Kopischke v. First Continental Corp.

No. 14810

IN THE SUPREME COURT OF THE STATE OF MONTANA

1979

ROSE KOPISCHKE ,

Plaintiff and Respondent,

VS .

FIRST CONTINENTAL CORPORATION,

Defendant and Appellant.

Appeal from: District Court of the Eighth Judicial District,

Honorable H. William Coder, Judge presiding.

Counsel of Record:

For Appellant:

Robert Ernrnons argued, Great Falls, Montana

For Respondent:

Hoyt, Triewiler, Lewis and Regnier, Great Falls, Montana

John Hoyt argued, Great Falls, Montana

A , /

'-, I

1 ,-

4- -I

,

, / - - ,,

.' ,' , / , ,-

Submitted: December 13, 1979

Filed:

3 - :\:,rT

-6

Clerk

Mr. Justice Gene B. Daly delivered the Opinion of the Court.

his is an appeal from judgment after a jury verdict in

the ~istrictCourt of the Eighth Judicial District, County

of Cascade, in a negligence action.

The complaint herein consisted of three counts. Count

I11 of the complaint, a claim predicated upon strict liability

of the defendant, was dismissed by defense motion prior to

trial. The remaining counts were submitted to the jury on

special verdict, and the jury returned a verdict involving

comparative negligence. Defendant was found to be 65 percent

negligent and plaintiff was found to be 35 percent negligent.

Total damages were assessed by the jury at $650,000, and the

court entered judgment for plaintiff in the sum of $422,500.

Defendant moved for a new trial after judgment was

rendered, but the motion was denied. From the final judg-

ment and denial of the motion for a new trial, defendant

appeals. Plaintiff cross-appeals.

Defendant, a used car dealer, sold a used car to plain-

tiff and her husband in late December, 1976. The car in

question, a 1971 Datsun station wagon, was purchased through

one of defendant's salesmen after a short test drive, during

which the car pulled slightly to the left.

Additionally, plaintiff informed the salesman of several

minor things she had noticed that were wrong with the car.

Some of these were that the horn did not work, poor tires, a

wire hanging out of a rear taillight assembly, and that the

car pulled to the left. The sales invoice listed that a

number of these corrections were to be made.

The salesman also advised plaintiff that they would

take the tires off another 1971 Datsun and put them on

plaintiff's car.

The sales invoice indicated an odometer reading of

83,615 miles and a disclaimer in fine print that read: "All

used cars are sold on an as is basis with no guarantee

either express or implied except as noted above." Above

this disclaimer was set forth the aim of defendant: "To

serve you courteously, completely and honestly. To profit,

not only in money, but in the good will and friendship of

our customers. To improve whenever possible and correct our

errors when we learn of them. To do our best every day, in

every way, to build an establishment which will be known as

the finest in our field."

No explanation was given to plaintiff pertaining to

the "as is1'clause.

The 1971 Datsun had a somewhat checkered history. The

car was purchased new in 1971 by a couple who lived in San

Diego, California. They traded the car in to Melody Toyota,

Inc., in 1975. At the time of the trade-in, the car's

odometer registered 85,106.4 miles. However, the car was

described to be "in very good mechanical condition."

Through an unknown series of events, the car was acquired by

Swanson Sales in California and resold in California to

Pierotti Motors. At the time the car was purchased from

Swanson by Pierotti, the odometer had been turned back to

41,194 miles.

Pierotti sold the car to a Robert Graff in July 1975.

Graff owned the car until it was repossessed in 1976 by

Credit Associates.

Graff testified that the car was not involved in any

accidents and that there was nothing wrong with the car,

except for the tires being in fair condition. However, he

also testified that at times he noticed vibration in the

steering.

A representative of Credit Associates testified that

the Datsun was dirty, junky and dented, that the engine

needed a tuneup, and the springs and shocks were shot.

The car was put out for bids and sold to defendant.

Neither plaintiff, nor defendant's salesman, knew that the

car was repossessed or that the odometer reading was incor-

rect. Plaintiff testified that had she known the car had

over 120,000 miles on it, she would not have bought it.

Plaintiff took delivery of the car on December 27,

1976, had a C.B. radio installed, and drove it to Missoula a

few days later. She experienced vibration in the car and a

pulling to the left, but had no real trouble on this trip.

She did, however, consult a mechanic about the car, and on

two occasions repair work was done. This work involved a

tuneup, fixing the speedometer, installing a heater, fixing

the brakes, aligning the front-end, etc. On the last occa-

sion, the mechanic recommended on a repair order, "Take the

car back, needs lots of work, not safe on the road." Plain-

tiff testified that she thought this meant she was to bring

the car back for repairs and that she did not think she

would be in any danger if she drove the car, except maybe

she could be stranded if the car broke down.

Plaintiff drove the car around Missoula until January

21, 1977, when she drove it back to Great Falls. She again

experienced shaking and vibration in the car during this

trip. On arrival in Great Falls, plaintiff called Dave

Fender, one of defendant's salesman, about the problem and

was advised that the car was merely "dieseling" and that

premium gas would correct the problem.

The following day, January 22, 1977, plaintiff drove to

Chester for an appointment with her doctor. Her husband

told her she should probably take the couple's other car,

but she thought she could use her C.B. and get assistance if

she had any problems. Plaintiff testified it was a good day

for driving, the roads were excellent, and the car handled

fine on the way to Chester and all the way back to the point

of the accident.

The accident occurred a few miles west of Carter on a

good stretch of highway. The car suddenly started to vi-

brate, and the steering wheel and motor began shaking. The

car went out of control, veered into the left lane, swung

back to the right, went off the road and rolled over.

Plaintiff was thrown out of the car and sustained

severe back injuries, which have left her paraplegic. A

driver in the car following plaintiff's testified she was

driving prudently and at about 50 m.p.h. just before the

accident.

There is no question that plaintiff was not using the

safety belt in her car at the time of the accident.

Raymond McHenry, a consulting engineer, was retained by

plaintiff to determine the cause of the accident. McHenry

examined the car, viewed the accident scene and discussed

the accident with plaintiff. In addition, he removed the

wheels, MacPherson struts, and carefully examined the vehicle

to determine what caused it to go out of control.

McHenry examined the transverse link (lower control

arm) on the right front suspension and found that it was

cracked extensively, bent and had four compression marks on

it, indicating that the bend had been caused by a tool. He

also found that there were four white sidewall tires on the

car. All of the white sidewalls turned outward in the

normal manner except the right front white sidewall, which

was reversed with the white sidewall turned inward. On the

white side of that tire there was a tread separation several

inches in length, and this tire was out of balance. In

addition, McHenry found that the left side motor mount was

completely separated and sitting in an unusual position, the

stabilizer bar was disconnected, and the left rear brake

lining showed lubricant on it which had been leaking since

before plaintiff purchased the car.

McHenry performed various tests on a Datsun similar to

plaintiff's, using bent transverse links, disconnected

stabilizer bar and disconnected left rear brake to determine

the effect on the car's handling. He also consulted with

Dr. James Magor, a metallurgic engineer at North Carolina

State University, who ran various tests on the transverse

link. He concluded the transverse link had been deliber-

ately bent to an angle of 30° and then straightened to an

angle of 20° and, in straightening this link, cracks were

formed. These cracks extended under the alternating loading

conditions of plaintiff's car in a process called metal

fatigue.

McHenry reconstructed the cause of the accident as

follows: Prior to the accident the transverse link had

deliberately been bent to an angle considerably greater than

lo0 and then reverse bent to an angle of approximately lo0.

(Dr. Magor established with certainty that this had been

done a long time prior to the acquisition of the car by

plaintiff.) Through the process of metal fatigue, the

transverse link had progressively weakened as the cracks

propagated through the upper section and down the sides of

the link. The smaller bend in the link or arm had already

created a mild pull to the left,

Due t o t h e p r o c e s s of m e t a l f a t i g u e , j u s t p r i o r t o t h e

a c c i d e n t t h e t r a n s v e r s e l i n k b e n t more, c a u s i n g t h e wheel t o

toe-in. The v i b r a t i o n which p l a i n t i f f d e s c r i b e d s e r v e d t o

a c c e l e r a t e t h e f a t i g u e p r o c e s s c a u s i n g t h e c r a c k s t o propa-

g a t e i n a n a c c e l e r a t e d manner which, superimposed upon t h e

a l r e a d y weakened l i n k , a b r u p t l y i n c r e a s e d t h e a n g l e o f bend

from 10' o r l e s s t o a p p r o x i m a t e l y 20°. This occurred i n

a p p r o x i m a t e l y one second and r e s u l t e d i n a heavy p u l l t o t h e

l e f t c a u s i n g t h e v e h i c l e t o go i n t o t h e l a n e f o r oncoming

traffic.

The v i b r a t i o n o r shimmy was c a u s e d by t h e unbalanced

r e t r e a d tires. With t h e t r e a d s e p a r a t i o n on t h e r i g h t f r o n t

and two i n c h e s o f f r e e p l a y a t t h e r i m o f t h e s t e e r i n g wheel

and t h e MacPherson s t r u t s low on dampening f l u i d , t h e

v i b r a t i o n occurred. I n a d d i t i o n , t h e d i s c o n n e c t e d motor

mount would a l l o w t h e e n g i n e v i b r a t i o n t o r e a c h a l a r g e r

a m p l i t u d e t h e r e f o r e s h a k i n g t h e e n g i n e more. McHenry com-

pletely ruled out driver error.

The r e a s o n t h e c a r v e e r e d t o t h e r i g h t was b e c a u s e o f

s t e e r i n g i n p u t by p l a i n t i f f .

With t h e r i g h t f r o n t s t a b i l i z e r b a r d i s c o n n e c t e d , t h e

c a r veered f a r t h e r t o t h e r i g h t , causing it t o f a c e t h e

d i r e c t i o n i t w a s t r a v e l i n g a t t h e t i m e it came t o t h e

s h o u l d e r of t h e r o a d and t h e n t o r o l l o v e r .

I n t e s t r u n s w i t h a s i m i l a r t e s t c a r of t h e same make,

i t took 1 . 4 s e c o n d s f o r t h e t e s t c a r t r a v e l i n g 50 m.p.h.

w i t h a 20' bend i n t h e t r a n s v e r s e l i n k t o go e n t i r e l y i n t o

t h e opposite lane. The bend now s e e n i n t h e p l a i n t i f f ' s

t r a n s v e r s e l i n k i s 20". I n a d d i t i o n t o t h e e f f o r t t o hold

t h e s t e e r i n g wheel s t r a i g h t on t h e t e s t c a r a t 50 m.p.h.

w i t h a 20' bend i n t h e t r a n s v e r s e l i n k , t h e s t e e r i n g wheel

had to be turned 60' to the right just to hold the car in a

straight line.

Testimony indicated that defendant did not inspect

plaintiff's car for defects after it was acquired at the

repossession sale. Testimony of defendant's employees

indicated that a 5 O bend in the transverse link would have

been obvious if the car were placed on a hoist or if a

front-end alignment check were made. (Defendant did not

require safety inspections on used cars.) However, one

employee testified that it was normal for every used car to

receive an inspection by being lifted on a hoist where a

mechanic would inspect the undercarriage for defects.

Defendant's owner, John Greytak, testified that at one

time there was a multi-point inspection which included an

undercarriage inspection but that this was discontinued in

1974. When Greytak was questioned by plaintiff concerning

whether defendant offered used cars for sale to a customer

with the representation that they had been checked from end

to end, he testified that they would not advertise in that

manner or use those words. After much objection, an adver-

tisement published by Great Falls radio station KEIN after

the accident was admitted which stated:

"You really can't tell a heck of a lot about a

used car by kicking the front tires. So at

Continental Datsun-Volvo before a used car is

offered for sale, we check the compression, front

end alignment, inspect the brake lining, test the

brakes, check the front end and shocks, test the

automatic transmission, safety test the lights,

horn, turn signals and wipers. Plus they change

the oil and filter, they give it a grease job

and a full reconditioning. So when you kick

the tires on a used car at Continental, you're

kicking the tires of a darn good car, one that's

been checked and corrected from end to end. Con-

tinental Datsun-Volvo."

I t i s u n d i s p u t e d t h a t no s a f e t y i n s p e c t i o n was done on

p l a i n t i f f ' s c a r by d e f e n d a n t . The t e s t i m o n y i n d i c a t e d t h a t

d e f e n d a n t ' s manager and s a l e s m e n i n t e n d e d t h e i r c u s t o m e r s t o

assume t h a t t h e y w e r e buying a r e l i a b l e c a r , o n e t h a t w a s

s a f e f o r highway u s e .

Over t h i r t y i s s u e s were p r e s e n t e d f o r r e v i e w on t h i s

appeal. A number o f t h e s e i s s u e s w e r e c o n s o l i d a t e d by

counsel i n general headings. W e w i l l therefore discuss the

i s s u e s i n a c o n s o l i d a t e d form.

T h e r e a r e f i v e m a j o r i s s u e s , t h e r e s o l u t i o n o f which

d e t e r m i n e s t h e outcome o f t h i s a p p e a l . They a r e :

1. Did t h e D i s t r i c t C o u r t err i n i n s t r u c t i n g t h e j u r y

t h a t a u s e d c a r d e a l e r h a s a l e g a l d u t y t o i n s p e c t and

d i s c o v e r any d e f e c t s i n a u s e d c a r which would have been

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

e i t h e r r e p a i r s u c h d e f e c t s o r a t l e a s t warn a b u y e r o f t h e i r

existence?

( a ) What e f f e c t d o e s t h e " a s i s " c l a u s e have on s u c h a

duty?

( b ) Did t h e D i s t r i c t C o u r t err i n r e f u s i n g t o p e r m i t

t e s t i m o n y , argument, o r i n s t r u c t i o n s on t h e " a s i s " c l a u s e

c o n t a i n e d i n t h e purchase agreement?

2. Did t h e D i s t r i c t C o u r t e r r i n r e f u s i n g t o p r e s e n t

t o t h e j u r y t h e q u e s t i o n whether p l a i n t i f f ' s f a i l u r e t o u s e

s e a t b e l t s contributed t o her injuries?

3. Did t h e D i s t r i c t C o u r t err i n r e f u s i n g t o g i v e

i n s t r u c t i o n s on p l a i n t i f f ' s a l l e g e d c o n t r a c t u a l and non-

c o n t r a c t u a l assumptions of r i s k ?

4. Did t h e D i s t r i c t C o u r t err i n d e n y i n g d e f e n d a n t ' s

m o t i o n f o r summary judgment on p l a i n t i f f ' s Count 11,

5. Was it error to refuse to allow the reading of

plaintiff's deposition?

The key issue in this case is whether defendant had a

legal duty to inspect and discover any defects in the used

car which were obvious or discoverable upon reasonable

inspection, and then to repair such defects or at least warn

a buyer of their existence. Tied in closely with this issue

is what effect the "as is" provision in the purchase agree-

ment had on this duty.

Defendant contends that its duty was defined by the

contract--"it was to sell the car in question, nothing

more." It further submits that the term "as is" has a

definite meaning in the law. It implies that the buyer is

taking delivery of goods in some way defective and upon

express condition that he must trust to his own examination.

Black's Law Dictionary (4th ed. rev. 1968) at 146; 6A C.J.S.

As - at 299.

- Is

From this premise defendant concludes that if a vehicle

is sold by a used car dealer "as is", the dealer is not

liable to the buyer in negligence for injuries traceable to

defects in the vehicle. Thrash v. U-Drive-It Co. (1953),

158 Ohio St. 465, 110 N.E.2d 419, 423; Pokrajac v. Wade

Motors (1954), 266 Wisc. 398, 63 N.W.2d 720. Defendant

argues it was error for the District Court to expressly

direct the jury not to consider the "as is" provision.

Defendant states that this, in effect, constitutes a re-

writing of the agreement--something the ~istrictCourt is

not permitted to do. Section 1-4-101, MCA; ~anielsonv.

Danielson (1977), 172 Mont. 55, 560 P.2d 893.

Plaintiff contends that defendant was negligent as a

matter of law. This contention is based on defendant's

failure to inspect and on defendant's knowingly placing a

damaged front tire on plaintiff's car. Plaintiff argues

that a person cannot contract away liability because to do

so would contravene public policy. Haynes v. County of

is sou la (1973), 163 Mont. 270, 517 P.2d 370. Therefore,

the "as is" provision is ineffective to protect defendant

from liability for its negligent acts.

Plaintiff also cites Turner v. International Harvester

Company (1975), 133 N.J.Super. 277, 336 A.2d 62, for the

proposition that an "as is" disclaimer in the sale of a used

vehicle does not bar a negligence action.

Defendant, in its reply brief, distinguishes Haynes and

argues that Haynes dealt only with contracting away possible

future negligence while this case, of necessity, involves

past negligence.

The general rule in Montana is that a used car dealer

has a duty to discover and repair any defects which are

patent or discoverable in the exercise of ordinary care.

Rogers v. Hilger Chevrolet Company (1970), 155 Mont. 1, 465

P.2d 834. In Hilger, however, the defendant was not held

liable because the evidence indicated that "[dlefendant did

not warn plaintiff of any defects because it is obvious from

the record defendant did not have any knowledge of a defect.

~efendant'semployees checked the automobile over and this

check included the right front door. Defendant's duty does

not extend to completely dismantling an automobile and then

reassembling it before its resale." Hilger, 465 P.2d at

838. The evidence here shows that the defect was an obvious

one and a reasonable inspection would have revealed it. In

the instant case, however, defendant concedes that no inspec-

tion took place. In fact, defendant contends there was no

duty to inspect.

There i s a l s o t h e added f a c t o r i n t h i s c a s e o f d e f e n -

d a n t ' s " a c t i v e n e g l i g e n c e " i n r e p l a c i n g worn t i r e s w i t h

t h r e e good t i r e s and a d e f e c t i v e one. The a c t of p l a c i n g

t h e w h i t e s i d e w a l l on t h e i n s i d e w a s a p p a r e n t l y a means of

p u r p o s e f u l l y h i d i n g from p l a i n t i f f a d e f e c t which i n e v i t a b l y

a c c e l e r a t e d t h e breakdown of t h e t r a n s v e r s e l i n k .

I n deciding Hilger t h i s Court c i t e d t h e Eighth C i r c u i t

c a s e o f Egan C h e v r o l e t Co. v . Bruner ( 8 t h C i r . 1 9 3 9 ) , 102

F.2d 373. I n Egan C h e v r o l e t t h e c o u r t w a s p r e s e n t e d w i t h a

s i m i l a r f a c t s i t u a t i o n i n t h a t t h e s t e e r i n g mechanism o f t h e

t r u c k b r o k e down, c a u s i n g a c o l l i s i o n . The c o u r t h e l d f o r

t h e p l a i n t i f f and s t a t e d :

"A r e t a i l d e a l e r who t a k e s a used t r u c k i n t r a d e

and u n d e r t a k e s t o r e p a i r and r e c o n d i t i o n i t f o r

r e s a l e f o r u s e upon t h e p u b l i c highways owes a

duty t o the public t o use reasonable care i n the

making of t e s t s f o r t h e purpose of d e t e c t i n g de-

f e c t s which would make t h e t r u c k a menace t o

t h o s e who might u s e i t o r come i n c o n t a c t w i t h

i t and i n making t h e r e p a i r s n e c e s s a r y t o r e n d e r

t h e t r u c k r e a s o n a b l y s a f e f o r u s e upon t h e p u b l i c

highways, and i s c h a r g e d w i t h knowledge o f d e f e c t s

which a r e p a t e n t o r d i s c o v e r a b l e i n t h e e x e r c i s e

of o r d i n a r y care. .. The r u l e d o e s n o t mean--as

t h e a p p e l l a n t seems t o f e a r - - t h a t a d e a l e r i n

used motor v e h i c l e s , who u n d e r t a k e s t o r e c o n d i -

t i o n a t r u c k f o r resale, becomes v i r t u a l l y an

i n s u r e r of t h e s a f e t y of t h e t r u c k he s e l l s , n o r

d o e s i t mean t h a t he i s r e q u i r e d t o d i s a s s e m b l e

a n e n t i r e t r u c k t o examine e a c h o f i t s p a r t s .

I t d o e s mean t h a t he must u s e r e a s o n a b l e c a r e t o

a s c e r t a i n whether t h e t r u c k i s e q u i p p e d w i t h t h e

minimum e s s e n t i a l s f o r s a f e o p e r a t i o n , o n e o f

which u n q u e s t i o n a b l y i s a s t e e r i n g mechanism

which w i l l work and which w i l l n o t s h o r t l y s h a k e

a p a r t under normal u s e . One who p e r m i t s a t r u c k

w i t h a d a n g e r o u s l y d e f e c t i v e s t e e r i n g mechanism

t o be used upon t h e p u b l i c highways, n o t o n l y

h a s r e a s o n t o a n t i c i p a t e t h a t it w i l l c a u s e a n

a c c i d e n t , b u t may be a l m o s t c e r t a i n t h a t i t w i l l

do s o . ' I n s u c h c i r c u m s t a n c e s , t h e p r e s e n c e of

a known d a n g e r , a t t e n d a n t upon a known u s e ,

makes v i g i l a n c e a d u t y . ' . . ." 102 F.2d a t

375-76. ( C i t a t i o n s omitted.)

I n a c c o r d w i t h t h e above a r e G a i d r y Motors v . Brannon

(Ky. 1 9 5 3 ) , 268 S.W.2d 627 and Turner v . I n t e r n a t i o n a l

Harvester Company (1975), 133 N.J.Super. 277, 336 A.2d at

"It is common knowledge that old cars are more

likely to be subject to mechanical defects than

are new ones. The turnover in ownership of used

cars is fairly rapid, and the majority of these

cars are sold through used car dealers. The

used car dealer is in a better position, by rea-

son of his opportunity, than his average customer

to discover what defects might exist in any par-

ticular car to make it a menace to the public.

We are of the opinion it is not too harsh a rule

to require these dealers to use reasonable care

in inspecting used cars before resale to dis-

cover these defects, which the customer often

cannot discover until too late." Gaidry Motors

v. Brannon, 268 S.W.2d at 628-629.

Further ,

". . . expectations of quality and durability

will be lower for used goods, commensurate with

their age, appearance and price. However, safety

of the general public demands that when a used

motor vehicle, for example, is sold for use as

- serviceable motor vehicle (and not as junk-

a

parts), absent special circumstances, the seller

be responsible for safety defects whether known

or unknown at time of sale, present while the

machine was under his control. Otherwise, the

buyer and the general public are bearing the en-

terprise liability stemming from introduction of

the dangerously defective used vehicle onto the

public highways. Public policy demands that the

buyer receive a used chattel safe for the pur-

pose intended (where no substantial change will

occur prior to reaching the buyer or forseeable

consumer). . ." Turner v. International Har-

vester Company, 336 A.2d at 69. (Citations

omitted. )

See also Ikerd v. Lapworth (7th Cir. 1970), 435 F.2d 197;

Thrash v. U-Drive-It Co., supra; 60 C.J.S. Motor Vehicles

Defendant cites Thrash for the proposition that use of

an "as is" clause protects a used car dealer from liability

for negligence for injuries traceable to defects in the

vehicle.

A careful reading of Thrash shows that defendant has

misread the case. It in fact points the finger of liability

at defendant. Thrash involved the sale of a used truck "as

is" from the U-Drive-It Company to the Spot Motor Company

and then a subsequent sale from Spot to Thrash. Shortly

after the sale a lock ring on the left front wheel of the

truck blew off, causing an accident in which the plaintiff

was crushed.

The plaintiff sued both car dealers. The court ruled

that the U-Drive-It Company was not liable for the plain-

tiff's injuries because the sale to Spot Motor was an inter-

vening factor relieving it from liability and transferring

its duty to Spot. The court stated:

"We conclude that where the owner of a used motor

vehicle sells the same 'as is' to a dealer in

those articles -- disposition - - dealer

for such as the

may- - - it, -owner may not ordinarily be

- make of such

held liable for injuries occasioned - - -

to one who-

purchased the vehicle - - -

from the dealer or for in-

juries to another, because of faults or imper-

fections in the vehicle which existed or occurred

during the time it was in the possession of such

owner." Thrash, 110 N.E.2d at 423.

The court, however, ruled in effect that Spot Motor's

negligence was still at issue and stated:

"Although a dealer in used motor vehicles is not

an insurer of the safety of the vehicles he sells,

he is generally under a duty to exercise reason-

able care in making an examination thereof to

discover defects therein which would make them

dangerous to users or to those who might come in

contact with them, and upon discovery to correct

those defects or at least give warning to the pur-

chaser . . ."

Thrash, 110 N.E.2d at 423.

(Citations omitted. )

It is the second ruling by the court, and not the

first, which is applicable here as this case does not in-

volve a sale between dealers but between a dealer and a

consumer. Once it has been determined that a used car

dealer has a duty to reasonably inspect and discover defects

which are patent or discoverable in the exercise of ordinary

care and then to repair those defects, Rogers v. Hilger

Chevrolet Company, supra, it becomes necessary to determine

what effect the "as is" clause has on such a duty.

The phrase "as is" is a statutorily approved method of

excluding warranties. The controlling statute is section

30-2-316 (3)(a), MCA, which provides:

" (3) Notwithstanding subsection (2):

"(a) unless the circumstances indicate otherwise,

all implied warranties are excluded by expres-

sions like 'as is', 'with all faults' or other

language which in common understanding calls the

buyer's attention to the exclusion of warranties

and makes plain that there is no implied warranty;"

The code comment on this section is of little help here. It

states:

"Paragraph (a) of subsection (3) deals with

general terms such as 'as is,' bs they stand,'

'with all faults,' and the like. Such terms in

ordinary commercial usage are understood to mean

that the buyer takes the entire risk as to qua-

lity of the goods involved .

. ." U.C.C.

(U.L.A.) 52-316.

The area of the code in which this section is located deals

with exclusion or modification of warranties, express or

implied, in sales of goods. These warranties for the most

part deal with quality, merchantability, and fitness of the

goods sold. There is nothing enumerated in these sections

which deals with exclusion of tort liability. It would

indeed be inconsistent if the disclaimer had that effect.

This is especially the case in light of the legislature's

passage of section 30-2-719(3), MCA, which provides:

" (3) Consequential damages may be limited or ex-

cluded unless the limitation or exclusion is un-

conscionable. Limitation of consequential damages

for injury to the person in the case of consumer

goods is prima facie unconscionable but limitation

of damages where the loss is commercial is not."

Montana subscribes to the general rule:

'I I

.

. . that persons may not contract against

the effect of their own negligence and that agree-

ments which attempt to do so are invalid. However,

i t i s n o t t r u e t h a t any agreement o f t h i s k i n d i s

void as a g a i n s t p u b l i c p o l i c y . Whether a p e r s o n

c a n r e l i e v e h i m s e l f by agreement from t h e d u t i e s

a t t a c h i n g a s a matter o f law t o a l e g a l r e l a t i o n -

s h i p c r e a t e d by c o n t r a c t between h i m s e l f and an-

o t h e r p e r s o n , i s a m a t t e r o f some d i f f i c u l t y . The

c o n c l u s i o n h a s been r e a c h e d t h a t even under t h e

view t h a t a p e r s o n may, under some c i r c u m s t a n c e s ,

c o n t r a c t a g a i n s t t h e performance of s u c h d u t i e s ,

h e c a n n o t do s o where e i t h e r (1) t h e i n t e r e s t o f

t h e p u b l i c r e q u i r e s t h e performance o f s u c h du-

t i e s , o r ( 2 ) b e c a u s e t h e p a r t i e s do n o t s t a n d

upon a f o o t i n g o f e q u a l i t y , t h e weaker p a r t y i s

compelled t o s u b m i t t o t h e s t i p u l a t i o n .' " Haynes

v . County of M i s s o u l a ( 1 9 7 3 ) , 163 Mont. 270, 517

P.2d 370, 376.

One o f t h e i s s u e s p r e s e n t e d f o r r e v i e w i n Haynes w a s

t h e p r o p r i e t y o f t h e D i s t r i c t C o u r t ' s p r e t r i a l o r d e r sup-

p r e s s i n g t h e p l a i n t i f f ' s g e n e r a l r e l e a s e i n t h e Western

Montana F a i r E n t r y Blank. The d e f e n d a n t s a r g u e d t h e r e l e a s e

was a v a l i d and e n f o r c e a b l e c o n t r a c t a b s o l v i n g t h e d e f e n d a n t s

from l i a b i l i t y . The release p r o v i d e d : " I hereby r e l e a s e t h e

M i s s o u l a County F a i r Board from any l i a b i l i t y by l o s s ,

damage o r i n j u r y t o l i v e s t o c k o r o t h e r p r o p e r t y , w h i l e s a i d

p r o p e r t y i s on t h e F a i r g r o u n d s . " 517 P.2d a t 376. This

Court held t h e D i s t r i c t Court w a s c o r r e c t i n suppressing t h e

release stating, ". . . [ i ] n o u r view t h e r e l e a s e i s i l l e g a l

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

p o l i c y of t h i s s t a t e and a g a i n s t t h e p u b l i c i n t e r e s t . " 517

W e f u r t h e r s t a t e d i n Haynes:

" D i r e c t i n g o u r a t t e n t i o n t o Montana l a w , w e n o t e

a n e x p r e s s p u b l i c p o l i c y of t h i s s t a t e t o f i x re-

s p o n s i b i l i t y f o r damage t o p e r s o n o r p r o p e r t y

upon t h o s e who f a i l t o e x e r c i s e o r d i n a r y c a r e o r

skill. S e c t i o n 58-607, R.C.M. 1947 [now s e c t i o n

27-1-701, M A , p r o v i d e s :

C ]

" ' E v e r y one i s r e s p o n s i b l e , n o t o n l y f o r t h e re-

s u l t of h i s w i l l f u l a c t s , b u t a l s o f o r a n i n j u r y

o c c a s i o n e d t o a n o t h e r by h i s want of o r d i n a r y

care o r s k i l l i n t h e management of h i s p r o p e r t y

o r person, except s o f a r as t h e l a t t e r has, w i l l -

f u l l y o r by want o f o r d i n a r y c a r e , b r o u g h t t h e

i n j u r y upon h i m s e l f . The e x t e n t o f l i a b i l i t y i n

s u c h c a s e s i s d e f i n e d by t h e t i t l e on compensa-

tory relief.'

"The p u r p o s e o f t h i s s t a t u t e i s t w o f o l d : (1) To

f i x p r i m a r y r e s p o n s i b i l i t y and l i a b i l i t y on t h e

t o r t f e a s o r whose c o n d u c t o c c a s i o n e d t h e l o s s o r

i n j u r y , and ( 2 ) t o make t h e v i c t i m whole.

" S e c t i o n 13-6801 ( 2 ) , R.C.M. 1947 [now s e c t i o n

28-2-701, MCA], d e f i n e s i l l e g a l c o n t r a c t s a s

those:

" ' C o n t r a r y t o t h e p o l i c y of e x p r e s s law, though

not expressly prohibited.'

" S e c t i o n 49-105, R.C.M. 1947 [now s e c t i o n 1-3-

204, MCA], p r o v i d e s : 'Any one may waive t h e ad-

v a n t a g e of a l a w i n t e n d e d s o l e l y f o r h i s bene-

f i t . But a law e s t a b l i s h e d f o r a p u b l i c r e a s o n

c a n n o t be c o n t r a v e n e d by a p r i v a t e a g r e e m e n t . '

"We h o l d t h e County i s p r e c l u d e d from d i s c l a i m i n g

l i a b i l i t y by v i r t u e o f t h e r e l e a s e when perform-

i n g an a c t i n t h e p u b l i c i n t e r e s t . This p r i n c i p l e

i s r e c o g n i z e d i n R e s t a t e m e n t , C o n t r a c t s , § 575,

providing i n p e r t i n e n t p a r t :

" ' ( 1 ) A b a r g a i n f o r exemption from l i a b i l i t y f o r

t h e consequences * * * of n e g l i g e n c e i s i l l e g a l i f

" ' ( b ) one of t h e p a r t i e s i s c h a r g e d w i t h a d u t y

o f p u b l i c s e r v i c e , and t h e b a r g a i n r e l a t e s t o

n e g l i g e n c e i n t h e performance of any p a r t of i t s

d u t y t o t h e p u b l i c , f o r which i t h a s r e c e i v e d o r

been promised c o m p e n s a t i o n . ' " Haynes, 517 P.2d

a t 376-78.

While Haynes d e a l t w i t h a r e l e a s e of l i a b i l i t y f o r

f u t u r e n e g l i g e n c e , t h e r e i s no r e a s o n t h e r u l e s enumerated

i n Haynes s h o u l d n o t a p p l y h e r e . Defendant w a s under a d u t y

t o reasonably i n s p e c t f o r defects. I t f a i l e d t o do s o . To

a l l o w i t t o d i s c l a i m l i a b i l i t y by a s i m p l e " a s i s " p h r a s e

would be a v i o l a t i o n o f t h e p u b l i c p o l i c y espoused i n Haynes.

Montana h a s n e v e r d e t e r m i n e d what e f f e c t t h e " a s i s "

p h r a s e h a s on t o r t l i a b i l i t y . O t h e r j u r i s d i c t i o n s have

i n t e r p r e t e d t h e phrase, with varying r e s u l t s . Defendant

urges this Court to follow the holding in Pokrajac v. Wade

Motors, supra. The court in Pokrajac held that the seller

was not liable for defects due to the existence of a dis-

claimer clause.

The disclaimer in Pokrajac, however, is different from

the one used in the instant case. It provided:

" ' * * * In case the car covered by this order is

a used car, the undersigned purchaser states that

he has examined it, is familiar with its condi-

tion, is buying it as a used car, as-is, and with

no guaranty as to condition, model or mileage,

unless otherwise specified herein in writing.

No oral representations have been made to the

Purchaser and all terms of the agreement are

printed or written herein * * * ' " 63 N.W.2d at

721.

The court specifically found no duty to inspect or

repair because of the "as-is" clause. Further, it could

find no reason in public policy to prevent such a dis-

claimer.

Pokrajac, however, is distinguishable because of the

extensive disclaimer provision, including a statement by the

buyer that he inspected the car--a factor not present here.

Further, in Montana, unlike Wisconsin, there is a duty to

inspect independent of the "as is" clause. Hilger, 465 P.2d

Knipp v. Weinbaum (Fla.App. 1977), 351 So.2d 1081, held

that the effect of an "as is" disclaimer on tort liability

depended on the interpretation the parties gave to the

disclaimer and was thus a question for the jury to decide.

In reaching its decision, the court stated:

"The plaintiff in this case alleged that his

injuries resulted from a defect in the goods

sold. To foreclose consideration of his claim

by permitting an 'as is' disclaimer to operate

as an automatic absolution from responsibility

through the mechanism of summary judgment would

belie the policy behind Section 672.2-719(3),

which states that 'limitation of consequential

damages for injury to the person in the case of

consumer goods is prima facie unconscionable.

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

" ' (a) Unless the circumstances indicate other-

wise, all implied warrantites are excluded by

expressions like 'as is', 'with all faults'

or other language which in common understand-

ing calls the buyer's attention to the exclu-

sion of warranties and makes plain that there

is no implied warranty . .. '[Emphasis supplied.]

"It is the clause 'unless the circumstances in-

dicate otherwise' which precludes a finding

that automatic absolution can be achieved in

the sale of used consumer goods merely by the

inclusion in a bill of sale of the magic words

'as is.'

"This is not to say that a seller of used goods

may not absolve himself from responsibility for

defects in the goods sold when both he and the

buyer understand this to be the intended meaning

of the phrase 'as is.' See Comment 3 to Section

672.2-719. The Uniform Commercial Code contem-

plates that a seller may disclaim warranties as

long as the buyer reasonably understands this is

being done . . . But a disclaimer, to be effec-

tive, must be a part of the basis of the bargain

between the parties." 351 So.2d at 1084-85.

(Citations omitted. )

The court further stated:

"Even if the 'as is' term were to be found to

negate liability under the causes of action in

warranty, an issue by no means settled, the ab-

sence of warranties in the sale of chattel does

not necessarily preclude liability for negligence

. .. On the contrary, in the instant situation,

the 'as is' disclaimer serves to add another

dimension to the negligence claim, for its effect

on the evidence presented may be substantial,

especially on the question of whether or to what

degree the defendant owed a duty to the plaintiff.

The understanding of the parties as to the extent

of the disclaimer is particularly relevant to a

jury's determination of what was reasonable under

the circumstances . ..

There remain disputed

facts as to the degree of care exercised by de-

fendants and the degree of care required of them.

Summary judgment on the negligence count is sin-

gularly inapt on the facts before us." 351 So.2d

at 1085-86.

Turner v. International Harvester Company, supra,

involved the "as is" sale of an International tractor-truck.

The court applied a strict liability standard to the seller

of defective used products. The court held that when

selling to the ordinary consumer a simple "as is" disclaimer

does not effectively insulate the dealer from a claim of

strict liability in tort following an accident which re-

sulted from a safety defect present in the vehicle when it

was in the control of the dealer. It stated:

". .. Bargaining power and ability to protect

one's interests are generally disproportionate

as between the buyer of used goods and one in

the business of selling them. While freedom to

contract need not be impaired if a buyer wishes

to contract away his right to protection, an

unequivocal waiver of safety defects must be

shown. .. Otherwise, when the additional indi-

rect costs will be borne by the public through

insurance costs, a decent regard for the public

safety requires the thumb of the State to be on

the buyer's side of the scale .. ."

336 A.2d

at 70-71. (Citations omitted.)

The court ultimately held that the issue of the effect of

the "as is" clause was a jury question:

"The 'as is' notation, however, adds an addi-

tional element to the negligence aspects of this

case . .

. But, does a disclaimer of statutory

warranties also act as a waiver of both tort

claims in strict liability and negligence? With-

out any language of waiver, and without any evi-

dence before this court that the 'as is' language

was meant to serve as an intentional relinquish-

ment of a known right, such effect will not be

implied . . .

"This determination, however, does not fully an-

swer the question of the effect of the 'as is'

statement, for it will have a very real eviden-

tiary effect at the trial. What conditions did

the 'as is' designation disclaim? A jury must

eventually determine what was reasonable with

respect to any proven danger present in a product

sold 'as is.' Did the parties understand that

the 'as is' designation applied only to body

damage, gas mileage, worn tires or other such

problems that could be discerned by a reasonable

inspection or test drive? Was it limited to

performance rather than safety defects? Was the

designation intended to cover all defects?" 336

A.2d at 72-73. (Citations omitted.)

In Fleming v. Stoddard Wendle Motor Co. (1967), 70

Wash.2d 465, 423 P.2d 926, a former owner of a pickup had

modified its automatic transmission so that the motor would

start even though the transmission was "in gear." When the

former owner traded in the pickup, he did not disclose the

modification to the automobile dealer. The court held the

former owner subject to liability for the plaintiff's in-

juries, even though the trade-in was made "as is."

The facts of Fleming are easily distinguishable here.

However, the court's discussion of the "as is" disclaimer is

relevant:

.

". . . in certain circumstances . . parties

may bargain for exemption from liability for

the consequences of negligence . ..

However,

in order to effectuate such a result, a provi-

sion for such an exemption must clearly express

an intention to exclude liability for any and

all harms however caused . . .

"The significance of an 'as is' sale is that the

goods are sold in the condition in which they

are . . .

Such a sale, unless otherwise provided

in the contract, excludes and negatives warran-

ties . . .

In other words, the term 'as is' by

itself amounts solely to a disclaimer of warranty

"The absence of warranties in the sale of chat-

tels does not preclude liability for negligence

. . ."

423 P.2d at 928.

In its discussion the court specifically distinguished

Pokrajac and the "as is" holding in Thrash on much the same

grounds as stated above.

In Kothe v. Tysdale (1951), 233 Minn. 163, 46 N.W.2d

233, the defendant asserted that his status was that of a

seller of secondhand goods "as is" and that no liability

attached to him as a vendor because of any defects therein.

The court disagreed and stated:

"The authorities seem to clearly establish that

either a vendor in a sale or a lessor in a lease

of a vehicle intended to be used upon the public

highways owes a d u t y t o t h e p u b l i c u s i n g such

highways t o e x e r c i s e r e a s o n a b l e c a r e i n s u p p l y i n g

t h e purchaser o r t h e l e s s e e with a vehicle t h a t

w i l l n o t c o n s t i t u t e a menace o r s o u r c e o f d a n g e r

t h e r e o n ; t h a t l i a b i l i t y a t t a c h e s t o s u c h vendor

o r l e s s o r f o r i n j u r i e s which are t h e r e s u l t of

p a t e n t d e f e c t s i n t h e v e h i c l e thus provided, o r

i f d e f e c t s t h e r e i n which c o u l d have been d i s -

c o v e r e d by t h e e x e r c i s e of o r d i n a r y c a r e ; and

t h a t such l i a b i l i t y e x i s t s i r r e s p e c t i v e o f any

c o n t r a c t u a l o b l i g a t i o n s between t h e p a r t i e s t o

the original transaction . . ." 46 N.W.2d a t

236. ( C i t a t i o n s omitted. )

I t i s c l e a r t h a t i n Montana a used car d e a l e r h a s a

d u t y t o d i s c o v e r and r e p a i r any d e f e c t s which are p a t e n t o r

d i s c o v e r a b l e i n t h e e x e r c i s e of o r d i n a r y c a r e . Hilger,

supra. I t i s e q u a l l y clear t h a t it i s a g a i n s t t h e p u b l i c

p o l i c y of t h i s S t a t e t o d i s c l a i m l i a b i l i t y when p e r f o r m i n g

an a c t i n t h e p u b l i c i n t e r e s t . I t c a n n o t be d e n i e d t h a t

i n s p e c t i n g used c a r s t o i n s u r e t h e i r s a f e o p e r a t i o n i s an

a c t i n the public i n t e r e s t .

I n l i g h t o f t h e above-enumerated p u b l i c p o l i c i e s , we

f i n d t h e b e t t e r r u l e t o be t h a t t h e " a s i s " language d o e s

n o t a b s o l v e used car d e a l e r s from t o r t l i a b i l i t y f o r a c c i -

d e n t s c a u s e d by d e f e c t s i n t h e c a r s o l d . This i s e s p e c i a l l y

t r u e i n c a s e s where, a s h e r e , t h e r e was a b r e a c h of a d u t y

t o d i s c o v e r and r e p a i r t h e d e f e c t s .

" T o r t l i a b i l i t y i s n o t based upon r e p r e s e n t a -

tions o r warranties. I t i s based on a d u t y

imposed by t h e law upon one who may f o r e s e e

t h a t h i s a c t i o n s o r f a i l u r e t o a c t may r e s u l t

i n a n i n j u r y t o o t h e r s . " Gaidry Motors, s u p r a ,

268 S.W.2d a t 629.

Here d e f e n d a n t f a i l e d t o i n s p e c t t h e car f o r d e f e c t s

b e f o r e t h e sale t o p l a i n t i f f . The d e f e c t would have been

discovered i n a reasonable s a f e t y inspection. The d e f e c t

was t h e p r o x i m a t e c a u s e o f p l a i n t i f f ' s a c c i d e n t and sub-

sequent i n j u r i e s . Defendant s h o u l d n o t be a l l o w e d t o h i d e

behind t h e c l o a k of a s i m p l e " a s i s " d i s c l a i m e r . When t h e

o r d i n a r y p e r s o n p u r c h a s e s a c a r " a s i s , " he e x p e c t s t o have

t o perform c e r t a i n r e p a i r s t o keep t h e c a r i n good c o n d i -

tion. H e does n o t e x p e c t t o p u r c h a s e a d e a t h t r a p . Public

p o l i c y r e q u i r e s a used c a r d e a l e r t o i n s p e c t t h e c a r s he

s e l l s and t o make s u r e t h e y a r e i n s a f e , working c o n d i t i o n .

T h i s d u t y c a n n o t be waived by t h e u s e of a magic t a l i s m a n i n

t h e form of an " a s i s " p r o v i s i o n . The t r i a l c o u r t d i d n o t

err i n i n s t r u c t i n g t h e j u r y o f d e f e n d a n t ' s d u t y t o i n s p e c t

and i n s u p p r e s s i n g e v i d e n c e on t h e " a s i s " c l a u s e .

The second i s s u e i s whether t h e t r i a l c o u r t e r r e d i n

r e f u s i n g t o i n s t r u c t on t h e d e f e n s e of p l a i n t i f f ' s f a i l u r e

t o use a seat b e l t .

The Montana s t a t u t e s r e g a r d i n g s e a t b e l t s are s e c t i o n s

61-9-409 and -410, MCA. S e c t i o n 61-4-409 provides:

" S e a t b e l t s r e q u i r e d i n new v e h i c l e s . I t i s un-

l a w f u l f o r any p e r s o n t o buy, s e l l , lease, t r a d e

o r t r a n s f e r from o r t o Montana r e s i d e n t s a t re-

t a i l a n a u t o m o b i l e which i s manufactured o r

assembled commencing w i t h t h e 1966 models u n l e s s

s u c h v e h i c l e i s equipped w i t h s a f e t y b e l t s i n -

s t a l l e d f o r u s e i n t h e l e f t f r o n t and r i g h t

f r o n t s e a t s t h e r e o f , and no such v e h i c l e s h a l l

be o p e r a t e d i n t h i s s t a t e u n l e s s s u c h b e l t s

remain i n s t a l l e d . "

S e c t i o n 61-9-4H d e a l s with s e a t b e l t specifications.

T h e r e i s no s t a t u t o r y r e q u i r e m e n t i n Montana t h a t a

p e r s o n must wear a s e a t b e l t w h i l e o p e r a t i n g o r r i d i n g i n a n

a u t o m o b i l e , n o r a r e t h e r e any Montana c a s e s on t h e s u b j e c t .

The s e a t b e l t d e f e n s e h a s , however, been r a i s e d r e p e a t e d l y

i n o t h e r j u r i s d i c t i o n s with varying r e s u l t s .

P l a i n t i f f c o n t e n d s t h a t t h e overwhelming m a j o r i t y o f

j u r i s d i c t i o n s a r e i n a c c o r d t h a t t h e r e i s no common law d u t y

t o wear a seat b e l t , and a b s e n t a s t a t u t e r e q u i r i n g t h e

w e a r i n g of a seat b e l t , n e g l i g e n c e c a n n o t be p r e d i c a t e d upon

failure to do so. She then lists numerous cases in juris-

dictions rejecting the defense.

Defendant, on the other hand, contends that when a

state has a comparative negligence rule, use of seat belts

to mitigate the injury is always a proper question. It

cites a few cases to support its viewpoint, and in its reply

brief attempts to distinguish most of the cases plaintiff

cites on the ground that they were decided in noncomparative

negligence jurisdictions.

The overwhelming majority of the cases, be they from

contributory negligence states or comparative negligence

states, refuse to penalize a plaintiff for not using seat

belts and have rejected the defense. Amend v. Bell (1977),

89 Wash.2d 124, 570 P.2d 138. See also: Barry v. Coca Cola

Co. (1967), 99 N.J.Super. 270, 239 A.2d 273; Birdsong v. ITT

Continental Baking Company (1974), 160 Ind. 411, 312 N.E.2d

104; Britton v. Doehring (1970), 286 Ala. 498, 242 So.2d

666; Brown v. Case (1974), 31 Conn.Sup. 207, 327 A.2d 267;

Brown v. Kendrick (Fla.App. 1966), 192 So.2d 49; Cierpisz v.

Singleton (1967), 247 Md. 215, 230 A.2d 629; D.W. Boutwell

Butane Company v. Smith (Miss. 1971), 244 So.2d 11; Fields

v. Volkswagen of America, Inc. (Okl. 1976), 555 P.2d 48;

King Son Wong v. Carnation Company (Tex.Civ.App. 1974), 509

S.W.2d 385; Lawrence v. Westchester Fire Insurance Company

r .

(La. 1968), 213 So.2d 784; Lipscomb v. Diamiani (Dela.

' I

1967), 226 A.2d 914; McCord v. Green (D.C. 1976), 362 A.2d

720; Miller v. Haynes (Mo. 1970), 454 S.W.2d 293; Miller v.

Miller (1968), 273 N.C. 228, 160 S.E.2d 65; Fischer v. Moore

(1973), 183 Colo. 392, 517 P.2d 458; Nash v. Kamrath (1974),

21 Ariz-App. 530, 521 P.2d 161; Placek v. City of Sterling

Heights (1974), 52 Mich.App. 619, 217 N.W.2d 900; Robinson

v. Lewis (1969), 254 Or. 52, 457 P.2d 483; Selgado v. Com-

mercial Warehouse Company (1975), 88 N.M. 579, 544 P.2d 719;

Stallcup v. Taylor (1970), 62 Tenn.App. 407, 463 S.W.2d 416.

In Amend, supra, the defendants argued that under the

doctrine of comparative negligence, evidence was admissible

to prove that plaintiff's wife was not wearing an available

harness seat belt. They further alleged that such failure

either caused all her injuries, contributed to, enhanced or

aggravated those injuries.

Before the passage of comparative negligence statutes,

Washington held that failure to wear a seat belt was not

contributory negligence. In Amend the defendants contended,

as does defendant here, that the comparative negligence

statute abrogated prior case law on the seat belt defense

and therefore evidence on the defense was admissible. The

court disagreed and stated:

.

". . While the result of contributory negligence

and comparative negligence is much different,

both are premised upon negligence. In the one

case we bar recovery, in the other we compare

negligence and potentially reduce damages. How-

ever, in either case, we look to the negligence

of the plaintiff.

"The premise upon which negligence rests is that

an actor has a legally imposed duty, i.e., a

standard of conduct to which he must adhere.

That duty may spring from a legislative enactment

of the standard of conduct or from a judicially

imposed standard. Deviation from that standard

of conduct must occur to have negligence. [Cita-

tion omitted.]

"Our legislature has not mandated the use of

seat belts as a standard of conduct. RCW 46.37.510

only requires installation of front seat belts on

automobiles manufactured after 1964 [similar to

Montana]. We have held, along with the vast

majority of other states, that such a statute

does not make mandatory the use of the seat

belts. [Citation omitted.1

"The question then is whether the court should

impose a standard of conduct upon all persons

riding in vehicles equipped with seat belts. We

think we should not.

"The defendant should not diminish the consequences

of his negligence by the failure of the plaintiff

to anticipate the defendant's negligence in caus-

ing the accident itself. Only if plaintiff should

have so anticipated the accident can it be said

that plaintiff had a duty to fasten the seat belt

prior to the accident.

"There are a number of reasons why we reach this

conclusion. We have noted that the plaintiff

need not predict the negligence of the defendant.

Second, seat belts are not required in all vehi-

cles. Defendant should not be entitled to take

advantage of the fortuitous circumstance that

plaintiff was riding in a car so equipped.

"Third, while not controlling as to the standard

of conduct, it is a fact and persuasive that the

majority of motorists do not habitually use their

seat belts. Studies show that as many as two-

thirds of observed drivers did not use seat belts.

'Belt Use '76,' Insurance Institute for Highway

Safety, 1976. Belt use by passengers and children

is even lower, one research paper revealing that

93 percent of observed children under 10 were

not restrained by belts and 89 percent of pas-

sengers 10 years or older were not using available

belts. Alan F. Williams, 'Observed Child Restraint

Use in Automobiles,' The American Journal of

-

Diseases of Children, vol. 130, December 1976.

"Fourth, allowing the seat belt defense would

lead to a veritable battle of experts as to what

injuries would have or have not been avoided had

the plaintiff been wearing a belt. At best it

would cause substantial speculation by the trier

of the facts." Amend v. Bell, supra, 570 P.2d

at 143.

In Fischer v. Moore, supra, the court stated:

"We conclude, as the Court of Appeals has, that

the failure of the driver or passenger in a

motor vehicle to use a seat belt does not con-

stitute contributory negligence and may not be

pleaded as a bar to recovery of damages in an

action against a tort-feasor whose negligence

provides the initiating force and is a proximate

cause of an injury to a driver or passenger. [Ci-

tation omitted.] If we were to hold otherwise,

the person who was driving a Volkswagen, and not

a Mack Truck, could be said to be more vulnerable

to injury and, therefore, guilty of contributing

to his own injury as a matter of law. Such a

result would be contrary to the entire 'fault'

philosophy which is found throughout the law of

tort.

"Moreover, t o u s , i t would be improper f o r a n

i n j u r e d d r i v e r o r p a s s e n g e r t o be p e n a l i z e d i n

t h e e y e s o f t h e j u r y by p e r m i t t i n g e v i d e n c e t o

be p r e s e n t e d t h a t a s e a t b e l t w a s a v a i l a b l e

which had n o t been p u t i n u s e . The s e a t b e l t

d e f e n s e would soon become a f o r t u i t o u s w i n d f a l l

t o t o r t - f e a s o r s and would t e n d t o c a u s e rampant

s p e c u l a t i o n as t o t h e r e d u c t i o n ( o r i n c r e a s e ) i n

t h e amount o f r e c o v e r a b l e damages a t t r i b u t a b l e

t o t h e f a i l u r e t o use a v a i l a b l e seat b e l t s . [Ci-

t a t i o n s omitted.] I n comparing t h e c a s e s which

w e have c i t e d , i t i s a p p a r e n t t h a t t h e accep-

t a n c e o f t h e s e a t b e l t d e f e n s e c a n o n l y be j u s t i -

f i e d a s a d e v i a t i o n from common-law n e g l i g e n c e

on a p u b l i c p o l i c y t h e o r y . [Citation omitted.]

The l e g i s l a t u r e , and n o t t h e j u d i c i a r y , s e r v e s

a s t h e barometer o f p u b l i c p o l i c y i n Colorado.

P r i o r t o t h e a d o p t i o n of o u r c o m p a r a t i v e n e g l i -

gence s t a t u t e , t h e l e g i s l a t u r e d i d n o t e n a c t ,

although it considered, s e a t b e l t l e g i s l a t i o n .

T h e r e f o r e , we a r e n o t i n c l i n e d t o a l t e r t h e com-

mon law i n t h e f a c e of t h e l e g i s l a t u r e ' s f a i l u r e

t o a c t i n order t o c r e a t e a negligence defense

which i s wholly grounded on p u b l i c p o l i c y con-

siderations.

" I n s h o r t , t h e s e a t b e l t d e f e n s e , under t h e law

t h a t e x i s t e d p r i o r t o t h e a d o p t i o n o f o u r com-

p a r a t i v e negligence s t a t u t e , i s n o t an affirma-

t i v e d e f e n s e t o a n a c t i o n f o r n e g l i g e n c e , and

evidence t h a t t h e i n j u r e d p a r t y f a i l e d t o w e a r

a s e a t b e l t may n o t be b r o u g h t b e f o r e t h e j u r y

i n any form t o e s t a b l i s h c o n t r i b u t o r y n e g l i g e n c e

o r t o r e d u c e t h e amount of t h e i n j u r e d p a r t y ' s

damages." 517 P.2d a t 459-60.

O t h e r c a s e s which l e a v e such a d e c i s i o n up t o t h e

l e g i s l a t u r e o r r e f u s e t o e n f o r c e a s e a t b e l t d e f e n s e on t h e

b a s i s of s t a t u t e s s i m i l a r t o Montana's a r e : B r i t t o n v.

Doehring, s u p r a , 242 So.2d a t 675; D. W. Boutwell Butane

Company v . Smith, s u p r a , 244 So.2d a t 1 2 ; Miller v . Haynes,

s u p r a , 454 S.W.2d a t 301; M i l l e r v . Miller, s u p r a , 160

S.E.2d a t 73; F i e l d s v. Volkswagen of America, I n c . , supra,

555 P.2d a t 62. Two of t h e above c a s e s g i v e comprehensive

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

belts. Both r e j e c t t h e s e a t b e l t d e f e n s e and c i t e numerous

c a s e s i n s u p p o r t of t h i s r e j e c t i o n .

Based on a l e n g t h y d i s c u s s i o n and a r e v i e w of t h e c a s e

law, t h e c o u r t i n M i l l e r v. M i l l e r , s u p r a , s t a t e d :

" I t would b e a h a r s h and unsound r u l e which would

deny a l l r e c o v e r y t o t h e p l a i n t i f f , whose mere

f a i l u r e t o b u c k l e h i s b e l t i n no way c o n t r i b u t e d

t o t h e a c c i d e n t , and exonerate t h e a c t i v e t o r t -

f e a s o r b u t f o r whose n e g l i g e n c e t h e p l a i n t i f f ' s

o m i s s i o n would have been h a r m l e s s . [ C i t a t i o n

omitted.] Furthermore, i t i s doubtful t h a t such

a r u l e would i n c r e a s e t h e u s e o f s e a t b e l t s . In

t h e case comment o n Brown v . K e n d r i c k , s u p r a ,

39 Colo.L.Rev. 605, 608, it i s s a i d , ' [ I l m p o s i n g

an a f f i r m a t i v e l e g a l duty of wearing s e a t b e l t s

w i l l have v i r t u a l l y no e f f e c t on t h e a c t u a l

s e a t - b e l t w e a r i n g h a b i t s of a u t o m o b i l e o c c u p a n t s .

I t s o n l y e f f e c t would b e t o g i v e a n a d m i t t e d

wrongdoer a c h a n c e t o dodge a s u b s t a n t i a l p o r t i o n

of h i s l i a b i l i t y . ' I t could never, of course,

d e f e a t a p l a i n t i f f ' s c l a i m f o r p r o p e r t y damage.

" N e e d l e s s t o s a y , t h e s e a t - b e l t d e f e n s e , which

would b a r a n o t h e r w i s e w h o l l y i n n o c e n t v i c t i m ,

would n o t b e p o p u l a r w i t h t h e j u r y o r t r i e r o f

facts. [Citations omitted.]

"Due c a r e i s measured by t h e c u s t o m a r y c o n d u c t

o f t h e r e a s o n a b l y p r u d e n t man. The s c a n t u s e

which t h e a v e r a g e m o t o r i s t makes o f h i s s e a t

b e l t , p l u s t h e f a c t t h a t t h e r e i s no s t a n d a r d

f o r d e c i d i n g when i t i s n e g l i g e n c e n o t t o u s e a n

available seat belt, indicates that the court

s h o u l d n o t impose a d u t y upon m o t o r i s t s t o u s e

them r o u t i n e l y whenever he t r a v e l s upon t h e

highway. I f t h i s i s t o be done, it should be

done by t h e l e g i s l a t u r e . [ C i t a t i o n o m i t t e d . ] " 160

S.E.2d a t 73.

I n McCord v. Green, s u p r a , t h e c o u r t c i t e d M i l l e r

e x t e n s i v e l y and c o n c l u d e d :

"'Unfortunately, t h e use of occupant r e s t r a i n t s

h a s t r a d i t i o n a l l y been low i n t h i s c o u n t r y . Even

now, t h e a v e r a g e u s e r a t e f o r cars o f a l l model

y e a r s i s a b o u t 5 p e r c e n t f o r l a p and s h o u l d e r

b e l t s a n d 25 p e r c e n t f o r l a p b e l t s a l o n e . '

"To c h a r a c t e r i z e p l a i n t i f f ' s b e h a v i o r i n t h i s case

a s l a c k i n g i n o r d i n a r y p r u d e n c e would b e p a r a d o x i -

c a l , a s i t d i d n o t d i f f e r from t h a t o f 75% o f t h e

motorists i n t h i s country with respect t o the use

of s e a t belts." 362 A.2d a t 725. ( C i t a t i o n o m i t -

ted.) See a l s o , Romankewiz v . B l a c k ( 1 9 6 9 ) , 16

Mich.App. 1 1 9 , 167 N.W.2d 606, 609, and N a s h v .

Kamrath, s u p r a , 521 P.2d a t 163-64.

A l t h o u g h t h e s t u d y q u o t e d i n McCord v . Green, s u p r a ,

was c o n d u c t e d o v e r a d e c a d e a g o , i t i s a p p a r e n t l y s t i l l

a p p l i c a b l e today. W i t n e s s t h i s d i s c u s s i o n from F i e l d s v .

Volkswagen o f America, I n c . , supra:

"This is a question of first impression in this

court. There is no common law or statutory duty

requiring the use of seat belts. Imposition of

new and recent technological advances are not

usually inducted into doctrines of law, until

such time as they have been sufficiently tried,

proven and accepted for the purpose they were

intended. Historically, the seat belt phenomenon

is in its infancy. It is in a state of influx.

"Both industry and government are now aware

that while seat belts are beneficial, their use

and acceptance cannot be arbitrarily thrust

upon the traveling public. Consequentially,

on October 28, 1974, the controversial manda-

tory seat belt interlock system was withdrawn

and industry has intensified its research to

determine other possible alternatives.

"If the appellants in this case are guilty of

the acts of negligence as alleged, which caused

the accident and resulting injuries, then they

should be held accountable as constitutionally

and statutorily required. If the allegations

of negligence are true, appellee did nothing to

cause the accident. Should he be required to

anticipate the negligence of the appellants? We

think not. One's duty to mitigate damages cannot

arise before he is damaged. The failure to mini-

mize must occur after the injury. At most the

failure of the appellee to use the seat belt

merely furnished a condition by which the injury

was possible. It did not contribute to or cause

the accident. It is well established in our

court that if the negligence merely furnishes a

condition by which the injury was possible, and

a subsequent act caused the injury, the exis-

tence of such a condition is not the proximate

cause of the injury.

"Although there is a conflict in other jurisdic-

tions who have been confronted with this issue,

the majority of the cases hold that the failure

to use seat belts is not a defense to establish

contributory negligence or to reduce the amount

of damages to the injured party.

"In view of the lack of unanimity on a proper

seat belt system, the lack of public acceptance,

and in the absence of any common law or statu-

tory duty, we find that evidence of the failure

to use seat belts is not admissible to establish

a defense of contributory negligence or to be

considered in mitigation of damages. For the

present time we await the direction of the legis-

lature." 555 P.2d at 61-62.

On the other side of the coin is Bentzler v. Braun

(1967), 34 Wisc.2d 362, 149 N.W.2d 626. The court in

Bentzler stated:

"While we agree with those courts that have con-

cluded that it is not negligence per- to fail

- se

to use seat belts where the only statutory stan-

dard is one that requires the installation of

the seat belts in the vehicle, we nevertheless

conclude that there is a duty, based on the

common law standard of ordinary care, to use

available seat belts independent of any statu-

tory mandate.

"We therefore conclude that, in those cases where

seat belts are available and there is evidence

before the jury indicating causal relationship

between the injuries sustained and the failure to

use seat belts, it is proper and necessary to

instruct the jury in that regard. A jury in

such case could conclude that an occupant of an

automobile is negligent in failing to use seat

belts. . ." 149 N.W.2d at 639, 640.

However, the court held that the trial judge had properly

refused - requested instruction

a on the seat belt defense:

"There was proof that seat belts were available

and were not used, but that fact alone does not

prove causation, for the driver of the vehicle

also failed to use the available seat belts,

but his injuries were minimal." 149 N.W.2d at

640.

See also Sams v. Sams (1966), 247 S.C. 471, 148 S.E.2d 154.

Illustrative of the cases which state that upon one or

both of these aspects, the defense must be submitted to the

jury are: Dudanas v. Plate (1976), 44 Ill.App.3d 901, 3

I11.Dec. 486, 358 N.E.2d 1171; Spier v. Barker (1974), 35

In light of the history and the numerous legislative

problems that must be considered to effectively extend the

seat belt rule of law, we have concluded that the well-

reasoned position of the Washington court in Amend v. Bell,

supra, produces the better rule and reach the conclusion

t h a t t o a d o p t a s e a t b e l t d e f e n s e when t h e l e g i s l a t u r e h a s

f a i l e d t o do s o would b e i l l - a d v i s e d . The t r i a l c o u r t

properly refused t o allow defendant t o introduce a s e a t b e l t

defense i n t o t h i s case.

The t h i r d i s s u e i s w h e t h e r t h e t r i a l c o u r t e r r e d i n

r e f u s i n g t o p r e s e n t t o t h e jury t h e q u e s t i o n of assumption

o f r i s k , b o t h c o n t r a c t u a l and n o n c o n t r a c t u a l .

Defendant contends t h a t t h e t r i a l c o u r t mistakenly

a c t e d on t h e a s s u m p t i o n t h a t t h e c o m p a r a t i v e n e g l i g e n c e

s t a t u t e merged t h e d e f e n s e and e r r e d i n r e f u s i n g t o i n s t r u c t

s e p a r a t e l y on t h e i s s u e of t h e defense.

P l a i n t i f f i n i t i a l l y contends t h a t "assumption of r i s k "

i s n o t involved h e r e because t h e t r a d i t i o n a l elements of

a s s u m p t i o n o f r i s k are n o t i n v o l v e d . Plaintiff further

a s s e r t s t h a t e v e n i f t h e d o c t r i n e a p p l i e s h e r e , i t i s no

l o n g e r a s e p a r a t e a f f i r m a t i v e d e f e n s e b u t m e r e l y o n e form o f

c o n t r i b u t o r y f a u l t t o b e compared, which t h e j u r y d i d .

W e a g r e e w i t h p l a i n t i f f t h a t t h e d o c t r i n e of assumption

of r i s k does n o t apply i n t h e i n s t a n t case.

H i s t o r i c a l l y i n Montana, t h e d e f e n s e o f a s s u m p t i o n o f

r i s k required: " ( 1 ) knowledge, a c t u a l o r i m p l i e d , o f t h e

particular condition creating the r i s k , (2) appreciation of

t h i s c o n d i t i o n a s dangerous, ( 3 ) a v o l u n t a r y remaining o r

c o n t i n u i n g i n t h e f a c e o f t h e known d a n g e r o u s c o n d i t i o n , and

( 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 and p r o b a b l e c o n s e q u e n c e

o f t h e dangerous condition." Hanson v . C o l g r o v e ( 1 9 6 8 ) , 152

Mont. 1 6 1 , 447 P.2d 486, 488. (Emphasis a d d e d . ) See a l s o

Dean v . F i r s t N a t i o n a l Bank o f G r e a t F a l l s ( 1 9 6 9 ) , 152 Mont.

474, 452 P.2d 402, 405. Here, t h e r e i s no e v i d e n c e t h a t

p l a i n t i f f knew o f t h e p a r t i c u l a r c o n d i t i o n which c a u s e d t h e

accident. ". . . Assumption o f r i s k i s governed by t h e

subjective standard of the plaintiff rather than the objec-

tive standard of the reasonable man . . ." Deeds v. United

States (D. Mont. 1969), 306 F.Supp. 348, 363.

In Brown v. North Am. Mfg. Co. (1978), - Mont. I

576 P.2d 711, 35 St.Rep, 194, this Court quoted from Dorsey

v. Yoder Company (E.D. Pa. 1971), 331 F.Supp. 753, and

stated:

"Quoting 2 Restatement of Torts 2d, §496D, Comment

(c), the court in Dorsey continued:

" ' "The standard to be applied is a subjective one,

of what the particular plaintiff - - - sees,

in fact

knows, understands and appreciates. In this it

differs from the objective standard which is

applied to contributory negligence. * * * If by

reason ofage, or lack of information, experience,

intelligence, or judgment, the plaintiff does not

understand the risk involved in a known situation,

he will not be taken to assume the risk, although

it may be found that his conduct is contributory

negligence because it does not conform to the

community standard of the reasonable man."'"

576 P. 2d at 719. (Emphasis supplied.)

Our discussion above on the "as is" defense indicates

that plaintiff did not contractually assume the risk of the

defective condition, nor did she impliedly assume it. To

assume the risk, one must have knowledge of the particular

condition that creates such risk. Such knowledge was lack-

ing on the part of plaintiff. Defendant here has failed to

prove the requisite elements of the defense of assumption of

risk. The trial court properly refused to instruct the jury

on assumption of risk.

Although we do not apply the doctrine in this case, it

would be helpful to discuss its application since the recent

passage of the comparative negligence statute. Defendant

contends that because Montana recognized that the defenses

of assumption of risk and contributory negligence were

separate defenses requiring separate instructions before the

Passage of comparative negligence, the same result should

accrue after adoption of comparative negligence. Plaintiff

contends that assumption of risk should be merged into the

general scheme of assessment of liability in proportion to

fault and should not be a separate defense, and that if a

state, like Montana, recognized that assumption of risk and

contributory negligence were separate defenses, they have

consistently retained "assumption of risk" as a separate

defense under comparative negligence rules. Arkansas Kraft

Corporation v. Johnson (1975), 257 Ark. 629, 519 S.W.2d 74;

Blum v. Brichacek (1974), 191 Neb. 457, 215 N.W.2d 888;

O'Brien v. Smith Brothers Engine Rebuilders, Inc. (Tenn.App.

1973), 494 S.W.2d 787. Defendant argues that Montana should

follow the above jurisdictions and retain the distinction.

To do otherwise, it contends, would be to change the statute

itself as to comparative negligence.

Defendant also distinguishes the cases cited by plain-

tiff arguing that the decisions made in those states before

comparative negligence were different from Montana's.

Defendant is correct in its conclusion that prior to the

adoption of comparative negligence, Montana distinguished

between contributory negligence and assumption of risk,

Deeds v. United States, supra, 306 F.Supp. at 362-363, and

allowed the giving of separate instructions on the two

issues. Hoffman v. Herzog (1971), 158 Mont- 296, 491 P.2d

713.

The cases it cites, however, do not discuss the effect

of a comparative negligence statute on separability of the

defenses of assumption of risk and comparative negligence

and are not good authority for defendant's argument since

the precise issue presented here was not before the respec-

tive courts.

Plaintiff contends that under comparative negligence,

the issue of assumption of risk is just one of the factors

to be considered in determining plaintiff's contributory

negligence.

In Li v. Yellow Cab Company of California (1975), 119

Cal.Rptr. 858, 532 P.2d 1226, the California Supreme Court

judicially adopted the doctrine of comparative negligence.

The court discussed the question of the effect of compara-

tive negligence on thedoctrinesof assumption of risk and

last clear chance and concluded that neither of these two

doctrines were actually necessary under comparative negli-

gence. The court stated:

"The third area of concern, the status of the

doctrines of last clear chance and assumption

of risk, involves less the practical problems

of administering a particular form of compara-

tive negligence than it does a definition of

the theoretical outline of the specific form

to be adopted. Although several states which

apply comparative negligence concepts retain

the last clear chance doctrine [citation omit-

ted], the better reasoned position seems to be

that when true comparative negligence is adop-

ted, the need for last clear chance as a pal-

liative of the hardships of the 'all-or-nothing'

rule disappears and its retention results only

in a windfall to the plaintiff in direct con-

travention of the principle of liability in

proportion to fault. [Citations omitted. 1 As

for assumption of risk, we have recognized in

this state that this defense overlaps that of

contributory negligence to some extent and in

fact is made up of at least two distinct de-

fenses. 'To simplify greatly, it has been ob-

served ...that in one kind of situation, to

wit, where a plaintiff unreasonably undertakes

to encounter a specific known risk imposed by a

defendant's negligence, plaintiff's conduct,

although he may encounter that risk in a prudent

manner, is in reality a form of contributory

negligence . . .

Other kinds of situations with-

in the doctrine of assumption of risk are those,

for example, where plaintiff is held to agree

to relieve defendant of an obligation of reason-

able conduct toward him. Such a situation would

not involve contributory negligence, but rather

a reduction of defendant's duty of care.' [Cita-

tions omitted.] We think it clear that the adop-

tion of a system of comparative negligence should

entail the merger of the defense of assumption

of risk into the general scheme of assessment of

liability in proportion to fault in those parti-

cular cases in which the form of assumption of

risk involved is no more than a variant of con-

tributory negligence. [Citations omitted.]" 532

P.2d at 1240-41.

Minnesota has held that implied assumption of risk as

an affirmative defense in tort actions is to be limited to

those situations in which the voluntary encounter with a

known and appreciated risk is unreasonable. As such, it is

to be considered merely as a phase of contributory negli-

gence, to be submitted with and apportioned under, the

comparative negligence doctrine. Springrose v. Willmore

(1971), 292 Minn. 23, 192 N.W.2d 826.

". .

. The doctrine of implied assumption of risk

must, in our view, be recast as an aspect of con-

tributory negligence, meaning that the plaintiff's

assumption of risk must be not only voluntary but,

under all the circumstances, unreasonable ...

The practical and most important impact of this

decision is to mandate that, like any other form

of contributory negligence, assumption of risk

must be apportioned under our comparative negli-

gence statute . . ." 192 N.W.2d at 827. [Cita-

tions omitted. I

In Lyons v. Redding Construction Company (1973), 83 Wash.2d

86, 515 P.2d 821, the court stated:

". .

. Adoption of the standard of comparative

negligence is necessarily accompanied by a more

flexible weighing of the relative fault attri-

butable to each party. A concomitant effect of

this more delicate apportionment of damages will

be the elimination of the need for the assump-

tion of the risk doctrine. Thus, the calculus

of balancing the relative measurements of fault

inevitably incorporates the degree to which the

plaintiff assumed the risk. Accordingly, it

has been held the effect of the comparative negli-

gence standard shall be to completely abrogate

the assumption of risk doctrine as known and ap-

plied heretofore." 515 P.2d at 826.

See also Colson v. Rule (1962), 15 Wisc.2d 387, 113 N.W.2d

In Wilson v. Gordon (Me. 1976), 354 A.2d 398, the ~ a i n e

court presents an excellent discussion on this issue. It

states:

"Contractual assumption of the risk is not incon-

sistent with the Maine comparative negligence

statute. On the other hand, voluntary assumption

of the risk ... is but a form of contributory

fault. That being so, our comparative negligence

statute is clearly intended to abolish the doc-

trine of so-called voluntary assumption of the

risk.

"While it is true that 14 M.R.S.A. 5156 does

not specifically abolish the defense of assump-

tion of the risk, in most cases the apportion-

ment of fault which the statute is designed to

effectuate obviates the need for and alleviates

much of the harshness of that common law doctrine.

In those cases where assumption of the risk is

based upon the plaintiff's lack of due care in

encountering a known risk created by the negli-

gence of the defendant--so-called 'voluntary'

assumption of the risk--the concept overlaps

contributory fault. In such circumstances the

plaintiff's conduct should be judged in terms of

contributory fault and weighed against the causal

negligence of the defendant. This approach avoids

the harsh 'all or nothing' effect of assumption

of the risk while at the same time permitting a

defendant to reduce his liability for damages when

he can demonstrate that the plaintiff's fault con-

tributed to the injuries.

"The treatment of assumption of the risk which we

today adopt has long been advocated by Dean

Prosser and seems to represent the approach ad-

hered to by most of the courts which have re-

cently dealt with the question.

"Some jurisdictions have abolished the defense

of assumption of the risk, except where the risk

was contractually assumed, without any reference

to whether or not a comparative negligence statute

had been adopted. Alaska, Leavitt v. Gillaspie,

Alaska, 443 P.2d 61 (1968); Hawaii, Bulatao v.

Kauai Motors, Ltd., 49 Hawaii 1, 406 P.2d 887

(1965); Iowa, Rosenau v. City of Estherville,

Iowa, 199 N.W.2d 125 (1972); Kentucky, Parker v.

Redden, Ky., 421 S.W. 2d 586 (1967); Michigan,

Felgner v. Anderson, 375 Mich. 23, 133 N.W.2d

136 (1965); New Hampshire, Bolduc v. Crain, 104

N.H. 163, 181 A.2d 641 (1962); New Jersey, Mei-

strich v. Casino Arena Attractions, Inc., 31

N.J. 44, 155 A.2d 90 (1959), and McGrath v.

American Cyanamid 41 N.J. 272, 196 A.2d 238

(1963); New Mexico, Williamson v. Smith, 83

N.M. 336, 491 P.2d 1147 (1972); Oregon, Ritter

v. Beals, 225 Or. 504, 358 P.2d 1080 (1961);

Wisconsin, Gilson v. Drees Bros., 19 Wis.2d

252, 120 N.W.2d 63 (1963).

"In Meistrich, supra, Chief Justice Weintraub

expounded upon the confusion which has been

wrought by the indiscriminate use of the term

'assumption of the risk.' He emphasized the

distinction between 'primary' assumption of the

risk (i.e., contractual) and 'secondary' assump-

tion of the risk (i.e., implied or voluntary)

and concluded:

"'We - satisfied there - - reason to charge

- are is no

assumption - - - - - its secondarysense as

of the risk in --

something distinct from contributory negligence,

and hence .that where the thought - projected

is

in -

- that aspect, the terminology of assumption of

-- should - - -

the risk not be used. at her .. . the-

subject should be subsumed under the charge of

-

contributory nesiqence.' 155 A.2dat 96.

"Other courts have interpreted their comparative

negligence statutes as eliminating the need for

assumption of the risk where the defense can be

said to overlap with contributory negligence.

California, Li v. Yellow Cab Co. of Calif., 13

Cal.3d 804, 119 Cal.Rptr. 858, 532 P.2d 1226

(1975); Minnesota, Springrose v. Willmore, 292

Minn. 23, 192 N.W.2d 826 (1971); Mississippi,

Braswell v. Economy Supply Co., Miss., 281 So.2d

669 (1973); and Washington, Lyons v. Redding

Construction Co., 83 Wash.2d 86, 515 P.2d 821

(1973).

"A statement of the California court in the Li

case is representative of the reasoning whichper-

vades all of the above opinions:

"'We think - clear - - adoption of - system

- it that the -a

of comparative negligence should entail - -

the mer-

G r- -

- of the defense of assumption of - - - into

- --

the risk

. . .

the general scheme - assessment - liability -

of of in

proportion to fault in those particular cases

which - - - of assumption - -

the form of risk involved -

. is

.

no more than a variant of contributory negligence.'

----

119 Gal-Rptr. at 873, 532 P.2d at 1241.

"There appear to be few jurisdictions which adhere

to the position that comparative negligence and

voluntary assumption of the risk can be harmonized.

See Bugh v. Webb, 231 Ark. 27, 328 S.W.2d 379 (1959);

Harris v. Hercules, Inc., 328 F.Supp. 360 (E.D. Ark.

1971).

"Appellant directs us to a Florida case, Dorta v.

Blackburn, Fla-App., 302 So.2d 450 (1973), in

which a Florida District Court of Appeals held

that the Florida State Supreme Court

"'appears to have recognized the continued exis-

tence of the common law defense of assumption of

the risk notwithstanding its adoption of the doc-

trine of comparative negligence.' 302 So.2d at

451.

"More recently, however, another Florida District

Court of Appeals took a contrary approach, hold-

ing that

"'[tlhe defense of assumption of the risk is no

less "a primitive device of achieving justice

between parties who are both at fault" than was

contributory negligence. It should meet the same

fate as contributory negligence and not consti-

tute a complete bar to recovery where comparative

negligence is the measuring standard for recovery.'

Rea v. Leadership Housing, Inc., Fla.App., 312

So.2d 818, 822 (1975)." 354 A.2d at 401-403.

The Wilson court concluded with a statement which is appli-

cable to our decision here.

"Since, in the case now before us, it cannot be

seriously contended that the appellee contrac-

tually assumed the risk of his injury and since

we now decide that the doctrine of voluntary as-

sumption of the risk is no longer viable, it is

evident that appellant's request for an instruc-

tion on assumption of the risk was properly

denied." 354 A.2d at 403.

As stated earlier, the elements of the doctrine of

assumption of the risk are not present in this case. How-

ever, when this situation does arise, we will follow the

modern trend and treat assumption of the risk like any other

form of contributory negligence and apportion it under the

comparative negligence statute.

The fourth issue is whether the District Court erred in

not granting summary judgment on plaintiff's Count No. 11.

Count I1 of the complaint is identical to Count I

except for an addition which, in effect, claims misrepre-

sentation as to the odometer reading. Count I1 states in

pertinent part: "If said vehicle had not been driven an

additional forty thousand miles than was represented to

plaintiff, plaintiff alleges on information and belief that

the accident which is the subject of this action would not

have occurred."

Defendant c o n t e n d s t h a t p l a i n t i f f " h a s m i s u n d e r s t o o d "

t h e Montana U n f a i r Trade P r a c t i c e s and Consumer P r o t e c t i o n

A c t and s p e c i f i c a l l y s e c t i o n s 30-14-103 and 30-14-104, MCA.

Defendant s t a t e s t h a t under t h e A c t , t h e Department o f

B u s i n e s s R e g u l a t i o n s may o n l y a d o p t r u l e s n o t i n c o n s i s t e n t

w i t h t h e f e d e r a l Act and d e c i s i o n s t h e r e u n d e r . I t contends

a r e a d i n g of t h e c a s e s a n n o t a t e d under 1 5 U.S.C.A. 545

(1973) shows t h a t t h e p u r p o s e of t h e f e d e r a l s t a t u t e s i s t o

p r e v e n t u n l a w f u l r e s t r a i n t o f t r a d e and s u b m i t s t h a t s i n c e

t h e Montana Department o f B u s i n e s s R e g u l a t i o n s may n o t a d o p t

r u l e s i n c o n s i s t e n t w i t h t h e f e d e r a l law, i t i s improper t o

have a r e g u l a t i o n which d e a l s w i t h s a l e s . Such r e g u l a t i o n

i s , a c c o r d i n g t o d e f e n d a n t , o u t s i d e t h e s c o p e of t h e en-

abling legislation.

D e f e n d a n t ' s arguments a r e m i s p l a c e d .

S e c t i o n 30-14-103, MCA, states:

" U n f a i r methods o f c o m p e t i t i o n and u n f a i r o r de-

c e p t i v e a c t s o r p r a c t i c e s i n t h e c o n d u c t of any

t r a d e o r commerce a r e u n l a w f u l . "

S e c t i o n 30-14-104, MCA, p r o v i d e s :

"1. I t i s t h e i n t e n t o f t h e l e g i s l a t u r e t h a t i n

c o n s t r u i n g S e c t i o n 30-14-103 due c o n s i d e r a t i o n

and w e i g h t s h a l l be g i v e n t o t h e i n t e r p r e t a t i o n s

of t h e f e d e r a l t r a d e commission and t h e f e d e r a l

c o u r t s r e l a t i n g t o s e c t i o n 5 ( a ) (1) of t h e F e d e r a l

Trade Commission Act (15 U.S.C., 4 5 ( a ) ( l ) ) , as

amended.

"2. The Department may make r u l e s i n t e r p r e t i n g

t h e p r o v i s i o n s of 30-14-103. Such r u l e s s h a l l

n o t be i n c o n s i s t e n t w i t h t h e r u l e s , r e g u l a t i o n s ,

and d e c i s i o n s o f t h e f e d e r a l t r a d e commission

and t h e f e d e r a l c o u r t s i n i n t e r p r e t i n g t h e pro-

v i s i o n s of s e c t i o n 5 ( a ) ( l ) of t h e F e d e r a l Trade

Commission Act ( 1 5 U.S.C., 4 5 ( a ) ( I ) ) , a s amended."

A.R.M. 58-2.4(2)-S440 provides i n p a r t :

" I t s h a l l be a n u n f a i r o r d e c e p t i v e a c t o r p r a c -

t i c e f o r a motor v e h i c l e d e a l e r t o :

" ( 3 ) r e p r e s e n t t h e previous usage o r s t a t u s of a

motor v e h i c l e t o be something t h a t , i n f a c t , i t

was n o t ; o r make s u c h r e p r e s e n t a t i o n s u n l e s s t h e

d e a l e r has s u f f i c i e n t information t o support t h e

representations. "

S e c t i o n 30-14-133, MCA, p r o v i d e s i n p a r t :

" ( 1 ) Any p e r s o n who p u r c h a s e s o r l e a s e s goods o r

s e r v i c e s p r i m a r i l y f o r p e r s o n a l , f a m i l y , o r house-

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

l o s s of money o r p r o p e r t y , r e a l o r p e r s o n a l , a s a

r e s u l t of t h e u s e o r employment by a n o t h e r p e r s o n

o f a method, a c t , o r p r a c t i c e d e c l a r e d u n l a w f u l

by 30-14-103 may b r i n g an i n d i v i d u a l b u t n o t a

c l a s s a c t i o n under t h e r u l e s o f c i v i l p r o c e d u r e

i n t h e d i s t r i c t c o u r t o f t h e c o u n t y i n which t h e

seller o r l e s s o r r e s i d e s o r has h i s p r i n c i p a l

p l a c e of b u s i n e s s o r i s d o i n g b u s i n e s s t o r e c o v e r

a c t u a l damages o r $200, whichever i s g r e a t e r . The

c o u r t may, i n i t s d i s c r e t i o n , award up t o t h r e e

t i m e s t h e a c t u a l damages s u s t a i n e d and may p r o v i d e

such e q u i t a b l e r e l i e f a s it c o n s i d e r s necessary

o r proper."

While t h e main p u r p o s e of t h e f e d e r a l s t a t u t e i s t o

prevent unlawful r e s t r a i n t of t r a d e , t h e r e i s nothing i n t h e

c a s e s t o i n d i c a t e t h a t t h e above r u l e of t h e Department of

Business Regulations i s i n c o n s i s t e n t with t h e f e d e r a l c a s e s

o r t h e enabling l e g i s l a t i o n .

The D i s t r i c t C o u r t was t h e r e f o r e c o r r e c t i n d e n y i n g

summary judgment on t h i s m a t t e r . A d e t e r m i n a t i o n o f whether

t h e a l l e g e d v i o l a t i o n w a s a c a u s e of p l a i n t i f f ' s damages i s

a question of f a c t f o r t h e jury t o determine. A s such, it

was n o t r i p e f o r summary judgment.

A s p a r t of d e f e n d a n t ' s c a s e - i n - c h i e f , counsel f o r

d e f e n d a n t a t t e m p t e d t o impeach p l a i n t i f f by i n t r o d u c i n g i n

e v i d e n c e a d e p o s i t i o n t a k e n of p l a i n t i f f by d e f e n d a n t p r i o r

to trial. O b j e c t i o n w a s made upon t h e grounds of r e p e t i -

t i o n , i n a d m i s s i b i l i t y of t h e d e p o s i t i o n and improper impeach-

ment e v i d e n c e . The c o u r t a d j o u r n e d t o chambers t o h e a r t h e

e v i d e n c e and argument, and a f t e r o f f e r o f p r o o f , d e n i e d t h e

u s e of t h e d e p o s i t i o n a s proposed.

The District Court was correct in so ruling under the

circumstances in this case. Plaintiff had been extensively

cross-examined by defendant during plaintiff's case-in-

chief. She had gone to her home because of her physical

condition and was not present at the time the deposition was

offered, nor at the time of the offer of proof (though

defendant asked that she be returned to court for the pur-

pose of using the deposition).

The issue presents a question of interpreting what the

rules allow regarding depositions used for impeachment

purposes. It is to be noted that Rule 32(b), M.R.Civ.P.,

provides :

". . . objection may be made at the trial or

hearing to receiving in evidence any deposi-

tion or part thereof for any reason which

would require the exclusion of the evidence

if the witness were then present and testifying."

The matter is governed by the provisions of Montana

Rules of Evidence, Rule 613. That rule provides:

"(a) Examining Witness Concerning Prior State-

ment. In examining a witness concerning a

prior statement made by him, whether written

or not, the statement need not be shown or

its contents disclosed to him at that time,

but on request the same shall be shown or dis-

closed to opposing counsel.

"(b) Extrinsic Evidence of Prior Inconsistent

Statement of Witness. ~ Z r i n s i cevidence of a

prior inconsistent statement by a witness is not

admissible unless the witness is afforded an

opportunity to explain or deny the same and the

opposite party is afforded an opportunity to

interrogate him thereon, or the interests of

justice otherwise require. This provision

does not apply to admissions of a party-

opponent as defined in Rule 801 (d)(2)."

This rule is fairly new, and practitioners would be

well-advised to study its provisions. If the witness is on

the stand and testifying, a cross-examiner may ask the

witness about prior statements made by the witness, without

first showing the witness the written deposition or writing

in which the prior statement is contained. This is a per-

mitted departure from the former practice, where, in impeach-

ment, it was required that the writing containing the prior

inconsistent statement be first shown to the witness.

The method chosen by the cross-examiner in this case,

however, violated the provisions of subdivision (b) of Rule

613. The witness was not on the stand. The cross-examiner

proposed to offer in evidence, in the absence of the wit-

ness, a deposition taken of the witness pretrial for the

purpose of impeachment. Thus the deposition itself was

extrinsic evidence of a prior inconsistent statement. It

was not admissible unless the witness had an opportunity to

explain or deny the same, and the opposite party was a£-

forded an opportunity to interrogate her on the deposition.

This foundational requirement not having been met by the

cross-examiner, the District Court was correct in denying

the admission into evidence of the deposition or any part of

it under Rule 613(b), Mont.R.Evid., and the provisions of

Rule 32(b), M.R.Civ.P., foregoing.

It is, of course, not necessary under the new rules of

evidence that impeachment evidence of prior inconsistent

statements be offered during the cross-examination of the

witness. Under Rule 613(b) it can be done at any time

during the trial (see Advisory Committee's Note under sec-

tion 613, Federal Rules of Evidence). Thus in a proper

case, a party may demand a return to the stand of any wit-

ness not excused for the purposes of impeachment through

prior inconsistent statements. Here that demand was prop-

erly denied by the District Court on the grounds of repeti-

tion of the proposed testimony. Its discretion on that

point governs us, and we agree the proposed evidence would

have been repetitious. In any event, however, the deposi-

tion itself, as extrinsic evidence, is admissible only under

the conditions of Rule 613(b), Mont.R.Evid. Therefore, no

error occurred in this trial respecting the proferred im-

peachment evidence.

Plaintiff raises as an issue on cross-appeal whether

the jury's reduction of damages from $650,000 to $422,500

should be sustained. It appears that plaintiff made no

objection at the trial on this issue. Generally, we will

not consider issues raised for the first time on appeal.

Hash v. Montana Power Co. (1974), 164 Mont. 493, 524 P.2d

1092.

Even if this question were to be considered by this

Court under a comparative negligence scheme, the question of

plaintiff's negligence is a question of fact for the jury to

decide. Our function is to determine whether there is

substantial credible evidence to support the jury verdict.

To this end we must review the evidence in the light most

favorable to the prevailing party in the District Court.

No11 v. City of Bozeman (1977), 172 Mont. 447, 564 P.2d

1296.

The jury was entitled under the facts presented to find

as it did. We find sufficient credible evidence to support

the verdict of the jury on all questions.

The remaining issues raised by both parties present

alleged elements of error, which even if true, would not be

reversible error. Discussion of those issues is therefore

unnecessary.

In conclusion, the case under consideration was deemed

submitted at the close of oral arguments, and no permission

to plead further being granted, the supplemental briefs of

the parties were neither accepted nor considered in this

cause.

The judgment of the District Court is affirmed.

We concur:

2 4 d gp@, LdLQ

Chief Justice

Mr. J u s t i c e John Conway H a r r i s o n c o n c u r r i n g i n p a r t and d i s -

senting i n part:

I c o n c u r w i t h a l l i s s u e s w i t h t h e e x c e p t i o n of t h e s e a t

b e l t i s s u e w i t h which I r e s p e c t f u l l y d i s s e n t . I would

return the case t o the court for r e t r i a l f o r f a i l u r e t o give

t h e r e q u e s t e d i n s t r u c t i o n s on t h e u s e of s e a t b e l t s .

If e v e r t h e r e w a s a case p r e s e n t e d t o t h i s C o u r t i n d i -

c a t i n g t h e n e c e s s i t y o f u s i n g seat b e l t s , t h i s i s t h e c a s e .

The v e r y f a c t t h a t r e s p o n d e n t and h e r husband, from t h e v e r y

t i m e of p u r c h a s e , had d i f f i c u l t i e s w i t h t h e c a r and s o u g h t

t h e a d v i c e of a f r i e n d who w a s a mechanic, i n d i c a t e s t h a t

r e s p o n d e n t knew t h e c a r ' s c o n d i t i o n and s h o u l d have worn

s e a t b e l t s d u r i n g any d r i v e t h a t s h e t o o k i n t h e c a r .

B e f o r e p u r c h a s i n g t h e c a r s h e and h e r husband took t h e c a r

o u t f o r a t e s t d r i v e and t h e y n o t e d i t had a tendency t o

pull t o the l e f t . When t h e y t o o k t h e car back, s h e d i d n o t

have t h e same r e p a i r e d b e f o r e p u r c h a s i n g i t from t h e d e a l e r .

Immediately t h e r e a f t e r r e s p o n d e n t d r o v e t h e c a r t o

M i s s o u l a , where s h e took i t t o a f r i e n d ' s g a r a g e . He

i n d i c a t e d a f t e r working on t h e c a r t h a t s h e s h o u l d t a k e t h e

c a r back; t h a t i t needed l o t s of work and was " n o t s a f e on

t h e road." D e s p i t e t h a t a d v i c e , s h e d r o v e back from M i s -

s o u l a t o G r e a t F a l l s and n o t i c e d t h a t t h e c a r l o s t power due

t o e x t r e m e v i b r a t i o n , t h a t i t " d i e s e l e d " , and t h a t t h e motor

c o n t i n u e d t o r u n some t i m e a f t e r t h e i g n i t i o n had been

turned o f f . When s h e g o t home h e r husband t e s t e d t h e c a r

and n o t e d some d i f f i c u l t y w i t h t h e s t e e r i n g . In addition,

t h e day s h e d r o v e t h e car t o C h e s t e r t o see D r . Buker, s h e

d i d s o a g a i n s t t h e a d v i c e of h e r husband who f e l t t h a t t h e

c a r s h o u l d n o t be on t h e r o a d and t h a t s h e s h o u l d t a k e t h e

o t h e r family car.

Under these circumstances, and considering the accident

where she drove off the road and was thrown out of the car,

there is no question that her failure to "belt up" contri-

buted to the seriousness of her injuries.

There is no dispute that the Datsun had seat belts, and

respondent's testimony was that it was her custom or habit

to wear a seat belt when driving. The very condition of the

car itself warranted the conclusion that respondent's in-

juries would have been minimal had she worn the seat belt

and thus remained inside the car.

The Court, obviously, holds as a matter of law that

under no circumstances could the defense of the failure to

wear a seat belt be considered. In my opinion, that is

error.

Recognizing that my view is a minority view, I find it

is the better view and should be stated. The support for my

view comes initially from Sams v. Sams (1966), 247 S.C. H I ,

148 S.E.2d 154, in which the matter was considered. The

court there held:

"Simply stated, the question before us is

whether the pleading should have been stricken,

or, on the other hand, should the defendant be

allowed to prove, if he can, that the failure

of the plaintiff to use a seat belt, under

the facts and circumstances of this case,

amounted to a failure to exercise such due

care as a person of ordinary reason and pru-

dence would have exercised under the same

circumstances, and that such failure consti-

tuted a contributing proximate cause of plain-

tiff's injuries. We think that the pleading

should not have been stricken and that the

ultimate questions raised by the alleged de-

fense should be decided in the light of all of

the facts and circumstances adduced upon the

trial, rather than being decided simply upon

pleadings." 148 S.E.2d at 155.

The Sams case was followed very shortly by the Wisconsin

case of Bentzler Braun

626, in which the court made the following rulings: (1) the

failure to use seat belts is not negligence per se under

statutes like Montana's section 61-9-409, MCA, but, ". . .

we nevertheless conclude there is a duty, based on the

common law standard of ordinary care, to use available seat

belts independent of any statutory mandate"; (2) the occu-

pant of a car is charged with knowledge of the additional

safety factor produced by the use of a seat belt; and ( 3 )

the test is: did the failure to use the seat belts contri-

bute to the injury?

"We therefore conclude that, in those cases

where seat belts are available and there is

evidence before the jury indicating causal

relationship between the injuries sustained

and the failure to use seat belts, it is

proper and necessary to instruct the jury

in that regard. A jury in such case could

conclude that an occupant of an automobile

is negligent in failing to use the seat

belts. . .I1 149 N.W.2d at 640.

Here the evidence shows that respondent, from her own

experience, had trouble with the car and had been warned, at

least by the mechanic Marquart and I think also by her

husband, that the vehicle was unsafe. Inasmuch as we are at

the threshold of the opinion stage of comparative negligence

in Montana, under the circumstances here, I think that

because the alleged negligence of appellant had been dis-

covered before the accident a jury question exists on the

use of seat belts. I believe first, that where a state has

a comparative negligence rule, the matter of the use of seat

belts to mitigate an injury is always a proper question, and

second, if the plaintiff's failure to use a seat belt occurred,

there is a jury question as to avoidable consequences. See

King Son Wong v. Carnation Company (Tex.Civ.App. 1974), 509