*1 sоnably dangerous product, defect in will facturers to entitled costs and ex- plaintiff’s recovery be re- pert and the must witness fees must be determined anew by proportionate to duced an amount court, by the district in view of and subse- damage assump- the misuse or caused quent to the proceedings on remand. tion of risk. In opinion, accordance with this order granting
Manufacturers asserts that be court’s the Mauchs a new jury negligence negligence theory cause the Kathleen’s trial on a reversed; found is percent proximate reversed; judgment of the cause her and the case is injuries, jury оne must infer that the deter remanded for a new trial the Mauchs’ mined already that Kathleen knew the products-liability cause of action. Costs on dangerous propensities nylon rope that a appeal are not party. awarded either and, warning might label have revealed ERICKSTAD, C.J., if
consequently, jury PEDERSON, had been even SAND, theory JJ., instructed GIERKE and products-liability on a it concur. would not have awarded the Mauchs SAND, Justice, specially concurring. theory. under We refuse I signed concurred opin- basic speculate jurors might as to what Nevertheless, compelled ion. I am to make if ultimately they detеrmined had been impression additional comment. The I re- prod properly on the instructed Mauchs’ opinion ceived from the basic is that the ucts-liability theory. We hold that dis placed limitation constriction on contrib- jury trict court’s failure to instruct the negligence utory applies only to the instant products-liability prej claim constituted case. udicial and reversible error. I am satisfied in products liability Because the Mauchs’ cause contributory negligence, action as a de- fully litigated action present- has been term, scriptive though even instructions, proper jury ed to the under we title, i.e., placed heading under another retry conclude that there is no reason to “misuse,” and is to the relevant resolution the negligence cause of action or disturb In of the issue. some it instance even respect Having the verdict con- with it. proximate the injury be the cause of cluded that the Mauchs are to have entitled damage depend- and needs to be considered jury their determine cause of un- action ing upon the of the case. circumstances products-liability theory, der a will re- we mand the a new on that case for trial
cause of action. appeal,
On has also Manufacturers
raised the issue whether or not dis denying expert
trict court erred certain requested witness fеes and other costs Lynda Thomas J. DAY and Manufacturers. The district court awarded Plaintiffs, Day, expert Manufacturers costs and witness fees a reduced amount from that re remand, quested. of our find it view CORPORATION, GENERAL MOTORS necessary is neither appropriate nor Defendant. reach the merits this issue. Because the Civ. No. 10519. Mauchs are entitled to a new trial this products-liability case on their of ac cause Supreme Court of North Dakota. tion, judgment case entered Feb. entirety must be in its vacated expectation judgment a new will be upon
entered remand and retrial extent,
case. any, To what if that Manu-
Pearce, Durick, Anderson Bismarck, & defendant; argued by Harry Pearce, J. Bismarck.
Wheeler, Wolf, Peterson, Schmitz, Mc- Johnson, Bismarck, Donald & for N.D. Tri- Lawyers Ass’n, al curiae; amicus argued *3 Greenwood, Dann Dickinson, not a member of the firm.
SAND, Justice. Court, United Stаtes pursu- District ant to Rule 47 of the North Dakota Rules of Appellate Procedure, certified the fol- lowing questions of law to this Court: personal In a injury against action 1. manufacturer of a wherein plaintiff seeking damages under a theory of strict based on an al- leged design plaintiff defect which claims injury, enhanced the plaintiffs should percentage of fault be determined and applied or, so as to reduce as the case be, plaintiffs recovery? defeat 2. If plaintiffs percentage of fault is relevant, should the determination in- plaintiffs clude both producing accident injury enhancing fault and fault so as to or, be, reduce as the case defeat plaintiffs recovery? If applicable, fault is applied plain-
should it be so toas allow tiff though plaintiffs even percentage of fault is found to great greater than that of a defend- ant?
The following information pro- was also vided: July a.m.,
On at about 2:30 Day (Day) Thomas driving J. was a 1971 Buick Centurion automobile westerly High- direction United States way Glyndon, Day 10 near Minnesota. fell asleep at the wheel and lost control of his vehicle Glyndon. about three miles east of Day’s ditch, car veered into the north driveway struck a running and culvert un- overturned, driveway, der the and came to Office, Moorhead, Minn., Cahill Law driveway rest the ditch west of the plaintiffs; argued by Marquart, Steven L. highway Day north of ejected was Moorhead. during from his car the rollover and he alleged con- qua- Day’s him GM’s contention that injuries which rendered
sustained considered driplegic. tributory negligence should be liability law vis-a-vis North Dakota’s strict brought Day this action theories must be legal raised issues which several alleged He and strict answering ques- the certified resolved car a defective and had either tions. negligently de- unreasonably dangerous or latch, Day signed door or both. contended questions To we must deter answer ejected through this that he Court was mine if strict liabil the doctrine alleged door because of defect the car 402A, ity, as set forth Restatement injuries a result his were enhanced. and as 2d, adopted judicially Torts this Court (GM) disputed Corporation Motors General Corpora Johnson v. American Motors and contended this before Court tion, (N.D.1974), in har ejected through Day Day was window. mony stat *4 acknowledged causing fault his car that the ute, and, not, if can the NDCC 9-10-07 roll over his go into ditch and was neg Comparative difference reconciled. that, entirely. Day claimed ligence was not an issue in Johnson.1 fault,” “accident-producing apart from pertinent A of definitions brief review single, fault” for “injury-producing produce and items better basic injury resulting quadriplegia indivisible understanding raised. of issues that of defendant GM. was Negligence modification is without undisputed It the vehicle was governed by the stan ordinary negligence equipped lap belts and shoulder har- reasonably prudent man. Black’s dard of a Day and that had not nesses fastened (5th 1979). Dictionary Law ed. 930-31 had undisputed Day It is also them. the car not latched doors of from negli per se of Negligence is a form so, if he and had done outside inside a law gence resulting from violation of pushbutton handle could not have door supplant comply or with the law failure depressed. been prudent ing reasonably man standard man- Day further claimed that when GM legisla by a with the standard established car, they knew that automo- ufactured (5th Dictionary tive Black’s Law 933 act. collisions with or without fault of the bile Garavalia, 1979); N.W.2d ed. v. 306 Seim and statistically user are inevitable reason- (Minn.1981). 806 Therefore, Day ably argued foreseeable. negligence. Black’s Fault is defined design had a duty that GM “crash (5th 1979). Dictionary Law 548 ed. worthy” Day car. claimed that the acci- 1-01-07, NDCC, slight Sеction defines (Day’s asleep dent-producing falling fault great negligence of care and dili- as want wheel) at the should be considered gence, ordinary negligence of ordi- as want injuries his claim for enhancement be- gross negli- nary diligence, and care assumption did not an cause it constitute diligence. gence slight as want of care allegedly which the risk defect injuries. the enhanced caused impos liability of strict The doctrine seller, or alleged design liability es on the manufacturer denied defect GM condition,, Day’s proximate- both, or defective “unrea alleged injuries were for a sonably or his negligent dangerous” his to a consumer ly caused and enhanced give adequate failure operation property in the use and or for acts and omissions proper warning. of Law the car. Restatement July 1 No mention of on 2 became effective 1. In Johnson accident occurred October judgment, summary appears was first in the record reversed, court, negli- was March 1974. comparative entered 15 The com- available to this nor is act, 9-10-07, negligence parative NDCC § was opinion. mentioned in Laws, by Ch. 78 enacted of the 1973 Session
353
§ 402A;
(2d)
damage
Olson v. A.W. Chesterton
to the
in а causal
Co.,
(N.D.1977);
sense.”
Johnson
Corp.,
Johnson
commentary.2
If
pra.
legislative
it is a
enactment the
Busch,
Since
other courts
held that
specify
statute will
what must be estab-
comparative principles apply to actions
are
lished and what defenses
available.
upon
based
Murray
See
v.
Morse,
(3 Cir.1979)
Fairbanks
“While the statute of a compara- statute more than a becomes negligence, application is comparative son of what a tive or even statute; really compared, upon compara- a consideration of it becomes a fault circumstances, all relevant facts and is statute under all inde- tive cause which party’s pendent of each and concurrent of an the relative contribution causes Sears, law); in the Busch case the fоl- Edwards v. Roebuck Hampshire Under footnote 14 Co., 276, lowing appeared: (5 Cir.1975) (applying & 512 290 F.2d Jensvold, Ap law); Corp. Hopkins, A Modern Mississippi "General Motors v. 548 S.W.2d 344, (Tex.1977); Caterpillar Among proach West v. Trac Allocation to Loss 349 Tortfeasors Co., Inc., 80, Cases, (Fla.1976); Bu Liability tor 336 So.2d 90 in Products Minn.L.Rev. 58 Goods, Sporting & taud v. Suburban Marine 235; 723; 2 William Mitchell L.Rev. Inc., Valley (Alaska 1976); Sun 555 P.2d Schwartz, Liability Comparative Strict Airlines, Avco-Lycoming Corp., Inc. v. 171; II, Negligence, 42 Tenn.L.Rev. and Vol (D.Idaho 1976) F.Supp. (applying Liability, Interagency Task Force on Product Industries, law); Rodrigues Ripley Idaho (1977) U.S.Dept. pp. Commerce 88 to 123.” Inc., Cir.1974) (1 (applying F.2d New but per- bility provisions in NDCC 28-01.1 apportioned on a Ch. accident be ” Busch, any legislative history provide does not centage supra at 394. basis.’ ap- meaningful which be information objec agree We that ultimate plied to the instant situation. in a comparing tive of apportion, percent § on a case is to fol provides 28-01.1-05 NDCC basis, result mishap all of the age causes lows: damages. ing product “1. No shall be considered Busch, driver, Busch, have a defect or to be in a defective was Lando condition, product at the time the percent negligent unless to be fifteen found Construction, or other eighty-five percent. by was sold the manufacturer Busch seller, or defec- Busch initial there was defect damages Lando awarded product made percent, rep- tive condition in the which fifteen by reduced were unreasonably product dangerous percentage of cause attributed resented the directly user or this case consumer. to him. percent great- fifty point because the As 28-01.1-01 “2. used sections provision
er 28-01.1-05, through ‘unreasonably dan- put into required to be was not statute product was dan- gerous’ means that the court We not know what effect. do beyond gerous to an extent which would negli- Lando Busch’s would said if contemplated pru- ordinary fifty percent more. had been consumer, buyer, of that dent or user considering product community Williston, 276 City In Bartels v. characteristics, product’s propensi- (N.D.1979),we that the N.W.2d 113 stated risks, uses, ties, together dangers, and negligence statute was enact- any knowledge, training, or actual inequities under ed to eliminate the experience possessed particular negligence act which contributory former user, buyer, or consumer. mere- if the was denied percent contributorily negligent. presumption “3. There is a rebuttable ly one to recov- free from defеct or NDCC 9-10-07 bar Under *6 fifty percent alleged de- ery was shifted from one defective condition where the comparative neg- designs prod- the percent. adopting plans in the or the fect for Legisla- the ligence techniques act we do not believe the uct or methods intentionally pendulum caused the testing ture manufacturing, inspecting, and create swing to the extreme as to conformity other so product the were with not inequities in some other areas other government standards established case. As the name involved the instant industry which were in existence at all suggests, plans designs time or fоr the resulting injuries in the or parties involved techniques product or the methods and damages is to be considered. testing manufacturing, inspecting product adopted.” were
Comparative negligence was enact
provisions may
applied
While
not
liability
judicially
ed in 1973. Products
was
retroactively to the instant situation result-
strong
adopted in
This creates a
1977, they
ing
July
from an
accident
Legislature
presumption that
did
a
provide
nevertheless
sense of direction
liability
products
in mind
have
§
void exists
enacte
this Court
instances where a
liability
9-10-07 was
when NDCC
Furthermore,
specifically
the Court has not ruled
con
d.3
not been
subject
Jerry
Mo-
The
matter.
Harmon
fronted with this situation before.
1979,
tors,
Termi-
products lia-
Inc. v. Farmers Union
Legislature, in
enacted
Grain
however,
upon
presumption,
argument
rebutted
be made that where
That
An
can
irreconcilable,
learning
provisions
Legislature
that its
are
§
made no amendments to
9-10-07
28-01.1,
incompatible
harmony
presumption
was
and not in
basic
it
when
enacted Ch.
liability
liability.
liability
products
or strict
applies
it
cases.
created that
Association,
nal
(N.D.
ty,
In Olson v.
A.W. Chesterton
1979 Session Laws. We observed
(N.D.1977),
that “the
N.W.2d 530
this court con-
requirement of
danger
unreasonable
is an
liability
sidered the rule of strict
under
integral part of
and,
effect,
liability
the strict
products liability,
in tort
held that
doctrine,” and
concluded
product,
stating
the misuse of a
that “A
obviousness of
plaintiff relying
danger,
assumption
upon
or the
the theory
of risk are
of strict
liability in
prevail
items that the finder of fact could take
tort
into
cannot
simply by
awarding
proving
consideration in either
denying
defect and causation of
However,
damages.
comparative negli-
injury
which the
suffered.”
per
involved,
Ibid.,
statute
se was not
nor
p. 15. The factual situation in Wil-
opinion specifically
did the
any
announce
son
parallels
the instant case to a certain
ruling
bearing
have a
on the
degree. The driver of the car dozed off or
comparative negligence concept.
fell asleep;
the car
traveling
was
in excess
speed
limit when it entered the ditch-
Ertelt,
In Feuerherm v.
509,
286 N.W.2d
type median and hit a crossover road con-
(N.D.1979),
we concluded that
com-
necting the two northbound
§
and south-
statute,
parative negligence
NDCC 9-10-
bound lanes
83;
of traffic on
Highway
U.S.
07,
apply
did not
to the North Dakota dram
the car
sign,
struck a road
act,
5-01-09,
as well
shop
NDCC
which is a sui
concrete culvert which
generis
was located on
statute in that “The
creat-
two northbound lanes of
Damage
ed
the Civil
Act
traffic. The com-
has no relation
plaint alleged,
any
liability,
among
common
other
things,
law
or to
Jorda,
Iszler v.
theory of tort.”
one of
mounting
80 N.W.2d
the nuts on a
bolt loos-
665,
(N.D.1957).
act,
shop
The dram
ened and that
the nut or mounting bolt
reality, coincides with the
temporarily
doctrine of abso-
lodged between
rotating
liability.
lute
converter,
flywheel, torque
stationary
parts
the bellhousing
engine,
In Hardy v. Monsanto Enviro-Chem
causing the rear wheels of the car to mo-
Inc.,
Systems,
29,
414 Mich.
323 N.W.2d
skid,
mentarily
causing
and also
the driver
(1982),
the court referred to Plá-
to lose control over the vehicle. The com-
City
cele v.
Sterling Heights, 405 Mich.
plaint
upon
relied
theories of breach of
(1979), which, by
abro-
implied warranty
and strict
gation
law, adopted
of the common
jury found the automobile not defective
pure
comparative negligence.
form of
recovery.
compara-
and denied a
Court then said that
compar-
the defense of
tive
was not involved.
ative
serves not to undermine
*7
safety
workplace,
to enhance
in
but
the
Electric, Inc.,
v.
In
Schmidt
Plains
281
and, therefore, negligenсe by failing
pro-
to
(N.D.1979),
N.W.2d 794
this Court had un-
“adequate safety
an
vide
device” in the
der
a
involving
consideration
case
workplace
subject
comparative
is
to the
liability.
comparative negli-
the
defense,
negligence
assuming
that
evi-
gence act was not involved. We concluded
plaintiffs negligence
dence of
exists. This
prove
product defective,
that in order to
a
supports
concept
pure
the
that the
form of
required
the
is not
to eliminate
comparative negligence promotes
higher
a
certainty
possible
with
all other
causes of
degree
justice.
and better
of
accident, but,
rather,
the
required
to
Corp.,
v.
Wilson General Motors
present
311
sufficient evidence to
tri-
allow the
(N.D.1981),
10
reasonably
N.W.2d
our court noted that
er of facts to
infer that it was
§
probable
the official comment
to
402A
product
Restate- more
than not that
the
ment of Torts 2d establishes that the con- was defective. Daleiden v. Carborundum
Co.,
cept
danger”
(8th Cir.1971);
of “unreasonable
is an essen-
In Minor Zidell plain- argued minor though that even (Okl.1980), that the en the court concluded provoke dog as a matter tiff did not nеgligence does of actment law, negligent have of she been and condition the cause versus not invalidate permitted negligence should be this proximate of cau or other tests distinction damages.” mitigate respondent’s to that the The also observed sation. court comparative negligence affects concept of did not what rule court discuss Seim duty inquiries breach of but not causation negli- apply plaintiffs if of law would assumption inquiries and issues of great greater than the as were contributory negligence. In Min and risk respect negligence, and in this defendant’s consciousness, where driver lost or4 case, directly helpful, not while asleep. fell the driver in the instant case Nevertheless, point. supports it the con- applies comparative negligence clusion that Ak Volkswagenwerk In Albertson v. liability in cases. strict 368, 634 P.2d Kan. tiengesellschaft, 230 (1981), adopted previously 1127 court damages, in regard With to Halvorson v. concept ap comparative negligence (N.D.1983), Voeller, after liability. The plied in it to actions strict taking permitted that courts have note to plaintiff argued unjust it is consider failure use seat belts be considered to plaintiffs negligence where action mitigаtion damages, we concluded upon the defendant is based strict against motorcy- in a the failure to wear helmet realized that if liability to, in tort. The Court be but cle accident could resorted it argument accepted would raise this were damages. purposes mitigating liability equivalent of absolute strict questions, As resolve the an aid to rejected argument Court following: Am.Jur.2d have examined liability in tort does held that “strict Service, Negli- Topic Comparative New basis, subjecting it a fault therefore § damages 33, gence, which states that concepts. comparison with fault other proportiоn plaintiff’s may be reduced position judicial the ideal of This serves liability; involving fault strict in actions neutrality prevent multiplicity will 463, 46 A.L.R.3d annotation in 32 A.L.R.3d Ibid, p. 1131. suits.” 339, 240, 2 Frumer and Fried- A.L.R.3d § 16A[5][g][i], Garavalia, Liability man Products The court Seim v. 846, 426, p. (Minn.1981), Negligence dealt Am.Jur.2d N.W.2d compara- or the relation of involving liability and the interrelation strict matter liability; (Minnesota strict has tive defenses and comparative fault statute §§ Liability “negligence” word to “fault” C.J.S. Products changed the statute). assumption of risk and which state that in the assessing misuse are factors minor who The case involved a was bitten damages, con- discussing the and that some instances dog. After various by a (§ 45) is a factor involving tributory and com- fault, considered. parative concluded: court driving does remember either below. Motorist one of marked "After into going along pressing outer-perimeter, down on accelerator spaces Motorist police officer he over the concrete curb. The liked better. While saw another stall he space, investigating nine feet the accident found began back the first he no- out of *8 just marks left t’-e back wheels in had the acceleration another car which taken ticed attempted began very spot had preferred. the where Motorist space he He then to head pro- park. while originally Motorist lost consciousness the had staked back into stall he theory surg- ceeding parking Continuing perhaps the stall. His of or into in motion out. negligence recovery negotiating both ing the rests on Owner's forward after maneuver pull parking space The defect is al- necessary entered, and that of the architects. into the first design leged to lie in the and construction of the car went over the Motorist's curb, crashing through it.” the curb and the wall behind Mi- after wheel wheel downward Zidell, 618 P.2d at to rest in the street nor v. the wall then camе carefully having Generally, contributing considered causal negligence After material, foregoing or fault by competent reference the dis established evidence pertinent therein, cussion and cases cited resulting will reduce the damage percent- opinion, and the cases cited in this agewise by we are percentage attributed to compari convinced and conclude that the plaintiff. plaintiff, however, The will or negligence pure son of causal fault on a recovery not be denied if his negli- causal products liability form basis or strict fifty or fault percent. exсeeds In liability promote addition, actions will better its con inequities may result from the cepts justice. Accordingly, and the of joint ends liability provisions several if apply comparative negligence we will on a of the defendants do not come within or pure products liability form basis to products liability and under the or strict liabili- liability Having strict ty result, actions. reached this rule of law. though As a even § conclusion, now we must determine if NDCC 9-10-07 apply will continue to § 9-10-07 or NDCC fulfills satisfies this cases of ordinary liability it apply does not requirement. products or liability liability strict ac- tions, and a void exists. We reached a § 9-10-07, analysis An of NDCC reveals similar today conclusion in Mauch v. Man- irreconcilable, language that some incom- Service, Sales and 338 N.W.2d ufacturers 345 patible, harmony with and not in the basic (N.D.1984) (third-party plaintiff), products liability or strict liabil- Amalgamated Cordage (third-party defend- ity. particularly regarding This is true ant), 10,431, civil involving number fifty percent negligence greater provi- or products liability strict doctrine and NDCC sion which from recovery. bars the § 9-10-07. fifty percent greater provision The or designed primarily ordinary liability Legislature Until the enacts a law liability liability. and not strict or absolute covering subject obligated are fill In liability absolute no defenses are availa- Accordingly, following this void. doc greater If or fifty percent provi- ble. trine applied: will be applicable sion were made it would defeat Contributing negligence or causal fault products concept liability basic or products shall not bar a lia- liability. liability greater strict is a Strict actions, bility liability or strict but the liability ordinary liability than the but it is damages in propor- shall diminished be equivalent absolute plaintiff’s tion to the causal amount implies, liability, As the name strict once negligence or fault. evidence, by competent established makes opera rule forеgoing The becomes strictly manufacture! or seller liable tional, but if trier of facts finds resulting damages. process for the In the (manufacturer seller) the defendant or lia establishing or parameters under ble Restatement liability, or causal fault be § (2d) In a of Law 402A. bench trial the established, defenses, certain used. Once findings of fact will determine this. negligence, such as causal fault causal or trial, jury special jury instructions language are of the available. courts (Rule 49, P), both, verdicts Civ NDR will lbutory dealing with confc. is in accomplish this. confusion. Frumer Friedman Prod- Liability agree ucts We The trier of fact will have to detеr 16A[5][f]. disputed mine and find facts observation. Even without this state- specifically accepted. will facts so found ment we hesitate to state what be will judicially caused the acci defenses are because the facts determine what available what, injury each case dent and what caused circumstances of make injury. big determining anything, if Causa difference in what de- enhanced products liability negligence may fenses or what tion is a salient factor fault or ignored. actions and 1A Frumer upon. introduced and cannot be relied *9 358 question 2 is 11.01, as the to Liability Insofar answer
and Friedman Products assume, concerned, appears are to for may required it we seq. testimony be Expert et Also, question, that the evidence special purposes inter- factor. to resolve this distinguish clearly between jury the instruc- will rogatories, in addition to producing verdict, Day’s “accident may be neces- Thomas J. special the tions and “injury enhancing fault.” Pre- factors. Rule fault” and sary to the causation resolve implies that sumably question also of Civil Procedure. North Dakota Rules plaintiff requested damages only having considered After injuries injuries not those “enhanced” and law, referred to and the authorities case regardless suffered which would been opinion, in in this the issues discussed product. Assuming such the defective facts, volved, some of pertinent and made, distinctions are fact and disputed, answer each are our overlap plaintiffs “ac- there no between question is “Yes.” certified plaintiffs “in- producing cident fault” questions answering the certified we enhancing fault,” I jury would conclude meaning compara- “fault” a give word enhancing fault” only “injury negligence. ble causal purpose for the should be considered regarding no comment what express We be, or, defeating reducing may as the case permitted the defendant will be defenses5 recovery inju- plaintiffs for his enhanced raise, introduce, apply or because this is course, If, cannot ries. the distinctions totality of dependent upon the a matter I by agree with supported be the evidence circumstances, present- issues including the majority opinion that the determination parties. ed plaintiffs “accident include both should “injury enhancing producing fault” and Bartels, it supra, we find As we noted fault.” difficult, impossible, up to come with if not contributing rule fault or a ERICKSTAD, C.J., concurs. justice every which will do conceivable Therefore, having case set of each facts. GIERKE, Justice, concurring specially. require modifica- different situation I answers to agree with affirmative just legal principles to assure a tion Questions expressed by 3 1 and as of fault fair distribution allocation agree majority opinion. I also with the (negligence) damages. con- concern voiced Justice VandeWalle’s enacted, appropriate legislation Until Question concerning I curring opinion obliged developing will continue “injury join in his conclusion that applicable rule of law to assure fair and enhancing fault” be considered for should equitable case-by-case results basis. or, reducing, case purpose Inc., Motors, Daly v. Cal.3d General may be, defeating plaintiffs recovery for 1162, 1175, Cal.Rptr. 380, 575 P.2d injuries. separately I his enhanced write (Cal.1978). I that certain lan- because am concerned majority opinion guage contained in the WALLE, JJ„ and VANDE PEDERSON seems to blur distinction between concur. theory products liability WALLE, Justice, theory. concurring and a common VANDE specially. emphasize ordinary con- wish .1 rele- agree questions tributory negligence principles are not
I the answers to majority opinion. vant to a consideration of expressed and 3 аs suggesting set foot- lengthy 5 in that the defenses out in footnote number Smith See Smith, (S.D.1979), regarding N.W.2d are exclusive of others. The circum- note 5 discussing reference to cases involving material of each case warrant what defenses stances are not what defenses are or available are are not available. in a action. we are *10 liability ac- parties in a fault of today have stated in Mauch v.
tion. We Inc., Service, & Sales Manufacturers (N.D.1984), that 338, 347 N.W.2d products-liability
“The focus of a action product
is on whether or not the is defec- unreasonably dangerous, and
tive and
thus the of the defend- reasonableness
ant’s conduct under
is not relevant to this action. de- recog- previously
fenses which we have
nized ... v. A. Chesterton W. [Olson
Company, 256 (N.D.1977)], N.W.2d 530 assumption of risk and unforeseeable are, opinion, adequate
misuse in our
protect a seller or manufacturer from type.”
unjust a case of this
It follows from this that those acts characterized assump- misuse of the
as either reducing risk
tion of be considered injuries.
his for enhanced HAMMOND,
Howard Plaintiff Appellant,
NORTH DAKOTA STATE PERSONNEL
BOARD, Appellee. Defendant and
Civ. No. 10536.
Supreme Court of North Dakota.
Feb.