*1 BROWN, Respondent, DEANE v. NORTH AMER- Plaintiff Ap- COMPANY, ICAN MANUFACTURING Defendant pellant. No. 13706. 28, Sept. Submitted 1977. Decided Feb. 1978.

Rehearing Denied March 1978. 576 P.2d 711. *3 Mr. Haswell Shea filed concur- respectfully specially Justices ring opinions. Robinson, & Heckathorn I.

Murphy, Heckathorn Phillips, James for defendant and (argued), Kalispell, appellant.

Morrison, Trieweiler, Morrison, Hedman and Frank B. Jr. Whitefish, (argued), Lence & for McGarvey, Heberling, Kalispell, plaintiff respondent.

MR. HARRISON delivered the of the Court. opinion JUSTICE Plaintiff Deane Brown lost his left in the aof self- leg auger “Grain-O-Vator”, feed unloading wagon known as a manufac- Co., tured defendant North by American an Iowa Manufacturing In corporation. his original complaint, plaintiff specified and strict negligence in tort as liability theories supporting damage recovery.

The trial of the cause on the strict ultimately proceeded alone. theory consisted of Discovery depositions parties certain witnesses anticipated for The case plaintiff. was tried Court, before a in the District jury Flathead County, beginning Oc- tober 1976. The returned verdict for in the $318, amount of 167 and judgment entered thereon. Defen- dant then filed motions for judgment the verdict notwithstanding for a new alternatively, trial. The District Court denied both motions. Defendant from the appeals judgment and denial of its post-trial motions.

For reasons set forth in this we find no opinion, errors were com- mitted either reversal of requiring a new trial judgment, or im- position judgment the verdict. nothwithstanding The facts are:

In November Deane Brown purchased piece farm known as a equipment Grain-O-Vator. The feed machine was one old at the approximately year time of The machine purchase. was manufactured defendant North American Manufacturing *4 Co. the next three the was and ser-

During years, equipment operated son, viced Calvin Brown. Plaintiff used the machine a by plaintiff’s few times to the accident involved prior here.

The central is function Grain-O-Vator feed contained in a an bin a and large drops auger, into transfer through opening moved to an area it is where and picked up expelled through bin, Attached to the over is a spout. just the transfer curved auger, metal door known as an “excess door”. The door was at the hinged on bottom the model and was particular owned held by plaintiff, closed at the top two of the excessdoor was by springs. purpose a “relief valve”. When excess feed is exerted provide pressure the transfer the is forced and the against door excess auger, open, feed relieved. The feeder is pressure operated by power-take-off when system, attached to tractor. to the accident an prior plaintiff, experienced farmer/ran-

Just cher, 51 years of was feeder. had age, The feed ceased operating out of the Plaintiff coming descended from the tractor spout. left the power-take-off system to observe if running, any mechanical existed. problem His intent was to view the first in- terior of bin. There was no ladder other means provided on for to a machine access view of bin. The the bin height had been increased extension by boards furnished defendant. by

Plaintiff mounted the machine first his foot on placing right an iron reinforcement bar to the side the transfer then auger; left placed his foot on the excess door the transfer covering auger. door, For his third he his foot of the step, placed right excess with his left in foot the air above the excess door. Plaintiff observed feed bin, foot, down, down with his stepped left without looking it on the intending again excess door. The excess door had place and, result, come as a open into the plaintiff stepped directly transfer His left was auger. leg pulled amputated by mechanism. Plaintiff was alone and remained in the caught machine for some time before he taken out medical given aid. trial,

At plaintiff testified that his prior limited during experience machine, with the excess open. door had not come While the area excess would be recognizing surrounding door if the dangerous excess door were he stated he no open, had expec- *5 that the auger “come and felt open” tation the door would simply area, covered, testified that was not Plaintiff further dangerous. as door on the anywhere the excess concerning appeared no warning Grain-O-Vator. witness. He has was the expert

Carlton Zink from the in agricultural engineering Bachelor of Science degree in served for years charge of Nebraska. Later he University Lincoln, From 1950 to Nebraska. the tractor testing laboratory 1968, and after 1952 he “took for Deere Company he worked John as a cor- for Deere on the for product safety responsibility John with the Na- He worked safety.” porate representative and was a tional Council on “farm Safety safety” president Institute for Farm Conference. He was member of the National Farm the American Society Agricultural Engineers, Safety, of Automtive and the National Council. Engineers Safety Society of safe- From 1952 to he was involved with the development for Deere ty design Company. John Engineers Zink testified the American Society Agricultural as as 1964 or the need to shield recognized augers early effectually Further, failed even 5 earlier. in question Grain-O-Vator years in three par- to conform to accepted safety design requirements ticulars, to unreasonably dangerous rendering equipment 1) user: effective of the transfer because auger The lack of shielding bottom, at and much more of the excess door being hinged 2) means was when No ladder other entry susceptible open. 3) No warn- for visual access to the bin. provided gaining manual. on the or in the instruction ings equipment appeared An called defendant was of the the Grain-O- opinion expert Vator was not defectively designed. Hanson, defendant, K. officer of Elmer

The owner principal the excess door. He indicated that prior testified he had designed but been at the top, design the door had hinged for at the bottom in later models the door was hinged modified so time, the Grain- stated that at the added He further utility. present and it door bolted on firmly is marketed with the excess O-Vator cannot come without manual He open removal. admitted the Grain-O-Vator no and no ladder or other ac- displayed warnings, However, cess ato view of the interior of the bin was he provided. nondefective, maintained the machine was consistently satisfied standards. safety industry

Various exhibits were admitted the course of the trial throughout consisting primarily pictures of the Grain-O- diagrams Vator, and movie introduced by plaintiff' demonstrating steps taken as he mounted and by plaintiff to dismount the attempted *6 Grain-O-Vator, as his portrayed son Calvin. The was also by jury afforded an to view the Grain-O-Vator in- opportunity particular volved in the accident. At the close of the testimony ensuing a verdict was arguments, returned in favor. We summarize the issues raised on this appeal: 1) Was there sufficient evidence to a support finding prod- uct was in a “defective condition to the unreasonably dangerous user or consumer?”

2) Was there sufficient evidence to a that an support finding unreasonable or existed which danger hazard required warning?

3) Was there sufficient evidence to that the support finding defective condition was a cause of alleged to proximate injury plaintiff?

4) actions, Did his assume the risk as a plaintiff, by matter of law?

5) Did the District Court err in its instruction on the law giving of the risk? 6) Did the District err in its instruction Court giving concerning the elements of in a strict action? liability proof

7) Did the District Court err in into evidence the admitting movie and offered prepared by plaintiff?

Issue 1. Defendant contends the evidence adduced at the trial failed action as set forth to the elements of strict satisfy liability maintained, 2d, Rather, in 2 it is Restatement Torts 402A. § sole conclusion the evidence is that the danger supported by and obvious” to and therefore a bar to “open complete contention, In of the latter defendant relies on recovery. support of cases from holding certain that a is not jurisdictions “defective” or if the occasioned “unreasonably dangerous” its use is obvious to the user. Tomicich v. Western- open (9th 1970), Cir. 12 Ariz. Knapp Engineering Company App. 780; (7th 1968), 473 P.2d Sahora v. Cir. Harnischfeger Corp. 172; (1960), F.2d v. Const. 27 N.Y.Misc.2d Halpern Corp. JAD 675, 202 945. N.Y.S.2d Sales, A., This Court in Motor U. S. Brandenburger Toyota (1973), 506, 513, Inc. Mont. 513 P.2d the core adopted definition of the doctrine of strict set in 2 forth Restate- liability, 2d, ment of Torts 402A:

‘(1) One who sells ain defective condition any product to the user or consumer unreasonably dangerous his property is subject for harm caused physical to the thereby consumer, ultimate user or or to his if property, “ ‘(a) the seller is in the engaged business of such a selling prod- uct, and

‘(b) it is to and does expected reach the user or consumer without substantial in the condition in change which it sold. “ ‘(2) (1) The rule stated in Subsection applies although *7 “ ‘(a) the seller has exercised all care in the possible preparation and of sale his product, ‘(b) the user or consumer has not the or bought product ”

entered into contractual relation with the any seller.’ 162 Mont. 513, 513 P.2d 272.

In order to establish a facie case in strict prima liability, definition, based eht above a upon must the follow plaintiff prove elements: ing

(1) condition, was a defective “unreasonably” consumer; dangerous to the user or (2) of; The defect caused the accident and injuries complained 106

(3) The defect is the traceable to defendant. the

Following well-established rule in this this Court regard, has a stated that defect in a be shown products liability may case by circumstantial as well as direct evidence. v. Brandenburger Inc., U.S.A., Sales Toyota Motor Pierce v. supra; Ford Motor Co. (4th 1951), 910, 887, Cir. 190 F.2d cert. denied 342 72 U.S. S.Ct. 178, 666; (1960), L.Ed. v. Motors Inc. Henningsen Bloomfield 358, 69, case, A.2d 75 A.L.R.2d 1. In such a the defect N.J. well might be established proof circumstances of the through accident, difficulties, a of prior history similar occur occupational circumstances, rences under and elimination of alternative certain causes, including own conduct. The plaintiff’s reasoning behind of the more imposition upon plaintiff flexible standard proof was recognized Brandenburger:

“The essential rationale for doctrine strict imposing liabili in tort is that such affords ty imposition consuming public maximum from dangerous defects in manufactured protection products manufacturer to bear the burden of in by requiring juries and losses enhanced defects in such its If this be products. so; it little to see that if a strict rule of direct requires imagination evidence required, benefit of the of strict theory supposed be would lost Mont. liability consuming public.” 162 513 P.2d 275. of a more flexible rule of evidence does not

Recognition convert strict into absolute thereby liability. Ordinarily, sustain his merely will not burden proof by establishing fact of the occurrence of an accident. & Dunham Vaughan Co., (1969). Bushnell 42 Ill.2d 247 N.E.2d 401 Mfg. Imposi defect, tion of the burden a traceable upon showing causation and or assures an limitation damage injury appropriate to a manufacturer’s liability.

Defendant here “open danger” advances obvious rule as a under the recovery bar “patent-latent” such a authorities in of strict We rule. Recent theory liability. reject

107 other that the rule have now jurisdiction previously adopted abolished it in well reasoned persuasive, opinions.

The and 2 obvious rule is not contained in “open danger” 2d, Restatement of Torts 402A nor in the comments thereto. It 468, derives from the New York case Scofield, v. 301 N.Y. Campo (1950), 95 N.E.2d 802 and thereafter found in various acceptance jurisdictions. Strict cases on the liability obvious relying “open rule have done so danger” typically of upon express authority Inc., Trailmobile, See: Morrow v. Campo. supra.

However, the New York of Court has aban- Appeals recently Co., doned the distinction. v. Div. “patent-latent” Miehle Micallef Dexter, Inc., 376, 115, Miehle-Goss 39 N.Y.2d 384 N.Y.S.2d 348, (1976). Mqr- N.E.2d 571 Arizona has rejected authority row, Riddell, Inc., relied on defendant. v. 113 by Byrns Ariz. (1976). 550 P.2d 1065 In so the Arizona Court doing, Supreme stated:

“* * * We do not subscribe this distinction in ‘patent-latent- the context aof manufacturer’s strict in tort. Its func- only tion is to defects.” 550 encourage patent P.2d 1068. design (E.D.Pa. 1971),

In v. Dorsey Yoder Company, F.Supp. suffered to his hand when he injuries it placed upon slitter, of metal near piece the unshielded of a metal opening was accidentally into the machine. The defendant propelled that argued, part, be barred from due to the recovery court, and ovious open character of the after danger. Dorsey issue, discussing on the split authority rejected “open rule, obvious danger” holding:

“* * * Therefore, we hold that even though unguarded blades was rotary obvious to this does not plaintiff, ipso facto preclude 759. recovery.” F.Supp.

We note the Ninth Circuit case Tomicich Western-Knapp Co., defendant, relied on does not in fact supra, Engineering on the basis of the and obvious rule. deny recovery “open danger” Tomicich, Smith, In Russell E. while to various Judge referring rule, decisions and obvious in- danger” supporting “open *9 eluding that Campo, noting this Court has made no specific on the ruling question, this suggests Court might well be impressed with the criticism voiced the rule. against was Liability clearly denied on other grounds.

We rule reject any which would to operate encourage misdesign. The fact that a is danger does patent not a prevent finding prod- condition, uct is in a defective unreasonably to the dangerous par- Rather, ticular plaintiff. obvious character of a defect or is abut danger factor to be considered in whether the determining plaintiff fact assumed the risk. case, however,

The evidence in the instant tends to support hidden, that the finding obvious, was danger rather than open as it was concealed below the excess door. Plaintiff testified he seldom used the Grain-O-Vator and had never serviced personally the equipment. Particularly this revealing the follow- regard ing testimony plaintiff, direct given upon examination: “Q. Did realize that you door and the there auger as being dangerous area? A. No.

“Q. You did not? A. No.

“Q. not? A. Why Because it was covered. “Q. accident, Did know you to this prior was the lid on this thing bolted down or whether it or flipped up about it? anything A. No.

“Q. accident, Prior to time of the did you know how the lid fastened to the machine? A. I knew it was hinged.

“Q. Did know you whether it was bolted at the or latched top at or about top anything that? A. No. “Q. No what? A. I did not know whether it was or whether it wasn’t.”

Further, Zink, Carlton testified the hazard expert, was, in his hidden. Defendant’s reliance on opinion, and obvious rule is thus “open danger” misplaced.

Here, testified the fact the was shielded auger prevented It is of the auger. the injurious potential from him expecting However, the salient excess door came open. as to how the unclear and under in such manner the door did come open, fact remains an unreasonable danger. as to such conditions expose defects evidence of design with ample presented dangerous. unreasonably the Grain-O-Vator which rendered defects, based upon three specific design Zink enumerated Carlton (a) at the the excessdoor failure to hinge standards: industry safety hazard, (c) (b) failure to provide failure to warn of top, When asked for the equipment. or other access for mounting steps defects was render as to whether the effect of the his opinion af- in the dangerous, expert responded machine unreasonably firmative. strict the burden of for proof

We hold met plaintiff clearly *10 action, the in a defect rendering product liability proving evidence, while to some extent Plaintiff’s dangerous. unreasonably defendant, was suffi conflict with certain evidence offered by in fin We refuse to disturb the jury’s cient for submission to the jury. this in dings respect. its defendant argument,

Issue 2. In accordance with prior a to warn of any danger asserts it was not under duty also In of this conten with use of the Grain-O-Vator. support associated tion, is no to warn of a defendant advances the there duty position knowledge. is obvious or of which the user has which danger heretofore, the the evidence strongly supports As out pointed hidden, had no sub- was in fact and plaintiff conclusion the danger Plaintiff’s the danger. or awareness of knowledge particular jective a defect itself. Given such the failure to warn as in fact listed expert evidence, to conclude the it was well within the of the jury power and warning was hidden and unknown to plaintiff, should have been given. defective or the was not

Defendant also contends product as in functioning because it was precisely unreasonably dangerous mer contention is without time the accident. This tended at the it.

110

It has been held that failure to anof risk injury causing warn of a associated with use and fit can render technically pure product such v. product Davis unreasonably dangerous. Wyeth Laborato (9th ries, 1968), Inc. Cir. 121. F.2d In further the expanding rule, of the Davis Ninth application the Circuit Court of Appeals (9th 1969), & Colorado Fuel Cir. Iron Corporation Jacobson F.2d stated: “* * * Davis distills the rule that essence of the to be manufacturer is under warn of to ‘nondefective’ duty dangers * * * but harmful if unrea- potentially products. is product and a sonably dangerous warning should be but is given, not given, * * then is ‘defective’ 409 F.2d automatically 1271.

Issues and 4. Defendant next contends there was insufficient evidence that the defect was the alleged cause of proximate plain- Rather, tiff’s is is maintained injury. the evidence demonstrates own conduct was the cause proximate of his injuries, that such assumed risk as a matter of law. We disagree.

A cause is a showing proximate necessary predicate is, course, in strict Strict plaintiff’s recovery liability. not without fault” in sense is complete “liability that it abso immune to considerations of which lutely plaintiff’s behavior breaks chain bar of causation and de operates recovery 2d, 402A, (n): in 2 scribed Restatement of Torts Comment * “* * Contributory is not a defense negligence such when consists in a failure to merely discover the negligence in the or to against defect of its exist- product, guard *11 possibility ence. On the other hand the form of contributory which negligence consists in and to voluntarily unreasonably encounter proceeding known and under the name of danger, commonly passes assump- risk, tion of is defense under this Section as other of strict in cases If or the user consumer discovers defect and is aware liability. the of the use danger, nevertheless to make unreasonably proceeds it, of the and is he product is barred from injured recovery.” by

Ill of the related We find the above standard of conduct as plaintiff law on to the must be considered under the Montana case injury In the the of risk when to strict cases. applied liability assumption cases been in be- Montana have not consistent past distinguishing the tween the standard in defense of subjective required assump- risk, tion and the to a contributory of standard objective necessary defense. As held in Deeds v. United Judge negligence Jameson States, (D.C.Mont. 1969): 306 F.Supp.

“While the defense of in assumption of risk asserted usually cases, in Montana defense extend- employer-employee the has been ed to of the ‘relationships master-servant independent relationship’. 390, 392, v. Cassady City 135 Mont. P.2d Billings, of 509, 510 and cases cited. there of risk is Assumption governed by the standard the subjective of rather than the plaintiff objective * * *” standard of the man. reasonable

Henceforth, in cases the defense of liability risk, of will be based assumption on standard rather subjective than that of reasonable man test.

The attributes of the defense risk the context of strict are intelligently phrased developed Dorsey Yoder Company, supra: “* * * In addition to the existence of the defect or realizing it, an act which voluntarily doing him exposes involved, e., must risk plaintiff perceive and i. appreciate * * of harm. *”331 765. probability F.Supp. 496D, 2d, (c), of Torts Restatement Comment Quoting court in Dorsey continued:

“ one, ‘The to be is a standard subjective what applied par- sees, knows, ticular in fact understands and appreciates. In this it from differs standard which is objective applied * * * If contributory negligence. reason or lack infor- age, mation, does not experience, intelligence, judgment, situation, understand the risk in a involved known he will not be risk, taken to assume the it found conduct be that his although may *12 112 because contributory negligence it does not conform to the com- ” standard of the reasonable munity man.’ 331 F.Supp.765.

Ninth Circuit has also followed the rule that the 2 Restatement of 2d, Torts 402A version of the risk a show- assumption requires ing of the knowledge danger which is conscious and subjective, personal to the plaintiff. v. and Coast Paint Com- Lacquer Jackson (9th 1974), Cir. 499 F.2d pany 809. we do intend

By foregoing, not to burden impose the defendant which is upon virtually impossible discharge. and, case, defendant need not in the usual cannot prove subjec tive requisites of the risk defense direct by evidence. Seldom would a admit products liability plaintiff his own that he had of the through testimony knowledge defendant, the risk involved. Therefore in a appreciated case, his given may burden in this effectively discharge regard of the elements circumstantial through proof subjective Hatch, evidence. 10 Cal. Sperling App.3d Cal.Rptr. (1970). case, to the

Turning record in the instant it is manifest there is no evidence whatsoever had plaintiff subjective knowledge did, the excess door would as it open exposing blades of the transfer It further and the auger. appears, could well have found, that did not realize the risk associated with the relative to his use of it at the time of the accident.

Defendant maintains that plaintiff, and ex- knowledgeable farmer/rancher, perienced assumed the risk of injury by knowingly onto voluntarily the machine while climbing leaving power-take-off system While act of climb- operation. plaintiff’s the Grain-O-Vator to ing upon the bin was volun- inspect obviously (1) these remain: Was tary, questions it unreasonable for plaintiff (2) as act he did? Was the known and danger actually ap- preciated by plaintiff? evidence,

Under the be at most of fail plaintiff may guilty to discover the defect or its existence. ing guard against possible While actions have amounted to some plaintiff’s may contributory it cannot be said the risk as a negligence, he assumed matter of law. risk, The question is not whether should have realized the Defendant, but whether in fact he did realize the risk involved. to establish actual failing knowledge appreciation did not its affirmative burden of danger, discharge proof defense. *13 evidence,

The to the contrary, sufficiently supports conclusion that was a direct result plaintiff’s of the defective injury warn, failure to design, failure to safe access to the provide burden, bin. Plaintiff satisfied the under the standard of proof outline in the defect was the Brandenburger, showing proximate cause of his injuries.

Issue 5. The trial court as Court’s Instruction No. gave 10 an instruction on the defense of of the risk: assumption

“You are instructed that of risk is assumption voluntarily plac- in a oneself to chance known hazards. If a ing position has person risk, assumed the he cannot recover for or sus- any injury damage tained him. In whether or not the by determining assumed plaintiff risk, are not to consider you whether or not exercised due care for his own but must find the ex- safety, factors following isted:

“ 1. That he had actual or of the knowledge, implied, particular condition.

“2. That he the condition as appreciated dangerous. “3. in the face Voluntarily remaining continuing known condition. dangerous

“4. as the usual or Injury resulting consequence probable this condition. dangerous

“If find all you four of the above factors exist at the time he cannot recover.” injury, This instruction is drawn from the Montana In- primarily Jury (MJIG). struction LGuide However here the in- approved MJIG struction was modified inclusion of the are not language, “you to consider whether or not the exercised due care for his

own Defendant contends the safety”. instruction as modified is an law, incorrect statement of the to the confusing misleading and therefore it was error to it. Defendant give its urges pro- 7, Instruction No. taken from posed Revision of the (Civil), California Instructions was a Jury correct statement of the risk, law of should have been given. of our review in this defined. This scope case well cases, West, Court held in numerous Fox v. Inc. including Fifth (1969), 95, 010, 612, 153 Mont. 454 P.2d that: “* * * instruction must be considered in their and to entirety, determine whether instructions were or refused this properly given Court will read them connection with other instructions given and consider them in the of the evidence introduced.” 153 light 101, Mont. 454 P.2d 615.

. an error in Similarly, instruction considered in isolation any may be cured as a whole. by reviewing Northern Pac. R. Co. charge 878, 43 79 F. aff. 173 Lynch, U.S. 19 S.Ct. L.Ed. 1185 (1899).

A review of the instruction finds it inserts into the improperly *14 case elements of that could cause con- contributory negligence clarification, fusion. Therefore in the interests of we disapprove its use in future cases. herein,

As noted in an previously instruction on assump risk, tion of standard will be used subjective and the words “ac Prosser, Torts, tual” or will not be used. See: Law of “implied” 4th ed., Risk, 68 445-452. Assumption pp. of Instruction 10 as giving No. to this defendant

does not constitute reversible error. Defendant’s burden of proof reduced due to the clearly of the instruction. Under deficiency instruction, defendant given could have had argued plaintiff a measure for behavior implied knowledge, creating based the standard of the upon “reasonable man” as an alternative actual, to a Such a standard is in showing subjective knowledge. consistent with the defense of of the risk in the assumption context noted. If the error of strict as liability theory, previously anything, as discussed to the benefit of defendant in this case. enured

An error in an instruction which is favorable to the objecting (1952), is harmless error. v. H. F. Inc. party Johnson, Harding 111; 70, (1947), Mont. 244 P.2d Northern Pac. Co. Ry. Broberg 120 Mont. 182 P.2d 851. The trial court’s refusal to give defendant’s instruction on of the risk was not proposed assumption error, as defendant was not prejudicial thereby deprived (1963), defense. Wollan v. Lord 142 Mont. 385 P.2d potential fact, 102. In defendant was able under instruction in- given troduce evidence and the defense under burden argue significant- reduced in to the standard established above. ly comparison error

Any from inclusion of the “due resulting phrase concerning harmless, care” is also in view of the evidence the defense negating of the risk and the as a altogether, taken charges West, Inc., whole. Fox v. Defendant has demonstrated supra. Fifth no real in this prejudice regard.

Issue 6. Defendant also as error alleges the trial court’s refusal of its Instruction No. proposed elements of concerning ain strict proof action. instruction, essence,

Defendant’s proposed sets forth the ele- However, ments of proof required by Brandenburger. proposed instruction includes the additional elements as following matters which be must established affirmatively by plaintiff:

“First: The defendant the Grain-O-Vator in placed question on use, knew, the market for and the defendant or in the exercise of known, reasonable care should have that the Grain-O- particular Vator would be used without for inspection defects the particu- lar mechanism or which is claimed design to have been defec- part, tive.

“Third: The was unaware of the claimed defect.” Defendant admits the for defects” “inspection matter is not an el- *15 ement of the law of strict as set forth in liability 2 Restatement of 2d, Torts 402 A. The rule hs its in the landmark origin products Products, case (1962), Greenman v. Yuba Power Inc. 57, Cal.2d 377 P.2d Cal.Rptr. and is lim- generally ited in to application subsequent California cases.

We conceive of no which would policy justify an imposing increased burden of proof upon products liability plaintiff. The manufacturer insulated sufficiently from absolute liability by plaintiff’s adherence required to the burden of proof heretofore outlined in this No error could opinion. result from refusal to in struct as to an element of not proof imposed law. governing

Further, lack plaintiff’s of awareness aof defect cannot be considered an element plaintiff must establish. affirmatively Rather, awareness plaintiff’s of the defect is matter to the going such, affirmative defense of the risk. As the burden an alleging proving “awareness” is the defendant. The upon trial court cannot be in error for placed as it did instructing regard the essential elements ing of strict liability.

Issue 7. defendant Finally, advances error in the trial admission, court’s over offered objection, plaintiff’s movie ex hibit. movie,

The offered as demonstrative evidence intended to il- lustrate plaintiff’s son testimony, depicts plaintiff’s mounting Grain-O-Vator involved in the accident and taking precise asserts he at steps plaintiff took the time of the accident. For pur- illustration, poses were removed from the excess springs door, door. As son down towards the excess it stepped was of a thin line. pulled open by way Defendant contends that the circumstances of the demonstration differed from radically those accident, at the time of the it to to the as if causing appear jury excess door would and remain suddenly snap open.

However, defendant the fact the ignores was cautioned the film was intended as demonstrative evidence and was in- only, structed in detail as in conditions between the actual changes occurrence and the demonstration. exhibit offered after a reading statement following jury: “This movie is intended to illustrate how the Deane plaintiff,

117 Brown, feed in accident The machine had no thinks this happened. accident, the lid it when the was taken. At the time of the movie the the had attached to it and are not on they over auger springs the is like it was at machine in the movie. The lid over auger hinged accident, is, the time of the that the lid was at the bottom hinged and from the as shown in the movie. the swung During open top movie, it the lid is with fish line to demonstrate how pulled open could its This of course is not intended to from point pivot. move accident, show what caused it at time of nor is the the you open in caused lid to use the film in what jury any way dediding at the of the movie open time of the accident. Again, purpose accident hap- to illustrate how the believes the only pened.” was admitted movie own with through plaintiff’s testimony,

counsel additional foundation elements of identifica- establishing tion accuracy. evidence is within the discre-

Generally, allowing demonstrative tion of the trial and is to review judge, subject only upon showing (1970), of a abuse manifest of discretion. Gunderson v. Brewster 405, 154 Mont. 466 P.2d 589. as movies are regards Particularly relevant, admissible if shown to be accurate and in change any conditions is v. Greenich Southern adequately explained. Pacific 100, (1961), 189 Cal. 11 235 29 Am. Company, App.2d Cal.Rptr. Evidence, 801. Jur.2d

The trial court is imbued with wide discretion in admitting any this v. Shar diagram, map Court State photograph. Recently ., (1977), 61, 196, . . . bono .Mont. . 563 P.2d 34 con St. Rep. sidered a similar to the use of a “burn film” offered objection the defense. Issue was taken to the trial court’s refusal to allow the film, and the trial court’s was this showing ruling upheld by 700, (1948), Court Gobel v. Rinio 122 Mont. 200 P.2d citing (1976), 549 813. Leary Kelly Co. Mont. P.2d Pipe We of District entered upon conclude Court judgment correct, verdict of the and it is affirmed.

MR. DALY concurs. JUSTICE MR. HASWELL specially concurring: JUSTICE I concur in result but all not in that is said the foregoing opinion.

My concerns the discussion of Issue 5 principal disagreement to the defense of of risk. relating As out in the assumption pointed majority is not defense to a opinion contributory negligence case, but of risk is a products assumption bar to complete in such case. The recovery court’s Instruction No. read: “You are instructed that of risk is voluntarily plac- *17 oneself in a ing to chance known hazards. If has position person risk, assumed he the cannot for or recover sus- any injury damage tained him. In or not the assumed determining whether plaintiff risk, are not consider whether or not the exercised you plaintiff due care for own his but must find the factors ex- safety, following isted: “ 1. That he had actual or knowledge, implied, particular condition.

“2. That he as appreciated dangerous. condition “3. or in face of the Voluntarily remaining continuing known condition. dangerous

“4. or as the usual Injury resulting probable consequence this condition. dangerous at

“If find four of the factors did exist the time of you all above he cannot recover.” plaintiff’s injury, In view this instruction is a correct statement of the law. The my standard used in the trial instruction is the instruction courts MJIG this state for that the are not many years “you excepting phrase due care to consider whether not the exercised for his plaintiff been added. addition conforms to existing own has This safety” law and makes clear to the that it is not to judge plaintiff’s conduct standards. by contributory negligence Deeds v.

As the United States District observed in United Court States, 1969), (D.Mont. 362: F.Supp. * *

“* arises from a lack of due care. negligence Contributory will bar of the fact that of risk recovery regardless Assumpion have acted with due care.” plaintiff may have no the words “actual or objection striking I implied” from the instruction the future in the interest of It may clarity. be that are with “construc- jurors confusing “implied” knowledge tive” which will not the defense of knowledge support of risk.

There is also other in the discussion of Issue No. 4 that language case, “(1) into the e. improperly injects contributory negligence g., Was it for unreasonable to act as he did?” SHEA,

MR. specially concurring: JUSTICE I with the result reached agree and with most by majority However, its conclusions. scattered there throughout opinion loose that could cause some confusion. I will confine language my remarks to that which I believe cause future might confusion. in several must

Language places implies both prove that was “defective” and “unreasonably dangerous”. It is to define impossible “defective” in the context of the virtually Moreover, various kinds of cases. products careful read- liability 2d, of 2 Restatement of Torts ing 402A and the comments there- to, leads me to believe that are not elements. they separate thrust of the doctrine of strict is stated in Comment g. which provides pertinent part:

“The rule strict stated in this liability] Section applies only [of is, hands, where a at the product time it leaves the seller’s in a con- dition not the comtemplated ultimate consumer which will be by added.) to him.” unreasonably dangerous (Emphasis Comment in j. provides pertinent part: “In order to the unreasonably dan- prevent being from the seller be to directions or on gerous, may required give warning, container, added). the as to its use.” (Emphasis I the above because believe emphasize I that language depending claim, on the nature of the it be to products liability may confusing the to both of “defective” and jury speak products “unreasonably 402A, The basic thrust of 2 Restatement of dangerous” products. § 2d, can maintained on the “unreason- concentrating Torts be by condition of the ably dangerous” product. with this that is

I concur Court’s al- opinion stating recovery lowed where the condition of is and obvious as complained open However, because of well as latent. the confining language Restatement, care must be taken in the A close instructing jury. 2d, of 2 Restatement of Torts 402A and the comments reading § thereto, an reveals silence as to whether obvious con- only open dition can rise a strict claim. The definition of “un- give 402A, contained in Comment i. of is reasonably dangerous” in the context of situations where the condition complained made latent; it states: of is * * * be dan-

“i. The article sold must Unreasonably dangerous. would be contemplated by to an extent that which gerous beyond it, with the knowl- ordinary consumer who ordinary purchases * * *” its characteristics. common to the as to community edge latent, and case the was the instruction danger In present However, it would not be have been appropriate may appropriate. was that was and obvious. in a situation where the one danger open a situation where the above instruction given I believe the obvious, be tantamount telling would open defendant, a verdict for the thereby effectively to return jury in such of recovery. Accordingly, realistic any hope precluding situations, instruction. trial courts should different adopt on the ques- the overall taken Court

I with agree position However, the Instruction concerning of risk. tion of assumption defendant, in most cases it is best to I feel that questioned by The inserted instructions to the jury. from negative refrain giving negative negligence concerning contributory language character, e., have to be In what did not proved. i. telling jury believe, cases, each must sufficient to set out what party I it is most to refrain from telling burden of to sustain its proof, prove event, I fail to In any does not have to prove. what each party *19 state- was because the what the defendant prejudiced see in way law was accurate. ment of test that the implies subjective is in the

There language opinion cases risk is confined to strict liability only. of assumption being The states: opinion

“Henceforth, cases the defense assumption in product liability a standard rather than that of the of risk will be based on subjective reasonable man test.” that,

It has been at least since my understanding D’Hoodge 353, 363, 747, 752, McCann, (1968), 151 Mont. 443 P.2d we have There, test to of risk. we held the applied subjective assumption of risk “is the standard the governed by subjective assumption himself rather than the standard of the reason- objective plaintiff * * able man *.” was not with the test we but with the In- problem adopted, struction to the which allowed it to find that given jury plaintiff risk, have the if required could the knowledge by assumption was either actual or The word does knowledge “implied” implied. of constructive as noted Haswell in his ring knowledge by Justice However, and I be concurring it should deleted. opinion, agree these words should be eliminated from all instructions where defense, of risk is asserted as a and not assumption strict solely cases. A defendant is not bound be- plaintiff’s testimony simply cause the words “or are eliminated from the definition of implied” of risk. Even testifies he not though plaintiff of the involved or did not aware condition particular appreciate circumstantial show the had danger, knowledge may plaintiff actual If the facts are such that would (subjective) knowledge. truth, to believe that the did not tell the lead jury is free to reject plaintiff’s testimony simply by applying jury standard instructions on of witnesses and credibility weighing evidence. It is one should disbelieve the thing argue where he testifies that he did not have knowledge condition; that a reasonable it another to particular yet argue man should have known of the condition involved. The particular that man “should have had” knowledge has no in the doc- place *20 trine of where the assumption risk cornerstone of the doctrine is consent. To allow it comes close to dangerously permit- a defendant to ting argue contributory under the negligence guise of risk. assumption I also do not with the in agree statement the majority opinion that “seldom would a products admit his liability plaintiff through own that he had testimony knowledge danger appreci- ated the risk involved.” the human nature of Certainly plaintiffs has not been shown general to be so dishonest that it is customary Furthermore, for them to lie in of their claims. even support if plaintiff admitted he had of the knowledge appreciated involved, the risk it still would not defeat his claim. We have adopt- ed the definition of of risk as contained in 2 Restate- 2d, 402A, ment of Torts n. Comment which provides pertinent part:

“* * * If the user or consumer discovers the defect and is aware danger, nevertheless to make use proceeds unreasonably it, and is barred injured by he is from recovery.” added.) (Emphasis would still be allowed if

Accordingly, recovery did not to make use of the proceed unreasonably product.