Rost v. C. F. & I. Steel Corp.

No. 79-23

I N THE SUPREME COURT OF THE STATE O M N A A
F O T N

1980

JACK E. ROST, VIRGIL HINES
and HELEN OLSON e t a l . ,

P l a i n t i f f s and A p p e l l a n t s ,

C . F. & I . STEEL CORPORATION,
f o r m e r l y C o l o r a d o F u e l and
I R O N CORPORATION,

D e f e n d a n t and R e s p o n d e n t .

Appeal from: D i s t r i c t Court of t h e Sixteenth J u d i c i a l D i s t r i c t ,
I n and f o r t h e County o f Rosebud.
H o n o r a b l e M. James S o r t e , J u d g e p r e s i d i n g .

C o u n s e l o f Record:

For Appellants:

C o l g r o v e and Hanson, M i l e s C i t y , Montana
T e r r y Hanson a r g u e d , M i l e s C i t y , Montana

F o r Respondent:

L u c a s and Monaghan, M i l e s C i t y , Kontana
Thomas M. Monaghan a r g u e d , P l i l e s C i t y , Montana

Submitted: A p r i l 1 6 , 1980

Decided: SE[r 1 7
Filed: - 19 19@
8EP

0
Clerk
Mr. Daniel J. Shea delivered the Opinion of the Court.

Plaintiffs appeal from a judgment of the Rosebud County
~istrictCourt entered on a jury verdict in favor of the
defendant in a products liability case tried under the
theory of strict liability. The sole issue is whether a
jury instruction defining a manufacturer's duty to warn in a
strict liability action was an inaccurate statement of the
law which requires a new trial. We affirm the judgment.
Although we determine that the jury instruction was
inaccurate, we also find that it was not prejudicial because
the most explicit warnings would not have prevented the
accident. It was well within the province of the jury to
determine that the proximate cause of the accident was the
failure of the grocery store owner to properly inspect, and
see what was plainly there to be seen--a frayed and torn
elevator cable which signaled an awaiting accident.
Plaintiffs were injured when the elevator in which they
were riding fell ten feet to the basement of a supermarket
where they were delivering freight. They settled their case
against the store owner for $200,000 and proceeded against
defendant C. F. & I. Steel Corporation upon the ground that
the defendant who sold the cable, failed to warn the elevator
owner of the dangerous use of the cable, and therefore that
the cable was rendered defective as a matter of law. The
sole issue on appeal concerns a jury instruction stating the
defendant's duty to warn--defendant contends that the instruction
provided a subjective standard by which the jury was to
determine the defendant's duty to warn, and that it should
have been an objective standard. The instruction stated
that the manufacturer has a duty to warn users of the dangerous
character of its products "insofar as it is known to the
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manufacturer if, but only if, the manufacturer has no reason
to expect that those for whose use the product is supplied
will discover its condition and realize the danger involved."
Because this instruction distorts the duty of a manufacturer
to warn in a case sounding in strict liability, the instruction
is error. But here the evidence established that the proximate
cause of the accident was the failure of the store owner to see
upon inspection, what was plainly there to be seen.
The defendant, C. F. & I. Steel Corporation, defends
the jury instruction as given, but offers no citation of
authority or rationale in its support. This, we feel, is an
implicit admission that the instruction is error. But we
must, nonetheless, agree with the defendant's argument that
the instruction as given was not prejudicial and therefore
not a ground upon which to grant a new trial.
A manufacturer may be required to provide a warning in
relation to its product if it is to avoid a determination
that the product is unreasonably dangerous. See Restatement
(Second) of Torts S402A, Comment j at 353 (1965). The
product is automatically defective if it is unreasonably
dangerous, and a warning is required but not given. Jacobson
v. Colorado Fuel & Iron Corporation (9th Cir. 1969), 409
F.2d 1263, 1271. Based on this law, the plaintiffs contend
that the cable was defective because no warning concerning
dangerous use of this cable was given to the ultimate purchaser
and user of the cable. Plaintiffs contend that this duty to
warn is measured by an objective standard, the care which
would be exercised by a reasonable seller or expected by the
ordinary consumer. See Ulrich v. Kasco Abrasives Co. (Ky.
1976), 532 S.W.2d 197; Berkebile v. Brantley Helicopter
Corporation (Pa. 1975), 337 A.2d 893; Phillips v. Kimwood
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~achineCompany (Or. 1974), 525 P.2d 1033. This standard

focuses on the condition of the product and the degree of
danger which would be tolerated by the reasonable manufacturer,
apprised of the danger, would not sell the product without a
warning. Phillips, supra, 525 P.2d at 1036-1037.
The negligence standards, on the other hand, are measured
by subjective criteria. An action against a manufacturer on
a negligence theory focuses on the degree of care used by
the defendant manufacturer. See Restatement (Second) of Torts
8388 at 300 (1965); Jackson v. Coast Paint and Lacquer
Company (9th Cir. 1974), 499 F.2d 809, 812. This is a
subjective standard of care and is measured by the knowledge
and reasonable expectations of the purchaser and of the
manufacturer.
This strict duty mandated by the theory of strict
liability is warranted even though in some situations it may
result in liability being imposed upon careful manufacturers.
Unforeseeable product defects often cause severe physical
injuries to members of the public. The manufacturer can
distribute the risk from such accidents among the body of
consumers, while the individual consumer must bear the
financial burden alone. Placing the risk of loss on the
manufacturer provides an incentive to design and produce
fail-safe products which exceed reasonable standards of
safety. Phillips, supra, 525 P.2d at 1041. Nor can we
ignore the fact that a manufacturer with research capabilities
can anticipate hazards better than unsophisticated purchasers.
Strict liability has its underpinnings in public policy.
Midgley v. S. S. Kresge Company (Cal. Ct. App. 1976), 55
Ca1.App.W 67, 74, 127 Cal.Rptr. 217, 221.
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 Based upon a strict liability standard, the jury
instruction stating the duty of one manufacturer to warn,
was incorrect. This instruction could have led the jury to

believe that the manufacturer was relieved of a duty to warn
because the store owner had a prior direct experience with the
elevator failing. What may happen at a future time does not
relieve a manufacturer of an antecedent duty to warn of the
care to be taken or the uses to which the cable can or should
not be put. But even if we assume that the jury so reasoned,
we cannot ignore the fact that there was ample evidence in
the record for the jury to determine that the proximate cause
of the accident was the failure of the store owner to properly
inspect the cables and to see what was plainly there to be
seen.
A products liability action sounding in strict liability
does not relieve the plaintiff from proving that the manu-
facturer's defective product was the proximate cause of the
accident. See Brown v. North Am. Mfg. Co. (19781, - Mont .
, 576 P.2d 711, 719, 35 St.Rep. 194, 202. Thus, a
manufacturer is not liable where the product owner's failure
to properly maintain or inspect the product is the superseding
cause of the plaintiff's injuries. Several factors may
operate to break the necessary causal chain, such as the
owner's knowledge and ability to prevent the danger, the
relative safety of the product in the condition which it was
sold, or the lapse of time from the date of sale to the
accident in question. Though none of these are necessarily
determinative in themselves, they may operate to shift the
responsibility to prevent an accident from the manufacturer
to the owner. See Restatement (Second) of Torts §452(2)
Comment f at 490 (1965); Balido v. Improved ~achinery,Inc.
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(Cal. Ct. App. 1973), 29 Cal.App.3d 633, 105 Gal-Rptr. 890.
As we shall set forth, the facts here amply establish a
basis for the jury to determine that the proximate cause of
the plaintiffs' injuries was the failure of the store owner
to properly inspect the elevator cable.
The store owner maintained and inspected the elevator
from 1951 to 1972 when the accident occurred. During this
period of time, he had replaced the cable several times.
Some years before this accident, he was a passenger on the
elevator when the cable failed and the elevator fell. In
spite of these experiences, the store owner failed to install
safety devices to catch a falling elevator.
Because elevator cables generally have a lifespan of
uncertain duration, prevention of accidents resulting from
cable fatigue depends in large part upon careful inspection
for signs of wear. The serviceable life of cable, moreover,
depends upon the wear experienced in the particular apparatus
where it is installed. Use of this particular cable did not
create an immediate danger to elevator passengers, for the
cable was purchased in 1968 and was in use for well over
four and a half years before plaintiffs were injured.
Evidence clearly established that the store owner did not
carefully inspect the cable. (We note, parenthetically,
that plaintiffs' lawsuit against the store owner was settled
for $200,000.) The store owner testified that he personally
inspected the elevator cable every four to six weeks and

that he had visually inspected the entire cable just eight
to ten days before the accident. If this was so, he failed
to see what was plainly there to be seen. Evidence established

that a reasonable inspection two to three months before the
elevator fall would have shown the cable to be on the verge
of snapping.
 Considering the responsibility of the store owner to
maintain and inspect the elevator, and the other factors
mentioned here, we have no doubt that the defendant's failure
to warn of the dangerous uses of its cables would have
fallen on deaf ears. A failure to warn was not the proximate
cause of the accident. Rather, the store owner's own negligence
intervened as the operative conduct leading to the plaintiffs'
injuries. Indeed, the plaintiffs' own expert witness,
during cross-examination as to the condition of the cable
eight to ten days before the accident, stated that the sight
of the cable then would have "scared the hell" out of him.
Had he seen what was there to be seen, the store owner
should have had the same reaction.
Under the circumstances, the instruction, although
inaccurate, was not prejudicial.
The judgment of the District Court is affirmed.

ice
We Concur:

/hie£ Justice

Justices