Krone v. McCann, 81-60
Citation | 196 Mont. 260,638 P.2d 397,39 St.Rep. 10 |
Decision Date | 05 January 1982 |
Docket Number | No. 81-60,81-60 |
Court | United States State Supreme Court of Montana |
Parties | Maxine M. KRONE, Plaintiff and Appellant, v. Rex T. McCANN and Dorothy G. McCann, individually and as officers of, and d/b/a Superior Homes Realtors, Inc., Defendants and Respondents. |
Boschert & Boschert, Billings, for plaintiff and appellant.
Keefer, Roybal & Hanson, Billings, for defendants and respondents.
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:
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., 615 P.2d 896, 37 St.Rep. 1500; Rumph v. Dale Edwards, Inc. (1979), 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 :
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 negligence case there must be a duty imposed upon the defendant 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), 118 Mont. 265, 165 P.2d 195, 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....
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