Patterson Enterprises, Inc. v. Johnson, 2012 MT 43

Patterson hired to build a road near Missoula, with blasting performed by Archie Johnson Contracting (AJC).
AJC contracted January 2, 2007 to drill and blast rock, while Patterson handled excavation; Pummill was Patterson’s project superintendent/ excavator operator with no blasting/geology background.
Standard sequence: Patterson clears a pad, AJC drills holes and places explosives, area cleared before detonation, repeated for construction progress.
February 26, 2007 blast created a rock overhang raising safety concerns among crews; meetings considered safe removal options but opponents opposed extended work time.
March 1, 2007 Pummill excavated beneath the overhang; excavator became under the overhang when a rock section collapsed, though Pummill was not injured.
Patterson sued AJC for strict liability and negligence; the district court denied summary judgment on multiple theories and the case proceeded to trial, yielding a jury verdict that Patterson and employees assumed the risk and allocated fault 51% to AJC and 49% to Patterson.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether assumption of risk was properly sent to the jury	Patterson—assumption of risk not applicable in strict liability; focus should be on dangerous condition, not Pummill's conduct.	AJC—defense supported; joint enterprise and subjective knowledge facts fit under Restatement §523(Comment d).	Affirmed; assumption of risk to jury was proper.
Whether the district court abused discretion by not instructing subjective knowledge from Lutz	Patterson—Lutz subjective standard should guide instruction despite statutory amendment.	AJC—instruction tracking MPI2d 7.06 and §27-1-719(5) is correct; Lutz’ subjective standard not required post-amendment.	No abuse; court instructions were proper and sufficiently covered the law.

Lutz v. National Crane Corp., 267 Mont. 368, 884 P.2d 455 (Mont. 1994) (subjective knowledge standard for assumption of risk in product/abnormally dangerous cases)
Patch v. Hillerich & Bradsby Co., 361 Mont. 241, 257 P.3d 383 (Mont. 2011) (distinguishes when assumption of risk applies in sports/product contexts)
Matkovic v. Shell Oil Co., 218 Mont. 156, 707 P.2d 2 (Mont. 1985) (extended assumption of risk to strict liability for abnormally dangerous activities)
Zahrte v. Sturm, Ruger & Co., 203 Mont. 90, 661 P.2d 17 (Mont. 1983) (early articulation of limits on assumption of risk in strict liability contexts)
Krueger v. General Motors Corp., 240 Mont. 266, 276, 783 P.2d 1340 (Mont. 1989) (background on contributory negligence and standard tests in torts)