No. 81-136
IN THE SUPREI\IECOURT OF THE STATE OF MONTANA
1982
ANTOINETTE ABERNATHY, MOTHER OF JOHN
MARK ABERNATHY, and DAVID J. ABERNATHY,
Plaintiffs and Appellants,
ELINE OIL FIELD SERVICES, INC.,
Defendant and Respondent.
Appeal from: District Court of the Ninth Judicial District,
In and for the County of Pondera
Honorable R. D. McPhillips, Judge presiding
Counsel of Record:
For Appellants:
Hoyt and Trieweiler, Great Falls, Montana
Goetz, Madden and Dunn, Bozeman, Montana
James Goetz argued, Bozeman, Montana
Por Respondent :
Robert J. Emmons argued, Great Falls, Montana
Submitted: May 13, 1982
Decided: September 9, 1982
Mr. Justice Fred J. Weber delivered the Opinion of the
Court.
David Abernathy brought an action for personal injuries
and his wife brought an action as representative of their
deceased son John in the Ninth Judicial District, Pondera
County, against Eline Oil Company. A jury returned a verdict
for Eline, holding that David had suffered $20,000 in damages
but could not recover because he was 75 percent comparatively
negligent and that Eline's negligence was not a proximate
cause of John's death. We vacate the judgment for defendant
Eline.
The Abernathys raise the following issues:
(1) Did the trial court err in instructing the jury on
the elements of assumption of risk as a form of negligence?
(2) Did the trial court err in failing to dismiss
Juror Peterman for cause and in its examination of the
juror?
(3) Whether the verdicts rendered by the jury are
inconsistent and require reversal?
On the morning of January 19, 1979, David Abernathy and
his 6 year old son, John, began a drive in the family 1977
Chevette from their home west of Dupuyer to Pendroy where
John attended school. The weather conditions on Highway 89
included blowing snow, but the road was bare. David drove
through two snowplow cuts on the highway, both of which had
blowing snow and reduced visibility. As David hit a third
cut, his car hit one drift which slowed his momentum and
caused him to veer to the right side of the road. He then
became stuck in the second drift perpendicular to traffic
and in the right lane. He put the car in reverse but was
unable to move it. He got out of his vehicle and saw that
the front wheels were buried in the snow. David testified
that as he reached through the driver's door to get a shovel
to dig the car out, the vehicle was struck. David was
injured and John was killed.
The Abernathy vehicle was struck by a 16,000 pound,
1960 International truck, owned by Eline. The truck had
left Cut Bank at 7:30 a.m., headed for a gas plant south of
Dupuyer. The truck had been traveling approximately 40
miles per hour for most of the trip but had slowed to about
35 miles per hour just before the accident because of worsening
weather conditions. The driver and a passenger first saw
the Abernathy vehicle when it was 10 to 15 feet away and
were unable to avoid hitting it.
Did the trial court err in instructing the jury on the
elements of assumption of risk as a form of negligence?
The following instruction was offered to and given by
the trial court:
"INSTRUCTION NO. 28.
"In considering whether or not David J.
Abernathy was contributorily negligent, you
may consider, among other aspects of contri-
butory negligence the question whether he
placed himself in a position to chance known
hazards. Thus, one aspect of contributory
negligence exists if you find
"1. That the Plaintiff had knowledge, actual
or implied, of the conditions which existed
at the time of and after Plaintiff's vehicle
became stuck in the snow drift.
"2. That he appreciated the condition as dan-
gerous.
"3. That he voluntarily remained or contin-
ued in the face of the known dangerous condi-
tion.
"4. That injury resulted as the usual or
probable consequence of this dangerous condi-
tion. "
In offering the instruction, counsel for Eline relied
on Kopischke v. First Continental Corp. (1980), - Mont.
,
- 610 P.2d 668, 687, 37 St.Rep. 437, 462, where this
Court stated that ". . . we will follow the modern trend and
treat assumption of risk like any other form of contributory
negligence and apportion it under the comparative negligence
statute." Section 27-1-702, MCA, provides:
"Comparative negligence--extent to which con-
tributory negligence bars recovery in action
for damages. Contributory negligence shall
not bar recovery in an action by any person
or his legal representative to recover damages
for negligence resulting in death or injury
to person or property if such negligence was
not greater than the negligence of the person
against whom recovery is sought, but any dam-
ages allowed shall be diminished in the pro-
portion to the amount of negligence attribu-
table to the person recovering."
The Kopischke quote was taken from dicta. This Court
adopts the rationale used in Kopischke as being the proper
basis for the present holding.
"Once comparative negligence is adopted, im-
plied assumption of risk can take on new and
extraordinary importance; if plaintiff's assum-
ption of risk continues to provide a separate
defense, defendant avoids paying any damages.
Clearly, the Supreme Courts of Florida, Maine,
Minnesota, Montana, North Dakota, Texas, Wash-
ington, and Wisconsin did not believe that the
policy underlying assumption of risk merited
this drastic result. Thus, those courts treated
conduct that amounted to implied assumption of
risk as if it was contributory negligence and
allowed the jury to apportion damages accord-
ingly." Schwartz, Comparative Negligence
(1981 Supp.) 5 9.4 at 170.
Rather than allow the harshness of the traditional
assumption of risk defense,
". . .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 demon-
strate that the plaintiff's fault contributed
to the injuries." Wilson v. Gordon (Me. 1976),
354 A.2d 398, 402; Kopischke, 610 P.2d at 686,
37 St.Rep. at 461.
The California court in Li v. Yellow Cab Co. of Calif.
(1975), 119 Cal.Rptr. 858, 873, 532 P.2d 1226, 1241, stated:
"We think it clear that the adoption of a
system of comparative negligence should en-
tail the merger of the defense of assumption
of the risk into the general scheme of assess-
ment of liability in proportion to fault in
those particular cases in which the form of
assumption of risk involved is no more than
a variant of contributory negligence."
Kopischke, 610 P.2d at 687, 37 St.Rep. at
460.
Historically in Montana, the defense of assumption of
risk required:
"(1) knowledge, actual or implied, of the
particular condition creating the risk, (2)
appreciation of this condition as dangerous,
(3) a voluntary remaining or continuing in
the face of the known dangerous condition,
and (4) injury resulting as the usual and
probable consequence of the dangerous con-
dition." Kopischke, 610 P.2d at 683, 37
St.Rep. at 458; Hanson v. Colgrove (1968),
152 Mont. 161, 447 P.2d 486, 488.
Instruction No. 28 given in the present case contains these
elements of assumption of risk. Applying the proof to the
standards set forth in Instruction No. 28, the jury could
have found:
(1) That David had actual knowledge of the dangerous
condition;
(2) That David had an appreciation of this being
dangerous;
(3) That David remained at the vehicle in the
face of the known danger; and
(4) That David's injury resulted as the probable
consequence of the dangerous condition.
In applying Instruction No. 28 in this manner, the jury
could have based their conclusions solely upon the thinking
on David's part, that being his "subjective" knowledge. The
jury then could have reached the conclusion that under
Instruction No. 28 this assumption of risk constituted the
75 percent negligence which was included in the jury verdict
on the part of David.
This illustrates the contradictory position in which
the instructions placed the jury. In pertinent part Instruc-
tion No. 5 defined negligence in this manner:
"When used in these instructions, negligence
means want of. . .ordinary care or skill.
Such want of ordinary care or skill exists
when there is a failure to do that which a
reasonable and prudent person would ordin-
arily have done under the circumstances of
the situation. . ."
The jury, based upon the evidence, could have concluded that
David acted in the same manner as a reasonable and prudent
person would ordinary have done under the circumstances of
this case. If they reached that conclusion, under Instruction
No. 5, there would have been an absence of "negligence" on
David's part. Notwithstanding such a conclusion under
traditional negligence doctrine, the jury still could have
concluded that there was negligence under the above-described
assumption of risk theory. We find these two approaches to
be incompatible. This illustrates the contradiction present
between the theories of assumption of risk and negligence.
As pointed out in Kopischke, 610 P.2d at 684, 37 St.Rep. at
458, " I . . .[a]ssumption of risk is governed by the subjective
standard of the plaintiff rather than the objective standard
of the reasonable man. . .I Deeds v. United States (D. Mont.
,S$*
fi3'4y
1969). 309 F.Supp. 348, 3 %"
G f g
& use of assumption of risk
will only serve to confuse a jury in its attempt to determine
the negligence on the part of all parties and to compare the
same under our comparative negligence standard.
We therefore hold that the doctrine of implied assumption
of risk is no longer applicable in Montana. In a retrial of
this case, instructions on negligence and contributory
negligence shall use the traditional standards of conduct of
a reasonable and prudent person under the circumstances and
shall not contain any of the assumption of risk standards
contained in Instruction No. 28, and, in particular, shall
not contain any of the subjective standards of assumption of
risk as previously discussed here. In this case, we are not
ruling upon the application of the doctrine of assumption of
risk in product liability cases.
Did the trial court err in failing to dismiss Juror
Peterman for cause and in its examination of the juror?
During voir dire, the following questions were asked by
plaintiff's counsel, Mr. Dunn, and answered by Mrs. Peterman:
"A. I don't see how suing -- I do not under-
stand this God bit myself. I do not see how
-- he is probably going through, you know, a
lot of emotions and stuff, but I do not see
how money will bring back his relationship to
God. I do not understand that at all.
"Q. Let me ask you this.
"If the claim for damages were not the money
that was going to try and compensate for a
personal relationship, but the claim were
more to the effect the difficulty he is hav-
ing in that relationship prevents him from
continuing the work he was doing, and, there-
fore, he loses that employment, would you be
able to consider that?
"A. I do not know. I do not see where money
brings happiness. I cannot understand why
people sue for the loss of a member of their
family or -- I can see suing for like his ex-
penses, damages, stuff like that, but I can-
not follow how people, especially -- I under-
stand that if he has lost his belief in God,
he probably would not continue his work, be-
cause that is what his work was. I do not
understand how a court can award something
like that.
"Q. Then do you have some -- as you sit there,
you have some reservation about awarding dam-
ages for what we call intangible items?
"A. Yes, I do.
"MR. DUNN: I would ask the juror be excused.
"MR. EMMONS: I resist.
"THE COURT: I think we will excuse her.
"MR. EMMONS: May I ask a question?
"THE COURT : You may.
"MR. EMMONS: We are talking about 12 impar-
tial people. The plaintiffs naturally prefer
12 jurors that will be basically preferential
to them. The defendant prefers 12 people that
will be preferential to the defendant; do you
understand that?
"MR. DUNN: I object. I hope he is not speak-
ing for himself.
"THE COURT: You may be excused.
"MR. EMMONS: I have a question for the Court,
though.
"If this were a criminal case, and she was op-
posed to capital punishment, you could not ex-
clude her from the jury. This is a personal
injury, and because she has strong feelings
about this type of damages not being awarded,
does not mean she has to be excluded as a juror
in this case.
"THE COURT: It is my understanding you have
these personal beliefs, and they could well
affect whether you would follow the law.
"MRS. PETERMAN: In my family, we have had --
my sisters have each lost children through ac-
cidents, and to me, that brings you closer to
God, not away from Him. I just do not under-
stand how people do this.
"THE COURT: I understand that. And you are
entitled to that belief. And it is a belief
many, many people have. My question is, be-
cause of that belief, would you be inclined
to not follow the law which might award dam-
ages?
"MRS. PETERMAN: Again I find that hard. It
is hard to say until I sat through, and listen-
ed to what he said about -- like if you do not
believe in capital punishment -- it is hard to
answer this question.
"THE COURT: I am aware of that. The only
thing I want to do is be satisfied you would
be impartial and would follow the law, aside
from what you personally think the law should
be.
"MRS. PETERMAN: I could sit; I am sure I could.
"THE COURT: You could decide the case aside
from what you think the law should be, and
follow the instructions of the Court?
"MRS. PETERMAN: Yes.
"THE COURT: Many times we have to lay aside
our personal feelings.
"MRS. PETERMAN: Yes.
"THE COURT: I guess I will reverse the chal-
lenge. "
During voir dire, Mrs. Peterman indicated that she had
strong negative feelings about suing to recover money for
the death of a child. Abernathys moved to challenge the
juror for cause on the grounds that she could not render a
fair and impartial verdict. The trial court initially
granted the challenge, but then permitted defense counsel to
examine and attempt to rehabilitate Mrs. Peterman. Following
defense counsel's examination, the trial court conducted its
own examination. The court then denied Abernathys' challenge
for cause. At that point the Abernathys moved for a mistrial
on the grounds that the colloquy between the court and Mrs.
Peterman had influenced the panel to such a degree as to
render a fair verdict impossible. The trial court denied
the motion.
Section 25-7-223, MCA, provides:
"Challenges for cause may be taken on one or
more of the following grounds:
"(6) having an unqualified opinion or belief
as to the merits of the action;"
Our standard of review of denial of challenges has been
stated:
--
"The examination of a juror on his voir dire
is no more nor less than the taking of testi-
mony on the issues raised as to his qualifica-
tions to serve in the case before the Court.
(Citations omitted.) The determination must
be left largely to the sound discretion of
the trial court (Citations omitted.) and, in
determining the question, the trial court,
as in passing upon any other question of fact
established by oral testimony, has the advan-
tage of observing the witness on the stand,
his demeanor and candor, or lack of candor,
and a review of the court's rulings and find-
ings should be governed by the same rules as
in reviewing any other findings and judgment
based thereon. They should not be set aside
unless error is manifest, or there is shown
a clear abuse of discretion. . ." State v.
Williams (1979), Mont. , 604 P.2d
1224, 1229, 36 St.Rep. 2325, 2334-2335; State
v. Russell (1925), 73 Mont. 2 4 0 , 235 P. 712,
715.
We agree with the Abernathys that Mrs. Peterman showed
"an unqualified opinion or belief as to the merits of the
action." She should have been excused for cause. We find
that the failure to excuse Mrs. Peterman for cause was
manifest error. In addition, we point out that where a
trial court determines that considerable questioning by the
court is necessary, as was done in this case, such question-
ing should take place out of the presence of the remaining
members of the jury panel, thereby eliminating the possibility
of the prejudice claimed by the Abernathys.
Mrs. Peterman was excused as a juror when the Abernathys
exercised the first of their four peremptory challenges.
The Abernathys contend that it was prejudicial error to
compel a party to waste one of its peremptory challenges to
accomplish that which the trial judge should have done.
Several jurisdictions have considered this argument and
adopted it. The Utah Supreme Court remanded Crawford v.
Manning (Utah 1975), 542 P.2d 1091, 1093, for a new trial
and stated:
"By exercising one of their peremptory chal-
lenges upon this prospective juror, plain-
tiffs had only two remaining. The juror
which remained because the plaintiffs had
no challenge to remove him may have been a
hawk amid seven doves and imposed his will
upon them.
"A party is entitled to exercise his three per-
emptory challenges upon impartial prospective
jurors, and he should not be compelled to waste
one in order to accomplish that which the trial
judge should have done."
The Supreme Court of Arizona returning a case for a new
trial stated:
"The right of a party to peremptory challen-
ges is a substantial right of which he should
not be deprived. (Citations omitted.) Per-
emptory challenges form an effective method
of assuring the fairness of a jury trial.
Hence, forcing a party to use his peremptory
challenges to strike jurors who should have
been stricken for cause denies the litigant a
substantial right." Wasko v. Frankel (1977),
116 Ariz. 288, 569 P.2d 230, 232.
However, not all jurisdictions agree with the interpreta-
tion of the Utah and Arizona courts. See: Colbert v.
Journal Pub. Co. (1914), 19 N.M. 156, 142 P. 146; Williams
v. Hendrickson (1962), 189 Kan. 673, 371 P.2d 188; Wilson v.
Ex-Cell-0 Corp. (1968), 12 Mich.App. 637, 163 N.W.2d 492.
"[TJhe forced use of a peremptory challenge
to excuse a juror, even if he should have
been excused for cause, is not, in and of it-
self, sufficient ground for reversal of a
judgment in accord with the verdict." Love
v. Harvey (Okla. 1968), 448 P.2d 456, 459.
While this Court agrees that the right of a party to
peremptory challenges is a substantial right, we do not hold
that every case of the forced use of a peremptory challenge
is a sufficient ground for reversal. In considering an
issue of the failure to dismiss a juror for cause, we hold
that the standard to be applied is whether there was an
abuse of discretion on the part of the trial judge. Discre-
tion, of course, should be granted to the trial judge in
these instances. Only where there is an abuse of this
discretion is there reversible error. In this case, the
actions of the District Court as previously set forth resulting
in a rebuilding of the juror constituted an abuse of discretion
and therefore constitutes reversible error.
Whether the verdicts rendered by the jury are inconsistent
and require reversal?
The special verdict asked the jury the following question
regarding the claim of David for himself:
"QUESTION NO. 1: Was the defendant herein, Eline
oilfield Services, Inc. (or its employee, William Kacsmarek),
negligent, which negligence was a proximate cause of the
injury to the plaintiff, David J. Abernathy?"
The jury answered "yes" to this question.
The special verdict later asked the jury the following
question regarding the claim of Antoinette Abernathy for
herself and on behalf of David J. Abernathy:
"QUESTION NO. 1: Was the defendant herein, Eline
Oilfield Services, Inc. (or its employee, William Kacsmarek),
negligent, which negligence was a proximate cause of the
death of John Mark Abernathy?" The jury answered "no" to
this question.
David was injured and his son, John, killed when their
vehicle was struck by the Eline truck. Abernathys contend
that the injury and death were caused by the identical
mechanism and that if Eline was negligent in causing David's
injury, it was logically negligent in causing John's death.
Eline contends that the verdicts are consistent because
different questions are involved. The jury found that Eline
was negligent and that this negligence was the proximate
cause of David's injuries. As to the wrongful death case,
the jury found that Eline was negligent but that this negli-
gence was not a proximate cause of John's death. In one
case, David got out of the automobile which was struck. In
the other, David left the boy in the car which creates a
proximate causation question.
This Court finds the argument of the Abernathys more
persuasive. Both avid's injuries and John's death occurred
as a result of the Eline truck striking the Abernathy vehicle.
The form of verdict shows that the jury concluded that the
negligence of Eline was at least - proximate cause of the
a
injury to David. Under the facts of this case, that conclusion
mandates a f u r t h e r c o n c l u s i o n t h a t t h e n e g l i g e n c e of E l i n e
was a l s o - p r o x i m a t e c a u s e of J o h n ' s d e a t h .
a That i s t r u e
even though t h e j u r y m i g h t have concluded t h a t t h e n e g l i g e n c e
o f David was a l s o - p r o x i m a t e c a u s e of t h e d e a t h of J o h n , o r
a
t h a t D a v i d ' s n e g l i g e n c e w a s t h e primary p r o x i m a t e c a u s e of
John's death.
When two c o n f l i c t i n g v e r d i c t s a r e r e a c h e d from t h e s a m e
e v i d e n c e , a new t r i a l i s r e q u i r e d . See: Utecht v. Steinagel
( 1 9 7 2 ) , 54 Wis.2d 507, 196 N.W.2d 674; Crohn v. Dupre (Minn.
1 9 7 1 ) , 190 N.W.2d 678; May v. P i t t s b u r g Railways Co. (1966),
209 Pa.Super. 126, 224 A.2d 770.
W e v a c a t e and remand f o r a new t r i a l .
W e Concur:
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