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Road Injury Prevention & Litigation Journal
Copyright © 1997 by TranSafety, Inc.
October 1, 1997
TranSafety, Inc.
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Ohio Defendants Owed No "Special Duty" When Vandal Dropped Road Construction Debris Off Bridge; Third-Party Criminal Action Was Intervening Cause
Ohio DOT Negligent in Failing to Install Fencing on Freeway Overpass in a Timely Manner
Injured Montana Pedestrian Did Not Show Slippery Metal Cover on Sidewalk Was a Breach of Duty
Louisiana DOT Assigned Some Fault for Injuries to Worker Forced to Cross Highway from Parking Lot to Work

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Injured Montana Pedestrian Did Not Show Slippery Metal Cover on Sidewalk Was a Breach of Duty

A pedestrian in Glendive, Montana received injury when she slipped on a metal pullbox cover on the sidewalk. The pedestrian and her husband sued the Montana Department of Transportation (state) and the City of Glendive (city), claiming both state and city were negligent in allowing the dangerous condition created by the slippery cover to exist on their sidewalk. The District Court, Seventh Judicial District, County of Dawson granted the state's and the city's motions for summary judgment. The Supreme Court of Montana affirmed, holding that the plaintiffs did not provide evidence the slippery condition of the pullbox cover failed to meet any applicable standard, and, therefore, the plaintiffs did not show a breach of duty on the parts of the state and the city.

THE INCIDENT

On a rainy September 21, 1991, Ms. Audrey Wiley slipped on a cast iron and checkered steel pullbox cover located on a sidewalk in Glendive, Montana. Ms. Wiley broke her ankle in several places and subsequently required three surgeries.

The state put in the cover on which Ms. Wiley slipped on September 27, 1979. The concrete that surrounded the pullbox cover was level; the sidewalk sloped gently to the street. This installation was in accordance with all applicable standards and specifications, and the condition of the cover had not changed since that date. No previous reports had been filed regarding a hazard created by this particular pullbox cover nor by other similar installations in Montana. Pullbox cover installations were substantially similar throughout the state.

TRIAL COURT DECISION

After extensive discovery, the state and city supported their motions for summary judgment with affidavits from five experts. The plaintiffs presented a deposition from an expert witness in order to establish the existence of an issue of material fact concerning the negligence of the defendants.

Concluding that "reasonable minds could not differ concerning an absence of material fact," the trial court judge concluded the state and city were entitled to summary judgments as a matter of law.

APPELLATE COURT DECISION

On appeal, the Wileys asked: "Did the District Court err in granting summary judgment?"

The Supreme Court pointed out that negligence actions are generally not susceptible to summary judgment, since most such cases involve a question of fact. To consider granting summary judgment here, the court first looked to the state and city to show that no issues of material fact existed. Once the defendants met their burden, the Wileys needed to show issues of material fact did exist. If the court were to determine that reasonable minds would not differ on the absence of material fact, summary judgment would be appropriate as a matter of law.

The plaintiffs presented four arguments to establish their claim that the state and city "installed, constructed, maintained, and/or operated the metal plate in a dangerous, defective, and unsafe condition." The issues of material fact the Wileys felt precluded summary judgment were:

(1) the location of the pullbox cover in relation to pedestrian traffic; (2) the use of the cast iron cover in an outdoor application when it was known to be twice as slippery as the surrounding cement; (3) lack of any non-skid material to increase the coefficient of friction; and (4) there were no applicable guidelines which established a standard of minimum friction.

The court approached the case by addressing the four elements necessary to prove negligence: "(1) duty; (2) breach of duty; (3) causation; and (4) damages."

As the court pointed out, duty is a question of law. Looking to Buck v. State ((1986), 222 Mont. 423, 429, 723 P.2d 210, 214) and others, the court found, "The State has the duty to keep its sidewalks and highways in a reasonably safe condition for ordinary use and public travel." Buck also established that when the State "has notice of a defect and opportunity to act, it has the duty to cure, remove, or warn of that defect." The court concluded that, in this case, the state and the city did have a duty to maintain the pullbox cover in a reasonably safe condition and to "cure, remove, or warn" of any defect should one exist.

The next question was whether the city or state was liable for negligence due to a breach of duty. The court addressed a similar question in Sullivan v. City of Butte ((1937), 104 Mont. 225, 226, 65 P.2d 1175) where a cover in the sidewalk had a worn band that caused it to be at least one-eighth of an inch above the level of the sidewalk. In Sullivan, the court concluded the City of Butte could not reasonably have been expected to anticipate that such a slight defect would cause injury. In Cooper v. Sisters of Charity ((1994), 265 Mont. 205, 209, 875 P.2d 352, 353), a plaintiff tripped on a drain grate. Since the plaintiff did not prove the grate was defective or unsafe, the court found in favor of the defendants.

In the present case, the Wileys relied on expert testimony that the metal cover was twice as slippery as the surrounding concrete to establish that the cover was defective and represented a dangerous condition. The plaintiffs' expert, however, was not able to show that the pullbox cover did not meet published specifications and standards. Since the cover and surrounding sidewalk complied with all applicable standards, the court determined, "The summary judgment record before us does not establish a defect, much less a defect that a reasonably prudent person would have anticipated to cause an accident."

Recognizing no defect, the court did not address the issue of whether the city or state had notice of a defect or breached any duty to correct a defect in a timely manner. Moreover, without a breach of duty, the court did not address issues of cause or damages. The appellate court agreed with the decision of the trial court that no issue of material fact existed to take this case further. Granting of summary judgment to the state and city was affirmed.

[For further reference, see Wiley v. City of Glendive ((Mont. 1995) in West Publishing Vol. 900 Pacific Reporter, 2d Series, 310.]

Reader Input Requested

Please e-mail us (input@usroads.com) if you are willing to share information on this issue. We would appreciate your telling us the source of the information as well.

If you prefer, just e-mail us that you have such information, giving us a contact name and telephone number, and we will get back to that person.

Thank you.


  • Are you aware of any standards and/or specifications for minimum friction on sidewalk surfaces?

  • Have you seen guidelines for materials to be used on sidewalk surfaces or on the surfaces of covers or other inserts on a sidewalk?

  • Do you know of other legal cases that have addressed this issue?

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Copyright © 1997 by TranSafety, Inc.


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