Brown v. North American Manufacturing Co.

No. 13706

IN THE SUPREME COURT OF THE STATE OF MONTANA

1977

DEANE BROWN,

Plaintiff and Respondent,

NORTH AMERICAN YANUFACTURING COMPANY,

Defendant and Appellant.

Appeal from: District Court of the Eleventh Judicial

District,

Honorable Robert Sykes, Judge presiding.

Counsel of Record:

For Appellant:

Murphy, Robinson, Heckathorn and Phillips, Kalispell,

Montana

I. James Heckathorn argued, Kalispell, Montana

For Respondent:

Morrison, Hedman and Trieweiler, Whitefish,

Montana

Frank B. Morrison, Jr. argued, Whitefish, Montana

McGarvey, Lance and Heberling, Kalispell, Montana

Submitted: September 28, 1977

Decided: FEB 9 - 1978-

Filed:

FEB 9 - 1978

M r . J u s t i c e John Conway Harrison d e l i v e r e d t h e Opinion of t h e

Court :

P l a i n t i f f Deane Brown l o s t h i s l e f t l e g i n t h e auger of

a self-unloading feed wagon known a s a "Grain-0-Vator", manu-

f a c t u r e d by defendant North American Manufacturing Co., an

Iowa corporation. I n h i s o r i g i n a l complaint, p l a i n t i f f

s p e c i f i e d negligence and s t r i c t l i a b i l i t y i n t o r t a s t h e o r i e s

supporting a damage recovery.

The t r i a l of t h e cause u l t i m a t e l y proceeded on t h e s t r i c t

l i a b i l i t y theory alone. Discovery c o n s i s t e d of d e p o s i t i o n s of

t h e p a r t i e s and c e r t a i n a n t i c i p a t e d witnesses f o r p l a i n t i f f .

The c a s e was t r i e d before a jury i n t h e D i s t r i c t Court, Flathead

County, beginning October 19, 1976. The j u r y returned a v e r d i c t

f o r p l a i n t i f f i n t h e amount of $318,167 and judgment was entered

thereon. Defendant then f i l e d motions f o r judgment notwith-

standing t h e v e r d i c t o r a l t e r n a t i v e l y , f o r a new t r i a l . The

D i s t r i c t Court denied both motions. Defendant appeals from t h e

judgment and d e n i a l of i t s p o s t - t r i a l motions.

For reasons s e t f o r t h i n t h i s opinion, we f i n d no e r r o r s

were committed r e q u i r i n g e i t h e r r e v e r s a l of t h e judgment, a new

t r i a l o r imposition of judgment notwithstanding t h e v e r d i c t .

The f a c t s a r e :

I n November 1970, p l a i n t i f f Deane Brown purchased a piece

of farm equipment known a s a Grain-0-Vator. The feed machine was

approximately one year o l d a t t h e time of purchase. The machine

was manufactured by defendant North American Manufacturing Co.

During t h e next t h r e e y e a r s , t h e equipment was operated and

serviced by p l a i n t i f f ' s son, Calvin Brown. P l a i n t i f f used t h e

machine a few times p r i o r t o t h e accident involved here.

The c e n t r a l function of t h e Grain-0-Vator i s feed unloading

and d i s t r i b u t i o n . The feed contained i n a l a r g e b i n drops

through an opening i n t o a t r a n s f e r auger, and i s moved t o an

a r e a where i t i s picked up and expelled through a spout. At-

tached t o t h e b i n , j u s t over t h e t r a n s f e r auger, i s a curved

metal door known a s an "excess door". The door was hinged

a t t h e bottom on t h e p a r t i c u l a r model owned by p l a i n t i f f , and

was h e l d closed a t t h e top by two s p r i n g s . The purpose of t h e

excess door was t o provide a " r e l i e f valve". When excess feed

pressure i s exerted a g a i n s t t h e t r a n s f e r auger, the door i s

forced open, and t h e excess feed pressure r e l i e v e d . The feeder

i s operated by a power-take-off system, when a t t a c h e d t o a

tractor.

J u s t p r i o r t o t h e accident p l a i n t i f f , an experienced

farmer/rancher, 51 years of age, was o p e r a t i n g t h e feeder. The

feed had ceased coming out of t h e spout. P l a i n t i f f descended

from t h e t r a c t o r and l e f t t h e power-take-off system-running,

t o observe i f any mechanical problem e x i s t e d . H i s i n t e n t was

t o f i r s t view t h e i n t e r i o r of t h e b i n . There w a s no ladder o r

o t h e r means provided on t h e machine f o r access t o a view of t h e

bin. The h e i g h t of t h e b i n had been increased by extension

boards furnished by defendant.

P l a i n t i f f mounted t h e machine by f i r s t placing h i s r i g h t

f o o t on an i r o n reinforcement b a r t o t h e s i d e of t h e t r a n s f e r

auger; then placed h i s l e f t f o o t on t h e excess door covering t h e

t r a n s f e r auger. For h i s t h i r d s t e p , he placed h i s r i g h t f o o t

on a "gusset" j u s t above and t o t h e r i g h t of t h e excess door, with

h i s l e f t f o o t i n t h e a i r above t h e excess door. P l a i n t i f f ob-

served feed i n t h e b i n , stepped down with h i s l e f t f o o t , without

looking down, intending t o again place it on the excess door.

The excess door had come open and, a s a r e s u l t , p l a i n t i f f stepped

d i r e c t l y i n t o the t r a n s f e r auger. His l e f t l e g was pulled i n

and amputated by t h e mechanism. P l a i n t i f f was alone and remained

caught i n t h e machine f o r some time before he was taken out and

given medical a i d .

A t t r i a l , p l a i n t i f f t e s t i f i e d t h a t during h i s p r i o r limited

experience with the machine, the excess door had not come open.

Whtle recognizing the area surrounding the excess door would

be dangerous i f the excess door were open, he s t a t e d he had no

expectation t h e door would simply "come open'' and f e l t t h a t the

auger a r e a , a s covered, was not dangerous. Plaintiff further

t e s t i f i e d t h a t no warning concerning the excess door appeared

anywhere on t h e Grain-0-Vator.

Carlton Zink was the p l a i n t i f f ' s expert witness. H has

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a Bachelor of Science degree i n a g r i c u l t u r a l engineering from

the University of Nebraska. Later he served f o r 12 years i n

charge of the t r a c t o r t e s t i n g labratory i n Lincoln, Nebraska.

From 1950 t o 1968, he worked f o r John Deere Company and a f t e r

1952 he "took on the r e s p o n s i b i l i t y f o r product s a f e t y f o r

John Deere a s a corporate representative i n product safety."

H worked with the National Safety Council on "farm safety'' and

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was a president of the Farm Conference. He was a member of t h e

National I n s t i t u t e f o r Farm Safety, the American Society of

Agricultural Engineers, the Society of Automotive Engineers and

the National Safety Council. From 1952 t o 1968, he was involved

with the development of s a f e t y design f o r John Deere Company.

Zink t e s t i f i e d the American Society of Agricultural Engineers

recognized the need t o e f f e c t u a l l y s h i e l d augers a s e a r l y a s

1964 o r even 5 years e a r l i e r . F u r t h e r , t h e Grain-0-Vator i n

question * i l e d t o conform t o accepted s a f e t y design r e q u i r e -

ments i n t h r e e particulars,r- t h e equipment unreasonably

dangerous t o t h e u s e r : 1) The l a c k of e f f e c t i v e s h i e l d i n g of

t h e t r a n s f e r auger because of t h e excess door being hinged a t

t h e bottom, and much more s u s c e p t i b l e t o e n t r y when open.

2) N ladder o r o t h e r means was provided f o r gaining v i s u a l

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access t o t h e b i n . 3) N danger warnings appeared on t h e

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equipment o r i n t h e i n s t r u c t i o n manuel.

A e x p e r t c a l l e d by defendant was of t h e opinion t h e

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Grain-0-Vator was n o t d e f e c t i v e l y designed.

The owner and p r i n c i p a l o f f i c e r of defendant, Elmer K.

Hanson, t e s t i f i e d he had designed t h e excess door. He i n -

d i c a t e d t h a t p r i o r t o 1958, t h e door had been hinged a t t h e

top, b u t t h e design was modified s o t h e door was hinged a t

t h e bottom i n l a t e r models f o r added u t i l i t y . He f u r t h e r

s t a t e d t h a t a t t h e present time, t h e Grain-0-Vator i s marketed

with t h e excess door b o l t e d on firmly and i t cannot come open

without manual removal. He admitted t h e Grain-0-Vator d i s -

played no warnings, and no ladder o r o t h e r access t o a view

of t h e i n t e r i o r of t h e b i n was provided. However, he con-

s i s t e n t l y maintained t h e machine was nondefective, and s a t i s -

f i e d i n d u s t r y s a f e t y standards.

Various e x h i b i t s were admitted throughout t h e course of

t h e t r i a l c o n s i s t i n g primarily of p i c t u r e s and diagrams of

t h e Grain-0-Vator, and a movie introduced by p l a i n t i f f demon-

s t r a t i n g t h e s t e p s taken by p l a i n t i f f a s he mounted and

attempted t o dismount t h e Grain-0-Vator, a s portrayed by h i s

son Calvin. The j u r y was a l s o afforded an opportunity t o view

the p a r t i c u l a r Grain-0-Vator involved i n the accident. At

the close of the testimony and ensuing arguments, a jury ver-

d i c t was returned i n p l a i n t i f f ' s favor.

W summarize the issues raised on t h i s appeal:

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1) Was there s u f f i c i e n t evidence t o support a finding

the product was i n a "defective condition unreasonably danger-

ous t o the user o r consumer?"

2) Was there s u f f i c i e n t evidence t o support a finding

t h a t an unreasonable danger o r hazard e x i s t e d which required

a warning?

3) Was there s u f f i c i e n t evidence t o support a finding

t h a t the alleged defective condition was a proximate cause of

injury t o p l a i n t i f f ?

4) Did p l a i n t i f f , by h i s a c t i o n s , assume the r i s k a s a

matter of law?

5) Did the D i s t r i c t Court e r r i n giving i t s i n s t r u c t i o n

on the law of assumption of the r i s k ?

6) Did the D i s t r i c t Court e r r i n giving i t s i n s t r u c t i o n

concerning the elements of proof i n a s t r i c t l i a b i l i t y a c t i o n ?

7). Did the D i s t r i c t Court e r r i n admitting i n t o evidence

the movie prepared and offered by p l a i n t i f f ?

Issue 1. Defendant contends t h e evidence adduced a t t h e

t r i a l f a i l e d t o s a t i s f y the elements of a s t r i c t l i a b i l i t y a c t i o n

a s s e t f o r t h i n 2 Restatement of Torts 2d, 5402A. Rather, i t

i s maintained, the s o l e conclusion supported by the evidence i s

t h a t the danger was "open and obvious'' t o p l a i n t i f f and t h e r e f o r e

a complete bar t o recovery. I n support of the l a t t e r contention,

defendant r e l i e s on t h e holding of cases from c e r t a i n j u r i s d i c -

t i o n s t h a t a product i s not "defective" o r "unreasonably danger-

ous" i f the danger occasioned by i t s use i s open and obvious t o

the user. Tomicich v. Western-Knapp Engineering Company, (9th

C i r . 1970), 423 F .2d 410; Morrow v. Trailmobile Inc., (1970),

12 Ariz.App. 578, 473 P.2d 780; Zahora v. Harnischfeger Corp.,

(7th C i r . 1968), 404 F.2d 172; Halpern v. JAD Const. CoPp.,

This Court, i n Brandenburger v. Toyota Motor Sales, U.S.A.,

Inc., (1973), 162 Mont. 506, 513, 513 P.2d 268, adopted the

core d e f i n i t i o n of the doctrine of s t r i c t l i a b i l i t y , s e t f o r t h

i n 2 Restatement of Torts 2d, 5402A:

" ' (1) One who s e l l s any product i n a defective

condition unreasonably dangerous t o t h e user o r

consumer o r t o h i s property i s subject t o l i a b i l i t y

f o r physical harm thereby caused t o t h e ultimate

user o r consumer, o r t o h i s property, i f

" ' ( a ) the s e l l e r i s engaged i n the business of

s e l l i n g such a product, and

"' (b) i t i s expected t o and does reach the user

o r consumer without s u b s t a n t i a l change i n the condi-

t i o n i n which i t i s sold.

' (2) The r u l e s t a t e d i n Subsection (1) a p p l i e s

a1though

" ' (a) the s e l l e r has exercised a l l possible care

i n t h e preparation and s a l e of h i s product, and

"'(b) the user o r consumer has not bought t h e

product o r entered i n t o any contractual r e l a t i o n

with the s e l l e r . '" 162 Mont. 513.

I n order t o e s t a b l i s h a prima f a c i e case i n s t r i c t l i a b i l i t y ,

based upon t h e above d e f i n i t i o n , a p l a i n t i f f must prove t h e

following elements :

(1) The product was i n a defective condition, unresonably

dangerous t o the user o r consumer;

(2) The defect caused the accident and i n j u r i e s com-

plained o f ; and

(3) The defect i s traceable t o t h e defendant.

Following the well-established r u l e i n t h i s regard, t h i s

Court has s t a t e d t h a t a defect i n a products l i a b i l i t y case

may be shown by circumstantial a s well a s d i r e c t evidence.

Brandenburger v. Toyota Motor Sales U.S.A., I n c . , supra; Pierce

v. Ford Motor Co., (1951), 190 F.2d 910, cert-denied 342 U.S. 887,

72 S.Ct. 178, 96 L ed 666; Henningsen v. Bloomfield Motors I n c . ,

(1960), 32 N. J. 358,16% A.2d 69, 75 ALR2d 1. I n such a case,

t h e defect might well be established through proof of t h e c i r -

cumstances of the accident, a p r i o r h i s t o r y of occupational

d i f f i c u l t i e s , s i m i l a r occurrences under c e r t a i n circumstances,

and elimination of a l t e r n a t i v e causes, including p l a i n t i f f ' s own

conduct. The reasoning behind imposition upon a p l a i n t i f f of

t h e more f l e x i b l e standard of proof was recognized i n Branden-

burger :

"The e s s e n t i a l r a t i o n a l e f o r imposing the doctrine

of s t r i c t l i a b i l i t y i n t o r t i s t h a t such imposition

a f f o r d s the consuming public the maximum protection

from dangerous defects i n manufactured products by

requiring the manufacturer t o bear the burden of

i n j u r i e s and l o s s e s enhanced by such d e f e c t s i n i t s

products. I f t h i s be so, i t requires l i t t l e imagina-

t i o n t o see t h a t i f a s t r i c t r u l e of d i r e c t evidence

was required, the supposed b e n e f i t of t h e theory of

s t r i c t l i a b i l i t y would be l o s t t o the consuming

public." 162 Mont. 517.

Recognition of a more f l e x i b l e r u l e of evidence does not

thereby convert s t r i c t l i a b i l i t y i n t o absolute l i a b i l i t y .

Ordinarily, a p l a i n t i f f w i l l not s u s t a i n h i s burden of proof

by merely e s t a b l i s h i n g the f a c t of t h e occurrence of an accident.

Dunham v. Vaughan & Bushnell Mfg. Co., 42 I11.2d 339, 247 N.E.2d

401 (1969). Imposition upon a p l a i n t i f f of the burden of showing

a traceable d e f e c t , causation and damage o r injury assures an

appropriate l i m i t a t i o n t o a manufacturer's l i a b i l i t y .

Defendant here advances the "open and obvious dangert' o r

"patent-latent" r u l e a s a bar t o p l a i n t i f f ' s recovery under t h e

theory of s t r i c t l i a b f l i t y . W r e j e c t such a r u l e .

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a u t h o r i t i e s i n other j u r i s d i c t i o n s t h a t previously adopted

t h e r u l e have now abolished i t i n persuasive, well reasoned

opinions.

The "open and obvious danger" r u l e i s not contained i n

2 Restatement of T o r t s 2d, 5402A nor i n t h e comments thereto.

It derives from the Nw York case Campo v. Scofield, 301 N.Y.

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468, 95 N.E.2d 802 (1950), and t h e r e a f t e r found acceptance i n

various j u r i s d i c t i o n s . S t r i c t l i a b i l i t y cases relying on the

"open and obvious danger1' r u l e have t y p i c a l l y done so upon

the express a u t h o r i t y of Campo. See: Morrow v. Trailmobile,

Inc., supra.

However, the Nw York Court of Appeals has recently

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abandoned t h e "pa t e n t - l a tent" d i s t i n c t i o n . Micallef v. Miehle

Co., Div. of Miehle-Goss Dexter, Inc., 39 N.Y.2d 376, 348 N.E.

2d 571 (1976). Arizona has r e j e c t e d t h e a u t h o r i t y of Morrow,

r e l i e d on by defendant. Byrns v. Riddell, Inc., 113 Ariz. 264,

550 P.2d 1065 (1976). I n so doing, t h e Arizona Supreme Court

stated:

"* ** W do not subscribe t o t h i s ' p a t e n t - l a t e n t '

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d i s t i n c t i o n i n t h e context of a manufacturer's s t r i c t

l i a b i l i t y i n t o r t . I t s only function i s t o encourage

patent design defects." 550 P.2d 1068.

I n Dorsey v. Yoder Company, (E.D.Pa. 1971), 331 F.Supp.

753, the p l a i n t i f f suffered i n j u r i e s t o h i s hand when he placed

i t upon a piece of metal near the unshielded opening of a metal

s l i t t e r , and was a c c i d e n t a l l y propelled i n t o the machine. The

defendant argued, i n p a r t , t h a t p l a i n t i f f be barred from

recovery due t o the open and obvious character of the danger.

The Dorsey c o u r t , a f t e r discussing the s p l i t of a u t h o r i t y on

the i s s u e , r e j e c t e d t h e "open and obvious danger" r u l e , holding:

'I* * * Therefore, we hold t h a t even though the

danger of unguarded r o t a r y blades was obvious

t o p l a i n t i f f , t h i s does not ips0 f a c t o preclude

recovery." 331 F.Supp. 759.

W note t h e Ninth C i r c u i t case Tomicich v. Western-Knapp

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Engineering Co., supra, r e l i e d on by defendant, does not i n f a c t

deny recovery on the b a s i s of t h e "open and obvious danger"

rule. I n Tomicich, Judge Russell E. Smith, while r e f e r r i n g t o

various decisions supporting the "open and obvious danger" r u l e ,

including Campo, and noting t h a t t h i s Court has made no s p e c i f i c

r u l i n g on t h e question, suggests t h i s Court might well be i m -

pressed with t h e c r i t i c i s m voiced against t h e r u l e . Liability

was c l e a r l y denied on o t h e r grounds.

W r e j e c t any r u l e which would operate t o encourage m i s -

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design. The f a c t t h a t a danger i s patent does not prevent a

finding t h e product i s i n a defective condition, unreasonably

dangerous t o t h e p a r t i c u l a r p l a i n t i f f . Rather, the obvious

character of a defect o r danger i s but a f a c t o r t o be considered

i n determining whether the p l a i n t i f f i n f a c t assumed the r i s k .

The evidence i n t h e i n s t a n t case, however, tends t o

support a finding t h a t the danger was hidden, r a t h e r than open

and obvious, a s i t was concealed below t h e excess door. Plain-

t i f f t e s t i f i e d he seldom used t h e Grain-0-Vator and had never

personally serviced the equipment. PBH-icularly revealing i n

t h i s regard i s the following testimony of p l a i n t i f f , given upon

d i r e c t examination:

Q . Did you r e a l i z e t h a t door and t h e auger

t h e r e a s being a dangerous a r e a ? A. No.

"Q. You did not? A. No.

"Q. W y not?

h A. Because i t was dovered.

"Q. Did you know p r i o r t o t h i s accident, was t h e

l i d on t h i s thing bolted down o r whether i t flipped

up o r anything about i t ? A. No.

"Q. P r i o r t o t h e time of the accident, did you

know how the l i d fastened t o the machine? A . I knew

i t was hinged.

"Q. Did you know whether i t was bolted a t the top

o r latched a t the top o r anything about t h a t ?

A. No.

"Q. N what? A. I did not know whether i t was o r

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whether it wasn't."

Further, p l a i n t i f f ' s e x p e r t , Carlton Zink, t e s t i f i e d the

hazard o r danger was, i n h i s opinion, hidden. Defendant's

r e l i a n c e on the "open and obvious danger'' r u l e i s thus m i s -

placed.

Here, p l a i n t i f f t e s t i f i e d the f a c t the auger was shielded

prevented him from expecting the i n j u r i o u s p o t e n t i a l of the

auger. It i s unclear a s t o how the excess door came open.

However, t h e s a l i e n t f a c t remains the excess door did come

open, i n such a manner and under such conditions a s t o expose

p l a i n t i f f t o an unreasonable danger.

The jury was presented with ample evidence of design

d e f e c t s which rendered t h e Grain-0-Vator unreasonably dangerous.

Carlton Zink enumerated t h r e e s p e c i f i c design d e f e c t s , based

upon industry s a f e t y standards: (a) f a i l u r e t o hinge the excess

door a t the top, (b) f a i l u r e t o warn of t h e hazard, and (c)

f a i l u r e t o provide s t e p s o r other access f o r mounting the

equipment. When asked f o r h i s opinion a s t o whether the e f f e c t

of the d e f e c t s was t o render the machine unreasonably dangerous,

the expert responded i n the affirmative.

W hold p l a i n t i f f c l e a r l y met the burden of proof f o r a

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s t r i c t l i a b i l i t y a c t i o n , i n proving a defect rendering t h e product

unreasonably dangerous. p l a i n t i f f ' s evidence, while t o some

extent i n c o n f l i c t with c e r t a i n evidence offered by defendant,

was s u f f i c i e n t f o r submission t o the jury. W refuse t o d i s t u r b

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the j u r y ' s findings i n t h i s respect.

I s s u e 2. I n accordance with i t s p r i o r argument, defendant

a l s o a s s e r t s i t was not under a duty t o warn of any danger

associated with use of the Grain-0-Vator. I n support of t h i s

contention, defendant advances t h e position there i s no duty

t o warn of a danger which i s obvious o r of which the user has

knowledge.

A s pointed out heretofore, the evidence strongly supports

the conclusion the danger was i n f a c t hidden, and p l a i n t i f f

had no subjective knowledge o r awareness of the p a r t i c u l a r dan-

ger. P l a i n t i f f ' s expert i n f a c t l i s t e d the f a i l u r e t o warn a s

a defect i t s e l f . Given such evidence, i t was well within the

power of the jury t o conclude the danger was hidden and unknown

t o p l a i n t i f f , and a warning should have been given.

Defendant a l s o contends the product was n o t defective o r

unreasonably dangerous because i t was functioning p r e c i s e l y

a s intended a t the time of the accident. This contention i s

without merit.

It has been held t h a t ' a f a i l u r e t o warn of an i n j u r y

causing r i s k associated with use of a t e c h n i c a l l y pure and f i t

product can render such product unreasonably dangerous. Davis

v. Wyeth Laboratories, Inc., (9th C i r . 1968), 399 F.2d 121.

I n f u r t h e r expending the a p p l i c a t i o n of t h e Davis r u l e , t h e

Ninth C i r c u i t Court of Appeals i n Jacobson v. Colorado Fuel &

Iron Corporation, (9th C i r . 1969), 409 F.2d 1263, s t a t e d :

"* * * Davis d i s t i l l s the essence of t h e r u l e t o be

t h a t the manufacturer i s under a duty t o warn of

dangers i n 'non-defective' but p o t e n t i a l l y harmful

products. *** i f t h e product i s unreasonably

dangerous and a warning should be given, b u t i s not

given, then the product is automatically

'defective' * * *." 4 9 F.2d 1271.

0

Issues 3 and 4. Defendant next contends there was in-

sufficient evidence that the alleged defect'was the proximate

cause of plaintiff's injury. Rather, it is maintained the

evidence demonstrates plaintiff's own conduct was the proximate

cause of his injuries, such that plaintiff assumed the risk as

a matter of law. We disagree.

A showing of proximate cause is a necessary predicate to

plaintiff's recovery in strict liability. Strict liability is,

of course, not complete "liability without fault" in the sense

that it is absolutely immune to considerations of plaintiff's

conduct, That character of plaintiff's behavior which breaks

the chain of causation and operates-to bar recovery is described

in 2 Restatement of Torts 2d, §402A, Comment (n) :

*

"* * Contributory negligence of the plaintiff is

not a defense when such negligence consists merely

in a failure to discover the defect in the product,

or to guard against the possibility of its existence.

On the other hand the form of contributory negligence

which consists in voluntarily and unreasonably

proceeding to encounter a known danger, and commonly

passes under the name of assumption of risk, is a

defense under this Section as in other cases of strict

liability, If the user or consumer discovers the

defect and is aware of the danger, and nevertheless

proceeds unreasonably to make use of the product and

is injured by it, he is barred from recovery."

of

We find the above standard/conduct of the plaintiff as

related to the injury must be considered under the Montana

case law.on'theassumption of risk when applied to strict

liability cases. In the past Montana cases have not been

consistent in distinguishing between the subjective standard

required in the defense of assumption of risk, and the objective

standard necessary to a contributory negligence defense, As

Judge Jameson held in Deeds v. United States, 306 F.Supp. 348,

"While the defense of assumption of r i s k i s

usually a s s e r t e d i n employer-employee c a s e s , i n

Montana the defense has been extended t o ' r e l a t i o n -

ships independent of the master-servant r e l a t i o n -

ship' .

Cassaday v. City of B i l l i n g s , 1959, 135 Mont.

390, 392, 340 P.2d 509, 510 and cases t h e r e c i t e d .

Assumption of r i s k i s governed by the subjective

standard of the p l a i n t i f f r a t h e r than t h e objective

standard of the reasonable man. ***'I

Henceforth, i n product l i a b i l i t y cases the defense of

3

assumption of r i s k . w i l l be based on a subjective standard

r a t h e r than t h a t of t h e reasonable man t e s t .

The a t t r i b u t e s of the defense of assumption of the r i s k

i n the context of s t r i c t l i a b i l i t y a r e i n t e l l i g e n t l y phrased

and developed i n Dorsey v. Yoder Company, supra:

"* * * I n a d d i t i o n t o r e a l i z i n g the existence of

t h e defect o r danger and v o l u n t a r i l y doing an a c t

which exposes him t o i t , the p l a i n t i f f must per-

ceive and appreciate the r i s k involved, i . e . , t h e

p r o b a b i l i t y of harm. ** *" 331 F.Supp. 765.

Quoting 2 Restatement of Torts 2d, §496D, Comment (c) , the

court i n Dorsey continued:

"'The standard t o be applied i s a subjective one,

of what t h e p a r t i c u l a r p l a i n t i f f i n f a c t sees, knows,

understands and appreciates. I n t h i s i t d i f f e r s from

the objective standard which i s applied t o c o n t r i -

butory negligence. *** I f by reason of age or lack

of information, experience, i n t e l l i g e n c e o r judgment,

the p l a i n t i f f does not understand the r i s k involved

i n a known s i t u a t i o n , he w i l l not be taken t o assume

the r i s k , although it may be found t h a t h i s conduct i s

c o n t r i b u t o r i l y negligent because it does not conform

t o the conrmunfty standard of the reasonable man.'"

331 F.Supp. 765.

The Ninth C i r c u i t has a l s o followed the r u l e t h a t t h e

2 Restatement of Torts 2d, 5402A version of assumption of the

r i s k requires a showing of knowledge of the danger which i s

s u b j e c t i v e , conscious and personal t o the p l a i n t i f f . Jackson

v. Coast Paint and Lacquer Company, (9th C i r . 1974), 499 F.2d

By t h e foregoing, w e do not intend t o impose a burden

upon t h e defendant which i s v i r t u a l l y impossible t o discharge.

The defendant need not and, i n the usual case, cannot prove

the subjective r e q u i s i t e s of t h e assumption of t h e r i s k defense

by d i r e c t evidence. Seldom would a products l i a b i l i t y p l a i n t i f f

admit through h i s own testimony t h a t he had knowledge of t h e

danger and appreciated the r i s k involved. Therefore a defendant,

i n a given case, may e f f e c t i v e l y discharge h i s burden i n t h i s

regard through proof of the subjective elements by circumstantial

evidence. Sperling v. Hatch, 10 Cal.App.3d 54, 88 Cal.Rptr.

704 (1970).

Turning t o the record i n the i n s t a n t case, i t i s manifest

there i s no evidence whatsoever p l a i n t i f f had subjective know-

ledge the excess door would open a s i t d i d , exposing the blades

of t h e t r a n s f e r auger. I t f u r t h e r appears, and the jury could

well have found, t h a t p l a i n t i f f did not r e a l i z e the r i s k asso-

c i a t e d with the product r e l a t i v e t o h i s use of i t a t the time

of the accident.

Defendant maint%ns t h a t p l a i n t i f f , a knowledgeable and

experienced farmer/rancher, assumed the r i s k of i n j u r y by

knowingly and v o l u n t a r i l y climbing onto the machine while

leaving t h e power-take-off system i n operation. While plain-

t i f f ' s a c t of climbing upon the Grain-O-Vator t o inspect t h e

bin was obviously voluntary, these questions remain: (1) Was

it unreasonable f o r p l a i n t i f f t o a c t a s he did? (2) Was the

danger a c t u a l l y known and appreciated by p l a i n t i f f ?

Under t h e evidence, p l a i n t i f f may be g u i l t y a t most of

failing t o discover the defect or guard a g a i n s t i t s possible

existence. While p l a i n t i f f ' s a c t i o n s may have amounted t o some

contributory negligence, i t cannot be s a i d he assumed the r i s k

as a matter of law. The question is not whether plaintiff

- -

should have realized the risk, but whether in fact he did

realize the risk involved. Defendant, in failing to establish

plaintiff's actual knowledge and appreciation of the danger,

did not discharge its affirmative burden of proof of the

defense.

The evidence, to the contrary, sufficiently supports the

conclusion that plaintiff's injury was a direct result of

the defective design, failure to warn, and failure to provide

safe access to the bin. Plaintiff satisfied the burden, under

the standard of proof outlined in Brandenburger, of showing

the defect was the proximate cause of his injuries.

Issue 5. The trial court gave as Court's Instruction No.

10 an instruction on the defense of assumption of the risk:

"You are instructed that assumption of risk is

voluntarily placing oneself in a position to chance

known hazards. If a person has assumed the risk,

he cannot recover for any injury or damage sustained

by him. In determining whether or not the plaintiff

assumed a risk, you are not to consider whether or

not the plaintiff exercised due care for his own safety,

but must find the following factors existed:

"1. That he had knowledge, actual or implied,

of the particular condition.

"2. That he appreciated the condition as

dangerous.

" 3 . Voluntarily remaining or continuing in the

face of the known dangerous condition.

" 4 . Injury resulting as the usual or probable

consequence of this dangerous condition.

"If you find all four of the above factors did exist

at the time of the plaintiff's injury, he cannot

recoverI.

'

This instruction is drawn primarily from the Montana Jury

Instruction Guide (MJIG). However here the MJIG approved in-

struction was modified by inclusion of the language, "you are

not to consider whether or not the plaintiff exercised due

care for his own safety1'. Defendant contends the instruction

as modified is an inLorrect statement of the law, confusing and

misleading to the jury and therefore it was error to give it.

Defendant urges its proposed instruction No. 7, taken from

the 1975 Revision of the California Jury Instructions (Civil),

was a correct statement of the law of assumption of the risk,

and should have been given.

The scope of our review in this case is well defined.

This Court held in numerous cases, including Fox v. Fifth

West, Inc., (1969), 153 Mont. 95, 101, 454 P.2d 612, that:

"* * * instructions'must be considered in their en-

tirety, and to determine whether instructions were

properly given or refused this Court will read them

in connection with other instructions given and

consider them in the light of the evidence introduced."

153 Mont. 101.

Similarly, an error in any instruction considered in isolation

may be cured by reviewing the charge as a whole. Northern Pac.

R. Co. v. Lynch, 79 F. 268, 173 U.S. 701, 19 S.Ct. 878, 43 L.Ed.

1185 (1899).

A review of the instruction finds it improperly inserts

into the case elements of contributory negligence that could

cause jury confusion. Therefore in the interests of clarifi-

cation, we disapprove of its use in future cases.

As previously noted herein, in an instruction on assumption

of risk, the subjective standard will be used and the words

"actual" or "implied" will not be used. See: Prosser, Law of

Torts, 4th ed., 568 Assumption of Risk, pp. 445-452.

The giving of Instruction No. 10 as to this defendant

does not constitute reversible. error. ~efendant'sburden of

proof was clearly reduced due to the deficiency of the instruc-

tion. Under the given instruction, defendant could have argued

plaintiff had implied knowledge, creating a measure for plain-

tiff's behavior based upon the standard of the "reasonable manr'

as an alternative to a showing of actual, subjective knowledge.

Such a standard is inconsistent with the defense of assumption

of the risk in the context of strict liability theory, as

previously noted. If anything, the error as discussed enured

to the benefit of defendant in this case.

An error in an instruction which is favorable to the

objecting party is harmless error. Harding v. H. F. Johnson,

Inc., (1952), 126 Mont. 70, 244 P.2d 111; Broberg v. Northern

Pac. Ry. Co., (1947), 120 Mont. 280, 182 P.2d 851. The trial

court's refusal to give defendant's proposed instruction on

assumption of the risk was not prejudicial error, as defendant

was not thereby deprived of the potential defense. Wollan v.

Lord, (1963), 142 Mont. 498, 385 P.2d 102. In fact, defendant

was able under the given instruction to introduce evidence and

argue the defense under a burden significantly reduced in com-

parison to the standard established above.

Any error resulting from inclusion of the phrase con-

cerning "due care" is also harmless, in view of the evidence

negating the defense of assumption of the risk altogether, and

the charges taken as a whole. Fox v. Fifth West, Inc., supra.

Defendant has demonstrated no real prejudice in this regard.

Issue 6. Defendant also alleges as error the trial court's

refusal of its proposed instruction No. 5 concerning the elements

of proof in a strict liability action.

Defendant's proposed instruction, in essence, sets forth

the elements of proof required by Brandenburger. However, the

proposed i n s t r u c t i o n includes the following a d d i t i o n a l elements

a s matters which must be a f f i r m a t i v e l y established by p l a i n t i f f :

" F i r s t : The defendant placed the Grain-0-Vator

i n question on the market f o r use, and the

defendant knew, o r i n the exercise of reasonable

c a r e should have known, t h a t the p a r t i c u l a r Grain-

0-Vator would be used without inspection f o r de-

f e c t s i n the p a r t i c u l a r p a r t , mechanism o r design

which i s claimed t o have been d e f e c t i v e ,

"Third: The p l a i n t i f f was unaware of the claimed

defect."

Defendant admits the "inspection f o r defects" matter i s

not an element of the law of s t r i c t l i a b i l i t y a s s e t f o r t h i n

2 Restatement of Torts 2d, 5402A. The r u l e has i t s o r i g i n i n

t h e landmark products l i a b i l i t y case Greemnan v. Yuba Power

Products, Inc., (1962), 27 Cal.Rptr. 697, 377 P.2d 897, and

is generally limited i n application t o subsequent California

cases.

W conceive of no policy which would j u s t i f y imposing an

e

increased burden of proof upon a products l i a b i l i t y p l a i n t i f f .

The manufacturer i s s u f f i c i e n t l y insulated from absolute l i a -

b i l i t y by a p l a i n t i f f ' s required adherence t o the burden of

proof heretofore outlined i n t h i s opinion. N e r r o r could r e s u l t

o

from r e f u s a l t o i n s t r u c t a s t o an element of proof not imposed

by the governing law.

Further, p l a i n t i f f ' s lack of awareness of a defect

cannot be. considered an element p l a i n t i f f must a f f i r m a t i v e l y

establish. Rather, p l a i n t i f f ' s awareness of the defect i s a

matter going t o the a f f i r m a t i v e defense of assumption of the

risk. A s such, the burden of a l l e g i n g and proving "awareness"

i s upon the defendant. The t r i a l court cannot be placed i n

error for instructing as it did regarding the essential elements

of strict liability.

Issue 7. Finally, defendant advances error in the trial

court's admission, over objection, of plaintiff's offered movie

exhibit.

The movie, offered as demonstrative evidence intended to

illustrate plaintiff's testimony, depicts plaintiff's son

mounting the Grain-0-Vator involved in the accident and taking

the precise steps plaintiff asserts he took at the time of the

accident. For purposes of illustration, the springs were

removed from the excess door. As plaintiff's son stepped down

towards the excess door, it was pulled open by way of a thin

line. Defendant contends that the circumstances of the demon-

stration differed radically from those at the time of the accident,

causing it to appear to the jury as if the excess door would

suddenly snap and remain open.

However, defendant ignores the fact the jury was cautioned

the film was intended as demonstrative evidence only, and was

instructed in detail as to the changes in conditions between

the actual occurrence and the demonstration. The exhibit was

offered after a reading of the following statement to the jury:

"This movie is intended to illustrate how the

plaintiff, Deane Brown, thinks this accident

happened. The machine had no feed in it when

the movie was taken. At the time of the accident,

the lid over the auger had springs attached to it

and they are not on the machine in the movie. The

lid over the auger is hinged like it was at the time

of the accident, that is, the lid was hinged at the

bottom and swung open from the top as shown in the

movie. During the movie, the lid is pulled open with

fish line to demonstrate how it could move from its

point of pivot. This of course is not intended to

show you what caused it to open at the time of the

accident, nor is the jury to use the film in any

way in deciding what caused the lid to open at the

time of the accident. Again, the purpose of the

movie is only to illustrate how the plaintiff be-

lieves the accident happened."

The movie was admitted through plaintiff's own testimony,

with counsel establishing additional foundation elements of

identification and accuracy.

Generally, allowing demonstrative evidence is within the

discretion of the trial judge, and is subject to review only

upon a showing of a manifest abuse of discretion. Gunderson

v. Brewster, (1970), 154 Mont. 405, 466 P.2d 589. Particularly

as regards movies of reconstructions, it has been held that

such movies are admissible if shown to be accurate and relevant,

and any change in conditions is adequately explained. Greenich

v. Southern Pacific Company, 189 Cal.App.2d 100, 11 Cal.Rptr.

235 (1961), 29 Am Jur 2d Evidence, 5801.

The trial court is imbued with wide discretion in admitting

any diagram, map or photograph. Recently this Court in State

v. Sharbono, (1977) , Mont . , 563 P.2d 61, 34 St.Rep. 196,

considered a similar objection to the use of a ''burn film"

offered by the defense. Issue was taken to the trial court's

refusal to allow the showing of the film, and the trial court's

ruling was upheld by this Court citing Gobel v. Rinio, (1948),

122 Mont. 235, 200 P.2d 700, and Leary v. Kelly Pipe Co., (1976),

Mont . 9 549 P.2d 813, 33 St.Rep. 413.

We conclude the judgment of the District Court entered upon

the verdict of the jury was correct, and it is affirmed.

We Concur:

Justices.

Mr. Justice Frank I. Haswell, specially concurring:

I concur in the result but not in all that is said in the

foregoing opinion.

My principal disagreement concerns the discussion of Issue 5

relating to the defense of assumption of risk. As pointed out in

the majority opinion contributory negligence is not a defense

to a products liability case,but assumption of risk is a com-

plete bar to recovery in such a case. The court's Instruction

No. 10 read:

"You are instructed that assumption of risk is

voluntarily placing oneself in a position to chance

known hazards. If a person has assumed the risk,

he cannot recover for any injury or damage sustained

by him. In determining whether or not the plaintiff

assumed a risk, you are not to consider whether or

not the plaintiff exercised due care for his own safety,

but must find the following factors existed:

"1. That he had knowledge, actual or implied,

of the particular condition.

"2. That he appreciated the condition as

dangerous.

"3. Voluntarily remaining or continuing in the

face of the known dangerous condition.

" 4 . I n j u r y r e s u l t i n g a s t h e u s u a l o r probable

consequence of t h i s dangerous c o n d i t i o n ,

" I f you f i n d a l l four of t h e above f a c t o r s d i d e x i s t

a t t h e time of t h e p l a i n t i f f ' s i n j u r y , he cannot

recover. 11

I n m view t h i s i n s t r u c t i o n i s a c o r r e c t statement of t h e

y

law. The i n s t r u c t i o n i s t h e standard WIG i n s t r u c t i o n used i n

t h e t r i a l c o u r t s of t h i s s t a t e f o r many years excepting t h a t

t h e phrase "you a r e not t o consider whether o r not t h e p l a i n t i f f

exercised due c a r e f o r h i s own safety" has been added. This

a d d i t i o n conforms t o e x i s t i n g law -and makes c l e a r t o t h e jury

t h a t i t i s n o t t o judge p l a i n t i f f ' s conduct by c o n t r i b u t o r y

negligence standards.

A s t h e United S t a t e s D i s t r i c t Court observed i n Deeds v.

United S t a t e s , (D.Montana 1969), 306 F.Supp. 3 4 8 , 362:

"* **Contributory negligence a r i s e s from a

l a c k of due c a r e . Assumption of r i s k w i l l b a r

recovery r e g a r d l e s s of t h e f a c t t h a t p l a i n t i f f

may have a c t e d with due c a r e . I'

I have no o b j e c t i o n t o s t r i k i n g t h e words " a c t u a l o r

implied" from t h e i n s t r u c t i o n i n t h e f u t u r e i n t h e i n t e r e s t

of c l a r i t y . It may be t h a t j u r o r s a r e confusing "implied"

knowledge with "constructive" knowledge which w i l l n o t support

t h e defense of assumption of r i s k .

There i s a l s o o t h e r language i n t h e d i s c u s s i o n of I s s u e No.4

t h a t improperly i n j e c t s c o n t r i b u t o r y negligence i n t o t h e c a s e ,

egg., "(1) Was i t unreasonable f o r p l a i n t i f f t o a c t a s he did?"

p -

Justice.

M r . J u s t i c e Daniel J . Shea s p e c i a l l y concurring:

I agree with t h e r e s u l t reached by t h e majority and with

most of i t s conclusions. However, s c a t t e r e d throughout t h e

opinion t h e r e i s loose language t h a t could cause some confusion.

I w i l l confine my remarks t o t h a t which I b e l i e v e might cause

f u t u r e confusion.

Language i n s e v e r a l places implies t h e p l a i n t i f f must

prove both t h a t t h e product was "defective" and "unreasonably

dangerous1'. I t i s v i r t u a l l y impossible t o d e f i n e "defective"

i n t h e context of t h e various kinds of products l i a b i l i t y cases.

Moreover, a c a r e f u l reading of 2 Restatement of T o r t s 2d, $402 A

and t h e comments t h e r e t o , leads m t o b e l i e v e t h a t they a r e n o t s e p - -

e

a r a t e elements. The t h r u s t of t h e d o c t r i n e of s t r i c t l i a b i l i t y

i s s t a t e d i n Comment g. which provides i n p e r t i n e n t p a r t :

"The r u l e [of s t r i c t l i a b i l i t y ] s t a t e d i n t h i s

Section a p p l i e s only where a product i s , a t t h e

time i t leaves t h e s e l l e r ' s hands, i n a condition

n o t contemplated by t h e u l t i m a t e consumer which

w i l l be unreasonably dangerous t o him." (Emphasis

added. )

Comment j . provides i n p e r t i n e n t p a r t :

"In o r d e r t o prevent t h e product from being

unreasonably dangerous, t h e s e l l e r may be r e -

quired t o give d i r e c t i o n s o r warning, on t h e

c o n t a i n e r , a s t o i t s use." ( ~ m p h a s i sadded).

I emphasize t h e above language because I b e l i e v e t h a t

depending on t h e n a t u r e of t h e products l i a b i l i t y claim, it may

be confusing t o t h e j u r y t o speak both of "defective" products

and "unreasonably dangerous" products. The b a s i c t h r u s t of

5 402 A , 2 Restatement of T o r t s 2d, can be maintained by con-

c e n t r a t i n g on t h e "unreasonably dangerous" condition of t h e

product .

I concur with t h i s C o u r t ' s opinion s t a t i n g t h a t recovery

i s allowed where t h e condition complained of i s open and obvious

a s well a s l a t e n t . However, because of t h e confining language

of t h e Restatement, c a r e must be taken i n i n s t r u c t i n g t h e jury.

A c l o s e reading of 2 Restatement of T o r t s 2d, 5 402 A and t h e

comments t h e r e t o , r e v e a l s only s i l e n c e a s t o whether an open

and obvious condition can give r i s e t o a s t r i c t l i a b i l i t y claim.

The d e f i n i t i o n of "unreasonably dangerous" contained i n Comment i .

of 5 402 A , i s made i n t h e context of s i t u a t i o n s where t h e condi-

t i o n complained of i s l a t e n t , ' i t s t a t e s :

11

i. Unreasonably dangerous. *** The a r t i c l e

s o l d must be dangerous t o an e x t e n t beyond t h a t

which would be contemplated by t h e ordinary consumer

who purchases i t , with t h e ordinary knowledge common

t o t h e community a s t o i t s c h a r a c t e r i s t i c s . **

*I1

I n t h e present case t h e danger was l a t e n t , and t h e i n s t r u c -

t i o n may have been a p p r o p r i a t e . However, i t would n o t be appro-

p r i a t e i n a s i t u a t i o n where t h e danger was one t h a t was open and

obvious. I b e l i e v e t h e above i n s t r u c t i o n given i n a s i t u a t i o n

where t h e danger i s open and obvious, would be tantamount t o

t e l l i n g t h e j u r y t o r e t u r n a v e r d i c t f o r t h e defendant, thereby

e f f e c t i v e l y precluding any r e a l i s t i c hope of recovery. Accord-

i n g l y , i n such s i t u a t i o n s , t h e t r i a l c o u r t s should adopt a d i f f e r e n t

instruction.

I agree with t h e o v e r a l l p o s i t i o n taken by t h e Court on

t h e question of assumption of r i s k . However, concerning t h e

I n s t r u c t i o n questioned by t h e defendant, I f e e l t h a t i n most

c a s e s i t i s b e s t t o r e f r a i n from giving negative i n s t r u c t i o n s t o

t h e jury. The inserced language concerning c o n t r i b u t o r y n e g l i -

gence was negative i n c h a r a c t e r , i . e . , t e l l i n g the j u r y what d i d

n o t have t o be proved. I n most c a s e s , I b e l i e v e , it i s

s u f f i c i e n t t o s e t o u t what each p a r t y must prove t o s u s t a i n i t s

burden of proof, and t o r e f r a i n from t e l l i n g t h e jury what

each p a r t y does n o t have t o prove. I n any event, I f a i l t o

s e e i n what way t h e defendant was prejudiced because t h e statement

of law was accurate.

There i s language i n t h e opinion t h a t implies t h e s u b j e c t i v e

t e s t of assumption of r i s k i s being confined t o s t r i c t l i a b i l i t y

cases only. The opinion s t a t e s :

"Henceforth, i n product l i a b i l i t y c a s e s t h e

defense of assumption of r i s k w i l l be based on

a s u b j e c t i v e standard r a t h e r than t h a t of t h e

reasonable man t e s t ."

I t has been m understanding t h a t , a t l e a s t s i n c e D'Hoodge v.

y

McCann,(1968), 151 Mont. 353, 363, 443 P.2d 747, we have applied

t h e s u b j e c t i v e t e s t t o assumption of r i s k . There, we held

assumption of r i s k "is governed by t h e s u b j e c t i v e standard of

t h e p l a i n t i f f himself r a t h e r than t h e o b j e c t i v e standard of

t h e reasonable man * * *."

The problem was n o t with t h e t e s t we adopted, b u t with

t h e I n s t r u c t i o n given t o t h e jury which allowed i t t o f i n d t h a t

p l a i n t i f f could have t h e knowledge required by assumption of r i s k ,

i f t h e knowledge was e i t h e r a c t u a l o r implied. The word "implied"

does r i n g of c o n s t r u c t i v e knowledge a s noted by J u s t i c e Haswell

i n h i s concurring opinion, and I agree i t should be d e l e t e d .

However, t h e s e words should be eliminated from a l l i n s t r u c t i o n s

where assumption of r i s k i s a s s e r t e d a s a defense, and n o t

solely i n s t r i c t l i a b i l i t y cases.

A defendant i s n o t bound by t h e p l a i n t i f f ' s testimony simply

because t h e words "or implied" a r e eliminated from t h e d e f i n i t i o n

of assumption of r i s k . Even though a p l a i n t i f f t e s t i f i e s he was

n o t aware of t h e p a r t i c u l a r condition involved o r d i d n o t a p p r e c i a t e

t h e danger, c i r c u m s t a n t i a l knowledge may show t h e p l a i n t i f f had

t h e a c t u a l ( s u b j e c t i v e ) knowledge. I f t h e f a c t s a r e such

t h a t would lead a j u r y t o b e l i e v e t h a t t h e p l a i n t i f f d i d not

t e l l the t r u t h , the jury i s f r e e t o r e j e c t the p l a i n t i f f ' s

testimony simply by applying t h e standard i n s t r u c t i o n s on

c r e d i b i l i t y of witnesses and weighing t h e evidence. I t i s one

t h i n g t o argue t h e j u r y should d i s b e l i e v e t h e p l a i n t i f f where

he t e s t i f i e s t h a t he d i d n o t have knowledge of t h e p a r t i c u l a r

c o n d i t i o n ; i t i s y e t another t o argue t h a t a reasonable man

should have known of t h e p a r t i c u l a r c o n d i t i o n involved. The

knowledge t h a t a man "should have had'' has no p l a c e i n t h e

d o c t r i n e of assumption of r i s k where t h e cornerstone of t h e

d o c t r i n e i s p l a i n t i f f ' s consent. To allow i t comes dangerously

c l o s e t o p e r m i t t i n g a defendant t o argue c o n t r i b u t o r y negligence

under t h e g u i s e of assumption of r i s k .

I a l s o do n o t agree with t h e statement i n t h e majority

opinion t h a t "seldom would a products l i a b i l i t y p l a i n t i f f admit

through h i s own testimony t h a t he had knowledge of t h e danger and

appreciated t h e r i s k involved." C e r t a i n l y t h e human n a t u r e of

p l a i n t i f f s i n general has n o t been shown t o be s o dishonest t h a t

i t i s customary f o r them t o l i e i n support of t h e i r claims.

Furthermore, even i f a p l a i n t i f f admitted he had knowledge of

t h e danger and appreciated t h e r i s k involved, i t s t i l l would

n o t d e f e a t h i s claim. W have adopted t h e d e f i n i t i o n of assumption

e

of r i s k a s contained i n 2 Restatement of T o r t s 2d, 5 402 A , Comment

n . which provides i n p e r t i n e n t p a r t :

"* * * I f t h e u s e r o r consumer discovers t h e

d e f e c t and i s aware of t h e danger, and neverthe-

l e s s proceeds unreasonably t o make use of t h e

product and i s i n j u r e d by i t , he i s b a r r e d from

recovery .'I (Emphasis added.)

Accordingly, recovery would s t i l l be allowed i f t h e p l a i n t i f f

d i d n o t proceed unreasonably t o make use of t h e product.

n