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Bossard v. Johnson6/2/1994
Rehearing Denied June 30, 1994.
, 51 St.Rep. 494
Submitted on Briefs March 17, 1994.
This is an appeal from a grant of summary judgment to defendant by the Fourth Judicial District Court, Missoula County. We affirm.
We consider the following issue on appeal:
Did the District Court err by granting summary judgment to defendant and not granting partial summary judgment to plaintiff on the issue of liability?
Plaintiff Richard Bossard (Bossard) and Jerald Johnson (Johnson) were friends who had been in the construction business together. Bossard is also a realtor who sold Johnson the property which is involved in this action.
The property bought by Johnson contains a house and a storage shed. On the day of the accident, Johnson and Bossard were unloading 80 to 100 pound modified stove boards and placing them in the shed.
When the men were finished with this task, they exited the front sliding door and shut it. During this closing, the roller on one end of the door came out of its U-shaped track because there were no "stops" at the end of its tracking slot. Bossard testified by deposition that when the door rolled off the end of the track, that end of the door dropped to the ground. The roller for the other end of the door remained in the track.
Neither Bossard nor Johnson were injured by the door's fall. In his deposition Bossard testified that he alone may have lifted the door or that he and Johnson may have lifted the door in order to place it back on the track. Bossard testified that the initial attempt to lift the door was not successful. During the second successful lift of the door which placed the roller back in its slot, he testified he felt pain in his arm. Bossard later learned that the pain was caused by a ruptured right biceps tendon. After the injury an embolism formed which caused serious impairment to the use of his right arm.
Bossard filed this negligence action on March 23, 1993, seeking to recover damages for his injuries. Johnson filed a motion for summary judgment on July 1, 1993. On July 12, 1993, Bossard filed a cross-motion for partial summary judgment on the issue of Johnson's liability.
The District Court entered its opinion and order on September 10, 1993, granting Johnson's motion for summary judgment and denying Bossard's motion for partial summary judgment. Bossard appeals the court's grant of summary judgment to Johnson and its denial of his own motion for partial summary judgment.
Did the District Court err by granting summary judgment to defendant and not granting partial summary judgment to plaintiff on the issue of liability?
In order for summary judgment to issue, the movant must demonstrate there are no genuine issues of material fact and that he is entitled to judgment as a matter of law. Rule 56(c), M.R.Civ.P. If movant meets this burden, the burden then shifts to the party opposing summary judgment to demonstrate genuine issue of material fact. Richland National Bank and Trust v. Swenson (1991), 249 Mont. 410, 816 P.2d 1045.
Bossard contends that he was injured on Johnson's property and that Johnson is liable for those injuries. Bossard testified that after the door slipped from the track, it came to rest on the ground in a precarious position. While Bossard does not identify any person or property which was in danger of injury, he contends that the "rescue doctrine" allowed him to place the door back on its track, and then to recover from Johnson because he was injured trying to remove the danger. Bossard also argues that Johnson knew about the lack
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