                             No.    94-536
           IN THE SUPREME COURT OF THE STATE OF MONTANA
                                   1995


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.




APPEAL FROM:   District Court of the Seventh Judicial District,
               In and for the County of Dawson,
               The Honorable Dale Cox, Judge presiding.


COUNSEL OF RECORD:
          For Appellants:
               Richard A. Simonton, Kevin R. Peterson; Simonton,
               Howe & Schneider, Glendive, Montana

          For Respondents:
               KristiBlazer; Luxan & Murfitt, Helena! Montana
               Gary L. Day; Lucas & Monaghan, Miles City, Montana



                                   Submitted on Briefs:   March 2, 1995
                                               Decided:   August 3, 1995
Filed:
Justice James C. Nelson delivered the Opinion of the Court.


        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

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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

                                      3
judgment is de nova;      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 (19881,
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), 887 P.2d 729, 732, 51 St.Rep.       1512, 1514.
       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

                                     4
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.     -, 723 P.2d at 214.
                 Buck                      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 that
had the defect of a worn band around it and was at least an eighth
of an inch above the level of the surrounding sidewalk.
         Noting that very few, if any, streets or highways can be kept
so safe as to preclude the possibility of accidents, we held that
when a defect is so slight that no prudent person could reasonably
anticipate danger from the defect,        but an accident happens that

                                      5
could have been guarded against with extraordinary care and
foresight, the question of the defendant's responsibility is one of
law.     Sullivan,    65 P.2d at 1176.       We recognized that courts had
denied recovery where the testimony showed that a sidewalk free of
any defects was merely slippery and concluded that a reasonable
person would not have anticipated that such a slight defect as the
worn band around the coal-hole cover would likely cause an
accident.       Sullivan, 65 P.2d at 1176-77.
       In Cooper v. Sisters of Charity (1994), 265 Mont. 205, 209,
875 P.2d 352, 353, the plaintiff caught her foot on a drain gate
and    fell.   She did not come forward with expert testimony and thus
was unable to show that the drain gate was unsafe or defective.         In
other words, she failed to raise a genuine issue of material fact.
We concluded that as a matter of law, she failed to prove that the
drain gate was unsafe or defective and was entitled to summary
judgment.       Coooer,   875 P.2d at 355.
       In the case before us, the facts are undisputed.         The design
and construction of the sidewalk, including the pullbox, met all
standards and specifications published by all applicable sources.
In fact,       the pullbox fell well within the range of acceptable
inserts; its metal construction also fell well within the range of
acceptable materials for inserts.
       The Wileys' claim that Lee Ebeling's expert testimony on the
physical properties of the cover,              the non-existence of   code
violations,      the decision on where to place the box, and the choice
of material for the cover raises a genuine issue of material fact.

                                       6
However,    Lee Ebeling acknowledged that he was unable to state an
opinion on each of the four alleged issues of fact.           Specifically,
he did not have the requisite background facts to form an opinion
on the placement of the pullbox.           In summary, his testimony failed
to establish either a standard of care or a breach of any standard
of care.
     Thus the issue before us is a question of law; did a defect or
dangerous condition exist in the sidewalk of sufficient magnitude
to cause a reasonable person to conclude that an accident was
likely to occur as a result of that condition and, if so, did the
State and the City have notice of the defect.              See Sullivan, 65
P.2d at 1176.      Although expert testimony established that the
pullbox was twice as slippery as the sidewalk, the Wileys were
unable to demonstrate that this condition fell below any acceptable
standard or constituted a defect.          Without showing that a defect or
dangerous condition existed, the Wileys were not able to show that
the State or the City breached its duty to them.
     Relying on Johnson v. State (Alaska 1981), 636 P.2d 47, 56,
the Wileys assert that it is not necessary for the State to have
notice when the asserted dangerous condition is caused by the State
or the City.       Regardless,   the       Wileys   must first show that a
dangerous condition or defect existed.          The summary judgment record
before us does not establish a defect, much less a defect that a
reasonably prudent person would have                anticipated to cause an
accident.
     The District Court correctly found that reasonable minds could

                                       7
not differ concerning an absence of a genuine issue of material
fact and that the State and the City were entitled to summary
judgment as a matter of law.   Because we hold that the State and
the City did not breach their duty of care, we need not discuss the
elements of causation and damages.
     AFFIRMED.




We concur:
                                         August 3, 1995

                                  CERTIFICATE OF SERVICE

I hereby certify that the following certified order was sent by United States mail, prepaid, to the
following named:


Richard A. Simonton
Kevin R. Peterson
SIMONTON, HOWE & SCHNEIDER
P.O. Box 1250
G.".."..l, a,11 _

Kristi BhIZX, Esq.
Luxan & Murfitt
P.O. Box: 1144
Helena, MT 596261144

Gary L. Day
LUCAS & MONAGHALN, P.C.
P.O. Box 728
Miles City, MT 59620-1401

                                                     ED SMITH
                                                     CLERK OF THE SUPREhdE COURT
                                                     STATE OF MONTANA

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