Wiley v. City of Glendive

• Decision Date: 03 August 1995
• Docket Number: No. 94-536,94-536
• Citation: 272 Mont. 213,900 P.2d 310
• Parties: C. Ron WILEY and Audrey Wiley, Husband and Wife, Plaintiffs and Appellants, v. The CITY OF GLENDIVE and the State of Montana, Department of Transportation, Defendants and Respondents.
• Court: Montana Supreme Court

Page 310

900 P.2d 310

272 Mont. 213

C. Ron WILEY and Audrey Wiley, Husband and Wife, Plaintiffs and Appellants, v. The CITY OF GLENDIVE and the State of Montana, Department of Transportation, Defendants and Respondents.

No. 94-536.

Supreme Court of Montana.

Submitted on Briefs March 2, 1995.

Decided Aug. 3, 1995.

Richard A. Simonton, Kevin R. Peterson; Simonton, Howe & Schneider, Glendive, for appellants.

Kristi Blazer; Luxan & Murfitt, Helena, Gary L. Day; Lucas & Monaghan, Miles City, for respondents.

NELSON, Justice.

Appellants, Ron and Audrey Wiley (the Wileys), filed a negligence action on September 25, 1992, against the State of Montana Department of Transportation (State) and the City of Glendive (City). On October 17, 1994, the District Court Judge for the Seventh Judicial District, Dawson County, granted summary judgment in favor of the State and the City. The Wileys appeal the District Court's final judgment dismissing the Wileys' complaint with prejudice. We affirm.

The Wileys raise the following issue on appeal: Did the District Court err in granting summary judgment?

BACKGROUND

On September 21, 1991, a rainy day, Audrey Wiley slipped on a metal pullbox cover on a sidewalk in Glendive and fractured her right ankle in several places. Subsequently, Audrey Wiley underwent three surgeries.

The State installed the cast iron and checkered steel pullbox cover on September 27, 1979. The pullbox was in substantially the same condition on the date of Audrey Wiley's accident as on the date of installation. The concrete surrounding the pullbox was level, but the sidewalk sloped away from the building towards the street. The installation met all applicable standards and specifications. Similar pullboxes have been and continue to be installed in sidewalks throughout Montana. In fact, there were no previous reports regarding this cover, nor were there reports of a slip and fall regarding a pullbox in Montana or elsewhere.

The Wileys filed a negligence action on September 25, 1992, against the State and the City. Following extensive discovery, the State and the City moved for summary judgment, supporting their motions with affidavits of five experts. Although the Wileys did not support their opposition to summary judgment with affidavits, they relied on their expert's deposition to establish a genuine issue of material fact regarding the State and the City's negligence. On September 26, 1994, the District Court Judge for the Seventh Judicial District, Dawson County, granted the State and the City's motions for summary judgment, finding that reasonable minds could not differ concerning an absence of material fact and that the State and the City were entitled to judgment as a matter of law. The Wileys appeal the District Court's final judgment dismissing their complaint.

The Wileys raise the following issue on appeal: Did the District Court err in granting summary judgment?

DISCUSSION

Under Rule 56(c), M.R.Civ.P., 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. The moving party has the initial burden to establish that there are no genuine issues of material fact. Once that burden has been met, the burden then shifts to the party opposing the motion to establish otherwise. Spain-Morrow Ranch, Inc. v. West (1994), 264 Mont. 441, 444, 872 P.2d 330, 331-32. Our review of a grant of summary judgment is de novo; we use the same criteria as the district court. Minnie v. City of Roundup (1993), 257 Mont. 429, 431, 849 P.2d 212, 214.

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. However, when reasonable minds cannot differ, questions of fact can be determined as a matter of law. Brohman, 749 P.2d at 70. For example, if the moving party establishes that one element of a cause of action lacks any genuine issue of material fact and the non-moving party does not come forward with proof that a genuine issue does exist, summary judgment is proper. Hatch v. State Dept. of Highways (Mont.1994), --- Mont. ----, ----, 887 P.2d 729, 732.

The Wileys argue that reasonable minds could differ concerning the absence of material fact and therefore summary judgment was not appropriate. Specifically, the Wileys assert the State and the City "installed, constructed, maintained, and/or operated the metal plate in a dangerous, defective, and unsafe condition," and that four questions of fact establishing the condition remain:

(1) the location of the pullbox cover in relation to pedestrian traffic; (2) the use of the cast iron cover in an outdoor application when it was known to be twice as slippery as the surrounding cement; (3) lack of any non-skid material to increase the coefficient of friction; and (4) there were no applicable guidelines which establish a standard of minimum friction.

A negligence cause of action has four elements: (1) duty; (2) breach of duty; (3) causation; and (4) damages. Hatch, 887 P.2d at 732. Duty is the first element of a negligence claim and 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). The State has the duty to keep its sidewalks and highways in a reasonably safe condition for ordinary use and public travel. Buck v. State (1986), 222 Mont. 423, 429, 723 P.2d 210, 214; Sullivan v. City of Butte (1937), 104 Mont. 225, 226, 65 P.2d 1175, 1175. Furthermore, when the State has notice of a defect and opportunity to act, it has the duty to cure, remove, or warn of that defect. Buck, 723 P.2d at 214. Thus, in the case before us, the State and the City had the duty to keep the pullbox and the surrounding sidewalk in a reasonably safe condition and cure, remove, or warn of a defect if one existed.

The second element of a negligence claim is a breach of a duty. Hatch, 887 P.2d at 732. In Sullivan, we applied the duty to exercise ordinary care to keep sidewalks in a reasonably safe condition for public travel to a negligence case involving a slip on a coal-hole cover. Sullivan, 65 P.2d at 1175. To establish a breach of the city's duty, the plaintiff had to show that a defect in the coal-hole cover existed. The issue was whether a reasonable person could have anticipated an accident on a coal-hole cover...