(1) Does a genuine issue of material fact exist on the question of whether plaintiff was negligent thereby precluding summary judgment?

(2) Does the Montana comparative negligence statute, section 58-607.1, R.C.M.1947, apply to claims which arose prior to the effective date of the act, July 1, 1975?

Rule 56(c), M.R.Civ.P., states a summary judgment shall be rendered only if:

'* * * the pleadings, depositions, answers to interrogatories, and admissions on file show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. * * *'

The moving party has the burden of showing the absence of any genuine factual issue. As stated in 6 Moore's Federal Practice, 56.15(3), p. 56-463:

'The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to judgment as a matter of law.'

See Kober & Kyriss v. (Stewart) Billings Deaconess Hospital, 148 Mont. 117, 417 P.2d 476.

In her deposition plaintiff admitted the slippery condition of the parking lot was 'obvious' and that she believed the accumulation of ice and snow on the walkway was a natural accumulation due to the prevailing conditions. She stated the condition was not hidden and agreed she must have stepped on an icy spot the wrong way.

This Court recently stated the law regarding slip and fall under similar conditions in Uhl v. Abrahams, 160 Mont. 426, 429, 430, 503 P.2d 26, 28, the language there applies equally well here:

'Directing our attention to the applicable substantive law, a possessor of land owes a duty to an invitee to use ordinary care to keep the premises in a reasonably safe condition and to warn the invitee of any hidden or lurking dangers therein, but he is not an insurer against all accidents and injuries to invitees on the premises. Cassady v. City of Billings, 135 Mont 390, 340 P.2d 509; Luebeck v. Safeway Stores, Inc., 152 Mont. 88, 446 P.2d 921; and authorities cited therein.

'In Luebeck we directly held that '* * * where danger created by the elements such as the forming of ice and falling of snow are universally known, or as here, actually known, there is not liability. * * * ' We based this holding on a line of cases from other jurisdictions so holding, particularly quoting with approval the following statement from Crawford v. Soennichsen, 175 Neb. 87, 120 N.W.2d 578, 581:

"* * * However, the general rule seems clearly to be that a store owner cannot be charged with negligence by reason of natural accumulation of ice and snow where the condition is as well known to the plaintiff as the defendant.' * * *

'* * * In short, nothing but a natural icing condition due to the elements was involved and such condition prevailed throughout the city. Accordingly, Luebeck controls the situation in the instant case; there is no breach of duty, no negligence, and no liability as a matter of law.'

Appellant cites Willis v. St. Peter's Hospital, 157 Mont. 417, 486 P.2d 593. Willis can be readily distinguished in the instant case, as it was in Uhl. In Willis there was a jury question as to whether the hospital contributed to the slippery condition by attempting to melt the ice and whether the plaintiff had knowledge of the condition. Neither of these issues of material fact exist in the instant case.

We find the district court properly granted respondents' motion for a summary judgment.

On appeal appellant asks this Court to give the new Montana comparative negligence law retroactive effect. In other words, appellant argues comparative negligence should apply to an accident occurring prior to the effective date of the legislation but not tried until after the effective date.

Prior to July 1, 1975, the law of contributory negligence in Montana was section 58-607, R.C.M.1947:

'Every one is responsible, not only for the result 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. The extent of liability in such cases is defined by the title on compensatory relief.'

On July 1, 1975, Montana's comparative negligence statute, section 58-607.1, R.C.M.1947, (Chap. 60, Laws of 1975) became effective. It reads:

'Contributory negligence shall not bar recovery in an action by any person or his legal representative to recover damages for negligence resulting in death or injury to person or property, if such negligence was not greater than the negligence of the person against whom recovery is sought, but any damages allowed shall be dismissed on the proportion to the amount of negligence attritable to the person recovering.'

Section 58-607.1 R.C.M.1947, did not amend or repeal section 58-607, R.C.M.1947. Section 58-607.1 modifies the total defense of contributory negligence by apportioning damages, if the plaintiff's negligence is not greater than that of the defendant. There is no legislative declaration that section 58-607.1 shall be only prospective in operation, nor is there declaration the statute shall have retroactive effect.

There is a presumption in Montana against construing a statute retroactively, unless specifically declared retroactive. Section 12-201, R.C.M.1947, provides:

'No law contained in any of the codes or other statutes of Montana is retroactive unless expressly so declared.'

The foundation for this presumption was set forth in Sullivan v. City of Butte, 65 Mont. 495, 498, 211 P. 301, 303, wherein the Court said:

'While our Constitution does not forbid the enactment of retrospective laws generally, it is a rule recognized by the authorities everywhere that retrospective laws are looked upon with disfavor. It is a maxim said to be as old as the law itself that a new statute ought to be prospective, not retrospective, in its operation. * * * The maxim has its foundation in the presumption that the legislature does not intend to make a new rule for past transactions and every reasonable doubt will be resolved against a retrospective operation.'

See State ex rel. Mills v. Dixon, 68 Mont. 526, 219 P. 637; State ex rel. City of Billings v. Osten, 91 Mont. 76, 5 P.2d 562; State ex rel. Whitlock v. State Board of Equalization, 100 Mont. 72, 45 P.2d 684; State v. J. C. Maguire Const. Co., 113 Mont. 324, 125 P.2d 433; 82 C.J.S. Statutes § 414; Anno. 37 ALR3d 1438, 1440; Schwartz, Comparative Negligence, § 8.4.

In City of Harlem v. State Highway Comm'n, 149 Mont. 281, 284, 425 P.2d 718, 720 this Court interpreted section 12-201, R.C.M.1947, stating:

'* * * This section provides a rule of construction which requires that the intent of the legislature is to be gained from the act itself and from no other source.'

We find nothing in section 58-607.1, R.C.M.1947, (or Chap. 60, Laws of 1975), which expressly declares a legislative intent to apply the law retroactively.

Appellant argues the comparative negligence law is procedural in nature, thus it may be applied retroactively. Respondents reply that the law is substantive in nature. A substantive law may be defined as that law which creates duties, rights, obligations, and responsibilities. State ex rel. Johnson v. District Court, 148 Mont. 22, 417 P.2d 109.

This Court has held on more than one occasion, that procedural laws may be given retroactive effect, notwithstanding the presumption against retroactivity in section 12-201, R.C.M.1947. State ex rel. Johnson v. District Court, supra; State Department of Highways v. Olsen, 166 Mont. 139, 531 P.2d 1330, 32 St.Rep. 110.

The Oregon Supreme Court in Joseph v. Lowery, 261 Or. 545, 495 P.2d 273, 275, 276, faced the question of retroactivity of its comparative negligence law, which is identical to Montana's in all relevant areas. It stated:

'Under the comparative negligence statute, a plaintiff whose negligence is less than that of the defendant is not barred from recovery by virtue of his contributory...

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