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Bossard v. Johnson6/2/1994
ercise "ordinary care or skill in the management of his property" pursuant to section 27-1-701, MCA.
Limberhand, 706 P.2d at 497.
Here it is undisputed that Johnson was aware of the defective condition of the door, that he needed to repair it, that it would fall off its track if pushed too far, and that the defect was not apparent. It is also undisputed that Bossard was unaware of that danger and that Johnson did nothing to make Bossard aware of the condition of the door. Under the facts here and our prior case law, I cannot conclude that Johnson had no duty to Bossard. To the contrary, Johnson had a duty to use ordinary care in maintaining his property, and he had a duty to warn Bossard of the dangerous condition of the door. Whether those duties were breached by Johnson in this case was for the jury to decide.
Finally, I disagree with our conclusion that Johnson's conduct was not the proximate cause of Bossard's injury . Suffice it to say that it is axiomatic that questions of causation in a negligence case are for the finder of fact to decide. See for example, Sizemore v. Montana Power Company (1990), 246 Mont. 37, 803 P.2d 629, and Thayer v. Hicks (1990), 243 Mont. 138, 793 P.2d 784.
Accordingly, I would reverse the grant of summary judgment for Johnson and would remand this case for trial.
JUSTICES HUNT and TRIEWEILER concur in the foregoing dissent.
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