Blaskovich v. Noreast Development Corp. , 242 Mont. 326 ( 1990 )

JUSTICE BARZ

delivered the Opinion of the Court.

Plaintiffs, Rhonda L. and Mark Blaskovich, brought this action against defendant Noreast Development Corp., d/b/a Cottonwood Inn, to recover damages for injuries incurred when Rhonda slipped and fell in the Cottonwood Inn’s parking lot. The District Court of the Seventeenth Judicial District, Valley County, granted Noreast’s motion for summary judgment. The Blaskoviches appeal. We affirm.

The following issues were raised on appeal.

1. Whether the District Court erred in granting defendant’s motion for summary judgment;

2. whether a property owner is liable for injuries sustained by an individual who slips and falls as a result of natural accumulations of snow and ice located on the property owner’s premises;

3. whether the District Court erred by not striking defendant’s supplemental affidavits that were filed after the submission of the motion for summary judgment.

On February 12, 1986, Rhonda L. Blaskovich and her husband, Mark, attended a mid-morning meeting at the Cottonwood Inn. The Cottonwood Inn, owned and operated by Noreast Development Corp., is a motel, restaurant and convention center located in Glasgow, Montana. The inn is surrounded by a sidewalk and a paved asphalt parking lot which are also owned by Noreast. At approximately 11:30 a.m., the meeting ended and the Blaskoviches left the inn. As Rhonda stepped off the sidewalk and onto the parking lot she slipped and fell, fracturing her leg in four places.

February 12, 1986 — the day of the accident — was a cold and clear day. At the time of the accident, no pavement was showing through the snowpacked parking lot and a light dusting of snow covered the snowpack. On January 17, 1986, approximately four weeks prior to the accident, the parking lot had been sanded and on January 31, 1986, the parking lot had been plowed. The climatological report from the weather bureau indicated that 1.3 inches of snow fell in the area between January 31, 1986 and February 12, 1986, the day of the accident. The lot was plowed again on February 16, 1986, four days after the accident and a small amount of snow was removed.

The Blaskoviches brought this action against Noreast, alleging negligence in the maintenance of its parking lot. Rhonda sought damages that resulted from her physical injuries and Mark sought damages for loss of consortium. Noreast filed a motion for summary judgment. The District Court granted summary judgment in favor of Noreast. The Blaskoviches appeal, raising three issues.

The first issue this Court will address on appeal is whether the District Court erred in granting Noreast’s motion for summary judgment.

Summary judgment is appropriate when no genuine issue exists as to any material fact and the moving party is entitled to judgment as a matter of law. Rule 56(c), M.R.Civ.P. The burden first rests with the party moving for summary judgment to demonstrate that a genuine issue of material fact does not exist. Once this is established, the burden shifts to the party opposing the motion to demonstrate otherwise. Rule 56(e), M.R.Civ.P.; State Med. Oxygen and Supply, Inc. v. American Med. Oxygen Co. (Mont. 1989), [240 Mont. 70,] 782 P.2d 1272, 1275, 46 St.Rep. 1951, 1955; Rumph v. Dale Edwards, Inc. (1979), 183 Mont. 359, 365-66, 600 P.2d 163, 167. In addition to establishing that no genuine issue of material fact exists, the moving party must also establish that it is entitled to judgment as a matter of law. Rule 56(c), M.R.Civ.P.

The facts are undisputed that February 12, 1986, was a clear and cold day; that at approximately 11:30 a.m. on February 12, 1986 the Blaskoviches were leaving the Cottonwood Inn when Rhonda Blaskovich slipped and fell on the inn’s parking lot, fracturing her leg; that 1.3 inches of snow fell from the last time the lot was plowed until the day of the accident; and that the manager of the inn examined areas of the parking lot, but not the precise area where Rhonda fell. In light of these undisputed facts, Noreast met its burden under Rule 56(c), M.R.Civ.P., in demonstrating that a genuine issue of material fact did not exist. The burden then shifted to the Blaskoviches to demonstrate otherwise. Rule 56(e), M.R.Civ.P., specifically provides that an adverse party to a motion for summary judgment

“may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.”

The Blaskoviches’ argument merely reiterates the facts that Noreast did not plow or sand the parking lot during the twelve days preceding Rhonda’s accident and that the inn’s manager did not examine the precise area where Rhonda fell. As already stated, these facts are undisputed.

In addition to establishing that no genuine issue of material fact exists, Noreast must also establish that they are entitled to judgment as a matter of law. Rule 56(c), M.R.Civ.P. In the present case, the District Court relied upon Luebeck v. Safeway Stores, Inc. (1968), 152 Mont. 88, 446 P.2d 921 and Cereck v. Albertson’s, Inc. (1981), 195 Mont. 409, 637 P.2d 509, as the applicable law in this case. In particular, the court relied upon the holding in Luebeck which stated that when “danger created by the elements such as the forming of ice and the falling of snow are universally known, or as here, actually known, there is no liability.” Luebeck, 152 Mont. at 93, 446 P.2d at 924. The District Court then found that Noreast met its burden in establishing that no genuine issue of material fact existed; that the Blaskoviches failed to meet their burden of demonstrating that a genuine issue of material fact did exist; and that as a matter of law, Noreast was entitled to summary judgment.

We affirm the District Court’s determination that Noreast was entitled to summary judgment as a matter of law, however, we do so on different grounds. In asserting that Noreast was negligent, the Blaskoviches must establish that Noreast had a duty to the Blaskoviches, that Noreast breached that duty, that Rhonda sustained damages, and that her damages or injury were proximately caused by Noreast’s breach of its duty. Clark v. Norris (1987), 226 Mont. 43, 48, 734 P.2d 182, 185.

As previously stated, the facts pertaining to this case are undisputed. Rhonda stepped off the sidewalk and onto the inn’s parking lot where she slipped and fell, fracturing her leg in four places. However, the mere happenstance of an accident does not impute negligence. Clark, 288 Mont. at 48, 734 P.2d at 185. Noreast clearly has a duty to its patrons — such as the Blaskoviches — to use ordinary care in maintaining its premises in a reasonably safe condition or to warn the Blaskoviches of any hidden or lurking dangers. Luebeck, 152 Mont. at 90, 446 P.2d 922-23. The Blaskoviches must also demonstrate that Noreast breached that duty, that they suffered injury as a result of that breach and that the injury was proximately caused by the breach. The Blaskoviches failed to establish that Noreast breached its duty of exercising ordinary care in maintaining its premises in a reasonably safe condition and that this breach was the proximate cause of Rhonda’s injury. The Blaskoviches are not expected to bring in all their evidence at this juncture, however, as already stated, they cannot rely upon the fact that Rhonda slipped and fell to establish two elements of their case. As Rule 56(e), M.R.Civ.P., clearly provides, the Blaskoviches may not rest upon their pleading, but must set forth an affidavit or other specific facts showing that a genuine issue for trial exists. The Blaskoviches failed to follow this mandate of Rule 56(e), M.R.Civ.P. Therefore, in light of the present set of facts, we must affirm the District Court’s decision to grant Noreast’s motion for summary judgment.

The second issue raised on appeal is whether a property owner is liable for injuries sustained by an individual who slips and falls as a result of natural accumulation of snow and ice located on the property owner’s premises.

In light of the disposition of the first issue, this Court does not need to address this question.

The last issue raised on appeal is whether the District Court erred by not striking Noreast’s supplemental affidavits that were filed after the submission of the motion for summary judgment.

Noreast filed its motion for summary judgment on October 28, 1988. On January 16, 1989, the motion was submitted to the court. On January 26, 1989, the District Court issued its order granting Noreast’s motion for summary judgment. On the same day — January 26, 1989 — Noreast filed supplemental affidavits in support of its motion for summary judgment. The Blaskoviches argue that the supplemental affidavits “tainted” the record in favor of Noreast and that the District Court should have granted their motion to strike and remove the supplemental affidavits at that time. We disagree.

Rule 56(e), M.R.Civ.P., addresses supporting and opposing affidavits in regards to a motion for summary judgment. In particular, this rule provides that a “court may permit affidavits to be supplemented or opposed by . . . further affidavits.” Rule 56(e), M.R.Civ.P. In light of this rule, the District Court did not err by denying the Blaskoviches’ motion to strike and remove the supplemental affidavits.

Affirmed.

CHIEF JUSTICE TURNAGE and JUSTICES HARRISON, WEBER and McDONOUGH concur.