Rennick v. Hoover

• Decision Date: 25 February 1980
• Docket Number: No. 14897,14897
• Citation: 37 St.Rep. 308,186 Mont. 167,606 P.2d 1079
• Parties: Ross RENNICK, Plaintiff and Appellant, v. Don W. HOOVER and Carol Hoover, Defendants and Respondents.
• Court: Montana Supreme Court

Page 1079

606 P.2d 1079

186 Mont. 167

Ross RENNICK, Plaintiff and Appellant, v. Don W. HOOVER and Carol Hoover, Defendants and Respondents.

No. 14897.

Supreme Court of Montana.

Submitted Jan. 15, 1980.

Decided Feb. 25, 1980.

Hoyt, Trieweiler, Lewis & Regnier, James M. Regnier, argued, Great Falls, for plaintiff and appellant.

Smith, Baillie & Walsh, Marvin J. Smith, argued, Great Falls, for defendants and respondents.

HASWELL, Chief Justice.

Plaintiff Ross Rennick appeals from a summary judgment awarded defendants by the District Court of Cascade County, the Honorable H. William Coder presiding.

In July 1976, Don and Carol Hoover, the defendants, purchased an apartment building located at 1209 Second Avenue South in Great Falls. The property contained four apartments, one located in the basement, two on the ground level and one on the second floor. All four apartments had two separate means of ingress and egress. The two ground floor apartments and the second floor apartment could be entered through the front door via a common hallway, or they could be entered through separate exterior entrances after crossing a common cement slab in the rear of the apartment. This cement slab was located at the foot of the stairway leading to the second floor apartment. Parking was available along Second Avenue in front of the building and a lot, large enough to contain at least four cars, was also provided in the rear of the apartment.

Ross Rennick had been dating a female tenant occupying the second floor apartment for over a year prior to the date of his injury. Rennick's testimony reveals that he visited her quite frequently and that he had lived with her in the apartment for a short period of time after November 1976, and prior to the accident.

The evening of February 4, 1977, Mr. Rennick went to visit the female tenant at her apartment. He parked in the rear parking lot and entered the building by ascending the back stairs. Upon leaving the apartment, twenty or thirty minutes later, Rennick slipped and fell on the cement slab at the base of the stairs, breaking his ankle.

Ross Rennick testified that he was aware of the icy conditions in the rear of the building because of his frequent visits. He used the rear entrance approximately 50% Of the time. Rennick stated that a sheet of ice had accumulated on the cement slab at the base of the stairway as a result of water dripping from the roof, but that it had been reduced by unseasonably high temperatures over the two-week period prior to February 4, 1977. Rennick further stated that the ice had been present on the cement for at least two weeks, that it extended at least two feet from the bottom step, and that he knew care was required to cross the cement.

Don Hoover's testimony reveals that he maintained the exterior of the building, including the shoveling of snow. He had last shoveled the snow on January 15, 1977. Mr. Hoover denied the existence of any ice or snow on the cement, since only a small amount of snow fell between January 15 and February 4 and unseasonably high temperatures prevailed during the period.

The issue on appeal is whether the District Court was correct in granting the defendants' motion for summary judgment. To determine this issue, the question becomes whether the defendant landlords owe a duty to the plaintiff to remove an alleged known icy condition in the common area of an apartment building.

Rule 56(c), M.R.Civ.P., provides that summary judgment is proper if:

" . . . the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, 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 party moving for summary judgment has the burden of showing the absence of any genuine issue as to all material facts, which, under applicable principles of substantive law entitle him to judgment as a matter of law. Kober & Kyriss v. Billings Deac. Hosp. (1966), 148 Mont. 117, 121, 417 P.2d 476, 478.

It is well established in Montana law that "(a)ctionable negligence arises only from a breach of legal duty." Jonosky v. Northern Pacific Ry. Co. (1920), 57 Mont. 63, 72, 187 P. 1014, 1015; Cassaday v. City of Billings (1959), 135 Mont. 390, 393, 340 P.2d 509, 510. Therefore, 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.

In Montana, a landlord owes a duty to the tenant to "keep all common areas of the premises in a clean and safe condition." Section 70-24-303, MCA. However, this appeal does not involve an injury to a tenant, and we need not reach the question of whether this statutory duty alters prior Montana case law in relation to the duty owed to a tenant. As a result, we must look to Montana law concerning the status of the injured party and the corresponding duty of the property owner.

The duty imposed upon a property owner in Montana continues to be dependent on the status of the injured party, either invitee, licensee or trespasser. This Court has previously held that a tenant is an invitee of the landlord when injury occurs in the common areas of an apartment building. Lake v. Emigh (1948), 121 Mont. 87, 190 P.2d 550. The status of the social guest of a tenant in the common area of an apartment building is also that of an invitee in relation to the duty of a landlord. See Olson v. Kayser (1973), 161 Mont. 241, 505 P.2d 394. The rationale for this status is that the landlord is in the business of providing facilities for a tenant to...