*1 STENBERG, Appellant, v. BEATRICE PHILIP Plaintiff COMPANY, corporation, FOODS and Re- Defendant spondent. No. 13413. 19, 1977. Submitted Jan. 15, 1978.
Decided March
Garlington, Gary Missoula, for defendant and respondent. dace C. Fetscher (argued), delivered the of the Court. MR. SHEA opinion JUSTICE Court, entered in the District Plaintiff appeals judgment Co. in a prod- defendant Beatrict Foods favoring Flathead County, left arm was amputat- ucts case. Plaintiff Philip Stenberg’s ed below the elbow when his arm into the intake end of slipped (a mechanical, elevator) grain auger screw-type manufac- grain tured the defendant Beatrice Foods Co. action was tried on (1) two theories: that defendant was in not negligent designing (2) shield for the intake end of the grain that defendant auger, was liable under the doctrine of strict in tort for its failure a shield on the intake place end of the grain auger.
At the close of case the trial court took plaintiff’s the case away from the on the design on the negligence theory ground plain- tiff was guilty as a matter contributory negligence of law. There- after, the returned a verdict for defendant on the strict liability issue. Plaintiff from the trial court’s appeals from the ruling judgment in favor of defendant. review,
Plaintiff presents issues for many but because we reverse a new grant trial we discuss those issues that are deter- minative of our a new trial and those ordering which bemay help- ful on retrial. We will discuss the issues: following
(1) Whether the trial court erred in granting nonsuit on the count of negligence plaintiff’s on the basis that complaint plaintiff was as a contributorily negligent matter of law. In this regard, plaintiff also it was alleges for the improper District Court to in- struct the that he had jury taken the case from it because he away had found to be plaintiff as a contributorily negligent matter of law.
(2) Whether the must be jury instructed in the literal terminol- 2d, 402A, of the Restatement of ogy Torts for strict recovery § is allowed where the is in a “defective condi- tion” must be defined for the whether the two definitions of jury, inconsistent, “unreasonably dangerous” given were jury and whether the Restatement definition of “unreasonably danger- ous” should properly where the condition of complained is one that is and obvious as open to one that is hidden or opposed latent.
(3) Whether the was instructed on properly assumption risk and whether such an instruction was under the facts. justified
126 driver for Grosswiler as a truck grain
Plaintiff worked Stenberg 31, 1972, the until August day Inc. from the fall of 1971 Dairy, fol- he observed the procedures In the course of his work injury. and he had auger trucks into the grain lowed in unloading grain however, did not unload he done it himself a few times. Normally, truck, he followed his truck. When he did unload grain own instructed had never he had observed. His employer procedures the grain. him in the method proper unloading into a bin. to elevate the grain Grosswiler used the Dairy auger was in homemade The unshielded intake end of the auger, placed box. The box was the trucks into the box and grain dumped a half high. and a foot and square was four feet approximately also knew that his Plaintiff was He dangerous. aware auger the intake end. a newer with a shield over owned employer auger 31, 1972, his truck at the On August unloading truck, He was out of the had his left hand on grain auger. placed truck, a 2x4 removing and was tailgate process In board from the with his hand. order to tailgate right grasp handle to reach forward on had tailgate plaintiff approximate- two feet and leaned over the box in so. While doing removing ly shut, board the he lost his balance and slammed tailgate suddenly fell forward His left arm was severed into the moving grain auger. was not below elbow. The intake end of the auger equipped shield, with a shield. with nor was it to be designed equipped should have been allowed to first contends that Stenberg whether or not he was contributorily negligent. determine test, course, contributory negligence of plaintiff’s Even where the he acted as an man. ordinarily prudent is whether if reasonable one for the facts are not disputed, the evidence. Dahlin draw different conclusions from minds might 801; 430, (1960), Stahl v. 137 Mont. 352 P.2d v. Rice Truck Lines (1965), 763. In P.2d Mont. Farmers Union Company *4 verdict, relied a directed the court on defendant’s motion for ruling we that rea conclude on the of the testimony plaintiff entirely was of contribu differ as to whether he guilty sonable minds could negligence. tory a how truck instructed as to was never testified he
.Plaintiff unloaded, did unload his the occasions he and on few should others fol he observed truck followed the same procedures own he as to standard in the other any low. There was no evidence record court con the the trial jury of use. In the case from taking away on have hung was so because should plaintiff cluded that he doing lost his bal slipped to the and thus would not have tailgate, ance. The trial court stated: “* * * he was from the Plaintiff’s standpoint, ^is clearly there and there is no ques- knew the was danger and he negligent if like next to that something appreciates, tion everybody standing it, trouble. he didn't hang are into are in And get you you going * * *” He on. was negligent. (Emphasis had plaintiff duty While the trial court concluded that so, on”, cannot as a and was we doing say not “hang negligent that the minds of would make that jurors matter of law reasonable one for jury. same determination. Clearly, aOn related issue when the court took the plaintiff complains at request case from the defendant’s court away jury it, told the he had taken the issue of design negligence because found to be of contributory negli- he had plaintiff guilty as a Plaintiff his complains matter law. gence prejudiced case on issue of strict liability. the remaining this,
In such as the trial courts must be careful to not situations Here, since the court ruled wrong impression give jury. a matter contributory negligence, of law guilty well and so informed the could conclude court jury, could affect did not much of the entire case. This plaintiff’s think trial, as the could impression, remainder get.the subtle, however that the court leaned in unjustified, however case is a defendant’s favor. This is true where the close particularly one or on one issue well ruling give jury feeling where may as to how the court felt about conduct. distinc- plaintiff’s of risk have tions between contributory negligence assumption let and the profession, never been that clear to courts legal alone jury. lay
128
While a need not be in the jury dark that the trial court kept it, nevertheless, a has taken cause of action away from the trial Here, must be careful as what he judge extremely to tells the jury. the have a could told the that as result of a he judge jury had ruling law, made on the issue it was con only remaining cerned with that of the claim plaintiff’s of strict He liability. also could have informed the it was not to be concerned See, McBride, the court made this for The why ruling. example, Art (1969), 4.12, Sec. 141. Instructing Jury After the page returned with its verdict the court could then have its explained to it. ruling
The two issues relate to the claim that remaining plaintiff’s not instructed to its questions on properly relating liability claim. Montana has rule strict products adopted in liability set out the Restatement of Torts. v. Brandenberger U.S.A., Sales, (1973), Inc. 162 513 P.2d Toyota Motor Mont. 268. Most of claimed an errors relate directly interpretation 2d, of the rule of set out strict in Restatement Torts liability § 402A, which provides:
“(1) One sells who in condition unrea- any product defective or or is sub- sonably user consumer to his dangerous property for ultimate ject harm caused physical thereby consumer, user or or to his if: property, “(a) the seller is in the business of such engaged selling prod- uct, and
“(b) it is without and does reach the user or consumer expected in sold. substantial the condition in which it is change “(2) (1) The stated in applies although rule Subsection “(a) the seller has exercised all care in the preparation possible and sale of his product,
“(b) from or the user consumer has not bought with the seller.” (Emphasis entered into contractual relation any the rule as set out We that this emphasize Court adopted Restatement, we did intend restraints but not do not and defining us in rule to hamstring developing comments to this are help- extent that the comments the rule of strict To the liability. them; law, we but we shall accept ful in our development we a more explanation will them where believe reject appropriate of the rule strict can be provided. terminology the key raises three issues concerning
for under the Restatement in strict liability, namely, recovery un- for be in must recovery condition “defective *6 reasonably dangerous.” (Emphasis (a) He the failed to define the term “defective contends court condition”.
(b) He in two of contends that definitions “unreason- adopting the definitions. dangerous” court inconsistent ably adopted (c) He dan- contends that one of the definitions of “unreasonably Restatement, taken from definition in the gerous” effectively situation where the condition com- precluded recovery any of and which is is obvious rather than one hidden plained open latent.
These issues are of Re- terminology interconnected by statement itself.
The issue as to “defective condition” arose when offered plaintiff which the trial two instructions “defective condition” defining no rejected. court The defense offered instructions defining term, its result was that court did not of own. The any give as to the of “defective con was without guidance meaning here that “de dition”. Plaintiff contended at trial asserts defined, and the words “unrea fective condition” should be that should eliminated from the sonably proof required be dangerous” (1972), 8 of a He relies on v. B. E. Corp. Cronin Olson plaintiff. J. 433, 1153, 501 P.2d which held that Cal.3d Cal.Rptr. need a strict case that plaintiff only prove liability product that requirement was “defective”. eliminated the Cronin expressly was that the “unreasonably dangerous”. prove The basis “unreasonably danger of the decision was that term is and the of strict liability ous” rings negligence concepts policy However, to avoid this. we reject plaintiff’s position that Montana also should eliminate requirement of danger- “unreasonably ous”. .
The issue of defining dangerous” arose in the “unreasonably context of No. 10 Instruction defining “unreasonably dangerous”. It gave two definitions of It “unreasonably dangerous”. (un was agreed the condition by. parties complained shielded intake end of In grain auger) open obvious. struction 10No. reads:
“The term as used ‘unreasonably dangerous’, elsewhere in these instructions to the doctrine strict has a pertaining par- ticular to this doctrine. For meaning applicable legal doctrine, under this imposed must find that the you which is meant unreasonably dangerous, by dangerous to an extent would be beyond which con- contemplated ordinary it, sumer who with the purchased knowledge common ordinary as to the characteristics. community product’s “Another test that the ‘unreasonably dangerous’ assuming defendant had of the condition of the would knowledge product, the defendant then have been on acting unreasonably placing the market?”
The definition contained in the first No. Instruction paragraph *7 10 is inconsistent with the contained obviously definition second first The views paragraph. “unreasonably dangerous” what consumer see at the The could time or use. purchase second views from what the manufac- “unreasonably dangerous” knew By turer or should have known at the time of manufacture. these definitions a could conclude the first test that jury unshielded was not but under auger dangerous” “unreasonably second test that What then it was “unreasonably dangerous”. to have confused jury do? This instruction could it as what is meant the term and “unreasonably dangerous”, by is sufficient for reversal. This also reason improper. “unreasonably
The third issue the definition of concerning is connected with the Restatement definition of dangerous” definition is to Plaintiff contends the effect of this term. practical that an and open with a built-in reason to conclude provide He is not dangerous”. argues obvious condition “unreasonably to a condition which may confines possible recovery effectively be of the instructions defining “unreasonably latent or hidden. One i., 2 Restatement of was taken from Comment dangerous” supra, 2d; 402A, Torts which states: §
“* ** an extent article sold must be dangerous beyond The would be consumer who by ordinary that which contemplated it, with the common to the com- purchases ordinary knowledge * * *” as to its characteristics. munity We believe this instruction be adequate in situations where may latent, the condition of is but it should complained not where the condition of is and obvious. complained open 402A, 2d,
Most of
2 Restatement of Torts
discusses strict lia-
§
food, medicine,
in situations
bility
other situa-
involving
drugs
tions where the
is
an
danger not
obvious one. Comment i.
open
to 402A does not cite
where that
be one
any example
danger may
§
However,
that is
and obvious.
this Court
held
open
there
recently
no
reason to refuse
situation where the
legitimate
recovery
condition is
obvious. Brown v. North American
open
Manu-
Co., (1978),
176 Mont.
Although later armed with an instruction which stated in effect that an open obvious is not danger if it “unreasonably dangerous” can be con user, was able to make a templated by more convincing argu ment to the Under this of instruction it jury. type would be virtual for an and obvious condition ly impossible open unreason For all ably dangerous. practical purposes recovery would be limited to latent As conditions. stated in v. Brown North American Co., there are Manufacturing no reasons to refuse supra, policy if the condition is one that is recovery and obvious. open instructions, In the last issue attacks the concerning jury plaintiff risk instruction in this case. Plaintiff offered assumption no instructions on this doctrine because he contended doctrine Furthermore, did not to the facts case. of this even when apply instruction, did defendant offer such an which was the standard 13.00, Montana Instruction No. made no ob- Jury specific Moreover, to it. jection Brown we discussed in detail the recently doctrine of risk to strict assumption applies liability, the decision there is sufficient for the retrial of this cause. guide was insufficient for the doc- Plaintiff also contends the evidence risk to In this we note the regard trine of assumption apply. in the instant case was not instructed on either of plain- properly tiff’s theories of and the entire cause must be tried again, liability, *9 circumstances, we do not Under these instructions. proper evi- its defendant should be from precluded presenting think the can then risk. The trial court on the defense of of assumption dence evidence of there is sufficient a determination of whether make to it to jury. of risk present assumption cause Court. This is We of the District judgment reverse with this with directions to in accord remanded for retrial proceed opinion. and DALY and
MR. CHIEF HASWELL JUSTICES JUSTICE HARRISON concur. SHEA, Comment to
MR. Specially Concurring JUSTICE Opinion: if the term “defective condition”
While we concluded herein that defined, I believe that it is to the it must somehow given ter- the issues to the in the precise not necessary present the Restatement —“defective condition unreasonably minology dangerous.” has, certain, I caused problems
The above
am
wording
many
been the source of much confu-
has
undoubtedly
interpretation
and nondefin-
Because it is
jurors.
confusing
sion
the minds
able,
unless it is absolutely
the term should not be
I believe that it is not so
essential to the
of strict
meaning
liability.
essential,
can be
“defective condition”
the term
accordingly,
the basic
any away
eliminated without
effectively
taking
or
thrust is to protect
public,
thrust of strict
Thatbasic
liability.
for some
whose products
them redress
manufacturers
against
give
dangerous.
reason are rendered unreasonably
and the
of strict liability
law the adoption
in the
change
by
was discussed
or “defect”
define “defective condition”
failure to
(1973):
Journal,
33
Law
Keeton in St. Mary’s
Professor
by
regards
“The
in the substantive law
change
chain has
marketing
and other sellers in the
makers of products
to im-
required
fault
defect. The
is no longer
been from
maker,
the product. Simply
but he is required
impugn
pugn
stated,
marketed,
must be
product
defective as
and it
bemay
defective as marketed for one or the other of at least three reasons:
(1) It
have
may
been fabricated or constructed
in the
defectively
sense that the
specific
not at the time
product
of sale
maker or other seller in the condition that the maker intended it to
be;
(2)
(3)
or
have been
may
improperly designed;
purchasers
and those who are
to use the
likely
m have
been misin-
ay
informed,
formed or
either
inadequately
about the risks and the
involved
dangers
in the use of the
have been
product may
misin-
informed,
formed or inadequately
either about the risks and the
involved in
dangers
the use of the
or how to avoid
minimize the harmful consequences from such risks. In so stating,
it must be obvious that while
are
categories
rec-
different
of defects
there has been
orgnized,
no resolution
the ultimate
as to
*10
added.)
the meaning
(Emphasis
of defect.”
The first question for determination is whether the
is re-
quired
that
prove
product
“defective” and also that it
If both are
“unreasonably dangerous”.
then
required
clearly
must
understand the
of “defect” or
meaning
“defective”.
Otherwise
would
be left without
con-
meaningful guidelines
cerning
or
key language
core test of strict
is ax-
It
liability.
iomatic that where material elements of the law turn on key words
terms,
terms,
elements,
those words or
as well as the
must be
defined
(1907),
for the jury. First Nat. Bank
v.
Portland Carroll
302, 314,
35 Mont.
135 of the Restatement leads to conclude that Analysis language me the essential thrust of the on strict liability Restatement’s position can be retained without courts and to wrestle juries having with the of “defective condition”. “defective meaning Concerning condition Keeton 5 St. unreasonably dangerous” Professor states in 30, (1973): Law 32 Mary’s Journal “ * * * It is unfortunate that Section 402A of the Restate- perhaps Torts, (Second) ment that as a for provides basis recovery, must be found that was both ‘defective’ and when as a matter of fact term ‘unreasonably dangerous”, ‘unreasonably was meant as a only dangerous’ definition defect. was not intended as forth phrase setting requirements two but one, the only notion that the was not being defective for losses due to purpose shifting harmful events physically * * *” unless it was ‘unreasonably dangerous’. (Emphasis this By there is one explanation only rather than requirement, two, and I believe it to be the most reasonable For approach. detailed discussion the term concluding “unreasonably Restatement, is the dangerous” core strict see Rossbach, also: & Tobias A Framework for of Products Analysis Montana, in Liability Montana Law Review 246-255 (1977). 2d,
Two comments to Restatement 402A also lead tome § believe the focal is whether or not the point condition complained of is dangerous”. Comment “unreasonably relevant g. provides part:
“The rule strict liability] stated [of Section applies *11 is, hands, where the at product the time it leaves the seller’s in consumer, not condition contemplated the ultimate will which added.) be unreasonably to him.” dangerous (Emphasis in part: Comment j. provides pertinent “In order to the being unreasonably prevent product the seller to directions or warn- dangerous, may required give container, added.) as to its ing, on the use.” (Emphasis these around Each of comments centers the ultimate finding the condition unreasonably must render complained product Otherwise, there is dangerous. no liability.
Here, con- District Court the term “defective injected directly as dition” into the ultimate resolution of the case it by stating part of the issues be determined. No. 27 stated: to Instruction this are these:
“The issues be determined in action by you “First, unreasonably in a was the condition auger defective ‘No’, is will not con- you If answer dangerous? your question further, but a verdict in favor of the sider the matter will return bailiff, Defendant, If will return into Court. you who notify ‘Yes’, have issue to answer is will a second question you to this your determine, unreasonably was the condition namely: defective ”** * cause of to the Plaintiff? dangerous proximate any injury (Emphasis was not to state issues in this fashion. Without
It necessary from the focal of strict taking meaning any point Restatement, could have been instructed on the issues follows:
First, it did the intake end of the render grain auger unshielded If to this is question “yes”, answer unreasonably dangerous? your determine, the un- will have a second issue to you namely: cause of any shielded intake end of grain auger proximate to the plaintiff? injury
The case was terms of the condition complex complained not If which rendered the grain dangerous. auger unreasonably allegation unreasonably dangerous there more than one condition, above instruc- it would be a matter to convert the simple each of the tion one covering allegations. Keeton, the issue stated Professor quoting supra,
As earlier rather than under strict is one of impugning Accordingly, the conduct of manufacturer. impugning entered the is condition of the as it focal on the point is: Was unreasonably The vital stream of commerce. does the jury It in this important regard dangerous? vitally and un- with the nondefinable not down in get bogged wrestling condition”. of “defective necessary terminology