                                     No. 13036

        I N THE SUPREME COURT O THE STATE OF MONTANA
                               F

                                        1975



STATE OF M N A A e x re1 NORTHWEST AIRLINES,
          OTN

                             Relator,
     -vs -

THE DISTRICT COURT OF THE EIGHTH JUDICIAL
DISTRICT AND THE HON. T U A G. BRADFORD, JUDGE
                       RMN
THEREOF, GEORGE GALE AND THE CITY OF GREAT FALLS,

                             Respondents.
...................................................
                                    No.      13040

STATE OF M N A A ex r e l , THE CITY OF GREAT FALLS,
          OTN

                             Relator,
     -vs -

THE DISTRICT COURT OF THE EIGHTH JUDICIAL DISTRICT
AND THE HON. T U A G. BRADFORD, J U D G E THEREOF,
              RMN
GEORGE GALE AND NOR.THWEST AIRLINES,

                             Respondents.



ORIGINAL PROCEEDING:

     For R e l a t o r s :

             Smith, Emmons and B a i l l i e , G r e a t F a l l s , Montana
             W i l l i a m L. B a i l l i e a r g u e d , G r e a t F a l l s , Montana
             Church, H a r r i s , J o h n s o n and W i l l i a m s , G r e a t F a l l s ,
              Montana
             C r e s a p S. McCracken a r g u e d and R. K e i t h S t r o n g
              a p p e a r e d , G r e a t F a l l s , Montana

     F o r Kespondents :

             Hoyt and B o t t o m l y , G r e a t F a l l s , Montana
             1i.V. Bottomly a r g u e d , G r e a t F a l l s , Montana
             Church, H a r r i s , Johnson and W i l l i a m s , G r e a t F a l l s ,
              Montana
             C r e s a p S . McCracken a r g u e d and R. K e i t h S t r o n g
               a p p e a r e d , G r e a t F a l l s , Montana

                                                       --      .
                                                               -
                                                 Submitted:         May 23, 1975




                                              Cl e t
Mr. Chief Justice James T. Harrison delivered the Opinion
of the Court.

         This is an application for a writ of supervisory control
seeking an order to grant summary judgments to relators as
applied for, or alternatively, should summary judgment not be
granted, that an order be entered vacating a discovery order
entered by respondent court in civil action 75146B, Cascade
County, entitled "George Gale, Plaintiff, vs. City of Great
Falls a Municipal Corporation, and Northwest Airlines, a cor-
poration, Defendants."
         This Court, after hearing relator Northwest Airlines ex
parte, ordered an adversary hearing be held on May 23, 1975.
The city of Great Falls, another named defendant in the same
civil case, made application to this Court for the same relief
           to join
and requested/with Northwest as joint relators which was granted.
         Civil action 75146B arose out of a personal injury suit
by plaintiff George Gale against relators Northwest Airlines and
the city of Great Falls.   The injury occurred when plaintiff fell
and injured himself in the vicinity of Northwest's airplane which
was parked for passenger boarding at Great Falls International
Airport, June 28, 1972.
         The undisputed facts reveal that plaintiff approached the
airplane from the Great Falls terminal building for the sole pur-
pose of retrieving a set of car keys from his nephew who was then
his employee and who was on board the airplane as a passenger.
Near the airplane he fell and fractured an ankle and twisted his
back.   He may have slipped in an oil spot; the oil may have been
that of Northwest Airlines from a leak in an engine or it may
have been from other unknown sources, inasmuch as the area was
used by others from time to time for the transit and parking of
vehicles and airplanes.
        The rights of the airline to the use of the ramp area
where it customarily parks, are nonexclusive and established by
an airport agreement with the city of Great Falls, which owns
and operates the airport.
         The events leading up to the actual injury show that
plaintiff took his nephew, Bill Gale, to the airport in order
for his nephew to take a flight.      Plaintiff and his nephew were
eating lunch when the nephew's flight was called.      The nephew
went to board the flight.     After the nephew was on board the
plane, plaintiff discovered his nephew had the keys to the car
which plaintiff was to use to get back from the airport to his
place of business.     Plaintiff then got up and quickly proceeded
to the gate where his nephew's plane was positioned for board-
ing.   At the time of this accident, there were no security pre-
cautions as there are today.      No one was at the gate, so plain-
tiff proceeded on through and headed for the plane to obtain the
keys from his nephew.     Plaintiff slipped in a puddle of unknown
substance.     Plaintiff testified:
         "Q. Well, it was apparent to you that it was a
         puddle after this happened? A. Right.
         "Q. But you had seen this prior to the time
         you fell? A. No.
         "Q. Where were you looking? A. I was looking
         straight ahead where I was going.
         "Q.   You were looking at the airplane? A. Yes.


         "Q. And you hadn't seen it before you fell, be-
         cause you were looking straight ahead; is that your
         testimony?


         "THE WITNESS:   Right.


         "Q. * * * But it was clear to you after you fell
         there was a puddle there? A. Right.
         "Q. At least approximately six feet long, you
         described approximately? A. Right."
        After all the discovery was completed and hearing was
had, relators, city of Great Falls and Northwest Airlines moved
for summary judgment.    They asserted plaintiff at the time he
proceeded to go to the plane, was at best a licensee and the
only duty owed to him was to refrain from willful and wanton
negligence.   Further, relators argued plaintiff was guilty of
contributory negligence in that he failed to look where he was
going and the puddle of unknown substance which he slipped in
was clearly in sight as evidenced by plaintiff's own testimony.
Relators argue that plaintiff cannot collect, therefore, as a
matter of law.
        The district court denied the motion for summary judg-
ment.   From that denial relators being this application for a
writ of supervisory control.
        This Court, as recently as July 9, 1975, in its decision,
Steen v. Grenz,      Mont   .
                            -
                            1   -P.2d        ,   32 St.Rep. 686, re-
affirmed that the distinctions between invitee, licensee, and
trespasser still exist in Montana.   As stated in Steen, the long
standing law of Montana is that when a person enters another per-
son's property for his own pleasure, convenience, or benefit, he
is a licensee and the owner of the property has a duty to the li-
censee to refrain from willful and wanton negligence.     In the
instant case, plaintiff, George Gale, proceeded to the airplane
to obtain the keys to his nephew's car, so that he would have
transportation from the airport to his place of business.     There
is no doubt plaintiff, at the time of the accident, was engaged
in an activity for his own pleasure, convenience and benefit,
and therefore was a licensee.   There was no benefit to the air-
lines or the city of Great Falls in plaintiff's retrieval of
the car keys.    Further, there was no showing of willful or wanton
negligence on the part of the airlines or the city of Great
Falls.   We find, therefore, that neither the city of Great
Falls, nor Northwest Airlines can be held liable for the in-
juries suffered by plaintiff.
         Plaintiff argues it was his employee who was aboard
the plane and the bringing of the employee to the airlines was
a mutual benefit for both the airlinestand plaintiff's business.
Therefore, plaintiff argues, he was engaged in an activity of
mutual benefit to the airlines and himself at the time of the
accident, and relators owed him a higher duty of care than a
licensee.   We find however, that plaintiff's activity was too
far removed from the airlines' activity at the time of the acci-
dent to find any mutual benefit to both plaintiff and the airlines,
and again find no liability.
         However, even if this Court had found plaintiff's activ-
ity to be of mutual benefit to both plaintiff and relators, we
would still be compelled to grant the writ of supervisory con-
trol as petitioned, for we find that at the time of the accident
plaintiff was contributorily negligent.    Here, Montana's con-
trolling case is Fuchs v. Huether, 154 Mont. 11, 16, 459 P.2d 689.
Plaintiff in Fuchs was an elderly lady who was walking through
the dark of evening on defendant's sidewalk toward a lighted door,
when she tripped over a seven inch step.   She was looking ahead
toward the lighted door, and not where she had to place her feet.
This Court discussed her conduct and its legal effect:
         "It is not the duty of a host to warn his guests
         of a danger which could be seen if ordinary
         caution and circumspection were exercised. Here
         the plaintiff admitted that she did not watch
         where she was going. On cross-examination she
         testified as follows:
         "'Q. Well, now when you were walking did you
         look down at the sidewalk? A. I looked where
         the light is.
         "'Q.   You didn't look down? A. No.
         "'Q. You were always looking up then as you were
        walking, looking at a light?    A. Yah.
        "'Q. When you got to the corner then you looked
        up at the light, you didn't look down? A. That
        is right.
        "'Q. When you say that is right that means you
        didn't look down at the sidewalk? A. I didn't
        look down.'
        "While generally the question of contributory neg-
        ligence is a question of fact and therefore one
        to be determined by a jury, this Court has often
        held 'it is only when but one reasonable con-
        clusion can be reached from the facts that the
        court will determine the question as a matter
        of law.' [Citations omitted.] Here the Plaintiff
        was contributorily negligent as a matter of law
        and the trial court erred in refusing to direct a
        verdict in favor of defendants."
        Plaintiff's conduct in Fuchs and plaintiff's conduct in
the instant case was the same.   By plaintiff's own admission the
puddle was approximately 6 feet long.    He further testified he
was looking straight ahead,rather than where he was walking.
Therefore, but one reasonable conclusion can be reached from the
facts in the instant case; plaintiff was contributorily negligent.
        Finally, there is argument concerning whether the district
court erred in granting plaintiff's motion to produce certain
documents which are in relator Northwest Airlines' files.    How-
ever, since this Court has granted the petition for writ, it is
unnecessary to discuss that issue.
        This case is, therefore, remanded to the district court
with instruction that it gr




We concur:
                         / /            Chief Justice
Mr. Justice Haswell, specially concurring:
        I concur in the result on the sole basis that plaintiff's
contributory negligence was established as a matter of law.
       Plaintiff either did not see that which was directly in
his line of vision, or he did not look where he was walking.    In
either event, plaintiff was guilty of contributory negligence
barring any recovery as a matter of law.



                                           Justice
