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
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Submitted: December 13, 1979

Filed:
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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