                                                           No. 89-117
                                          IN THE SUPREME COURT OF THE STATE OF MONTANA
                                                              1990



RHONDA L. BLASKOVICH and MARK
BLASKOVICH,
                                             Plaintiffs and Appellants,
                        -vs-
NOREAST DEVELOPMENT CORP., d/b/a COTTONWOOD
INN,
                                             Defendants and Respondents.




APPEAL FROM:                                 District Court of the Seventeenth Judicial District,
                                             In and for the County of Valley,
                                             The Honorable Leonard Langen, Judge presiding.

COUNSEL OF RECORD:
                        For Appellant:
                                             Edward G. Beaudette, David M. McLean argued;    night,
                                             Dahood, McLean & Everett, Anaconda, Montana
                        For Respondent:
                             .-
                         t
                                             Matthew W. ~nierimargued, Glasgow, Montana




i    i   i     -
                                                               submitted:   November 2,   1990
t i
   I--
    -    c-   ->                      1
                                                                 Decided:   April 10, 1990
    k     '--I

                                  .     .                              *
     .-
~iled:; .     &
                                  .-
                                  I      .
                                      ", -
                   -1                 c>
              (-
              .c
              E.
                   -1                 --
                                      -:



                                                               $lerk
Justice Diane G. Barz delivered the Opinion of the Court.


     Plaintiffs, Rhonda L. and Mark Blaskovich, brought this action
against defendant Noreast Development Corp., d/b/a Cottonwood Inn,
to recover damages for injuries incurred when Rhonda slipped and
fell in the Cottonwood Inn's parking lot.     The District Court of
the Seventeenth Judicial District, Valley County, granted Noreast's
motion for summary judgment. The Blaskoviches appeal. We affirm.
     The following issues were raised on appeal.
     1.    Whether the District Court erred in granting defendant's
motion for summary judgment;
     2.    whether a property owner is liable for injuries sustained
by an individual who slips and falls as a result of natural
accumulations of snow and ice located on the property owner's
premises ;
     3.      whether the   District Court erred by    not   striking
defendant's supplemental affidavits that were filed after the
submission of the motion for summary judgment.
     On February 12, 1986, Rhonda L. Blaskovich and her husband,
Mark, attended a mid-morning meeting at the Cottonwood Inn.     The
Cottonwood Inn, owned and operated by Noreast Development Corp.,
is a motel, restaurant and convention center located in Glasgow,
Montana.     The inn is surrounded by a sidewalk and a paved asphalt
parking lot which are also owned by Noreast.       At approximately
11:30 a.m. , the meeting ended and the Blaskoviches left the inn.

As Rhonda stepped off the sidewalk and onto the parking lot she
slipped and fell, fracturing her leg in four places.
     February 12, 1986--the day of the accident--was a cold and
clear day.     At the time of the accident, no pavement was showing
through the snowpacked parking lot and a light dusting of snow
covered the snowpack.      On January 17, 1986, approximately four
weeks prior to the accident, the parking lot had been sanded and
on January 31, 1986, the parking lot had been plowed.               The
climatological report from the weather bureau indicated that 1.3
inches of snow fell in the area between January 31, 1986 and
February 12, 1986, the day of the accident.        The lot was plowed
again on February 16, 1986, four days after the accident and a
small amount of snow was removed.
     The Blaskoviches brought this action against Noreast, alleging
negligence in the maintenance of its parking lot.          Rhonda sought
damages that resulted from her physical injuries and Mark sought
damages for loss of consortium. Noreast filed a motion for summary
judgment. The District Court granted summary judgment in favor of
Noreast.     The Blaskoviches appeal, raising three issues.
     The first issue this Court will address on appeal is whether
the District Court erred in granting Noreast's motion for summary
judgment .
     Summary judgment is appropriate when no genuine issue exists
as to any material fact and the moving party is entitled to
judgment as a matter of law.      Rule 56(c), M.R.Civ.P.     The burden
first rests with      the party   moving   for   summary    judgment to
demonstrate that a genuine issue of material fact does not exist.
Once this is established, the burden shifts to the party opposing
the motion to demonstrate otherwise. Rule 56(e), M.R.Civ.P.; State
Med. Oxygen and Supply, Inc. v. American Med. Oxygen Co. (Mont.
1989), 782 P.2d 1272, 1275, 46 St.Rep. 1951, 1955; Rumph v. Dale
Edwards, Inc. (1979), 183 Mont. 359, 365-66, 600 P.2d 163, 167.
In addition to establishing that no genuine issue of material fact
exists, the moving party must also establish that it is entitled
to judgment as a matter of law.   Rule 56(c), M.R.Civ.P.
     The facts are undisputed that February 12, 1986, was a clear
and cold day; that at approximately 11:30 a.m. on February 12, 1986
the Blaskoviches were leaving the Cottonwood Inn when Rhonda
Blaskovich slipped and fell on the innts parking lot, fracturing
her leg; that 1.3 inches of snow fell from the last time the lot
was plowed until the day of the accident; and that the manager of
the inn examined areas of the parking lot, but not the precise area
where Rhonda fell.     In light of these undisputed facts, Noreast
met its burden under Rule 56(c), M.R.Civ.P., in demonstrating that
a genuine issue of material fact did not exist.    The burden then
shifted to the Blaskoviches to demonstrate otherwise. Rule 56(e),
M.R.Civ.P., specifically provides that an adverse party to a motion
for summary judgment
          may not rest upon the mere allegations or
          denials of his pleading, but his response, by
          affidavits or as otherwise provided in this
          rule, must set forth specific facts showing
          that there is a genuine issue for trial. If
          he does not so respond, summary judgment, if
          appropriate, shall be entered against him.

The Blaskovichest argument merely reiterates the facts that Noreast
did not plow or sand the parking lot during the twelve days
preceding Rhondals accident and that the innls manager did not
examine the precise area where Rhonda fell.          As already stated,
these facts are undisputed.
     In addition to establishing that no genuine issue of material
fact exists, Noreast must also establish that they are entitled to
judgment as a matter of law.        Rule 56(c), P4.R.Civ.P.        In the
present case, the District Court relied upon Luebeck v. Safeway
Stores, Inc. (1968), 152 Mont. 88, 446 P.2d 921 and Cereck v.
Albertson's, Inc. (1981), 195 Mont. 409, 637 P.2d 509, as the
applicable law in this case. In particular, the court relied upon
the holding in Luebeck which stated that when "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."   Luebeck, 152 Mont. at 93, 446 P.2d at 924.                 The
District   Court   then   found   that   Noreast    met   its   burden    in
establishing that no genuine issue of material fact existed; that
the Blaskoviches failed to meet their burden of demonstrating that
a genuine issue of material fact did exist; and that as a matter
of law, Noreast was entitled to summary judgment.
     We affirm the District Courtls determination that Noreast was
entitled to summary judgment as a matter of law, however, we do so
on different grounds. In asserting that Noreast was negligent, the
Blaskoviches must    establish that Noreast had           a duty to the
Blaskoviches, that    Noreast     breached   that   duty,   that   Rhonda
sustained damages, and that her damages or injury were proximately
caused by Noreast's breach of its duty.              Clark v. Norris (1987),
226 Mont. 43, 48, 734 P.2d 182, 185.
       As previously stated, the facts pertaining to this case are
undisputed.     Rhonda stepped off the sidewalk and onto the inn's
parking lot where she slipped and fell, fracturing her leg in four
places.    However, the mere happenstance of an accident does not
impute negligence.       Clark, 288 Mont. at 48, 734 P.2d at 185.
Noreast    clearly    has    a     duty   to   its   patrons--such     as    the
Blaskoviches--to use ordinary care in maintaining its premises in
a reasonably safe condition or to warn the Blaskoviches of any
hidden or lurking dangers. Luebeck, 152 Mont. at 90, 446 P.2d 922-
23.    The Blaskoviches must also demonstrate that Noreast breached
that duty, that they suffered injury as a result of that breach and
that the injury was proximately caused by the breach.                        The
Blaskoviches failed to establish that Noreast breached its duty of
exercising    ordinary      care    in maintaining      its premises        in   a
reasonably safe condition and that this breach was the proximate
cause of Rhondats injury.          The Blaskoviches are not expected to
bring in all their evidence at this juncture, however, as already
stated, they cannot rely upon the fact that Rhonda slipped and fell
to    establish two    elements of        their case.      As   Rule    56(e),
M.R.Civ.P.,   clearly provides, the Blaskoviches may not rest upon
their pleading, but must set forth an affidavit or other specific
facts showing that a genuine issue for trial exists.                         The
Blaskoviches    failed      to   follow this mandate       of   Rule   56(e),
M.R.Civ.P.     Therefore, in light of the present set of facts, we
must affirm the District Court's decision to grant Noreast's motion
for summary judgment.
     The second issue raised on appeal is whether a property owner
is liable for injuries sustained by an individual who slips and
falls as a result of natural accumulation of snow and ice located
on the property owner's premises.
     In light of the disposition of the first issue, this Court
does not need to address this question.
     The last issue raised on appeal is whether the District Court
erred by not striking Noreast's supplemental affidavits that were
filed after the submission of the motion for summary judgment.
     Noreast filed its motion for summary judgment on October 28,
1988. On January 16, 1989, the motion was submitted to the court.
On January 26, 1989, the District Court issued its order granting
Noreast's motion for summary judgment.     On the same day--January
26, 1989--Noreast filed supplemental affidavits in support of its

motion for summary judgment.       The Blaskoviches argue that the
supplemental affidavits "taintedIt the record in favor of Noreast
and that the District Court should have granted their motion to
strike and remove the supplemental affidavits at that time.        We
disagree.
     Rule 56(e), M.R.Civ.P., addresses supporting and opposing
affidavits in regards to a motion for summary judgment.             In
particular, this rule provides that a "court may permit affidavits
to be supplemented or opposed by    ...   further affidavits.!'   Rule
56(e), M.R.Civ.P.   In light of this rule, the District Court did
not err by denying the Blaskoviches' motion to strike and remove
the supplemental affidavits.
     Affirmed.



                                            Justice
We concur:           /




         Justices
Justice John C. Sheehy, dissenting:

     By this Opinion, the majority demonstrate once again their
inability to appreciate that, where a jury trial has been demanded,
the jury, and not the District Court nor this Court, should
determine whether the landowner acted reasonably to avoid physical
harm to persons foreseeably coming upon the premises.
     There can be no quarrel with the majority that the facts as
developed so far are undisputed.        The quarrel lies in the
assumption by the majority that on the undisputed facts, no duty
of care arose from the landowner to Rhonda. The District Court
likewise relied on Luebeck v. Safeway Stores, Inc. (1968), 152
Mont. 88, 446 P.2d 921, and Cereck v. Albertson's, Inc. (1981), 195
Mont. 409, 637 P.2d 509, to reach that assumption. The majority
have ignored the issue of law raised by the plaintiffs in this case
without discussing the movement of this Court away from the
decisions in Luebeck and Cereck.
     In fact, the majority have ignored a portion of the Cereck
decision that should have raised a flag here as to the duty of the
property owner:
     A property owner may be held liable for falls on
     accumulations of ice and snow where the hazard created
     by the natural accumulation is increased or a new hazard
     is created by an affirmative act of the property owner;
     even where such a condition is actually known or obvious,
     a property owner may be held liable if he should have
     antici~ated that injuries would result from the danserous
     condition. (Emphasis added.)


     Justice Morrison, in Cereck, concurring specially, stated:
     The majority opinion confines property owner liability
     for natural accumulation of ice and snow to those
     situations where the property owner has increased or
     changed the hazard through some affirmative act. I would
     adopt 5 343A.(l) Restatement (Second) of Torts (1965)
     which provides as follows:
          A possessor of land is not liable to his invitees
          for physical harm caused to them by any activity or
          condition on the land whose danger is known or
          obvious to them, unless the possessor should
          anticipate the harm despite such knowledge or
          obviou~ness.~
     Admittedly, the Restatement rule is applicable to
     invitees. However, though I would not recognize status
     in Illand possessorls liability," I feel the rule to be
     applicable to facts such as those at bar.


     The concurring opinion of Justice Morrison further stated:
     In my opinion, the restrictive ratio decidendi of this
     case is inadequate to meet situations such as failure to
     plow.   If the parking lot in question had not been
     maintained in any fashion, and snow were allowed to
     accumulate so that customers were required to wade
     through knee deep snow, no duty would be owed by the
     possessor under the rule adopted by the majority. Those
     who do nothing incur no liability. Those who plow their
     parking lots are exposed.
     I believe such a restrictive duty does not adequately
     recognize the responsibilities owed by the business
     community, does not adequately protect a public dependent
     upon the services provided by that community, and does
     not promote sound public policy.
    For the foregoing reasons, I concur in the result, but
    would adopt different legal principles to sustain the
    same outcome.


     In Kronen v. Richter (1984), 211 Mont. 208, 683 P.2d 1315,
this Court adopted 5 343A(1) Restatement (Second) of Torts (1965)
saying:
     In the case at bar, the relationship between appellant
     and respondent was one of invitor-invitee. The duty owed
     to a business invitee is to exercise ordinary care to
     have the premises reasonably safe and to warn the invitee
     of any hidden or lurking dangers.        (Citing cases. )
     Section 343A(1) Restatement (Second) of Torts (1965)
     provides:
          I1A possessor of land is not liable to his invitees
          for physical harm caused to them by any activity or
          condition on the land whose danger is known or
          obvious to them, unless the possessor should
          anticipate the harm despite such knowledge or
          obviousness.


     In Kaiser v. Town of Whitehall (1986), 221 Mont. 322, 718 P.2d
1341, this Court reversed a summary judgment in favor of the Town
of Whitehall where the plaintiff stumbled over a public sidewalk
where the concrete was raised and the raised portion was obvious.
Writing for the majority, Justice Harrison stated:
     We agree with the District Court that 5 343A(1) is
     applicable to the facts of this case, but we find the
     lower court disregarded some critical language found in
     the provision. The last part of the provision states:
          ". . . unless the possessor should anticipate the
          harm despite such knowledge or obviou~ness.~~
     Justice Morrison in his specially concurring opinion in
     Kronen succinctly explained the effect of this last part
     of 5 343A(1) :
          [A] duty may be owed though the condition    is open
          and obvious if the landowner has reason to   believe
          that despite the open and obvious nature      of the
          condition, that injuries will nevertheless   result.
Kronen, 683 P.2d at 1318.
     We find that although the condition of the sidewalk was
     known and obvious to Kaiser, a question of fact still
     remains as to whether or not the Town of Whitehall should
     have anticipated that someone (i.e. Kaiser) would be
     injured as a result of the defective condition of the
     sidewalk.    The record shows the cracked and broken
     condition of the sidewalk had persisted for some time and
     that it was indeed a hazard to passing pedestrians. At
     the very least, a jury question is raised as to whether
     the Town of Whitehall should have anticipated the harm
     resulting from the sidewalk's condition.       Therefore,
     summary judgment is not appropriate.


     Under the undisputed facts of the case now before us, the
landowner neither plowed nor sanded the icy parking lot for at
least 12 days, and made no inspection of the premises to ascertain
any danger to the patrons on the parking lot. Is it not a jury
question that he should have anticipated the harm that occurred to
Rhonda?    Did the landowner in the circumstances manage his
properties in the exercise of ordinary care?
     Rhonda, coming upon the premises to attend a mid-morning
meeting in the business premises of the defendant, was an invitee.
Section 343A of Restatement (Second) of Torts concerns itself with
the duty of landowners owed to invitees. That status, however, is
not important after our holding in Limberhand v. Big Ditch Co.
(1985), 218 Mont. 132, 706 P.2d 491. In Limberhand, we stated:
     . . . In Corrigan v. Janney (Mont. 1981), 626 P.2d 838,
     841, in construing 5 27-1-701, MCA,   ...  we held that
     the statute prevented us from distinguishing between
     social guests and invitees in determining the liability
     of the landowner for injuries received. We regard the
     same statute as declaring the applicable law as to the
     duty of landowners to persons though they may be
     trespassers. The test is always not the status of the
     injured party but the exercise of ordinary care in the
     circumstances by the landowner. The statute provides:
          Everyone is responsible not only for the result of
          his willful acts but also for an injury occasioned
          to another by his want of ordinary care or skill in
          the management of his property or person except so
          far as the latter has willfully or by want of
          ordinary care brought the injury upon himself.
     Section 27-1-701, MCA.
     Although in a later case, Cereck v. Albertsonts, Inc.
     (1981), 195 Mont. 409, 412, 637 P.2d 509, 511, we stated
     that the duty imposed on the property owner depends on
     the status of the injured party, that statement is not
     correct in the light of 5 27-1-701, MCA, above quoted.


     In Kaiser v. Town of Whitehall, above, we affirmed that the
categories of invitee, licensee and trespasser are not to be
regarded, and that the test is always not the status of the injured
party, but the exercise of ordinary care in the circumstances by
the landowner. 718 P.2d at 1343.
     Because we have moved away from the categories of invitee,
licensee, and trespasser, this Court should apply 5 343A(1) of
Restatement (Second) of Torts to the rights of any person
foreseeably upon the land who is injured.
     The majority opinion contains no reference to the cases
subsequent to Luebeck and Cereck, and understandably so, because
otherwise the majority would have to reach a different result. The
majority opinion contains no reference to 5 343A of Restatement
(Second) of Torts, though this dissent has been before the majority
since November 2, 1989. The conflict between this holding and the
cases of Limberhand, Kaiser, and Kronan is not discussed or
explained.   The majority opinion is a pursuit of head-in-sand
methodology.
     In a slip and fall case, this Court should not itself slip and
fall but occasionally we do. I would reverse this case and remand
it for a determination by a jury as to whether under the undisputed
facts a duty of care rested on the landowner to act reasonably so




    I   concur w i t h t h e foregoing d i s s e n t .
