                             No. 14897
               IN THE SUPREME COURT OF THE STATE OF MONTANA
                                 1980


ROSS RENNICK,
                     Plaintiff and Appellant,


DON W. HOOVER and CAROL HOOVER,
                       Defendants and Respondents.


Appeal from:    District Court of the Eighth Judicial District,
                Honorable H. William Coder, Judge presiding.
Counsel of Record:
      For Appellant:
          Hoyt, Trieweiler, Lewis and Regnier, Great Falls,
           Montana
          James M. Regnier argued, Great Falls, Montana
      For Respondents:
          Smith, Baillie and Walsh, Great Falls, Montana
          Marvin J. Smith argued, Great Falls, Montana


                                 Submitted: January 15, 1980
                                   Decided:     fE0 2 5
                                                          1984
Filed:



                                        Clerk
Mr. Chief Justice Frank I. Haswell delivered the Opinion of the
Court.
        Plaintiff Ross Rennick appeals from a summary judgment
awarded defendants by the District Court of Cascade County, the
Honorable H. William Coder presiding.
        In July 1976, Don and Carol Hoover, the defendants, pur-
chased an apartment building located at 1209 Second Avenue South
in Great Falls.     The property contained four apartments, one
located in the basement, two on the ground level and one on the
second floor.     All four apartments had two separate means of
ingress and egress.     The two ground floor apartments and the
second floor apartment could be entered through the front door
via a common hallway, or they could be entered through separate
exterior entrances after crossing a common cement slab in the
rear of the apartment.    This cement slab was located at the foot
of the stairway leading to the second floor apartment.    Parking
was available along Second Avenue in front of the building and
a lot, large enough to contain at least four cars, was also pro-
vided in the rear of the apartment.
        Ross Rennick had been dating a female tenant occupying
the second floor apartment for over a year prior to the date of
his injury.   Rennick's testimony reveals that he visited her quite
frequently and that he had lived with her in the apartment for
a short period of time after November 1976, and prior to the
accident.
        The evening of February 4, 1977, Mr. Rennick went to
visit the female tenant at her apartment.    He parked in the rear
parking lot and entered the building by ascending the back stairs.
Upon leaving the apartment, twenty or thirty minutes later, Ren-
nick slipped and fell on the cement slab at the base of the stairs,
breaking his ankle.
        Ross Rennick testified that he was aware of the icy
conditions in the rear of the building because of his frequent
visits.    He used the rear entrance approximately 50% of the
time.     Rennick stated that a sheet of ice had accumulated on
the cement slab at the base of the stairway as a result of
water dripping from the roof, but that it had been reduced by
unseasonably high temperatures over the two-week period prior to
February 4, 1977.    Rennick further stated that the ice had been
present on the cement for at least two weeks, that it extended
at least two feet from the bottom step, and that he knew care was
required to cross the cement.
          Don Hoover's testimony reveals that he maintained the
exterior of the building, including the shoveling of snow.          He
had last shoveled the snow on January 15, 1977.          Mr. Hoover denied
the existence of any ice or snow on the cement, since only a small
amount of snow fell between January 15 and February 4 and un-
seasonably high temperatures prevailed during the period.
          The issue on appeal is whether the District Court was
correct in granting the defendants' motion for summary judgment.
To determine this issue, the question becomes whether the defen-
dant landlords owe a duty to the plaintiff to remove an alleged
known icy condition in the common area of an apartment building.
          Rule 56 (c), M. R. Civ. P. , provides that summary judgment
is proper if:
          "  ...  the pleadings, depositions, answers to
          interrogatories, and admissions on file, together
          with the affidavits, if any, 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  . . ."
          The party moving for summary judgment has the burden of
showing the absence of any genuine issue as to all material facts,
which, under applicable principles of substantive law entitle
him to judgment as a matter of law.      Kober   &   Kyriss v. Billings
Deac. Hosp. (1966), 148 Mont. 117, 121, 417 P.2d 476, 478.
        It is well established in Montana law that "actionable
negligence arises only from a breach of legal duty."   Jonosky v.
Northern Pacific Ry. Co. (1920), 57 Mont. 63, 72, 187 Pac. 1014,
1015; Cassaday v. City of Billings (1959), 135 Mont. 390, 393,
340 P.2d 509, 510.   Therefore, in order for there to be a genuine
issue of material fact in a negligence case there must be a duty
imposed upon the defendant and allegations which, if proven,
would support a finding of a breach of the duty.
        In Montana, a landlord owes a duty to the tenant to "keep
all common areas of the premises in a clean and safe condition."
Section 70-24-303, MCA.   However, this appeal does not involve
an injury to a tenant, and we need not reach the question of wheth-
er this statutory duty alters prior Montana case law in relation
to the duty owed to a tenant.   As a result, we must look to Montana
law concerning the status of the injured party and the correspond-
ing duty of the property owner.
        The duty imposed upon a property owner in Montana contin-
ues to be dependent on the status of the injured party, either
invitee, licensee or trespasser.   This Court has previously held
that a tenant is an invitee of the landlord when injury occurs
in the common areas of an apartment building.    Lake v. Emigh (1948),
121 Mont. 87, 190 P.2d 550.   The status of the social guest of a
tenant in the common area of an apartment building is also that
of an invitee in relation to the duty of a landlord.   See Olson
v. Kayser (1973), 161 Mont. 241, 505 P.2d 394.   The rationale for
this status is that the landlord is in the business of providing
facilities for a tenant to receive all persons for lawful purposes;
therefore, the presence of a guest is related to the property
owner's business.
        This Court has stated in a great number of cases that the

property owner's duty toward an invitee is to use ordinary care
to keep the premises reasonably safe and to warn the invitee
of any hidden or lurking danger.     This duty is satisfied if the
condition is actually known or obvious.       Regedahl v. Safeway
Stores, Inc. (1967), 149 Mont. 229, 425 P.2d 335; Luebeck v.
Safeway Stores, Inc. (1968), 152 Mont. 88, 446 P.2d 921.
           "The true ground of liability is his [the property
           owner's] superior knowledge over that of business
           invitees of the dangerous condition and his failure
           to give warning of the risk, however, he is not an
           insurer against all accidents which may befall them
           upon his premises." (Emphasis added.) McIntosh v.
           Linder-Kind Lumber Co. (1964), 144 Mont. 1, 6, 393
           P.2d 782, 785.
           The preceding rationale is also the basis for the duty
owed to a tenant's social guest injured in a common area.       In
Olson v. Kayser, supra, the following jury instruction was upheld:
           "'An owner who leases or rents a portion of his
           property and retains control of another part which
           a tenant is entitled to use in connection with
           the portion leased or rented to him, is subject
           to liability to others lawfully on the premises
           with the consent of the tenant for injuries caused
           by a dangerous condition existing on the part of
           the premises under the owner's control if, by the
           exercise of reasonable care, he could have dis-
           covered the condition and made it safe.
           "'An owner is not liable to others lawfully on the
           premises with the consent of the tenant for injuries
           resulting from a condition of the premises the
           danger of which is known to the        lawfully on
           the premises or is obvious, unless the owner should
           anticipate the harm despite such knowledge or obvious
           danger. ' " (Emphasis added.) 161 Mont. at 248, 505
           P.2d at 398.
           A similar approach has been taken in several Montana cases
involving injuries to invitees caused by icy conditions.      We have
consistently held that "    . . . where   danger created by the ele-
ments such as the forming of ice and the falling of snow are
universally known, or    . . . actually
                                     known, there is no liabilitv."    L



                               (1968)
Luebeck v. Safeway Stores, Incd, 152 Mont. 88, 93, 446 P.2d 921,
924; See e.g., Dunham v. Southside National Bank (1976), 169 Mont.
466, 548 P.2d 1383; Uhl v. Abrahams (1972), 160 Mont. 426, 503
P.2d 26.
           Plaintiff, who is not a tenant, asks us to impose a greater
duty upon landlords than is imposed upon other business owners
for the removal of ice and snow.     We refuse to do so.   The
status of the injured person determines the duty and this duty
is not qualified by the status of the property owner; there is
no exception for landlords.
          Ross Rennick admits knowledge of the icy condition and
that he knew care was required.    Further, the depositions in
this case reveal that, because of his frequent visits over a
period in excess of a year and the short time defendants owned
the premises, plaintiff was at leasb equally familiar with the
condition of the premises as was the landlord.
          Since under Montana law the icy condition is not unreason-
ably dangerous, and plaintiff had actual knowledge of the con-
dition of the premises, there is no duty, no breach of duty, and
no negligence as a matter of law.
         The judgment is affirmed.



                                           Chief Justice




       Justices


Mr. Justice John C. Sheehy specially concurring:
         I concur in the result, especially in the light of
Luebeck v. Safeway Stores, Inc. (1968), 152 Mont. 88, 446 P.2d
921.   I think in a proper case we should re-examine the fiction
that different rules should apply on the duty owed to persons
lawfully on another's premises, based on their economic relation-
ship to the possessor of the premises.   In other words, I see
no reason for differentiating between invitees and licensees
because of the economic difference in their reasons for going
upon anotheys property, but that is another case.



                            L/         Justice      d




Mr. Justice Daniel J. Shea concurs in the result and will file
a separate concurring opinion later.
