                              NO.    91-361

            IN THE SUPREME COURT OF THE STATE OF MONTANA
                                    1992



LORI MOFFATT,
            Plaintiff and Appellant,
     -vs-
UNIVERSITY OF MONTANA,
STATE OF MONTANA,
            Defendant and Respondent.




APPEAL FROM:     District Court of the Fourth Judicial District,
                 In and for the County of Missoula,
                 The Honorable John S. Henson, Judge presiding.


COUNSEL OF RECORD:
            For Appellant:
                Kenneth H. Grenfell, McChesney, Grenfell      &   Ogg,
                Missoula, Montana

            For Respondent:
                 Norman C. Peterson, ~ssistant Attorney General,
                 Agency Legal Services Bureau, Helena, Montana



                                Submitted on Briefs:   March 26, 1992
Justice William E. Hunt, Sr., delivered the opinion of the Court.
     Appellant Lori Moffatt brought a negligence action in the
Fourth Judicial District Court, Missoula     County   against the
University of Montana for injuries she received when she slipped
and fell down a staircase.    The University filed a motion for
summary judgment.   The District Court granted the University's
motion for summary judgment pursuant to Rule 5 6 (c), M.R. Civ.P.
Moffatt appeals the decision of the District Court.
     We reverse and remand.
     The only issue for this Court to consider is whether the
~istrictCourt erred when it found there were no genuine issues of
material fact and granted summary judgment in favor of respondent,
the University of Montana.
     The uncontested facts are as follows.       Appellant was a
chemistry student who attendedthe University of Montana located in
Missoula.   On March 16, 1987, appellant, who was carrying books
with her left arm, slipped, and fell down a staircase in the
Pharmacy-Psychology Building, fracturing her left wrist.
     On July 24, 1989, appellant filed a complaint in District
Court against the University for failure to properly maintain its
premises.   In the complaint, she alleges that at the time of the
accident, the stairway was slick and highly polished and not
treated with an anti-slip material or any non-skid protective
material and thus constituted a hidden and lurking danger and that
the University knew or should have known of the danger and failed
to warn persons of the danger.     In its answer the University denied
the allegations.
     On July 1, 1990, the University filed a motion for summary
judgment and attached three affidavits by University personnel in
support of its motion.       For the purposes of the motion, the
University   did   not   dispute   appellant's    assertions that   she
descended the steps in a safe and prudent manner, and that she was
wearing tennis shoes with adequate soles to insure proper traction
and footing. In addition, the University admits that no "anti-slip
grip stripw material was placed on the stairs prior to the accident
and that no warning signs were in place to caution persons of the
allegedly dangerous condition.      Appellant responded with a reply
brief.
     On May 10, 1991, the District Court issued its opinion and
order, concluding that there were no genuine issues of material
fact and ruling that the University was entitled to judgment as a
matter of law.     It is from this order that appellant appeals.
     In a motion for summary judgment, the moving party has the
burden of showing a complete absence of any genuine material issue
of fact which would entitle him to judgment as a matter of law.
Cereck v. Albertson's Inc. (1981), 195 Mont. 409, 411, 637 P.2d
509, 511.    The party opposing a motion for summary judgment is
entitled to all reasonable inferences that may be drawn from the
offered proof.     Cereck, 637 P.2d at 511.      For a genuine issue of
material fact to exist in a negligence case, the defendant must owe
a duty to the plaintiff.    Rennick v. Hoover (1980), 186 Mont. 167,
170, 606 p.2d 1079, 1081.    If appellant's allegations, if proven,
support a finding of a breach of duty, then the granting of summary
judgment is improper.   Rennick, 606 P.2d at 1081.
     In her complaint and brief in opposition to the motion for
summary judgment, appellant alleged that at the time of the
accident the stairway was slick, highly polished, and not treated
with any anti-slip or non-skid protective material.
     The University filed three affidavits in support of its motion
for summary judgment.   In his affidavit, Ken Willett, Manager of
the Safety and Security Section of the Physical Plant Department,
stated that because he had not received any previous complaints
relating to the condition of the stairs, he had no reason to
anticipate the possibility of harm to anyone.
     In another affidavit, Tom Wheatly, Supervisor of the Building
Trades Section of the Physical Plant, explained that he had no
knowledge of any previous accidents involving the stairs in the
Pharmacy-Psychology Building.
     In the third affidavit, Clarence Hester, Bureau Chief of the
Department of Administration's Design and Construction Bureau,
stated that the composition of the stairs met with building code
standards for acceptable stair materials.
     The statements by the University's employees do not meet the
burden of proof imposed upon the University in a motion for summary
judgment.   In addition, the affidavit of Clarence Hester does not
prove that there is not a complete lack of a genuine issue of a
material factual dispute.    The fact-finder should be given the
opportunity to determine whether the University was negligent in
failing to maintain the stairs, and whether it was negligent in
failing to warn of a hazardous condition.
    The order granting summary judgment is reversed and the matter
is remanded for further proceedings.
    We reverse and remand.      /


                                                  - ~ I
                                        Justice
We concur:



     Chief Justice
,




             Justices



                                5
Justice Fred J. Weber dissents as follows:
     The majority opinion refers to the filing of a complaint
alleging that the stairway was slick and highly polished and not
treated with anti-slip material, and thus, constituted a hidden and
lurking danger and that the University knew or should have known of
the danger and failed to warn.   The majority opinion again refers
to the complaint and brief in opposition to the motion for summary
judgment where the plaintiff alleged that the stairway was slick,
highly polished, and not treated with anti-slip or non-skid
protective material.
     I would first emphasize that the complaint is not a sworn
complaint.   It is merely a complaint signed by the attorney for
plaintiff, without any statement under oath as to its truthfulness.
     The majority opinion briefly refers to the three affidavits
filed by the University and then concludes as follows:
          The statements by the University's employees do not
     meet the burden of proof imposed upon the University in
     a motion for summary judgment.         In addition, the
     affidavit of Clarence Hester does not prove that there is
     not a complete lack of a genuine issue of a material
     factual dispute. The fact-finder should be given the
     opportunity to determine whether the University was
     negligent in failing to maintain the stairs, and whether
     it was negligent in failing to warn of a hazardous
     condition.
I suggest that the majority opinion has disregarded both our rules
with regard to summary judgment as well as the controlling
decisions of this Court.
     The ~istrictCourt entered a thirteen page opinion and order
setting forth in detail its reasons for entry of summary judgment
for the defendant.   I believe the summary by the District Court is
enlightening:
          In summary, the principle holding of the Court is
     that the Defendant's Motion for Summary Judgment is
     granted.    The undisputed facts show that no defect
     existed; that no prior injuries or complaints existed;
     and that the stairs were constructed within guideline
     specifications. The undisputed facts do not show that
     the Defendants breached a duty of ordinary care to
     Moffatt and do not show the existence of a step which
     constituted a hidden danger in the step itself or the
     area surrounding the step or any other unsafe condition.
     Moffatt's negligence claim rests entirely on the
     assumption that the subject stairs constitute a hidden or
     lurking, or otherwise dangerous condition. Moffatt has
     failed to provide this Court with any objective evidence,
     whatsoever, which tends to prove or disprove the
     existence of any genuine issue of material fact regarding
     the alleged dangerous conditions. On the other hand,
     this Court finds that UM has satisfied its burden under
     Rule 56(c), M.R.Civ.P., that no genuine issue of material
     fact exists, and that UM is entitled to summary judgment
     as a matter of law.
I believe the record before the District Court supports the
foregoing analysis and conclusion. I emphasize that the references
to the pleading in an unsworn complaint and to the brief are
inappropriate because the statements in such unsworn instruments
are not admissible for summary judgment purposes.      Rule 56(e),
M.R.Civ.P.,   sets forth key aspects of the affidavits to be used
with regard to summary judgment:
     Form of affidavits     -  further testimony   -   defense
     required. Supporting and opposing affidavits shall be
     made on personal knowledge, shall set forth such facts as
     would be admissible in evidence, and shall show
     affirmatively that the affiant is competent to testify to
     the matters stated therein. Sworn or certified copies of
     all papers or parts thereof referred to in an affidavit
     shall be attached thereto or served therewith.     . . .
     When a motion for summary judgment is made and supported
     as provided in this rule, an adverse uartv mav not rest
     upon the mere alleqations or denials of the adverse
     party's pleadinq, but the adverse uartv's response, by
    affidavits or as otherwise ~rovidedin this rule, must
    set forth specific facts showins that there is a qenuine
    issue for trial.    If the adverse ~ a r t vdoes not so
    resvond, summarv iudment, if a~~ropriate,      shall be
    entered asainst the adverse ~artv. (Emphasis supplied.)
    The provisions of Rule 56, with regard to summary judgment,
have been considered in many cases.       In particular, we have
concluded that resting upon allegations of a pleading is not
sufficient. As stated in Mayer Bros. v. Daniel Richard Jewelers,
Inc. (1986), 223 Mont. 397, 400, 726 P.2d 815, 817:
          We have recently held that a party opposing a motion
     for summary judgment may not rest upon the mere
     allegations of the pleadings, but has an affirmative duty
     to respond by affidavits or sworn testimony with specific
     facts that show there is a genuine issue of fact for
     trial. B.M. Bv Berqer v. State (Mont. 1985), [215 Mont.
     1751, 698 P.2d 399, 401, 42 St.Rep. 272, 274-75; Rule
     56(e), M.R.Civ.P.      Without such specific factual
     evidence, we are unable to determine that any real
     factual controversy exists.  ..
     In analyzing the very extensive affidavits submitted by the
defendant, the District Court referred      first of all to the
testimony of Mr. Willett, the Safety and Security Manager.       It
points out that he testified that after an exhaustive and complete
examination of the files, he did not find any reports or complaints
of problems or falls on any staircase in this particular building
prior to the report of the plaintiff. The record shows that he and
his staff made regular inspections and that he had no personal
knowledge, nor had he received any knowledge from the staff of any
dangerous condition created by the alleged slippery metal nose of
any stairs, or otherwise.
     The District Court also referred to the affidavit of Mr.
Wheatley who is the supervisor of the building trades section of
the Physical Plant at the University.         He is responsible for doing
the actual work.       He was not aware of any prior accident caused by
a slippery metal nose piece, and was not aware of any previous
complaints that the stairs were in a dangerous condition.
     The court also referred to the affidavit of Clarence Hester,
which    the majority       opinion apparently concludes was        somehow
incomplete.       I don't understand that.      In substance, Mr. Hester
testified       that   he   is the   Bureau   Chief   of   the   Design   and
Construction Bureau of the Department of Administration and that he
has been the Bureau Chief for twenty-three years; and that he has
an architectural engineering degree and is a registered architect.
 is sworn affidavit established that the responsibility of his
bureau was to review all construction plans to ensure to that all
designs meet with appropriate building code standards and that the
final plan for the pharmacy-psychology building at the University
was reviewed by the Bureau.          With regard to the composition and
construction, he then stated:
             5.    That the composition of the stairs in the
        building as planned and as completed is of concrete and
        metal.   Specifically, the stairs are brushed concrete
        with metal nose plates.
             6. That the composition of the stairs is within the
        Building Code Standards for acceptable stair materials.
             7. That it is a customary and acceptable practice
        in the building construction trade to build stairs of the
        above composition and in the above manner.
             8 . That there are no building code provisions which
        either require or recommend that "no-slip grip strips" or
        any similar material or device be placed on the metal
        nose plates of stairs composed of the above materials.
        After    consideration of    the affidavits submitted by          the
defendant University, the District Court pointed out that there is
a total lack of objective evidence submitted by the plaintiff or
otherwise presented which raises any material issue of fact.    As
stated by the District Court:
         This Court has reviewed the entire record.       The
    evidence consists of three affidavits, all proposed by
    UM. These affidavits establish that UM was not aware of
    any alleged dangerous steps because there had never been
    any previous complaints, that inspections by its own
    staff did not reveal any hazards, and that the steps were
    built within industry accepted standards. No evidence in
    the form of depositions, affidavits or pictures were
    presented by Moffatt which might have established the
    existence of a condition that was not visibly safe.   ..
     . Moffatt's mere recitation of her opinions and
    allegations is not sufficient to existence of a aenuine
    issue of material fact. .     ..
I believe the record fully supports the conclusions and summary
judgment entered by the District Court.   Where the plaintiff has
failed to present anything in the nature of a sworn pleading,
affidavit or deposition, which     tends to   establish that the
University was negligent in failing to maintain the stairs or that
it was negligent in failing to warn of a hazardous condition, I am
unable to understand how the majority remands for a determination
of those issues.
     Under Rule 56, M.R.Civ.P.,   and our Montana cases, I believe
this Court is required to affirm the summary judgment entered by
the District Court.
