United States District Court, D. Montana, Missoula Division
SHERI YOUNG, Plaintiff.
THE FEDERAL HOME LOAN MORTGAGE CORPORATION, a federally chartered corporation; FLATHEAD LAND & HOME) INC.; DUSTY DZIZA; CENTURY 21 REAL ESTATE; TRUDY BERGE; KELLER WILLIAMS REALTY NORTHWEST MONTANA; JANELL CLARKE; and JOHN DOES 1-5, Defendant. THE FEDERAL HOME LOAN MORTGAGE CORPORATION, a federally chartered corporation Cross-Claimant,
DUSTY DZIZA and FLATHEAD LAND & HOME, INC., Cross-Defendants. FLATHEAD LAND & HOME, INC. and DUSTY DZIZA, Third-Party Plaintiffs,
TRUDY BERGE, CENTURY 21 BIG SKY REAL ESTATE; JANELL CLARKE; and KELLER WILLIAMS REALTY NORTHWEST MONTANA, Third Party Defendants.
OPINION AND ORDER
DONALD W. MOLLOY, District Judge.
Plaintiff Sheri Young ("Plaintiff') brings this action against Defendants Federal Home Loan Mortgage Corporation ("Freddie Mac"), Flathead Land and Home, Inc. and Dusty Dziza (collectively "Flathead Land and Home"), Trudy Berge and Century 21 Big Sky Real Estate ("Berge"), and Janell Clarke and Keller Williams Realty of Northwest Montana ("Clarke"), alleging personal injury arising out of a fall she took while visiting a for-sale home in Hot Springs, Montana. Plaintiff seeks partial summary judgment holding Freddie Mac liable for negligence as a matter of law. (Doc. 90.) Berge and Clarke also move for summary judgment on the ground they did not owe a duty of care as a matter of law,  (Docs. 115 and 119, ) For the reasons set forth below, Plaintiff's motion is denied and Berge's and Clarke's motions are granted.
On February 1, 2012, Plaintiff was visiting a residential property located at 416 2nd Avenue, Hot Springs, Montana ("the Property") for the purposes of potentially buying it as an investment. While viewing the interior of the house, she fell down an unmarked 2-foot by 3-foot wide uncovered basement access door in the middle of the floor of the utility room. At the time she fell, Plaintiff was walking across the room toward another door and she did not see the opening.
On January 30 or 31, 2012, while showing the Property to clients unrelated to this litigation, Berge and Clarke witnessed the uncovered access in the floor of the utility room; neither closed the door nor covered the opening. Berge is a real estate agent for Century 21 Big Sky Real Estate and Clarke is a real estate agent for Keller Williams Realty. When the incident took place, Freddie Mac was the owner of the Property and, pursuant to a Master Listing Agreement, Flathead Land and Home was responsible for the sale, management, maintenance, preservation, and inspection of unsafe conditions on the Property.
Under Montana law, whether a duty of care exists is a legal question for the Court to determine and whether a party has breached its respective duty is generally a fact question for the jury. Freddie Mac, as the possessor of the Property at the time of the incident, had a duty to use ordinary care in maintaining the Property in a reasonably safe condition and to warn of any hidden or lurking dangers. Because reasonable minds could differ as to whether Freddie Mac breached its duty, summary judgment is inappropriate. On the other hand, Berge and Clarke did not have a duty any party and summary judgment in their favor is warranted.
A party is entitled to summary judgment if it can demonstrate "that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). Summary judgment is warranted where the documentary evidence produced by the parties permits only one conclusion. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251 (1986). On a motion for summary judgment, the question is whether a fair-minded jury could return a verdict for the non-moving party. Id. at 252. Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude entry of summary judgment; factual disputes which are irrelevant or unnecessary to the outcome are not considered. Id. at 248.
I. Plaintiff's Partial Motion for Summary Judgment
Liability in negligence requires the plaintiff to prove four elements: duty, breach, causation, and damages. Fisher v. Swift Transp. Co. Inc., 181 P.3d 601, 606 (Mont. 2008). Plaintiff insists that because reasonable minds cannot differ as to the facts underlying the elements of negligence as it relates to Freddie Mac, partial summary judgment is appropriate. On the facts presented here, that view is one through rose-colored glasses because genuine questions of material fact exist.
Duty is determined as a matter of law. Id. at 607. All persons have "the common law duty to exercise the level of care that a reasonable and prudent person would under the same circumstances." Id. at 606. Under Montana law, the duty in the context of premises liability has been specifically outlined as follows:
[t]he possessor of the premises has a duty to use ordinary care in maintaining the premises in a reasonably safe condition and to warn of any hidden or lurking dangers. What constitutes a reasonably safe premises is generally considered to be a question of fact. Whether a premises is reasonably safe depends to a large extent on what use the property is put to, its setting, location and other physical characteristics; the type of person who would foreseeably visit, use or occupy the premises; and the specific type of hazard or unsafe condition alleged. The possessor of the premises is not liable to persons foreseeably upon the premises for physical harm caused to them ...