Kopischke v. First Continental Corp.

KOPISCHKE, v. FIRST CON- ROSE Respondent, Plaintiff CORPORATION, Appellant. TINENTAL Defendant No. 14810. 13, Submitted Dec. 1979. Decided March 1980.

Rehearing May Denied 610 P.2d 668. Falls, Robert Emmons Great defendant argued, appel- J. lant. Trieweiler, &

Hoyt, Lewis C. Great Regnier, Hoyt argued, John Falls, for respondent. DALY delivered the Court. opinion

MR. JUSTICE This is an from after verdict in the Dis- judgment jury appeal District, Cascade, in a trict Court the Eighth County Judicial action. herein consisted of complaint three counts. Count III of the a claim complaint, strict predicated upon of the defend- liability ant, was dismissed defense motion to trial. The prior remaining verdict, counts were submitted to the and the jury special returned a verdict involving Defendant comparative negligence. was found to be 65 and percent negligent was found plaintiff to be Total percent negligent. were assessed damages by $650,000, and the court entered for judgment in the sum plaintiff $442,500. rendered, moved for a new trial after was

Defendant judgment and denial of but the motion was denied. From final judgment trial, new defendant Plaintiff cross- the motion appeals. appeals.

Defendant, dealer, a used car to sold used car and her plaintiff December, husband in late 1976. The car in a 1971 Dat- question, sun station was one of defendant’s sales- wagon, purchased through drive, men after a short test which the car during pulled slightly the left. informed the salesman of several minor

Additionally, plaintiff she had noticed that were things with the car. Some of these wrong work, tires, were that the horn did not of a wire out poor hanging rear taillight and that assembly, the car to the left. sales pulled The invoice listed that a number these corrections were to made. be

The salesman also advised that would they take the tires off another 1971 Datsun and put them on car. 83,615 an miles reading

The sales invoice indicated odometer used are sold on and a in fine that read: “All cars disclaimer print no either or implied an as is basis with guarantee express except of de- disclaimer was set forth the aim noted above.” Above this To fendant: courteously, honestly. “To serve you completely of our in but in the will good friendship profit, only money, errors whenever and correct our improve possible customers. To our best when we learn of them. To do every day, every way, our an will be as the finest in build establishment which known field.” was

No to plaintiff to the “as is” explanation given pertaining clause. car a somewhat checkered history.

The 1971 Datsun had who lived Diego, was new in 1971 in San by couple purchased Inc., in 1975. traded car in Toyota, They Melody California. 85,106.4 trade-in, car’s registered odometer At time However, “in mechan- very miles. the car was described to be good events, car was unknown series of ical condition.” Through resold in in California and California acquired Swanson Sales from Swan- purchased At the time car was Pierotti Motors. 41,194 Pierotti, had turned back son odometer been miles. owned Graff in 1975. Graff July sold the car to a Robert

Pierotti Credit Associates. in 1976 by the car until it repossessed was not accidents car involved testified Graff car, be- for the tires with the except was nothing wrong there However, he at times he testified that also condition. fair ing in the steering. noticed vibration the Datsun testified that Associates A Credit representative and dented, the needed a tuneup, that engine was and dirty, junky shocks were shot. and springs was out for and sold to defendant. Neither plain- The car bids put salesman, tiff, that the nor defendant’s knew car was repossessed that that had the odometer was incorrect. Plaintiff testified reading 120,000 it, not the car had over miles on she would she known have it. bought 27, 1976, had a delivery

Plaintiff took of the car December installed, and it to Missoula a later. She C.B. radio drove few days left, and a had vibration the car to the but experienced pulling did, however, no on this real trouble She consult mechanic trip. car, about the and on two occasions work was done. This repair heater, work involved tuneup, fixing speedometer, installing brakes, front-end, occasion, etc. On last fixing aligning order, back, on a car mechanic recommended “Take the repair work, needs lots of on the that she safe road.” Plaintiff testified this meant she the car and thought back for bring repairs that she did not think she would be if she drove the any danger car, she if could be stranded the car broke down. except maybe 21, 1977, the car Missoula until January

Plaintiff drove around shak- back again experienced she drove it to Great Falls. She when in the arrival Great trip. and vibration car On ing during salesman, Falls, Fender, called Dave one defendant’s plaintiff merely the car was about the was advised problem would correct premium gas problem. “dieseling” 22, 1977, drove Chester day, January The following she told her doctor. Her husband with her for an appointment car, she she thought take other but the couple’s should probably if she had any problems. assistance her C.B. get could use ex- roads were was a driving, testified it good day Plaintiff and all the cellent, way fine on the Chester and the car handled of the accident. point back way miles west of on a good The accident occurred a few Carter vibrate, and the started to stretch of The car highway. suddenly out con- and motor car went began shaking. wheel steering lane, trol, went off the the left back swung right, veered into over. road and rolled back in- of the car and sustained severe

Plaintiff was thrown out driver in the car following which have left her A paraplegic. juries, and at about testified she was driving prudently plaintiff’s the accident. before just m.p.h. belt in that plaintiff using safety

There is no question of the accident. car at the time her was retained consulting engineer, McHenry, Raymond exam- McHenry the accident. the cause of to determine plaintiff the accident discussed car, scene and the accident viewed ined wheels, MacPherson addition, he removed In with plaintiff. what to determine the vehicle struts, examined carefully of control. out go caused it (lower arm) on examined the transverse link control

McHenry exten- front and found it was cracked the right suspension it, four marks on indicating bent and had sively, compression that there were had been caused a tool. He also found the bend of sidewall tires on the car. All the white sidewalls four white front white right turned outward in the normal manner except sidewall, in- with the white sidewall turned which was reversed there was a tread the white side of that tire separation ward. On addi- and this tire was out balance. In several inches in length, tion, motor mount was com- found that the left side McHenry an the stabilizer unusual sitting position, pletely separated disconnected, showed lubri- and the left rear brake lining bar was before purchased cant on it which had been since leaking the car. plain- tests on Datsun similar various

McHenry performed links, bar and tiff’s, stabilizer disconnected bent transverse using on the car’s the effect brake to determine left rear disconnected a metallurgic Magor, with Dr. He also consulted handling. James various tests who ran University, Carolina State North engineer link had been the transverse concluded on the transverse link. He to an and then straightened to an 30° angle bent deliberately link, and, were formed. cracks in straightening 20° angle These cracks extended under the conditions alternating loading car in called metal process fatigue. accident as follows:

McHenry reconstructed cause Prior to the had been bent accident transverse link deliberately to an angle than 10° and then reverse bent considerably greater (Dr. 10°. with cer- Magor established angle approximately that this had been done a time tainty long acquisition prior of the car Through fatigue, metal by plaintiff.) process transverse link had weakened as the cracks progressively propa- the down sides gated through upper section and the of the link. The smaller bend in the link armor had created a mild to already pull the left.

toDue the of metal to the accident the process just prior fatigue, more, link transverse bent the to wheel toe-in. vibra- causing tion which described to plaintiff served accelerate the fatigue proc- ess cracks the to in an causing propagate accelerated manner which, link, the already weakened in- superimposed upon abruptly creased the from bend 10° or less to angle 20°. approximately This occurred in one second and resulted in a approximately heavy to the left pull the vehicle to into the lane causing go for oncoming traffic.

The vibration or was caused shimmy by the unbalanced retread With tires. the tread on the front separation right and two inches of at free the play rim the wheel and steering the MacPherson struts fluid, addition, low on the dampering vibration occurred. In the disconnected motor mount would allow the engine vibration to reach larger amplitude therefore the shaking engine more. out McHenry ruled driver completely error. car to

The reason the veered the right was because of in- steering plaintiff. put by disconnected, the front

With stabilizer bar right the car veered it farther the to face the it right, causing direction was traveling at time it the came the shoulder of the and then to roll road over. make, it took 1.4 of the same runs with a similar test car

In test in the with a 20° bend test car m. h. traveling p. seconds for the link to into now transverse lane. The bend go entirely opposite seen the transverse link is 20°. In addition effort hold at wheel the test car m. h. with straight on steering p. link, a 20° bend in the transverse wheel had to be steering turned 60° hold car in line. right just straight that did not car

Testimony indicated defendant inspect plaintiff’s for after was defects it sale. acquired repossession Testimony a 5° defendant’s indicated that bend in the transverse employees link would have if car on a hoist or if been obvious were placed (Defendant a front-end check were made. did not re- alignment cars.) However, on used one testi- quire safety inspections employee fied that it was normal for car to an every inspection used receive lifted on a hoist where a mechanic would by being inspect for defects. undercarriage owner, that at time

Defendant’s testified one there Greytak, John was a in- inspection included multipoint undercarriage that this When but was discontinued in 1974. spection Greytak was questioned whether defendant offered concerning to a used cars sale customer with they representation end, had been checked from end to he testified that would not they advertise in manner or use those words. After much objection, an advertisement Great Falls radio station KEIN published after the accident was admitted which stated: by kicking of a about a used car tell a heck lot

“You can’t really before a used car Datsun-Volvo at the front tires. So Continental sale, end in- front alignment, the compression, we check offered brakes, and the front end check test lining, the brake spect horn, transmission, shocks, test the lights, safety the automatic test filter, and they the oil they change and Plus signals wipers. turn kick the when you a So reconditioning. and full job it give grease Continental, a of darn the tires you’re kicking on car a used tires end. from end to car, corrected been checked and one that’s good Datsun-Volvo.” Continental on was done plaintiff’s no safety inspection is undisputed

It that defendant’s indicated The testimony defendant. car and salesmen manager intended their customers to assume that car, were they reliable one that buying was safe for use. highway Over issues were thirty for review on presented this A appeal. number of these issues were consolidated counsel in general We headings. will therefore discuss the issues in a consolidated form. issues,

There are five the resolution of which determines major the outcome of this are: appeal. They

1. Did the District err in that a used Court instructing jury car dealer has a to legal duty and discover defects in inspect any used car which would have been in of or- discoverable the exercise to care then either or at dinary such defects least warn repair of their existence? buyer

(a) What effect does the “as is” clause have on such a duty? (b) Did the District to Court err in refusing permit testimony, or instructions on the argument, “as is” clause contained in the purchase agreement?

2. Did the District to Court err refusing present whether question failure use seat belts contributed plaintiff’s to her injuries?

3. Did the District Court err in instructions on refusing give contractual non-contractual alleged plaintiff’s assumptions risk?

4. Did the District Court err defendant’s motion for denying judgment Count summary II? Was it error refuse to allow the reading plaintiff’s dispo-

sition? issue in case whether had a key legal duty defendant and discover defects in the used car which were ob-

inspect vious or discoverable reasonable then upon inspection, defects or at least warn a of their existence. Tied such repair buyer what with this issue is effect the “as is” in the closely provision had on this purchase agreement duty.

480 that defined

Defendant contends its was duty contract —“it to sell the car in more.” It fur- question, nothing ther that “as a submits the term is” has definite meaning law. that the in some implies buyer taking delivery It goods defective and condition must to his way express that he trust upon (4th 1968) own examination. Black’s Law ed. rev. Dictionary 146; As 6A is at 299. C.J.S.

From this that if vehicle defendant concludes a is sold premise is”, a car dealer “as is not used dealer liable buyer for traceable to defects in the vehicle. Thrash v. injuries negligence 465, 419, 423; (1953), U-Drive-It Co. 158 Ohio St. 110 N.E.2d (1954), 398, v. Wade Wis. Motors 266 63 N.W.2d 720. Pokrajac Defendant was error argues it District Court expressly direct the not to consider the “as is” Defendant provision. this, effect, states that a of the agreement— constitutes rewriting the District is not to do. something permitted Court Section 1-4-101, MCA; (1977), 55, Danielson v. Danielson 172 Mont. 560 P.2d 893.

Plaintiff contends that defendant was as matter of negligent law. This contention is based on defendant’s failure inspect on defendant’s front tire on knowingly placing damaged plain- tiff’s that car. Plaintiff cannot contract lia- argues person away because do so would contravene v. bility public policy. Haynes 270, (1973), Missoula 370. There- County Mont. 517 P.2d fore, the “as is” is ineffective defendant from provision protect for its acts. liability negligent

Plaintiff also cites Turner International Harvester Company 336 A.2d for the N.J.Super. proposition js” “as disclaimer in the sale of a used vehicle does not bar action. Defendant, brief, in its distinguishes Haynes argues reply dealt with future Haynes only contracting neg- away possible case, while this involves ligence negligence. necessity, past a has car dealer that a used Montana is rule in The general or dis- patent which are defects and repair any to discover duty the care. Chevro- Hilger in exercise ordinary Rogers coverable how- Hilger, Mont. 465 P.2d 834. In let 155 Company ever, not because the evidence indi- defendant was held liable the did warn defects not plaintiff cated “[d]efendant not the defendant did have any because it is obvious from record auto- of a Defendant’s checked the employees defect. knowledge door. the front Defend- right mobile over this check included an does extend to automo- dismantling ant’s not duty completely it its and then before resale. P.2d reassembling Hilger, bile the was an one here shows that defect obvious evidence have revealed it. In the instant and a reasonable would inspection however, case, that no took defendant concedes inspection place. fact, was no to inspect. In defendant contends there duty is also the added in this of defendant’s “ac

There factor case tires with three and a good tive worn tires negligence” replacing one. The act of the white sidewall inside defective placing from a a means apparently hiding plaintiff purposefully accelerated the breakdown the trans inevitably defect link. verse case of Court cited Circuit deciding Eighth

In Hilger (8th 1939), In Chevrolet v. Bruner Cir. 102 F.2d 373. Co. Egan a similar Chevrolet the court was with fact situa- Egan presented down, of the broke caus- tion in that mechanism truck steering a held for the and stated: collision. The court ing “A retail dealer who takes a truck in trade and undertakes used and recondition it for for use the public high- resale repair upon a care in owes to use reasonable ways duty public making defects which would make the of tests for the detecting purpose who use it or with it truck a menace to those come contact might reasonably and in render the truck making repairs necessary know- charged for use with safe upon public highways, in the of defects which are or discoverable exercise patent ledge seems care . . . The rule does not mean—as ordinary appellant vehicles, a who undertakes to fear—that dealer used motor resale, a becomes insurer virtually recondition truck sells, of the truck he nor safety does it mean that he is required disassemble an entire truck to examine each of its It does parts. mean that he must use reasonable care to ascertain whether the truck is with the minimum essentials equipped for safe operation, one which is a unquestionably mechanism which will steering work and which will not shake shortly under normal apart use. who One permits truck with a defective dangerously steering mechanism to be used upon public highways, has only accident, reason to that it will cause an anticipate but bemay almost circumstances, certain that it will do so. ‘In such use, of known presence attendant danger, known makes upon (Citations vigilance omitted.) . . .” 102 F.2d at duty.’ 375-76. In accord with the above are Gaidry Motors v. Brannon (Ky.1953), S.W.2d 627 and Turner v. International Harvester 133 Company 336 at A.2d N.J.Super.

“It is common that old cars are knowledge more to be sub- likely to ject mechanical defects than new are ones. The turnover in of used cars is ownership and the fairly these rapid, majority cars are sold used car dealers. The used through car dealer is in a better reason of position, his than his opportunity, average to customer discover what defects exist in might car any particular to make ait menace to the We are of the it is not public. opinion too harsh a rule to these require dealers use reasonable care in in- defects, used cars before resale to specting discover these which the customer often cannot discover until too late.” Motors v. Gaidry Brannon, at 268 S.W.2d 628-629.

Further, and for

“. . . will be lower used quality durability expectations commensurate with their age, appearance price. goods, However, that demands when used safety general public vehicle, for is sold for use as a serviceable motor motor example, circumstances, (and the not as absent junk parts), special vehicle for known or unknown seller be defects whether responsible safety sale, the was under his control. at time of while machine present Otherwise, are the enter- bearing the the general public buyer from introduction the prise liability stemming dangerously used onto defective vehicle the Public public policy highways. for demands receive a used chattel safe the buyer purpose (where intended no substantial will occur change prior reaching consumer) foreseeable ...” v. Turner International buyer (Citations omitted.) at 69. Harvester A.2d Company, 197; (7th 1970), 435 F.2d Thrash also Cir. Lapworth See Ikerd 165(7)-166at Co., Vehicles Motor supra; §§ v. U-Drive-It C.J.S. 945-49. of an “as is” that use for the proposition cites Thrash

Defendant for for liability from car dealer a used protects clause vehicle. to defects in traceable injuries has misread shows defendant Thrash reading A careful defendant. Thrash finger liability the case. It fact points “as is” from the U-Drive-It Com- of a used truck involved sale sale from subsequent and then a Motor Company Spot pany on the left front the sale lock ring after Shortly Thrash. Spot off, which the an accident in plain- of the truck blew causing wheel was crushed. tiff both court ruled that the sued car dealers. The for was not liable injuries

U-Drive-It Company factor Motor was intervening relieving because sale Spot stated; its The court liability transferring duty it from Spot. of a that where the owner used motor vehicle sells “We conclude same ‘as is’ to a dealer in those articles such disposition it, held make such owner be may may ordinarily the dealer who vehicle occasioned to one injuries purchased liable for another, of or to because faults im- injuries the dealer or from time in existed or occurred during the vehicle which perfections Thrash, owner.” at 423. it was in the such N.E.2d possession court, however, ruled effect Motor’s Spot in The and stated: was still issue of the not an insurer vehicles is used motor a dealer in

“Although to exer- sells, under duty generally he he is of the vehicles safety cise reasonable care in an examination to making thereof discover therein defects which would make them to users or to dangerous them, those who come in might contact with upon discovery correct those defects or at least give warning . .” purchaser Thrash, (Citations omitted.) 110 N.E.2d at 423. court, first,

It is second ruling by the and not the which is ap- here as this case does not plicable a sale involve between dealers but between a dealer and Once it consumer. has been determined that a used car has a dealer duty reasonably and discover inspect defects which are or discoverable in the patent exercise ordinary defects, care and then to those repair Rogers Chevrolet Hilger it becomes Company, supra, determine what effect necessary “as is” clause has on such a duty.

The “as is” is method ex- statutorily approved phrase 30-2-316(3) warranties. The statute is section cluding controlling MCA, (a), which provides: (2):

“(3) subsection Notwithstanding otherwise, “(a) implied unless the circumstances indicate all war- is’, ‘as ranties are excluded like ‘with all faults’ or expressions in other common calls language understanding buyer’s attention to the and makes that there exclusion warranties plain no implied warranty;” code comment on states: here. It section is little help (a) (3) of subsection deals with such

“Paragraph terms general is,’ stand,’ faults,’ ‘as ‘with all and the terms ‘as'they like. Such ordinary commercial are understood to mean that the usage buyer takes entire risk as . . .” quality goods involved U.C.C. (U.L.A.) 2-316. §

The area of the code which this section is located deals with warranties, exclusion or modification in sales express implied, These warranties for with part the most deal goods. quality, fitness of the sold. There merchantability, goods nothing with enumerated these sections which deals exclusion of tort lia- It would be indeed inconsistent if disclaimer had that ef- bility. the case in of the legislature’s passage feet. This is especially light 30-2-719(3), MCA, which section provides: “(3) be limited or excluded unless Consequential may damages unconscionable. of conse- the limitation or exclusion is Limitation in the case of consumer for quential injuiry person damages of damages is facie unconscionable but limitation goods prima where the loss is commercial is not.”

Montana subscribes to the rule: general “ ‘. . . that not contract the effect of their persons may against own and that to do so are in- agreements attempt However, valid. it is not true that of this kind is void any agreement Whether a can relieve himself against public policy. person by the duties as a matter of from law to agreement attaching legal created contract between himself and another relationship per- son, ais matter of some The conclusion has been reached difficulty. that even under the view that a some circum- person under may, stances, duties, contract such he cannot against performance (1) do so either where interest of the public requires per- duties, (2) formance of such or because the do not stand parties the weaker to submit upon footing equality, party compelled ” to the County Missoula stipulation.’ Haynes Mont. 517 P.2d

One of the for issues review in presented Haynes propri- of the District order ety Court’s pretrial suppressing release in the general Western Montana Fair Blank. The Entry defendants the release was a valid and enforceable contract argued the defendants from The release “I absolving liability. provided: release Missoula Fair Board from hereby County any liability loss, or to livestock or other while said injury damage property, is on the at 376. This held 517 P.2d Court property Fairgrounds.” the District Court was correct in the release “.. suppressing stating, our view the release is and unenforceable because it illegal [i]n in- this state contrary policy against public public terest.” 517 P.2d at 376.

We further stated in Haynes: law, our attention

“Directing Montana we note an express of this state to public policy fix responsibility damage person those who fail to property upon exercise care or skill. ordinary 58-607, 27-1-701, MCA], Section section R.C.M.1947 pro- [now vides: is not for the of his

‘Everyone only result willful responsible, acts, but also for an occasioned to another his want of or- injury by care or skill in the of his or dinary management persons, property has, care, so far as the latter or want of except willfully by ordinary himself. The extent of in such brought injury upon liability cases is defined the title relief.’ compensatory (1)

“The of this statute is twofold: To fix purpose primary respon- on the whose tortfeasor conduct occasioned sibility liability (2) loss make the victim whole. injury, 13-801(2), 28-2-701, MCA], “Section section R.C.M.1947 [now defines contracts as those: illegal law, to the

‘Contrary policy express though expressly prohibited.’ 49-105, 1-3-204, MCA],

“Section R.C.M.1947 section pro- [now vides: one waive the ‘Any may of a law intended advantage solely for his benefit. a law But established for a reason cannot be public contravened aby private agreement.’

“We hold the is from County disclaiming liability by precluded an act in virtue the release when interest. performing public Restatement, Contracts, 575, This in is principle recognized pro- § viding pertinent part: ‘(1) for from for the conse- A bargain exemption liability * ** of is if

quences negligence illegal “ * * * ‘(a) “ service, ‘(b) a one of the is with charged duty parties public and the relates to in the bargain performance for which it has received or been of its to the duty public, part ” 517 P.2d at 376-78. Haynes, promised compensation.’ future liability with a release for dealt Haynes While Haynes no the rules enumerated there is reason negligence, duty reasonably under should not here. Defendant apply To it to disclaim liabil to do so. allow for defects. It failed inspect a violation the public is” would be phrase “as ity by simple in Haynes. policy espoused is” has the “as what phrase has never determined

Montana effect the phrase, have jurisdictions interpreted on tort liability. Other Court to urges results. with varying follow Defendant Motors, The court in Pokrajac v. Wade Pokrajac holding supra. was not due existence that the seller liable defects held a disclaimer clause. however, is different from the one in Pokrajac,

The disclaimer case. in the instant It provided: used

“ * * car, this order is used case car covered In it, familiar that he has examined states undersigned purchaser car, as-is, condition, no it and with as used with its buying condition, otherwise speci- model or unless mileage, guaranty to No oral have been made fied herein in writing. representations are or written and all terms of the agreement printed the Purchaser ” * * *’ at herein 63 N.W.2d 721. because to duty inspect repair found no The court specifically Further, find no reason in public clause. it could of the “as-is” to such disclaimer. policy prevent however, of the extensive is because distinguishable

Pokrajac, the that he in- buyer a statement including disclaimer provision, Further, Montana, car—a factor not here. present spected Wisconsin, of the “as to duty independent there is a inspect unlike at is” 465 P.2d Hilger, clause. 1977), v. Weinbaum held that

Knipp (Fla.App. So.2d the effect of an “as is” on tort depended disclaimer liability disclaimer was thus a interpretation parties gave decision, to question for decide. In its the court reaching stated:

“The this case alleged his injuries resulted from a defect in the goods sold. To foreclose consideration of his claim by an ‘as is’ permitting disclaimer to as operate an automatic absolu- tion from responsibility through mechanism of summary judg- ment would belie the behind policy 672.2-719(3), Section which states that ‘limitation of consequential for damages to injury person the case of consumer goods prima facie uncon- scionable.

“Moreover, 672.2-316(3) Section provides:

‘(a) otherwide, Unless the circumstances indicate all implied is,’ warranties are excluded like ‘as ‘with all faults’ by expressions or other which in common calls the language understanding to attention the exclusion of warranties and makes buyer’s plain that there is no . . .’ implied warranty [Emphasis supplied.]

“It is the clause ‘unless the circumstances indicate otherwise’ that automatic absolution can be precludes finding achieved in the sale of used consumer the inclu- goods merely by sion in a bill sale of the words ‘as is.’ magic

“This is not that a seller of used not absolve say goods may himself from for defects in the sold when both responsibility goods he and the understand this be the intended buyer meaning ‘as is.’ See Comment 3 Section 672.2-719. The Uniform phrase Commercial a seller disclaim warran- contemplates may Code ties as understands done long buyer reasonably being disclaimer, effective, . . . But a to be must be a of the basis of part (Citations between the bargain parties.” So.2d 1084-85. omitted.)

The court further stated:

“Even if the ‘as is’term were be found under negate liability settled, no means the causes action in issue warranty, does not necessarily absence warranties in the sale chattel pre- in the instant sit- clude . . . On the liability contrary, uation, another dimension to the the ‘as is’ disclaimer serves add claim, on bemay for its effect the evidence negligence presented substantial, or to what on the of whether question degree especially of The understanding a to the duty plaintiff. the defendant owed relevant of as to the extent the disclaimer particularly the parties under the circum- of what was reasonable to a determination jury’s of ex- facts as to the care degree stances . . . remain There disputed of them. required and the care degree ercised defendants on the count singularly inapt Summary judgment negligence us.” 351 at 1085-86. the facts before So.2d involved supra, v. International Harvester Company, Turner The court applied is” sale of an International tractor-truck. “as to the seller defective used products. strict standard liability “as consumer selling ordinary simple court held when dealer from a claim is” disclaimer does not insulate the effectively from strict in tort an accident resulted liability following in the when was in the defect vehicle it control safety present dealer. It stated: . and one’s interest are ability protect “. . Bargaining power as between of used generally buyer goods disproportionate While need one in the business of them. freedom contract selling his away right not be if a wishes contract impaired buyer pro- tection, . an defects must be shown . . safety waiver unequivocal Otherwise, the additional costs will be borne when indirect costs, a decent safe- public insurance public through regard of the to be on the side buyer’s thumb State requires ty omitted.) (Citations scale . . .” 336 A.2d 70-71.

The court held that the issue of the effect the “as is” ultimately was a clause question: notation, however, element to the

“The ‘as is’ adds additional But, of this . . does a disclaimer of statu- aspects case . lia- also act as waiver of both tort claims strict warranties tory waiver, Without any language bility negligence? that the ‘as is’language without evidence before this court of a known right, to serve as an intentional relinquishment meant . such effect will not be . . implied determination, however, does not answer the ques-

“This fully statement, have real the ‘as is’ for it will a very of the effect of tion 490 effect at trial. the What did

evidentiary conditions the ‘as is’ desig- nation A must disclaim? determine what was eventually rea- sonable with respect any a proven in danger present product sold ‘as is.’ Did the understand that the parties ‘as is’ designation applied only body damage, worn tires or other gas mileage, such that could be a problems discerned reasonable or test inspection drive? Was it limited to performance rather than safety defects? theWas intended to cover all designation defects?” 336 A.2d at (Citations omitted.) 72-73. (1967),

In Wendle Motor Stoddard Co. 70 Wash.2d Fleming 465, 926, a former of a P.2d owner had modified its pickup automatic transmission that motor so would start even though the transmission was gear.” “in When the former owner traded in did he not disclose the modification to pickup, the automobile dealer. The court held the former owner to liability for the subject even the trade-in was “as plaintiff’s injuries, though made is.” However, facts are here. Fleming easily distinguishable the court’s discussion of “as is” disclaimer relevant:

“. . . in certain circumstances .. . for parties may bargain exemp- However, from tion for the liability consequences . . . negligence result, in order to effectuate a a such for such an provision exemp- tion must clearly intention exclude for express liability any and all harms however caused . . .

“The of an ‘as is’ is that significance sale are sold in the goods sale, condition in which are . . . a they Such unless otherwise pro- contract, in the vided excludes the . In negatives warranties . other words, ‘as is’ the term itself amounts to a disclaimer of solely warranty.

“The absence warranties the sale of chattels does pre- clude . . .” 423 P.2d at 928. liability

In its discussion the court specifically Pokrajac distinguished “as is” the same as holding Thrash much stated grounds above.

In Kothe v. Tysdale 233 Minn. N.W.2d that his defendant asserted statute that of seller of second- to him a ven- and that no attached liability hand “as is” goods dor defects therein. because stated:

The court disagreed that either a vendor seemed establish clearly “The authorities to be used upon or a lessor in lease a vehicle intended in sale such owes a duty public using highways public highways or lessee exercise reasonable care supplying purchaser source of danger with a that will not constitute menace or vehicle thereon; to such lessor for injuries attaches vendor liability in the thus which are the defects vehicle provided, result patent the exer- by if which could have been discovered or defects therein care; that irrespective cise and such exists liability ordinary between obligations original contractual the any parties omitted.) (Citations at . .” 46 N.W.2d 236. transaction is that a used car dealer has a to duty It clear in Montana and defects which are or discoverable in patent discover repair is care. It clear ordinary supra. equally exercise Hilger, when it is this State to disclaim against policy liability public an cannot that in act in the interest. It be denied performing public to safe is an act in the used cars insure their specting operation interest. public we the bet-

In the above-enumerated find light public policies, not ter to be that the “as is” does absolve used car rule language the car dealers from tort for accidents caused defects in liability where, here, in there was a sold. is true cases This especially a to and the defects. breach of discover duty repair not or warranties. It “Tort based upon representations liability one a law who foresee is based on duty imposed by upon may an or to act result in to others.” injury his actions failure may Motors, at S.W.2d Gaidry supra, before the sale defendant failed to the car defects inspect

Here been in a to defect would have discovered reasonable plaintiff. was the cause proximate The defect safety plaintiff’s inspection. not should be allowed Defendant subsequent injuries. accident When the the cloak of a “as is” disclaimer. to hide behind simple is,” a ordinary person purchases car “as to expects he have to per- form certain to in keep car He repairs good condition. does to expect death purchase Public used car trap. policy requires safe, dealer he cars sells and make sure are inspect in they condition. This cannot working be waived of a duty use in talisman the form of an “as magic is” The trial court provision. did not err in of defendant’s instructing duty inspect evidence on the “as is” suppressing clause.

The second issue whether the trial court erred in to in- refusing on struct defense failure use seat belt. The Montana statutes seat belts are regarding sections 61-9-409 MCA. Section 61-9-409 provides: “Seatbelts required in new vehicles. It is unlawful for any person sell, lease, trade or transfer from to buy, or Montana residents retail an automobile which is manufactured or assembled com- with the mencing 1966 models unless such vehicle is with equipped belts installed for use in left safety front and front seats right thereof, and no such vehicle shall be state operated unless such belts remain installed.”

Section 61-9-410 deals with belt seat specifications. is no There statutory requirement in Montana that a must person wear seat belt automobile, while operating riding nor are there any Montana has, cases the subject. The seat defense belt however, been raised in other repeatedly with jurisdictions varying results. contends that

Plaintiff overwhelming majority jurisdic- tions are in accord that there is no common law wear a seat duty belt, belt, and absent a statute of a wearing negli- seat requiring cannot gence be failure do so. She then lists predicated upon numerous cases in jurisdictions the defense. rejecting

Defendant, hand, on the that a state other contends when has rule, use of seat belts to comparative negligence injury mitigate a few cases to its view- question. It cites always proper support and in its brief most of-the cases point, reply distinguish attempts

493 on the cites plaintiff ground were decided in they noncom- parative jurisdictions. cases, from contribu- they be overwhelming majority states, refuse to states or comparative negligence

tory negligence for not seat belts and have rejected using penalize 124, (1977), 570 v. 89 Wash.2d P.2d 138. See defense. Amend Bell 270, (1967), Coca Co. 99 239 A.2d Barry N.J.Super. also: v. Cola (1974), 273; 160 v. Continental Baking Company ITT Birdsong 104; (1970), 411, v. 286 312 N.E.2d Britton Ind.App. Doehring 498, 666; (1974), v. Case So.2d Brown 31 Conn.Supp. Ala. 242 267; 207, v. 192 Brown Kendrick So.2d (Fla.App.1966), 327 A.2d 629; 49; (1967), 215, 230 D.W. v. Md. A.2d 247 Cierpisz Singleton (Miss.1971), 11; v. Butane 244 So.2d Boutwell Smith Company (Okl.1976), 48; America, Inc. 555 P.2d v. Volkswagen Fields v. 509 Son Carnation King Wong Company (Tex.Civ.App.1974), 385; v. Westchester Fire Insurance Company S.W.2d Lawrence 784; (Del.Super. 213 So.2d v. Diamiani (La.App.1968), Lipscomb 1976), 1967), 914; 362 226 A.2d McCord v. Green A.2d (D.C.App. 720; 293; Miller Miller v. 454 S.W.2d v. Haynes (Mo.App.1970), 65; 228, (1968), S.E.2d Fischer v. Moore Miller 273 N.C. 160 458; (1974), 392, (1973), 517 P.2d Nash v. Kamrath 21 183 Colo. 530, 161; v. City Heights 521 P.2d Placek Ariz.App. Sterling 900; 619, (1974), 217 N.W.2d Robinson v. Lewis Mich.App. 52 Or.52, 483; (1969), v. Ware- 457 P.2d Commercial Selgado 719; (1975), 88 544 P.2d Stallcup house N.M. Company S.W.2d Taylor Tenn.App. Amend, defendants that under the doctrine argued

In supra, evidence admissible comparative negligence, prove was not harness seat belt. wife available wearing caused all her injuries, that such failure either alleged further They to, injuries. enhanced those aggravated contributed statutes, Washing- of comparative negligence Before the passage contributory negli- wear seat belt was ton held that failure to here, contended, as does defendant In defendants Amend gence. case law abrogated statute prior that the comparative negligence on the seat belt defense and therefore evidence the defense was admissible. The court disagreed stated:

“. . . While the result of contributory negligence compara- different, both are tive is much premised upon negli- negligence other the one case bar in the we recovery, compare In we gence. However, reduce either negligence damages. potentially case, of look to the plaintiff. we negligence the.

“The rests upon negligence an actor has a premise e., i. legally duty, standard conduct which he must imposed adhere. That from a duty may enactment spring legislative standard conduct or from a standard. Devia- judicially imposed tion from that standard of must conduct occur have negligence. [Citation omitted.]

“Our has not mandated the use of legislature seat belts as stan- dard conduct. RCW requires 46.37.510 installation of front only seat belts on automobiles manufactured after [similar held, Montana], We have with the vast along majority other states, that such a not statute does make mandatory use of the seat belts. [Citation omitted.]

“The then is whether the court should stan- question impose dard of conduct all in vehicles with upon persons riding equipped seat We think belts. we should not.

“The defendant should not diminish the of his consequences negligence by failure of the plaintiff anticipate defend- ant’s negligence accident itself. if causing Only plaintiff should have so the accident can said that anticipated it be plaintiff had a to fasten the seat belt duty prior the accident.

“There are number of why reasons we reach conclusion. We noted that have need not plaintiff predict Second, the defendant. belts not in all seat are required vehicles. Defendant should not be to take entitled the for- advantage tuitous circumstances that in a car so riding equipped. conduct,

“Third, it is as to standard controlling while do not habit- a of motorists fact and that the persuasive majority as two-thirds of seat belts. Studies show that ually many use their ‘76,’ not use seat belts. ‘Belt Use Insurance In- observed drivers did use and chil- stitute for 1976. Belt Safety, by passengers Highway lower, of one research that 93 revealing percent dren even paper not belts and 89 by observed children under were restrained of older were not available years using or percent passengers Williams, ‘Observed Child Restraint Use in Automo- belts. Alan F. biles,’ Children, vol. The American Diseases Journal December

“Fourth, would to a the seat belt defense lead veritable allowing battle of as to what would or have not been experts injuries have had the a avoided been belt. At best it would wearing cause substantial the trier of facts.” v. Amend speculation Bell, 570 P.2d at 143. supra, stated: Moore, court supra,

In Fischer has, of the conclude, the failure that Appeals “We as the Court not seat belt does to use a vehicle in a motor or passenger driver aas bar be not may pleaded contributory negligence constitute whose a tort-feasor against in an action damages to recovery cause and is proximate force the initiating provides negligence towere if we or omitted.] a driver passenger. [Citation an injury and not otherwise, Volkswagen, who driving the person hold and, Truck, injury vulnerable to be more be said could Mack own as matter therefore, to his injury contributing guilty ‘fault’ phil- to the entire contrary would be a result law. Such of tort. the law throughout is found osophy us, for an driver “Moreover, injured be it would improper evi- of the jury permitting to be in penalized eyes passenger had not was available which a seat belt to be dence presented a fortui- would soon become belt defense in use. The seat been put tend to cause rampant spec- and would to tort-feasors tous windfall increase) (or the amount of recover- as to the reduction ulation available seat belts. to use to the failure attributable damages able cited, [Citations In comparing the cases which we omitted.] have it apparent acceptance seat belt defense can only be as a justified deviation from common-law aon public policy theory. [Citation legislature, omitted.] judiciary, serves as the barometer of public policy Colorado. Prior of our adoption statute, comparative negligence enact, did not legislature considered, although it seat belt legisla- Therefore, tion. we are not inclined to alter the common law in the face of the legislature’s failure to act order to create a negligence defense which is wholly grounded public policy considerations. short, defense, seat under

“In belt the law that existed prior statute, of our is not af- adoption comparative negligence firmative defense to an action and evidence that the negligence, failed to wear a belt injured seat not be before party may brought the form to establish or to jury contributory negligence the reduce amount of 517 P.2d at injured party’s damages.” 459-60.

Other cases which a leave such decision to the up legislature or refuse enforce a seat belt defense of basis statutes similar to Montana’s 675; are: v. Britton Doehring, 242 supra, So.2d at D. W. Smith, Boutwell Butane 12; v. Company 244 supra, So.2d at 301; Miller v. Haynes, 454 supra, Miller, S.W.2d at Miller v. 73; 160 supra, S.E.2d America, Fields v. Inc., Volkswagen of supra, 555 P.2d at 62. Two of the above cases give comprehensive discussions the use and concerning of seat practicality belts. Both reject the seat belt defense and cite numerous cases support this rejection. law,

Based aon a discussion and review the case lengthy Miller, court Miller stated: v. supra, which would all deny and unsound rule “It would be harsh no to buckle his belt in whose mere failure recovery plaintiff, accident, and the active tort- contributed to the exonerate way omission would have feasor but for whose negligence plaintiff’s Furthermore, that it is doubtful harmless. been omitted.] [Citation the case com- the use of seat belts. In such a rule would increase

497 Kendrick, it is ment on v. supra, Brown Colo.L.Rev. said, seat belts an affirmative legal duty wearing ‘[I]mposing on the actual seat-belt habits wearing will have no effect virtually would be to an ad- automobile Its effect occupants. only give mitted a substantial his wrongdoer portion chance dodge course, never, could for It defeat claim liability.’ plaintiff’s property damage. defense,

“Needless the seat-belt which would bar an other- say, victim, wise would not with the innocent be wholly popular trier of facts. [Citations omitted.]

“Due care measured conduct of the reason- customary ably man. The prudent scant use which the makes average motorist belt, of his seat plus fact there is no standard for deciding when belt, it is not to use an seat available indicates the court should not motorists to impose duty upon use them whenever he routinely travels If is to upon highway. be done, it be should done legislature. [Citation omitted.]” S.E.2d at 73. Green, cited extensively the court Miller

In supra, McCord and concluded:

“ has traditionally the use restraints ‘Unfortunately, occupant now, cars of been low in this use rate for country. average Even all is about 5 for and shoulder belts model years percent lap belts alone.’ percent lap

“To characterize behavior in this case in or lacking would be as it did not differ from dinary paradoxical, prudence that of in this with to the use 75% motorists country respect (Citation also, omitted.) of seat at belts.” 362 A.2d See 119, 606, v. Black 167 N.W.2d Romankewiz 16 Mich.App. 609, Kamrath, and Nash v. 163-64. P.2d supra, Green, the was

Although study quoted McCord v. con- supra, ducted it is still over decade ago, apparently applicable today. America, Witness discussion this from Fields v. Volkswagen of Inc., supra:

“This is a question first this court. There impressions is no common law or the use of seat belts. statutory duty requiring Impo- sition of new and recent advances are in- technological usually law, ducted into doctrines of such until time as have been suf- they tried, and ficiently proven accepted they were in- purpose Historically, tended. the seat belt infancy. is in its phenomenon It in state influx. and are now aware that while seat industry

“Both government beneficial, be use and cannot acceptance arbitrarily belts are their on October Consequentially, thrust traveling public. upon seat belt interlock was system the controversial mandatory to has intensified its research determine withdrawn industry other alternatives. possible case are of the acts guilty negligence

“If the in this appellants then resulting injuries, as which caused the accident alleged, should be held constitutionally statutorily accountable they true, appellee If the are did required. negligence allegations he to cause the be required anticipate accident. Should nothing duty We think not. One’s miti- the negligence appellants? cannot arise before he is failure damages damaged. gate failure of must occur after the At most the injury. ap- minimize to use the seat belt furnished a condition which the merely pellee was did not contribute to or cause accident. It injury possible. merely court that if fur- It is well established in our the negligence and a a condition subse- injury nishes possible, the existence of such a condition is not act caused injury, quent the injury. cause of proximate in other who have jurisdictions there is a conflict been “Although issue, of the cases hold that majority confronted with seat is not a defense to establish failure use belts contributory the amount of to the injured reduce damages par- ty-

“In view of the lack seat belt unanimity system, proper the lack of and in the absence common public acceptance,

499 find that of the failure to use law we evidence statutory duty, not seat belts is admissible establish defense contributory or to be considered in For the mitigation damages. time we await the direction of the 555 P.2d at present legislature.” 61-62. (1967), the other side of the

On coin is Bentzler v. Braun 34 362, Wis.2d 149 N.W.2d 626. The court in Bentzler stated: that it is “While we with those courts that have concluded agree statu- only se to fail use seat belts where negligence per that the installation of the seat belts in standard is one tory requires vehicle, nevertheless conclude that there is based duty, we care, the common law standard of to use available seat ordinary belts mandate. any statutory independent that,

“We therefore conclude in those cases seat are where belts available and there evidence before the casual jury indicating between sustained the failure to use relationship injuries belts, seat it that instruct proper necessary jury A in such case could conclude that an of an regard. jury occupant automobile is to use seat belts . ..” 149 N.W.2d negligent failing 639, 640.

However, the court held the trial had judge properly refused on the seat belt instruction requested defense: “There was that seat belts were available and were not proof used, causation, but that fact alone does not for the driver of prove belts, the vehicle also failed to use the available seat but his injuries were minimal.” 149 N.W.2d at 640. also (1966),

See Sams v. 467, Sams 247 S.C. 148 154. S.E.2d state that one or both of these of the cases which upon Illustrative are: the defense must be submitted aspects, (1976), Dudanas v. 901, Plate Ill.App.3d 3 Ill.Dec. 1171;

N.E.2d v. Barker Spier 35 N.Y.2d 363 N.Y.S.2d 916, 323 N.E.2d

In and the numerous light history legislative problems that must be considered to extend the seat belt rule of effectively law, we have concluded the well-reasoned position Bell, court in Amend v. the better rule Washington supra, produces and reach the that to conclusion seat belt defense when the adopt has failed to do so would be ill-advised. The trial court legislature to allow refused defendant introduce seat belt defense properly into this case.

The third issue is whether trial court erred in refusing pre- risk, sent to of of both contractual jury question assumption and noncontractual.

Defendant contends that the trial court acted on the mistakenly that the statute assumption comparative negligence merged defense and erred in to instruct on the issue of refusing separately the defense.

Plaintiff contends that of risk” is not in- initially “assumption volved here because the traditional of of elements risk assumption not are involved. Plaintiff further asserts that even if the doctrine here, no it is affirmative defense but applies longer separate one merely form fault be which the contributory compared, did. We with that the doctrine of of risk agree plaintiff assumption does not in the instant case. apply Montana, of risk the defense of assumption

Historically “(1) con the particular actual or knowledge, implied, required: risk, (2) as dan this condition appreciation dition creating in the face (3) continuing or voluntary remaining gerous, condition, (4) as the usual resulting injury known dangerous condition.” Hanson v. of the dangerous consequence and probable 486, 161, (1968), 447 P.2d 488. (Emphasis Mont. 152 Colgrove (1969), Bank Great Falls added.) National also Dean v. First See Here, 402, 474, is no evidence there P.2d 405. Mont. 452 caused the acci condition particular knew of the plaintiff stan the subjective of risk governed “. . . Assumption dent. of the than the standard objective rather dard plaintiff (D.Mont.1969), . . .” Deeds v. United States reasonable man 348, 363. F.Supp. 98,

In Brown v. North Am. Co. 176 Mont. 576 P.2d Mfg. from quoted Dorsey Court Yoder Company (E.D.Pa. 1971), 331 and stated: F.Supp. 2d, 496D, (c), 2 Restatement Torts

“Quoting Comment § court in Dorsey continued: one,

“The standard to be is a applied subjective what the sees, knows, particular plaintiff understands and appreci- fact ates. In this differs it from the objective standard which applied * * * to contributory If reason of lack of negligence. or in- age, formation, experience, intelligence, judgment, the does situation, understand the risk involved in known he will not risk, be taken to assume the it be found although may that his con- duct is does contributory because it not conform to ’ ” standard of the community reasonable man.” 576 P.2d (Emphasis supplied.)

Our discussion above the “as is” defense indicates that plaintiff did not contractually assume the risk of the defective con dition, risk, she nor did assume To impliedly it. assume the one must have of knowledge particular condition that creates such risk. Such on the of knowledge lacking Defend part plaintiff. ant here has failed to prove requisite elements of defense of of risk. assumption The trial court refused to instruct the properly on of assumption risk. case, we do not the doctrine in this would Although it be apply its helpful discuss since the recent of the application passage statute. Defendant contends that comparative negligence because Montana that the of of risk recognized defenses assumption contributory negligence were defenses separate requiring separate instructions before the of passage negligence, comparative same result should accrue after of adoption comparative negli- contends of gence. Plaintiff that risk should be merged assumption into the scheme of assessment of general liability proportion defense, state, fault and should not be a and that if a like separate 502

Montana, of contributory that neg- risk recognized assumption defenses, have retained they consistently were ligence separate of risk” as a defense under “assumption separate comparative neg- (1975), rules. Arkansas v. 257 ligence Corporation Kraft Johnson 629, 74; 457, (1974), Blum v. Brichacek 191 Neb. Ark. 519 S.W.2d 888; Rebuilders, O’Brien v. Brothers Engine N.W.2d Smith that Inc. S.W.2d 787. Defendant (Tenn.App.1973), argues Montana should follow the above and retain the jurisdictions otherwise, contends, would be to change distinction. To do it as to statute negligence. itself comparative also cases by plaintiff Defendant cited distinguishes arguing states that decisions made those before comparative negli- different Montana’s. Defendant is correct in its were from gence of negligence, conclusion prior adoption comparative between and as- contributory Montana distinguished negligence risk, States, of Deeds v. United supra, F.Supp. sumption 362-363, on the two and allowed the instructions separate giving 296, 158 Mont. 491 P.2d 713. issues. Herzog Hoffman cites, however, do not discuss the effect of a The cases it compar- of the defenses of ative statute on separability assump- negligence and are not authority tion of risk and good comparative here was defendant’s since the issue argument precise presented before courts. the respective issue negligence, Plaintiff contends under comparative be considered in risk is one factors assumption just contributory negligence. determining plaintiff’s (1975), 13 Cal.3d In Li v. Cab Company Yellow of California 1226, the Supreme 532 P.2d California 119 Cal.Rptr. comparative negligence. doctrine judicially Court adopted negli- of the effect question comparative The court discussed the and last clear chance risk the doctrines assumption gence were actually of these two doctrines that neither concluded stated; The court under necessary negligence. comparative concern, “The area of the status of doctrines of last third risk, chance and of involves less the assumption practical clear a of form of problems administering particular comparative negli- than does a it definition of theoretical outline of the gence to be states Although form several which specific adopted. apply retain the last clear chance doc- comparative concepts omitted], trine better reasoned seems be position [citation that when true need for comparative last negligence adopted, a clear chance as of the of the palliative hardships ‘all-or-nothing’ rule its retention in a disappears results windfall only in contravention of direct of the in liability principle pro- risk, portion fault. As for of we assumption [Citations omitted.] have in this state that of recognized this defense con- overlaps to some extent and in tributory negligence fact is made of at up least two distinct defenses. ‘To it been has ob- simplify greatly, situation, wit, . . in served . that one of kind where a plaintiff unreasonably undertakes encounter a known risk im- specific conduct, posed by negligence, defendant’s he although manner, may encounter risk in prudent form of reality . . contributory negligence . Other kinds of situations within the those, of

doctrine of risk assumption are for example, where plain- tiff is held to to relieve defendant of of agree reason- obligation able conduct toward him. Such a situation would not involve con- tributory, but rather a reduction of negligence, defendant’s duty care.’ We it think clear that the of a [Citations adoption omitted.] system should entail comparative negligence merger defense of of risk into assumption general scheme of assessment to fault liability in those cases in proportion particular the form of risk involved is no more than a variant assumption contributory negligence. at Cal.Rptr. [Citations omitted.]” 872-873, 532 P.2d 1240-41. held that as an

Minnesota has risk affirm- implied assumption defense tort is to limited to those situations in ative actions be which the encounter with known and risk voluntary appreciated such, is unreasonable. As it is to be considered as a merely phase to be submitted with and contributory negligence, apportioned under, doctrine. comparative negligence Springrose Willmore Minn. 192 N.W.2d 504 must,

. The doctrine of of risk our implied assumption view, be recast as an of aspect contributory negligence, meaning of not the risk must be plaintiff’s assumption only voluntary but, circumstances, under all the unreasonable . . . The practical that, and most of this decision is to mandate like important impact other form of of risk must contributory negligence, assumption be under our statute . ." 192 apportioned comparative negligence at N.W.2d 827. [Citations omitted.] (1973), Wash.2d Company Construction Redding In Lyons 821, 86, stated: the court 515 P.2d of standard of negligence “. . . Adoption comparative of the rela- a more flexible weighing necessarily accompanied by of this concomitant effect tive fault attributable to each A party. of of will be the elimination damages more delicate apportionment Thus, of doctrine. the calculus for the the risk the need assumption fault incor- inevitably measurements of the relative balancing Accord- assumed the risk. degree porates of the negligence it has been held the effect comparative ingly, of risk abrogate assumption standard shall be completely at 515 P.2d as known and heretofore.” doctrine applied also v. Rule Colson 15 Wis.2d N.W.2d 21. See (Me.1976), the Maine court 354 A.2d v. Gordon In Wilson states: on this issue. It an excellent discussion presents not inconsistent with the of the risk is “Contractual assumption hand, volun- the other statute. On Maine comparative negligence fault. a form of contributory of the risk ... is but tary assumption so, statute is in- clearly negligence That our being comparative voluntary assumption to abolish the doctrine so-called tended the risk. 156 does specifically it is true that 14 M.R.S.A. §

“While risk, in most cases ap- of the abolish the defense assumption ob- to effectuate statute is designed which the of fault portionment of that harshness of the and alleviates much need for viates the risk of the where assumption those cases doctrine. In common law encountering lack due care in based upon plaintiff’s of the defendant —so-called known created negligence risk contribu- of the risk—the overlaps ‘voluntary’ assumption concept should conduct be fault. In such circumstances tory plaintiff’s fault against in terms judged contributory weighed This avoids the harsh causal defendant. approach ‘all of the risk while the same effect nothing’ assumption time his liability damages defendant reduce permitting when he can demonstrate that the fault contributed to the injuries. of of the risk which we today adopt

“The treatment assumption has been advocated Dean Prosser and seems represent long the adhered most of the courts which have recently approach dealt the question. with the

“Some have abolished defense of of jurisdictions assumption risk, assumed, the where without the risk except contractually to whether any reference or not statute comparative negligence Alaska, Alaska, has 443 been Leavitt v. P.2d 61 adopted. Gillaspie, Hawaii, Motors, 1, (1968); Ltd., Bulatao v. 49 406 Kauai Hawaii Iowa, Estherville, Iowa, (1965); P.2d 199 City 887 Rosenau v. of (1972); Redden, Parker v. 421 Ky., N.W.2d 125 S.W.2d Kentucky, 23, (1967); Anderson, 586 v. 375 Mich. 133 Michigan, Felgner (1965); Crain, New 104 N.W.2d 136 Bolduc v. N.H. Hampshire, 163, (1962); A.2d 641 Meistrich v. Casino Arena Jersey, 181 New Attractions, Inc., 44, 90 and McGrath 31 155 A.2d v. N.J. (1963); 272, A.2d New Mex- 41 196 238 Cyanamid, American N.J. 336, ico, (1972); Smith, v. 83 N.M. 491 P.2d 1147 Williamson 504, Beals, (1961); 1080 v. 358 P.2d Oregon, Ritter 225 Or. Wisconsin, Bros., 252, N.W.2d 63 v. Drees 19 Wis.2d 120 Gilson (1963). Meistrich, upon Weintraub expounded

“In Chief supra, Justice use of the has indiscriminate wrought by the which been confusion distinction the emphasized of risk.’ He the ‘assumption term contractual) (i. e., and risk assumption between ‘primary’ 506 e., (i. of the risk

‘secondary’ assumption implied voluntary) concluded: “ ‘Weare there is no reason to risk charge assumption satisfied of its secondary in sense distinct something contributory neg- from that where hence in that ligence, thought projected the risk should not be aspect, terminology assumption of of used. Rather . . . the should be subsumed under the subject charge at 96. 155 A.2d contributory negligence.’’ of have “Other courts their interpreted comparative negligence statutes as need for of the risk where eliminating assumption can the defense be said to with contributory negligence. overlap California, 804, Li v. Yellow Cab Co. 13 Cal.3d 119 Cal. Calif, of 858, (1975); Minnesota, v. 532 P.2d 1226 Rptr. Springrose Willmore, (1971); 292 Minn. 826 N.W.2d Mississippi, Co., Miss., (1973); Braswell v. Economy So.2d Supply Co., Lyons Construction 83 Wash.2d Washington, Redding (1973). 515 P.2d 821

“A statement of the Li California court case is representa- of of tive all the above reasoning pervades opinions: “ ‘We think it clear that the adoption system comparative of should entail merger assumption defense of the risk into scheme assessment general liability propor- cases in which the tion to those particular assump- fault form of tion risk involved is no more than a variant contributory neg- 873, at at 119 532 P.2d 1241. ligence.’ Cal.Rptr.

“There to be few which adhere to the appear jurisdictions posi- tion that and voluntary comparative negligence assumption Webb, can risk be harmonized. See 231 Ark. 328 Bugh (1959); Hercules, (E.D. S.W.2d 379 Harris v. Inc. 328 360 F.Supp. 1971). Ark. Blackburn, case, Fla. Dorta v. us to a directs Florida

“Appellant of Court District in which Florida 450 302 So.2d App., Court: Supreme held that the Florida State Appeals “ of the com- to have the continued existence recognized ‘appears of of the risk its notwithstanding mon law defense assumption at 302 So.2d of the doctrine of adoption comparative negligence.’ 451. however, of Ap- District Court another Florida

“More recently, that: approach, holding took contrary peals “ “a of is no less primitive the risk defense assumption ‘[t]he fault” are both at between who device of achieving justice parties fate It should meet the same than was contributory negligence. bar complete and not constitute contributory negligence standard where negligence measuring recovery comparative Inc., for v. Leadership Housing, Fla.App., Rea recovery.’ . (1975).” at 401-403 354 A.2d So.2d with a statement is appli- The Wilson court concluded cable to our decision here.

“Since, us, cannot be con- seriously case now before it the risk of his in- that the assumed contractually tended appellee of voluntary and since we now decide that the doctrine viable, risk is no it is evident that longer appel- assumption was lant’s on of risk instruction request assumption properly denied.” 354 A.2d earlier, of assumption

As stated the elements of doctrine However, this are this when situation the risk not case. present arise, does we follow trend and treat will the modern assumption other and contributory appor risk like form tion statute. it under the comparative negligence Court erred in not grant-

The fourth issue is whether District Count No. II. summary ing judgment ad- for an is identical Count I complaint except Count II which, effect, as to the odometer dition claims misrepresentation had states in “If said vehicle Count II reading. pertinent part: than repre- been driven an additional thousand miles forty on information belief alleges sented plaintiff, plaintiff oc- action would not have subject accident which curred.” the Mon- “has misunderstood”

Defendant contends Act Protection Practices Consumer tana Unfair Trade 30-14-104, sections specifically 30-14-103 and MCA. Defendant Act, states that under the Department Business Regulations may rules not only adopt inconsistent with the federal Act and decisions thereunder. It contends a of the cases reading annotated (1973) under 15 U.S.C.A. 45 shows that the § of the purpose federal statutes is to unlawful prevent restraint of trade and submits that since the Montana of Business Department Regulations not may law, rules adopt inconsistent with the federal it is to have improper a regulation is, which deals with sales. Such regulation according defendant, outside the of the scope enabling legislation.

Defendant’s are arguments misplaced. 30-14-103, MCA,

Section states: and acts or “Unfair methods unfair or competition deceptive unlawful.” in the conduct of trade or commerce are practices 30-14-104, MCA, Section provides: in “1. It the intent legislature construing shall be to the inter- 30-14-103 due consideration weight given of the federal trade and the federal courts commission pretations 5(a)(1) (15 to section of the Federal Trade Commission Act relating U.S.C., (a)(1)), as amended.

“2. The make rules the provi- Department may interpreting with the sions of 30-14-103. rules shall be inconsistent Such rules, of the federal trade commission decisions regulations, 5(a) of section the federal courts interpreting provisions U.S.C., (15 45(a)(1)). (1) Trade Act the Federal Commission amended.” 8-2.4(2)-S440 provides part:

A.R.M. § for a motor or act or “It shall be an unfair deceptive practice vehicle dealer to: “. . .

“(3) or status of motor vehicle usage represent previous fact, not; that, or make such representations it be something has sufficient information support represen- unless the dealer tations.” 30-14-133, MCA, in part: provides

Section “(1) who Any person or leases purchases goods services pri- marily for or personal, family, household suf- purposes thereby fers any ascertainable loss of or money real or personal, property, as a result of the use or method, another employment by of person act, or practice declared unlawful by 30-14-103 may indi- bring vidual but not a class action under the rules of civil procedure the district court of the country in which the seller or lessor resides or has his of principal place business or is business to doing recover $200, actual or damages is whichever greater. The court inmay, discretion, its award to three times the up actual sus- damages tained and may such provide equitable relief as it considers neces- or ary proper.”

While main of statute to the federal prevent purpose trade, of to unlawful restraint in the cases indicate there nothing that the above rule of of Business is in the Department Regulations with consistent the federal cases or the enabling^legislation. District was summary Court therefore correct denying on this matter. A determination of whether the judgment alleged violation was a of is a of damages question cause fact such, to was not for summary determine. As it ripe judg- ment. case-in-chief, of

As part defendant’s counsel for at- defendant tempted to impeach plaintiff by in evidence introducing deposi- tion of taken defendant was plaintiff by prior trial. Objection made of upon grounds repetition, inadmissibility deposi- tion and evidence. The court improper impeachment adjourned chambers hear the evidence and and after offer argument, use of denied the proof, deposition proposed.

The District Court was in so correct under the circum- ruling stances in this case. Plaintiff had been cross-examined extensively defendant case-in-chief. had to her during plaintiff’s She gone home because of her condition and was not at the physical present offered, time the nor at the deposition time of the offer of proof (though defendant asked that she be returned to court for the pur- pose using deposition). what the allow

The issue rules question interpreting presents is to be used for It impeachment purposes. regarding depositions 32(b), M.R.Civ.P., noted that Rule provides: at the trial or receiving . . be made objection may hearing evidence thereof for reason any deposition part the witness were then would the exclusion the evidence if require present testifying.” Rules of

The matter is Montana governed provisions Evidence, That rule Rule 613. provides:

“(a) examin- Witness Prior Statement. In Concerning Examining him, whether a witness statement made by ing concerning prior not, statement need not be shown or its contents dis- written or time, at that but on the same shall be shown request closed to him counsel. or disclosed opposing “(b) Prior Statement Extrinsic Evidence Inconsistent statement aby Witness. Extrinsic evidence of inconsistent prior not admissible unless the witness is afforded oppor- witness is af- is to or the same the deny opposite party tunity explain thereon, to or the interests forded an him interrogate opportunity does not of otherwise This apply justice require. provision 801(d)(2).” of a as defined in Rule admissions party-opponent new, and would be well- This rule is fairly practitioners on stand and If the witness is the advised its study provisions. ask the about state a cross-examiner witness may prior testifying, witness, the the witness showing made the without first by ments in the statement con written or writing prior deposition from the former practice, tained. This is a departure permitted where, was that the contain writing it required impeachment, first shown to the witness. inconsistent statement be ing the-prior case, this cross-examiner by method chosen (b) 613. The of Rule however, subdivision violated the provisions to offer proposed stand. The cross-examiner was not on the witness witness, of the taken evidence, a deposition of the in the absence Thus deposi of impeachment. for the purpose witness pretrial statement. inconsistent of a prior evidence itself extrinsic tion to ex- had an opportunity was not admissible unless the witness It same, was afforded an op- or and the opposite party plain deny This foundational her on the deposition. interrogate portunity cross-examiner, the Dis- not been met having requirement into evidence the admission trict was correct in denying Court Mont.R.Evid., 613(b), or of it under Rule the deposition any part M.R.Civ.P., 32(b), foregoing. of Rule the provisions course, is, new rules of under the necessary not It state inconsistent evidence prior evidence that impeachment witness. of the be offered the cross-examination during ments (see 613(b) the trial during it can be done time any Rule Under section Federal Rules Note under Committee’s Advisory case, Evidence). demand a return a party may Thus in proper of impeach witness not excused for purposes the stand that demand was inconsistent statements. Here ment through prior on the grounds repetition the District Court denied properly us, discretion on point governs Its testimony. proposed evidence would have been repetitious. and we agree proposed itself, evidence, however, event, as extrinsic In any deposition 613(b), Mont.R.Evid. the conditions of Rule admissible under only Therefore, in this respecting proferred no occurred trial error evidence. impeachment on whether as an issue cross-appeal

Plaintiff raises $422,500 $650,000 be should from reduction damages jury’s at the trial made no objection sustained. It appears for the first issues raised we will consider issue. Generally, Mont. Power Co. v. Montana time on Hash appeal. 524 P.2d to this Court were be considered question Even if scheme, question negligence under comparative function of fact for the decide. Our jury is a question substantial credible evidence there is to determine whether the evidence we must review verdict. To this end the jury support in the District favorable to the prevailing party most light Court. Noll v. City Bozeman 172 Mont. 564 P.2d The was jury entitled under the facts to find as it presented did. We find sufficient credible evidence to the verdict of the support on all questions.

The issues raised both remaining parties ele- present alleged error, true, ments which even if would not be reversible error. Discussion of those issues is therefore unnecessary. conclusion,

In the case under consideration was deemed sub- mitted at the close of oral and no arguments, permission plead further being granted, briefs of the supplemental were parties neither nor considered in accepted this cause. judgment District Court is affirmed. and SHEA HASWELL

MR. CHIEF JUSTICES JUSTICE SHEEHY, concur. and dissenting HARRISON concurring part

MR. JUSTICE part: issue of the seat belt all issues with the exception

I concur with to the return the case dissent. I would with which I respectfully on the instructions for failure to give requested court for retrial belts. use seat indicating to this Court was a case presented

If ever there belts, fact that very this is the case. The seat necessity using husband, had time of from the very purchase, and her respondent of a friend who the advice the car and sought difficulties with mechanic, the car’s condition knew indicates that respondent in the that she took drive worn seat belts during should-have took the car and her husband the car she car. Before purchasing a tendency pull noted it had they for a test drive out back, same not have the she did took the car left. When they the dealer. it from before purchasing repaired Missoula, the car drove thereafter respondent Immediately after working He indicated to a friend’s garage. she took it where

513 back; needed lots car that it should take the the car that she on advice, she that was “not safe on the road.” Despite work that the car and noticed Falls back from Missoula Great drove “dieseled”, vibration, the and that that it due to extreme lost power had been after the ignition to run some time motor continued tested the car home her husband off. When she got turned addition, the she day In with the difficulty steering. noted some Buker, the ad- she did so against to seeDr. drove the car Chester should not be the road husband who felt that the car vice of her the other car. family and that she should take circumstances, and the accident where considering Under these car, there is no off and was thrown out of she drove the road to the seriousness that failure to “belt contributed up” her question of her injuries. belts, is no that the Datsun had seat and respond-

There dispute ent’s was that it was her custom or habit to wear seat testimony belt when The condition of the car itself warranted driving. very the conclusion that would have been minimal respondent’s injuries had she worn the seat belt thus remained inside car. Court, as a no holds matter law under cir- obviously, to wear a seat belt be cumstances could the defense the failure that is error. considered. In my opinion, view, view is a I find it is bet- my minority Recognizing and should be stated. The view comes ini- my ter view support 154, (1966), 467, from Sams v. Sams 247 S.C. 148 S.E.2d tially held,: was The court there which the matter considered. stated, before us is whether question pleading

“Simply hand, or, stricken, defend- should the been on the other should have can, that the failure of if he ant be allowed prove, case, belt, of this facts and circumstances a seat under the use care as a to exercise such due person amounted to a failure exercised under the would have reason and prudence ordinary circumstances, a contribut- such failure constituted and that same think that the plead- We injuries. cause of plaintiff’s ing proximate ultimate questions stricken and that the should not have been ing defense should be decided in the of all of alleged raised by light trial, facts and adduced than circumstances rather be- upon decided on the S.E.2d ing simply pleadings.” The Sams case followed the Wisconsin case very shortly by of Bentzler v. Braun 149 N.W.2d Wis.2d (1) which the court made the the failure use following rulings: seat belts is not se under statutes like Montana’s sec- per 61-9-409, MCA, but, tion “. . . we nevertheless conclude there is a care, based on duty, the common law standard of to use ordinary mandate”; (2) available seat belts independent any statutory aof car is with of the additional occupant safe- charged knowledge belt; (3) factor use of a and test is: seat did ty produced by the failure to use the seat belts contribute to the injury? that,

“We therefore conclude in those cases where seat belts are available and there is evidence before the causal jury indicating between the sustained the failure use relationship injuries belts, seat it is instruct proper necessary jury A in such case could conclude that an of an regard. occupant automobile is seat belts . . .” use the negligent failing N.W.2d

Here the evidence shows that from her own respondent, experi- ence, warned, had trouble with the car and had been at least husband, mechanic and I think also Marquart her that the vehi- cle was unsafe. Inasmuch as we are at the threshold of the opinion Montana, stage comparative negligence under the circum- here, stances I think that because the alleged negligence ap- had been pellant discovered before the accident a ex- jury question first, ists on the use of seat belts. I believe that where a has state rule, comparative the matter of the use seat belts to second, mitigate if injury always proper question, occurred, failure to use a seat belt there is a jury question as to avoidable consequences. See Son v. Carnation King Wong 509 S.W.2d 386-87. Company (Tex.Civ.App.1974),

Case Details

Case Name: Kopischke v. First Continental Corp.

Court Name: Montana Supreme Court

Date Published: Mar 12, 1980

Citation: 610 P.2d 668

Docket Number: 14810

Court Abbreviation: Mont.