                               No. 12301

      I N THE SUPREME C U T O THE STATE O MONTANA
                       OR    F           F

                                    1972



VERA L. U L and CHARLES WL,
         H
husband and w i f e ,

                       P l a i n t i f f s and A p p e l l ~ n t s ,



LaVERN A R H M and CLIFF BROWN,
        RAA S
d/b/a GRIFF' S BURGER BAR,

                       Defendants and Respondents.



Appeal from:   D i s t r i c t Court of t h e T h i r t e e n t h J u d i c i a l D i s t r i c t ,
               Honorable Charles Luedke, Judge p r e s i d i n g .

Counsel of Record:

    For Appellants :

         J e f f r e y J. S c o t t argued, Omaha, Nebraska.
         G. Todd Baugh appeared, B i l l i n g s , Montana.

    For Respondents :

         Crowley, Kilbourne, Haughey, Hanson and G a l l a g h e r ,
          B i l l i n g s , Montana.
         Jack S. Ramirez argued, B i l l i n g s , Montana,

                                -   -   -




                                            Submitted:         October 27, 1972

                                                Decided :
                                                             F V 1 5 1,07:
                                                             O
Mr. Justice Frank I. Haswell delivered the Opinion of the Court.
           This is an appeal by plaintiffs from a summary judgment
awarded defendants by the district court of Yellowstone County,
the Hon. Charles Luedke, district judge.
           On February 21, 1968, plaintiff Vera Uhl, accompanied
by her children, drove to defendants' Burger Bar, located on
Billings' west side, to buy lunch for her children and brother,
and to redeem a birthday coupon which entitled her son to a free
lunch there.     On defendants' blacktop parking lot there were
two parallel rows of parking spaces facing each other.    At the
end of each parking space was an individual concrete curbing
5 " high and the width of a car.   Between each individual parking
space, the curbings were separated to enable a person to enter
a walkway area between the two parallel rows of parking spaces
and on into the Burger Bar building.    This walkway was simply
a section of the blacktop parking area, utilized to provide
pedestrian access to the building.     Neither the walkway nor the
rest of the parking lot was covered or otherwise protected from
the weather.    Normal procedure at the establishment was to park
against one of these curbings, and to proceed onto the walkway
between the curbings, and then along the walkway and into the
building.
           United States Weather Bureau records indicated that pre-
vailing conditions throughout ~illingson the day of the accident
were extremely icy due to rain from the previous night which had
frozen on the ground.    Defendants' parking lot, including the
walkmy area between the curbings, was thus completely icy by
morning.
           Defendant Abrahams, the manager of the Burger Bar, opened
the establishment for business that morning.    At approximately
9:30 a.m. he poured a product called Ice-Melt on the walkway
area between the curbings to melt the ice.     In his deposition
he declared that he did not recall how much of this product he
actually poured, although he stated that a very large quantity
would have been needed to completely melt all the ice which had
formed on the parking lot.
          Shortly before noon on that day, Vera Uhl picked up her
children at school and was to return them there by 1:00 p.m.
She was familiar with the procedure at the Burger Bar and was
aware of the icy conditions prevailing over the entire city on
that day, as well as the icy condition of defendants' parking
lot and walkway.   The evidence indicates that Vera Uhl parked
hurriedly against one row of curbings, but it is unclear whether
the car was centered on any particular curbing.     Since she was
wearing curlers, she sent her children in by themselves, but
after some minutes decided to go in herself.    She stepped out of
the car, over one of the curbings, onto the walkway, and went
inside.
          She received her order on a tray which she carried in
both hands back to her car.   When she approached her car she
stepped over the curbing sideways with her right leg.    At the
same time, and while still holding onto the tray of food with
both hands, her left foot, which was still on the walkway,
slipped causing her to fall on the curbing, striking her head
and back against the adjacent car and the ground.    She got up
and got into her car, waiting while her children went back in-
side to replace two milk shakes which had been ruined in her
fall.   Afterwards she drove away and picked up her brother;
they then picked up her husband, and drove to the emergency room
at the hospital where she was examined and released.
        Following pretrial discovery, defendanfsmoved for
summary judgment which the district court granted.
        The issue on appeal is whether the district court was
correct in granting defendants a summary judgment.   The issues
of substantive law involved in this determination are twofold:
(1) Did the defendants breach any duty owed the plaintiff proxi-
mately causing plaintiff's injuries?, and (2) Was there contribu-
tory negligence or assumption of risk on the part of plaintiff?
        The authority for granting summary judgment is Rule
56(c), M.R.Civ.P.,   which provides in pertinent part as follows:
        " * * * The judgment sought shall be rendered
        forthwith if the pleadings, depositions,
        answers to interrogatories, and admissions on
        file show that there is no genuine issue as
        to any material fact and that the moving party
        is entitled to a judgment as a matter of law.
        * * *1
             I

        In determining the burden of proof, this Court quoted
with approval 6 Moore1stF.P.2d, 5 56.15[3], p. 2335, in Kober   &

Kyriss v. Billings Deac. Hosp., 148 Mont. 117, 121, 417 P.2d


        " * * * the moving party for summary judgment
        has the burden of showing the absence of any
        genuine issue as to all the material facts,
        which, under applicable principles of sub-
        stantive law, entitle him to judgment as a
        matter of law." See also Byrne v. Plante,
        154 Mont. 6, 459 P.2d 266.
        Directing our attention to the applicable substantive
law, a possessor of land owes a duty to an invitee to use ordi-
nary care to keep the premises in a reasonably safe condition
and to warn the invitee of any hidden or lurking dangers therein,
but he is not an insurer against all accidents and injuries to
invitees on the premises.   Cassady v. City of Billings, 135 Mont.
390, 340 P.2d 509; Luebeck v. Safeway Stores, Inc., 152 Mont.
88, 446 P.2d 921; and authorities cited therein.
        In Luebeck we directly held that        " * * * where 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.      * * *"   We based this holding on
a line of cases from other jurisdictions so holding, particu-
larly quoting with approval the following statement from Crawford
v. Soennichsen, 175 Neb. 87, 120 N.W.2d 578, 581:
        " * * * However, the general rule seems
        clearly to be that a store owner cannot be
        charged with negligence by reason of natural
        accumulation of ice and snow where the condi-
        tion is as well known to the plaintiff as the
        defendant."
In accord see Watts v. Holmes, Wyo. (19631, 386 P.2d 718; Cren-
shaw v. Firestone Tire   &    Rubber Company, 72 N.M. 84, 380 P.2d
828; Zide v. Jewel1 Tea Company, 39 Ill.App.2d 217, 188 N.E.2d
383; Levine v. Hart Motors, 75 Ohio Law Abst. 265, 143 N.E.2d


        Such are the undisputed facts here.        The icy condition
of the streets and sidewalks was general throughout Billings due
to precipitation, temperature and atmospheric conditions.        Plain-
tiff knew this and specifically knew from observation immediately
prior to getting out of the car that the parking lot and walkway
were covered with ice.       She recognized the condition as dangerous
and knew that she had to be careful or she might fall down.           There
is no evidence that the use of the de-icer on the walkway con-
tributed to the slippery condition.         In short, nothing but a
natural icing condition due to the elements was involved and such
condition prevailed throughout the city.        Accordingly, Luebeck
controls the situation in the instant case; there is no breach of
duty, no negligence, and no liability as a matter of law.
        Plaintiff cites our holding in Willis v. St. Peter's
Hospital, 157 Mont. 417, 486 P.2d 593, in support of her position
in the instant case.   Willis is readily distinguishable on the
   facts from the instant case.     There we held there was a jury
   question on two material issues of fact:     (1) whether the hos-
  pital had contributed to the slippery conditions at the emergency
   entrance by repeated applications of a chemical de-icer over a
   considerable period of time causing partial melting, refreezing,
   and accumulation of successive layers of ice, and (2) knowledge
   of this condition by plaintiff.     In the instant case the undis-
  puted facts reveal a natural icing condition due to the elements,
  and an actual knowledge by plaintiff of such icy conditions and
  the danger therefrom.
              There being no breach of duty by defendantsin the first
   instance, we find it unnecessary to reach the issues of contribu-
   tory negligence or assumption of risk on the part of plaintiff.
              The judgment of the district court is affirmed.



                                               Associate Justice




       Chie   Justice

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