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Welton v. Lucas6/19/1997
lved that question as a matter of law in favor of Demaree, whether Demaree breached his duty was one of fact which should have been determined by the jury.
Brown, 901 P.2d at 570.
We went on to conclude:
Whether the sidewalk/step-down/landing arrangement in Demaree's sidewalk is "unusual," and whether he should have anticipated or had reason to believe that a person using the sidewalk in the darkness would be injured by stepping into the unlighted drop-down, are clearly factual questions which should have been resolved by the jury, and not by the trial court. See Limberhand, 706 P.2d at 499.
Brown, 901 P.2d at 571.
The same is true here. The question of whether Respondents breached their duty to use ordinary care in maintaining their premises in a reasonably safe condition is one of fact properly left for the jury to resolve.
Respondents contend that the fact that Welton knew of the existence of the pipe absolves them of any liability for her injuries. They cite Kronen v. Richter (1984), 211 Mont. 208, 683 P.2d 1315, for the proposition that a property owner is entitled to assume that people will see and observe that which would be obvious through reasonably expected use of an ordinary person's senses, and Limberhand v. Big Ditch Company (1985), 218 Mont. 132, 144-45, 706 P.2d 491, 499, for the proposition that a property owner's duty is satisfied if the hazardous condition is obvious or actually known. This rule, however, is not absolute as we recognized in Kronen wherein we cited Restatement (Second) of Torts § 343 A(1) (1965):
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 obviousness. [Emphasis added.]
Although Welton may have been aware of the pipe, she alleged in her second amended complaint that she was unable to observe the pipe due to inadequate lighting in the cooler. Further, Welton, who was shelving beer at the time of the accident, testified in her deposition that: "And with the stuff being stacked as high as it is, when there's no lighting, you could faintly, faintly see the pipe — you knew it was somewhere in that area — while stocking." Given the existence of a pipe on a floor in a dimly lit traffic area where it is known that workers will be carrying and shelving products, there is a question of fact as to whether the possessor of the land should anticipate harm despite the obviousness of the pipe or despite Welton's knowledge of the pipe.
The summary judgment is reversed.
JUSTICES NELSON, HUNT, TRIEWEILER and GRAY concur.
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