                                NO. 8 9 - 0 4 7

               117 THE SUPREME COURT OF THE STATE OF MONTANA

                                     1989




JUDY THOMAS a/k/a JUDY BEEMAN,
                Plaintiff and Appellant,
       -vs-
STATE OF MONTANA, DEPARTMENT OF
REVENUE,
              Defendant and Respondent.




APPEAL FROM:    ~istrictCourt of the Thirteenth ~udicial~istrict,
                In and for the County of Yellowstone,
                The Honorable Diane G. Barz, Judge presiding.

COUNSEL OF RECORD:
      For Appellant:
                Jerome J. Cate; Cate Law ~ i r m ,
                                                 ~illings,Montana
       For Respondent :
                Matthew F. Heffron, Agency Legal services, Helena,
                Montana
                 avid W. Woodgerd, Dept. of Revenue, Helena, Montana
                John H. Maynard, Tort claims ~ i v . ,Helena, Montana



                                     Submitted on Briefs:   June 8, 1 9 8 9
Justice John Conway Harrison delivered the Opinion of the
Court.

      This is an appeal by plaintiff/appellant Judy Thomas
a/k/a Judy Beeman (hereinafter referred to as the plaintiff)
from the District Court of the Thirteenth Judicial District,
Yellowstone County, Montana. Plaintiff appeals the District
Court's denial of her "Motion for Leave to File Amended
Complaint." We reverse.
      This action was commenced on August 1, 1985, wherein
the plaintiff sought to recover damages from the State of
Montana, Department of Revenue (hereinafter referred to as
the State). Plaintiff's original complaint alleged that the
State was liable for passive negligence.
      The original complaint filed on August 5, 1986, alleged
the following facts.     On or about November 8, 1983, the
plaintiff was walking past a State Liquor Store retail outlet
in Billings, Montana. On that day, an employee of the liquor
store, while washing the store's windows, negligently left
window cleaning equipment, including a broomstick type device
and pail, lying on the sidewalk.     As she walked past the
store, on a public walkway, she fell over the broomstick type
device and pail, lost her balance, and fell to the ground
injuring herself.
      Paragraph I11 of the original complaint read:
                  That on or about the 8th day of
           November, 1983, an employee of the
           Defendant, DEPARTMENT OF REVENUE, or
           someone on its behalf, was in the process
           of cleaning windows on the aforesaid
           premises and had negligently left some of
           the window cleaning equipment, including
           a broomstick type devise [sic] and pail
           laying [sic] across the sidewalk.     The
           Plaintiff, in walking on the public walk
           way [sic], fell over the broomstick and
           pail and as a result thereof incurred
           personal injury, including injury to her
           face, head, right arm and knees with a
           result of cervical myofacitis [sic] and
           lumbosacral myalgia and neurological
           injuries.
      The original complaint further alleged that as a result
of the State's negligence, the plaintiff has incurred medical
expenses, pain and suffering, and will continue to to incur
medical expenses as a direct result of her injuries from the
incident. Plaintiff requested judgment against the State for
special and general damages, costs and other relief the
District Court deemed just and proper.
      On June 2, 1988, the State filed its motion for summary
judgment and brief in support thereof, based upon the
following grounds:
                 1. That there is no genuine issue
           as to any material fact upon the issue of
           the State's liability in this action, and
           that the defendant State of Montana is
           entitled to judgment as a matter of law;
                 2. The State of Montana breached
           no legal duty owed to plaintiff;
                 3. Plaintiff's    own   comparative
           negligence caused her fall[.]
      On June 27, 1988, plaintiff filed her brief in
opposition to the State's motion for summary judgment, to
which the State on July 5, 1988, filed its reply brief in
support of the motion for summary judgment.
      The District Court, in its order filed October 31,
1988, granted the State's motion for summary judgment and
dismissed plaintiff's action, subject to the filing of an
amended complaint within ten days which would allege a new
theory of negligence.      In accordance with that order,
plaintiff filed on November 4, 1988 her motion for leave to
file an amended complaint.    The State filed its brief in
opposition to plaintiff's motion on November 21, 1988.
Plaintiff alleged in her affidavit, amended complaint, and
now on appeal to this Court, that the employee who was
washing the windows placed the handle of a squeege mop
between her legs and tripped her.
      Paragraph I11 of plaintiff's amended complaint reads as
follows:
                 On or about November 8, 1983, the
           Plaintiff was passing in front of
           Defendant's store on a public walk way
           [sic] and was negligently tripped by an
           employee   of   Defendant   causing   the
           Plaintiff to fall incurring personal
           injury including injury to her face,
           head, right arm and knee resulting in
           cervical myofacitis [sic] and lumbosacral
           myalgia and neurological injuries.
      On November 30, 1988, the District Court denied the
plaintiff's motion for leave to file an amended complaint.
The court denied the plaintiff's motion because the amended
complaint alleged new facts, i.e., that the State's employee
acted affirmatively rather than passively.       The District
Court in its memorandum which accompanied the November 30,
1988 order stated in part:
                 Had Plaintiff's new theory of
           negligence set forth in her amended
           complaint arisen out of the same conduct,
           transaction or occurrence as the claim
           set forth in her original complaint,
           justice would have required that the
           court grant Plaintiff's motion for leave
           to     file     amended    complaint. ..
           Plaintiff's   claim     in  her   amended
           complaint is barred by the statute of
           limitations and her motion must be
           denied.
      Plaintiff's sole issue on appeal is whether the
District Court erred in denying plaintiff's motion for leave
to file an amended complaint.
      Paragraph I11 of the original complaint and paragraph
I11 of the amended complaint both allege the same time, same
place, same persons, essentially the same activities, and
essentially the same tort.     The original complaint stated
that the State had negligently left equipment on the sidewalk
and the plaintiff fell over the equipment. In contrast, the
amended complaint stated that the plaintiff was negligently
tripped by an employee of the State. We conclude that is
essentially the same conduct, transaction and occurrence and
that the basis of the amended claim is the same as the
previous claim.
      We conclude that plaintiff's original complaint stated
an adequate claim and the amended complaint clearly meets the
requirement of Rule 8 (a), M.R.Civ.P., that the averments of
pleadings be simple, concise and direct.     See, Brothers v.
Surplus Tractor Parts Corporation (1973), 161 Mont. 412, 506
P.2d 1362; Butte Country C1. v. Metropolitan San. & S. S. D.
No. 1 (1974), 164 Mont. 74, 519 P.2d 408.
      We hold that the District Court erred in denying leave
to file the amended complaint and in granting summary
judgment resulting therefrom.     See, Flanigan v. Prudential
Federal Sav. & Loan (1986), 221 Mont. 419, 720 P.2d 257; Sooy
v. Petrolane Steel Gas, Inc. (1985), 218 Mont. 418, 708 P.2d
1014; Lien v. Murphy Corp. (1982), 201 Mont. 488, 656 P.2d
804; and Rozan v. Rosen (1967), 150 Mont. 121, 431 P.2d 870.
      We reverse and direct the District Court to allow the
plaintiff to file her amended complaint.
We concur:
             /
