Author: spoonlaw

It’s a doggone problem that really isn’t funny at all. Dog bites. A Center for Disease Control study estimates that 4.7 million dog bites occur in the United States each year, 800,000 of those bites require medical care. This means 1 out of every 69 people will be bitten by a dog this year.

If you’ve been bitten by a dog and suffered injury that required medical attention you may be wondering what the next steps would be to collect your deserved compensation.

Montana law, both statutory and common, cover dog bite injuries. A three year time limit from the injury to the filing sets the perimeter in which a suit must begin; otherwise, your claim may be barred.

A dog owner is liable per Montana Statutes section 27-1-715 if:

“The owner of a dog that without provocation bites a person while the person is on or in a public place or lawfully on or in a private place, including the property of the owner of the dog, located within an incorporated city or town is liable for damages that may be suffered by the person bitten regardless of the former viciousness of the dog or the owner’s knowledge of the viciousness.

A person is lawfully upon the private property of the owner within the meaning of this section when the person is on the property in the performance of any duty imposed upon the person by the laws of this state or by the laws or postal regulations of the United States of America or when the person is on the property as an invitee or licensee of the person lawfully in possession of the property.”

With the help of your attorney, those injured by a dog outside of the afore listed statute can still pursue compensation per Montana’s negligence law. This kind of claim would require the injured person to offer evidence that the dog’s owner failed to pointedly restrain their dog that caused the injury. This is also the kind of claim that would likely be pursued if someone was injured by a dog by a mechanism other than a dog bite.

If you have been injured by a dog and fit the conditions outlined above, contact SpoonGordon law today where one of our personal injury experts can help you in the next steps to the compensation you deserve.

What does it mean for Montana not to be an at-will state? 

 Montana is one of the only states whose law allows for employees to have an extra-layer of protection. In other states employers can fire an un-contracted at-will employee at any time and for any legal reason. In Montana work at-will laws only apply during a probation period that is a standard six months unless otherwise established at the time of employment. Upon conclusion of the probationary period Montana employers must have valid cause in order to terminate one’s employment. 

 At-will also allows for employers to adjust the terms of employment with employees at any time for any reason without legal consequences. The employer may alter benefits, reduce time-off or change wage arrangements without consent of the employee. 

 As previously stated, however, Montana is not an at-will state. 

 What act protects employees from wrongful termination? 

 Passed in 1987 the Montana Wrongful Discharge from Employment Act “…sets forth certain rights and remedies with respect to wrongful discharge.” 

 The act declares a discharge is wrongful only if: 

1. It was in retaliation for the employee’s refusal to violate public policy or for reporting a violation of public policy;

2. The discharge was not for good cause and the employee had completed the employer’s probationary period of employment; or

3. The employer violated the express provisions of its own written personnel policy.

 An employee’s failure to adequately perform the task for which they were employed, an employee’s negligence to working lawfully, the employer’s company being dissolved or the interruption of business for any other reason are all lawful excuses for firing an employee.

 If you are a contracted employee, both the employer and the employee must be followed the contract terms even throughout the termination of the employee. If the employee is entitled to certain procedures and opportunities prior to being let go those obligations, by law, must be fulfilled.

 If you feel like you have been wrongfully terminated you should contact an attorney with employment law experience post haste. The time to file a claim on such measures is short and should be used wisely.

With the hustle and bustle of the season and the ever building ice due to Montana weather the
chances of a slip and fall are greater now more than ever.

If you’ve been the victim of a fall due to someone else’s negligence and if you have injuries as a
result we encourage you to get help right away.

1. Seek Medical Attention
Your first priority needs to be your safety and well-being. Consulting a doctor will not only get
you on the mend but it also allows for a documentation of your injuries. This is imperative if you
plan to seek compensation for the costs associated with injury caused. The defense may try to
dismiss your injury claiming that it took place prior to when it actually did so having an expert
and their medical expertise on your side will be to your advantage.

2. Document the Scene
Did the establishment neglect to put salt out on the ice to begin the melting process? Did the
walkway not get shoveled or did ice form inside the door of a store? Maybe a holiday display
was put in a location that caused tripping.
It is important to identify what caused your fall and then to document that cause. Simple cell-
phone photos can be the perfect evidence in a trial. Although juries do their best to listen to the
audible re-creation of the scene having tangible evidence is superior.

3. Identify Witnesses
Did you fall with other shoppers in your presence? Were there several employees nearby when
the accident took place. Ask for the names and contact people of witnesses present. Your
attorney can use this information to get back in touch with them to help you prove your case.

4. Begin a Written Account of the Event
When Traumatic events occur it is easy for details to fall off of the list of priorities. As soon as
the accident takes place begin a journal of everything. The pain incurred, the doctors you visited
with, any new symptoms.It is helpful to also include the narrative of how the events played out. What was your reaction
when you realized you were going to fall? How did those around you react? Who was there?
What did they say?
The more details the better.

5. Contact an Attorney Right Away
As soon as a slip and fall injury takes place there are reports to fill out and steps to take to build
your case. Missing these steps could cause you to lose. By contacting an attorney in short
order, they will ensure that all of the proper steps are being taken to legally protect you. That
way you can take care of your body and they can take care of the paperwork.

Finally, in Montana there are two things to keep in mind if you are the victim of a slip and fall:

1. Comparative Negligence
   In the Treasure State comparative negligence rules exist. They declare that if a person is
   responsible for an accident his or her compensation for injuries and damages will decrease by
   the amount they were at fault. If you fell because you were not looking where you were going
   and you tripped on something you may still be rewarded but it will be less because you can be
   found partially at fault.
   2. Advance Payments
   Also unique to Montana are our Ridley and Dubray laws stating that when liability is reasonably
   expenses can be paid prior to the case’s settlement. This will likely be the case for clearly at-
   fault slip and fall cases.

Payments for slip and falls are determined by a formula that takes into consideration the
conditions etc. so it is imperative to have a well-qualified personal injury attorney on your side.
Visit with our team today to allow them to assist you.

Preparing for a deposition may seem like a daunting task and it should be taken seriously. This
pre-trial oral testimony is taken under oath although no judge or jury is present. Only the
opposing attorney, your attorney, you and a court recorder will be in the room. During your time
in a deposition the opposing attorney will ask various questions and your answers will be
recorded by the court recorder. Your counsel will likely schedule depositions for the opposing
whiteness to help them build your case.

During a deposition you are sworn under oath to tell the whole truth and nothing but the truth.
Anything that you say during a deposition may be used at trial so it is imperative that you arrive
to a deposition adequately prepared for what lies ahead. Your attorney is there mainly to
facilitate but they may ask you to clarify a confusing answer and raise objections for the record.
Usually taking place in a casual setting, the intent of a deposition is to prepare the legal counsel
to use your testimony to prove their case. Knowing what to expect when you arrive and what
your attorney expects from you is of utmost importance. This requires preparation,
concentration and internal discipline.

We suggest two basic rules that should be your guideline during a deposition: “Listen, listen,
listen.” Everything that is said and the context in which it is said should be noted. The other
principle is “don’t try too hard.” Honest people with good intentions will often times try so hard to
tell the truth that they tell more than what they should. Just answer the questions adequately
and let the opposing attorney ask further questions if they so choose.

Here are 10 steps to deposition preparation we suggest and encourage:

1. Take your time – He who writes the rules wins the game

The person who sets the pace is always one step ahead of the others. By slowly approaching
the situation and thoughtfully considering each answer you can rest assured that you will
answer concisely and accurately. Don’t allow anyone else to rush you. It is your oath and your
testimony. Thus it should be relayed at your pace. Everything shared during a deposition will be
recorded and in the recordings it will be accuracy that matters not the speed with which you
relayed the answer.

Taking your time will keep you from feeling rushed, making mistakes less likely. The opposing
lawyer may try to push you faster for that reason.
Taking your time will allow you to truly understand the question and approach it with the best,
most honest and precise answer.

Taking your time will give your lawyer time to object if necessary. If there is an objection stop,
listen and wait until you are advised to continue.

2. Always remember you are making a record – You typically can’t un-ring the bell

The person who will say the least during your time in deposition truly holds the most power. The
recorder and any other note takers may seem like flies on the wall but they are recording
questions, answers, comments – anything may be taken down. Carefully reply to everything as if
you are dictating an important document.

3. Tell the truth – It makes it easier to remember what you said the first time.

Lying is a crime and it will also cause more extensive problems later on. Telling the truth means
being genuine with each answer without being defensive or over-explaining beyond what the
question asks.

4. Be relentlessly polite – Don’t tease the bear

Remember what your primary goals are during the deposition? Listen, listen, listen and don’t try
too hard. That’s your job. Theirs is to ask questions. Don’t waste your time and energy attacking
their job. It will accomplish nothing. If there is a resin for things to get difficult, let your lawyer
handle that. Stay above the fray.

5. Don’t answer a question you don’t understand

Do not answer the question unless you hear it clearly and completely. You may ask the
opposing counsel or the court reporter to repeat the question. You may also ask them to
rephrase the inquiry. Don’t guess. If you don’t “get it” simply say so and it can be explained in a
way that you will.

6. If you don’t remember – just say so

Litigation can move slowly causing testimony to be delayed for months or even years after the
events at issue. You can only testify to what you specifically remember. Don’t work to evoke
memories that are unclear. Simply state that you do not remember. This may seem unnatural
because in every day conversations we hardly admit to “not remembering” but it is a
requirement that your testimony be completely accurate and that means only stating the facts as
you know them.

7. Don’t guess

If you don’t know the answer to a question simply say “I don’t know”. After all, you pledged to tell
the truth. Two broad categories fall in to guessing:
1. Factual Details: If you first say “I don’t know” and the questioner asks for your “best
memory” clarify to them that it would only be a guess or that you would have a large
margin of error trying to pin-point the answer.
2. Inferences: In ordinary conversation we draw conclusions, inferences and opinions.
There’s a chance we may be able to deduce 95% of the answer but in a deposition it is
100% or nothing. You can only testify to what you saw, heard or did.

8. Do not volunteer

You are to answer the questions briefly, articulately and accurately. Keep it simple. If a question
becomes muddled with complication or length ask for it to be rephrased. Never educate the
questioner, volunteer information beyond the question, fill the silence or explain your though
process.

9. Be careful with documents and prior statements.

If you are quizzed about a document ask to see the document. If seeing the document is not
allowed, the document will speak for itself.

10. Use your counsel

Your counsel is there solely for the purpose of helping you. Don’t hesitate to talk to them often
and for whatever reason you see fit. It will not reflect poorly on you from the record and it can
help to calm your nerves and ensure a successful deposition.

In closing, treat depositions seriously. Making jokes or wisecracks is a great way to antagonize.
Even the mildest obscenity, ethnic, sexual or racial slurs can be taken out of context or
considered derogatory. No conversation in deposition is “off the record”. One thing is for sure:
the way you conduct yourself during deposition can make or break your case. Be cooperative,
mindful and consult your attorney at any time for clarification or assistance.

It can happen in the blink of an eye. It can devastate your car, your wallet, even your life. Does your car insurance company cover personal injury?

Don’t let slick TV ads and catchy jingles lead you down a road of mayhem. There are some critical aspects of car insurance that every insuree must consider to secure their care if they are injured in an accident. From a personal injury standpoint considering plans comprehensively, and not just the cost per month, will pay off in dividends if an accident occurs.

The following will help you to better navigate vehicle insurance plans. Let’s look at them from a personal injury standpoint assuming you were in a wreck in which you were not at fault, such as being rear-ended at a red-light.

Montana law requires every driver to have liability insurance that covers a minimum of $25,000 per person. Although it is unlawful, not all drivers are insured. An example we see of this every day, is the at-fault driver simply procrastinated and forgot to renew his auto policy. In this case Uninsured Motorist (UM) coverage would kick in the $25,000.00 that would otherwise be paid by the insurance of the other driver. The amount paid by UM would take care of burdens like medical bills as well as wages lost due to the injury. Underinsured Motorist (UIM) has been said to be the most crucial policy to carry.

The difference between UIM and UM is simply that while UM kicks in if the negligent driver is uninsured UIM comes into play when the other driver has only liability insurance but your damages are in excess of the liability limits, which, often times is only the minimum of $25,000. In this event, you want to ensure that you purchased both UM and UIM coverage; otherwise, only the liability limits may be available to cover your damages. Make sure to inquire about UIM at your insurance office as it is a very reasonably priced product but is rarely brought up during the routine sales pitch. We highly recommend UIM.

A coverage option that pays out regardless of fault is Medical Payments coverage, commonly referred to as “Med-Pay”.Med-Pay is usually sold in increments ranging from $1,000.00, $2,500.00 and $5,000. Again regardless of fault, Med Pay will kick in the insured amount for those in the vehicle associated with the policy.

Okay, it’s time to look at the other side of the equation. We’ve considered scenarios that will help you cover your losses if you are innocent in a car accident. What if you are the negligent driver? There is a particular policy we suggest you consider.

Bodily Injury (BI) coverage balances the insurance equation by protecting the at-fault driver. In general BI policies are covered based on one’s evaluated assets and cash with no less than the required $25,000.00 coverage being in place. BI is important to consider obtaining so that if you do cause an accident you will have a plan to cover the injuries of those in the other vehicle. If you are not covered and you cause an accident, it is lawful and likely that those in the other car will prosecute you for their medical costs.

To evaluate your existing policy, flip back to the Declarations, or “dec”, page. There you will find the details in which your policy is laid out. If you are in the market for a new insurance company make sure that the company you choose is reputable and is known for putting its clients first, not catching them with an ad and then throwing them to the sharks.

Article published on forbes.com | August 6, 2018

For entire article visit: https://www.forbes.com/sites/robertwood/2018/08/06/trump-tax-law-hurts-injury-suit-settlements/#3a963ca922c6

Serious accident cases can produce tax-free money to clients. The injuries might be from an auto accident, slip and fall, medical malpractice, industrial accident, or drug or medical device case. If the plaintiff suffers physical injuries or physical sickness, compensatory damages should be tax free. But this tax-free treatment only apples to compensatory damages. Punitive damages and interest are taxable, and there are key changes under the Trump tax law. To qualify for tax-free treatment, the injuries must be physical. Emotional distress is not enough, and physical symptoms such as insomnia, headaches and stomachaches are normal byproducts of emotional distress, says the IRS.

Exactly what injuries are “physical” is confusing. If you make claims for emotional distress, your damages are taxable. In contrast, if you claim that the defendant caused you to become physically sick, those damages should be tax free. Yet, if it is emotional distress that causes you to become physically sick, even that physical sickness will not spell tax-free damages. However, if you are physically sick or physically injured, and your sickness or injury produces emotional distress too, those emotional distress damages should be tax free.

If you are confused, you are not alone. The chicken or egg distinction can hinge on which words you use. Plus, this area has seen major changes under the Trump tax law. If you are the plaintiff with a contingent fee lawyer, you usually will be treated (for tax purposes) as receiving 100% of the money recovered by you and your attorney. This is so even if the defendant pays your lawyer directly. If your case is fully nontaxable (say, an auto accident in which you are physically injured, where you receive only compensatory damages), that should cause no tax problems.

But if your recovery is taxable, all or in part, you could be in tax trouble. Let’s start with a fully taxable recovery, since the math there is easier to follow. Say you settle a suit for intentional infliction of emotional distress you brought against your neighbor for $100,000. Your lawyer keeps 40%, or $40,000. You might think that you would have $60,000 of income at most. Instead, you will have $100,000 of income. Up until the end of 2017, you could claim a $40,000 miscellaneous itemized tax deduction for your legal fees. You faced limitations on your deduction, but at least it was a deduction.

In 2018 and thereafter, there is no deduction for these legal fees. Yes, that means you collect 60%, but are taxed on 100%. Notably, not all lawyers’ fees face this terrible tax treatment. If the lawsuit concerns the plaintiffs’ trade or business, the legal fees are a business expense. Those legal fees can be deducted ‘above the line,’ the best kind of deduction. Mathematically, it is like not having the income in the first place.

If your case involves claims against your employer, or certain whistleblower claims, there is also an above-the line deduction for legal fees. That means you can deduct those legal fees on the first page of your IRS Form 1040. It is essentially like not having the lawyer fee income in the first place. But outside of employment, specific whistleblower claims, and your trade or business, be careful. You get no tax deduction at all for the legal fees, unless you are awfully creative. There are sometimes ways to circumvent these attorney fee tax rules, but you’ll need sophisticated tax help to do it, and nothing is foolproof.

What about a case that is partially taxable and partially tax-free? Remember, punitive damages and interest are always taxable, even if your injuries are 100% physical. Suppose you are injured in a car crash. Thereafter, you collect $50,000 in compensatory damages and $5 million in punitive damages. The $50,000 is tax free, but the $5 million is fully taxable. What’s more, you can’t deduct your attorney fees. If you pay a 40% contingent fee, $2 million of that $5 million goes to the lawyer, with the client netting $3 million. But the tax law says the client receives (and must report) the full $5 million.

Because the case does not arise out of employment or a trade or business, any taxable money is 100% taxable, even if 40% goes to the lawyer. This no deduction rule is catching many people by surprise. There are sometimes ways to address it, but it requires tax help, preferably before the case settles.

Here’s another example. Suppose a case settles for $2 million, and is 50% compensatory for physical injuries. The other 50% is for punitive damages or interest. There is a 40% contingent fee, and it is divided 50/50 too. That means the client nets $1.2 million in cash out of the case. But the IRS divides the $2 million case recovery in two, so the client is taxed on $1 million. And the client cannot deduct any of the $800,000 in legal fees. Sometimes, one can justify an allocation of legal fees that is not strictly pro rata, but you need to document it. And the IRS may not agree.

The same kind of attorney fee tax problems occur where there are interest payments, instead of punitive damages. You might receive a tax-free settlement or judgment, but interest is always taxable. For tax purposes, whether you collect pre-or post-judgment interest isn’t important. It is taxable, and the legal fees on that part of the case cannot be deducted. There are no easy answers to these problems, but sometimes you can improve on these dire tax results. Settlements are usually better for taxes and tax planning than judgments. And getting tax advice before a case settles is a good place to start.

The term “personal injury” is quite broad and includes many different areas of the law. In a general sense, personal injury litigation is the process of seeking money for harm or damage caused to one person by another. That harm can be anything from a broken bone to damage to one’s professional reputation from another’s false statements. In order for one person or entity (the plaintiff) to be able to recover money from another person or entity (the defendant), the plaintiff must be able to show that the defendant had an obligation to do something or act in a certain way and failed to do it or acted in a way that injured the plaintiff. A defendant’s obligation to act in a certain way (the defendant’s “duty”) can come from laws passed by the legislature and signed into law by governor (called a statutory duty) or general principals the courts have recognized over time (called a common law duty).

The most familiar example of a common law duty is something we each have at all times and is a duty to use reasonable care to avoid injuring others. If someone fails to act like a reasonably prudent person and causes another injury, we call that failure negligence. Take for example a man speeding through uncontrolled intersections in the University District while fumbling with his iPhone, trying to find his favorite Bee Gees song (let’s say “Stayin’ Alive”) and not looking at the road in front of him. Would a reasonable person do this? The law says no, a reasonable person would drive with his eyes on the road, slowing for each uncontrolled intersection and pull over if he wanted to find that special Bee Gee’s ballad. His failure to operate his vehicle in a safe and prudent manner is called common law negligence and if his negligence is the cause of an accident, he will be responsible for paying any damages he causes to an innocent person who found her favorite Bee Gees song (“Night Fever”) on her Samsung Galaxy before she got on the road.

The careless driving of the “Stayin’ Alive” fan is also a violation of Montana law. The legislature has passed laws requiring us all to pay attention to the road when we drive and avoid speeding. The law, 61-8-302, MCA, requires each and every “person operating or driving a vehicle on a public highway” to “drive it in a careful and prudent manner that does not unduly or unreasonably endanger the life, limb, property, or other rights of a person entitled to the use of the highway.” If the “Stayin’ Alive” fan violates the law and causes a car wreck with the “Night Fever” fan, his violation of Montana’s careless driving statute is a violation of a duty imposed by statute.

Personal injury law encompasses much more than car accidents. Below are just a few of the different types of personal injuries the law recognizes and allows one person to sue another for:

Products Liability: if a company manufactures or sells a defective product to a consumer, and the consumer is injured by the defective product, the consumer can sue any entity in the chain of distribution for his or her damages. For example, if Company A manufactures a wing nut that Company B uses along with a bunch of other parts to construct a finished chair, both Company A and Company B would be responsible if the wing nut was defective and caused the chair to collapse and injure the person who bought it. In addition to Companies A and B, both Distributor A who sold the finished chair to Retailer A, and Retailer A who sold the chair to the public would be responsible for any injuries or damages the consumer suffers as a result of the defective wing nut.

Premises Liability: more commonly called “slip and fall,” these lawsuits involve a plaintiff who is injured by a dangerous condition in a building or on a piece of property. In Montana, the owner or possessor of a piece of property (whether it is a house, business or piece of land) must warn anyone who enters the property of hidden and lurking dangers as well as open or obvious dangers that the owner or possessor has reason to know may cause harm to someone on the property. For example, let’s say if the owner of a rental house is aware of a broken downspout that causes water to pool and freeze right outside of the front door to the house

Defamation & Libel: if someone lies about you or your business and their lies harm your personal or professional reputation, you can sue them for defamation. These lawsuits require that the damaging statements are actually false. If the defendant can prove that what he or she said was true, they will win any suit. If the plaintiff can show the defendant intentionally lied to injure his or her reputation, the court may allow an award of punitive damages to punish the defendant for his or her malicious lies. Libel is the term used for a harmful untruth about someone that has been published in print, writing, broadcast through radio, television or film.

Professional Malpractice: doctors, lawyers, accountants and other professionals are required provide services that meet the professional standard of care for their occupation. Whether or not a plaintiff can sue a professional defendant depends on whether another, independent professional in the same occupation is willing to testify that the defendant did not meet the professional standard of care for that occupation. For example, to sue an defendant orthopedic surgeon for a surgery gone wrong, the plaintiff-patient must find and pay another orthopedic surgeon to testify that the defendant failed to use the degree of care required of surgeons under the circumstances. Similarly, if a plaintiff wants to sue his or her lawyer for losing a case, he or she needs to find another lawyer who practices in the same area of law to provide testimony that the defendant lawyer didn’t act like a reasonable professional, which caused the plaintiff to lose his or her case.

Other Personal Injuries: the law also allows a plaintiff to recover for various other injuries to his or her physical body and mental state.

• Work Related Injuries: if an employee is injured on the job and the employer has workers’ compensation insurance, the employee will be compensated for his or her injuries regardless of who is at fault, or if no one is at fault. However, in exchange for this “no fault” compensation for work related injuries, employees are not permitted to sue their employers except under the most extreme circumstances.
• Toxic Torts: if a company dumps pollution into the public’s water, air and in doing so, causes injury illness or death, the company can be sued for what is called a “toxic tort.” With Montana’s history of mining, these actions have special significance to the public.
• Unfair Insurance Claims Practices: Montana has some of the strongest laws in the nation that govern the behavior of insurance companies. Montana’s Unfair Trade Practices Act (UTPA) requires an insurer to be fair with claimants and their own policy holders. Under § 33-18-201, insurers have specific prohibitions against denying claims without doing a thorough investigation based on all available evidence, compelling their policy holders to file suit in order to obtain benefits, and offering substantially less to a claimant than what he or she is entitled to. The UTPA prohibits “bad faith” practices and is a very strong tool for injured claimants seeking compensation from an insurer. If an insurer violates provisions of the UTPA, it can be subject to significant punitive damages.
• Consumer Protection Claims: Montana law, like its federal counterpart, prohibits unfair or deceptive practices in the conduct of any trade or commerce. Section 30-14-101, et al. The Consumer Protection Act (CPA) provides stiff penalties for any business engaged in unfair or deceitful acts, including awarding a successful plaintiff attorney’s fees and multiplying the plaintiff’s damages by three (3) times (called “treble damages”). A familiar example of an unfair, deceptive practice that is covered under the CPA is a used car dealer manipulating the mileage on a vehicle in order to charge a customer more. Or, if that same used car dealer misrepresents the car’s accident history in order to make a sale, that behavior would give rise to a claim under the CPA.

This list is certainly not exhaustive. Personal injury law is a very broad area of practice with many different subspecialties. It is important to find an experienced and reputable attorney for any personal injury case. Speak to several attorneys to get a sense of how they practice and whether they have experience in the specific legal practices your case demands. The attorneys and staff at Spoon Gordon Ballew are dedicated to providing the highest level of legal services to our clients and community.

If you own a house, a business or a piece of property, you have probably worried about whether or not you can be held responsible for “slip and fall” injuries. The following is a brief explanation of the general rules of premises liability.

The law in Montana used to separate people coming onto your property into categories (those you invite, those who have permission to enter onto your land, trespassers, etc.). Many states still use these categories to determine what, if any, duty a landowner owes a person on his or her property. The states that still separate people based on their status use that status to determine the nature and extent of the landowner’s responsibility to them. This responsibility is called the landowner or possessor’s “duty of care” and it depends on what the property is used for (business or private) and the status of the person who gets injured.

For example, for states that still use the categories described above, the owner or possessor of a building or piece of land generally does not owe any duty to make the premises safe for a trespasser. In other words, the duty of care owed to trespassers is the lowest under the law for states that still use the entrant categories. Similarly, an owner’s duty of care is significantly higher to people he or she invites onto his or her property, called “invitees.” For invitees, these states usually impose a duty to use reasonable care to keep the property free from hidden dangers (for example, a landowner may be held liable for injuries to an invitee caused by a missing rung on a ladder used to access a dark basement). At the same time, a property owner is generally not responsible for injuries caused by an open, obvious or known danger on his or her property (like a snow berm that is obvious or that an invitee has crossed once but is injured when trying to cross a second time).

Montana is different, however. We have abolished the use of entrant categories to determine a landowner’s duty of care. In place of that nuanced system still used in many states, Montana has adopted a uniform duty of reasonable care, regardless of the status of the person on the property. The rule in Montana is that if you own or possess a building or piece of property, you owe everyone (even trespassers) the same duty to use reasonable care in the maintenance of your building or land. This duty requires owners or possessors of property to warn of any

1. hidden or lurking dangers, and
2. open and obvious dangers that, despite being open or obvious, the owner should anticipate will cause harm to those on the property.

Richardson v. Corvallis Pub. Sch. Dist. No. 1, 286 Mont. 309, 321, 950 P.2d 748, 755-756 (1997).

The Court has stated this duty in another way:

In other words, the possessor of the premises may no longer avoid liability simply because a dangerous activity or condition on the land is open and obvious; this includes avoiding liability for open and obvious natural accumulations of ice and snow. Rather, the possessor of the premises may only be absolved from liability for injuries resulting from open and obvious dangers if he should not have anticipated harm to occur.

Richardson v. Corvallis Pub. Sch. Dist. No. 1, 286 Mont. 309, 321, 950 P.2d 748, 756 (1997). But, the Court has said, “[t]his does not mean that the possessor of the premises is an absolute insurer of the safety of the premises. […] Instead, whether the possessor of the premises should have anticipated harm depends on “the degree of ordinary care which reasonable persons would use under the same or similar circumstances.”

So what does that mean for someone who owns a house or business in Montana? First, it doesn’t matter whether someone on your land is a trespasser or customer. The duty to use reasonable care extends to anyone and everyone who foreseeably comes into your building or onto your land. Second, it doesn’t matter how snow or ice got onto your property, a concern that used to matter in Montana. Third, you must either repair or warn any hidden or lurking dangers, as well as any open and obvious dangers if you have reason to know they might cause harm. Whether or not you should anticipate harm from an open or obvious danger depends a lot on what use the building is put to, as well as whether or not you have any notice of the condition causing injury or harm in the past.

For business owners, take quick action whenever you receive notice of a problem with your property. If you have received a complaint about an issue on your property but fail to do anything about it, you are probably going to be responsible for injuries it causes in the future. For members of the public, watch where you are going and take extra care during the winter months.