No. 92-568
IN THE SUP- COURT OF THE STATE OF MONTANA
HART-ALBIN COMPANY and BROADWAY
REALTY CORPORATION,
Plaintiffs, Appellants,
and Cross-Respondents,
McLEES INCORPORATED, ACE ELECTRIC,
INC., LEVITON MANUFACTURING CO.,
INC., RTB DEVELOPMENT, INC., and
JOHN DOE I through JOHN DOE IV,
Defendants, Respondents,
and Cross-Appellants.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable Russell K. Fillner, Judge presiding.
COUNSEL OF RECORD:
For Appellants:
L. Randall Bishop (argued), Jarussi & Bishop,
Billings, Montana
Thomas S. Felker, Perry, Hiscock, Pierson &
Ryder, Inc., P.S., Seattle, Washington
For Respondents:
L. D. Nybo (argued), Conklin, Nybo, Leveque &
Murphy, P.C., Great Falls, Montana
Submitted: September 16, 1993
Decided: February 17, 1994
Filed:
" Clerk
chief Justice J. A. Turnage delivered the Opinion of the Court.
Plaintiffs sued defendant Leviton Manufacturing Co., Inc., in
strict liability, claiming an electrical extension cord connector
manufactured by Leviton caused a fire in the Hart-Albin store in
downtown Billings, Montana. A jury in the District Court for the
Thirteenth Judicial District, Yellowstone County, apportioned fault
40 percent to Leviton and 60 percent to plaintiffs, and the court
entered judgment for Leviton. We reverse and remand for retrial on
limited issues relating to damages.
The dispositive issues are:
1, Did the District Court err in instructing the jury on
Leviton's misuse defense?
2. Did the court err in prohibiting the plaintiffs from using
videotaped depositions of Leviton's designated corporatewitnesses?
3. Did the court err in directing a verdict against the
plaintiffs on their punitive damage claim?
4. Did the court err in allowing the testimony of the
plaintiffs1 human factors expert?
In December of 1988, an early-morning fire caused extensive
smoke damage in the flagship Hart-Albin department store located in
downtown Billings, Montana. The store was closed for two months
before reopening in February 1989. Just over a year later, Hart-
Albin Company went out of business. Plaintiffs Broadway Realty
Corporation, owner of the building in which the department store
was located, and Hart-Albin Company (hereafter referred to collec-
tively as Hart-Albin) brought this action seeking recovery for
damages, including loss of the business.
The fire started in a Christmas display suspended in the
atrium of the store. Leviton, the only defendant remaining in the
case at the time of trial, was the manufacturer of an electrical
extension cord connector used in the Christmas display. During
trial, Hart-Albin presented evidence that Leviton's Catalog No. 67
extension cord connector overheated and started the fire.
The Catalog No. 67 cord connector was sold unattached to any
electrical cord. In order to fasten an electrical cord to the
screw terminals inside the connector, the user had to open the
clamshell casing of the connector. Then, when the cord connector
was reassembled, brass contact blades inside the clamshell served
as the electrical contact for the "malew end of a second electrical
cord plugged into the cord connector.
In this case, when the clamshell casing was reassembled, one
of the brass contact blades, which were curved, was put in
backwards. This prevented a solid electrical contact between the
contact blades and the '*malewend of the second electrical cord,
which was plugged into the cord connector.
Hart-Albin's theory was that the cord connector was a
defective and unreasonably dangerous product because it was sold
without assembly instructions and its misassembly caused it to
overheat. Leviton's defense was that no assembly instructions were
needed with this particular type of cord connector, because of its
design. Leviton also argued that the fire was a result of faulty
construction of the Christmas display, including wiring code
violations and use of flammable materials in violation of fire
code.
After an eight-day trial, the jury answered a set of special
interrogatories. It found that the fire was started by the Leviton
cord connector, that the connector was unreasonably dangerous due
to a failure to instruct, and that the defective connector was a
proximate cause of Hart-Albin's damages. The jury also found that
Hart-Albin misused the cord connector and that the misuse was a
proximate cause of damages. It apportioned fault as stated above.
Applying the principles of comparative negligence set forth at
ti 27-1-702, MCA, the District Court entered judgment for Leviton.
Did the court err in instructing the jury on Leviton's misuse
defense?
Section 27-1-719, MCA, codifies strict liability law in
Montana. It provides, at subsection (5):
Except as provided in this subsection, contributory
negligence is not a defense to the liability of a seller,
based on strict liability in tort, for personal injury or
property damage caused by a defectively manufactured or
defectively designed product. A seller named as a
defendant in an action based on strict liability in tort
for damages to person or property caused by a defectively
designed or defectively manufactured product may assert
the following affirmative defenses against the user or
consumer, the legal representative of the user or
consumer, or any person claiming damages by reason of
injury to the user or consumer:
(a) The user or consumer of the product discovered
the defect or the defect was open and obvious and the
user or consumer unreasonably made use of the product and
was injured by it.
(b) The product was unreasonably misused by the user
or consumer and such misuse caused or contributed to the
injury.
This statute limits defenses in strict liability actions to
assumption of the risk under subsection (5)(a) and, as in this
case, unreasonable misuse under subsection (5)(b).
Leviton contrasts cases concerning failure to warn or instruct
with cases concerning manufacturing or design defects. It claims
that a case concerning failure to warn or instruct does not clearly
fall within the law of strict liability, but is indistinguishable
from an action for negligence. On this basis, it asserts that the
range of defenses is broadened.
Hart-Albin argues that misuse refers to use of a product other
than for the intended purpose. It points out that, in this case,
the cord connector was used precisely as intended: as a connector
on an extension cord. It cites, in contrast, a classic example of
misuse: a rotary lawnmower misused as a hedge trimmer. Hart-Albin
argues that neither misassembly of the cord connector nor its use
in a flammable display constitutes misuse, because neither consti-
tutes use of the product other than for the purpose intended.
Neither o f these arguments is dispositive. This case was pled
and tried under a theory of strict liability. Therefore, the
available defenses are limited in Montana as provided in 5 27-1-
719, MCA. And, although this Court has not previously ruled on the
definition of the term "unreasonably misusedw as found in that
statute, we now hold that the generally-accepted definition of
misuse in relation to strict liability, as discussed below,
applies.
Montana's federal district court has stated, in defining the
defense of misuse, that a manufacturer is not responsible for
injuries resulting from abnormal or unintended use of a product if
such use was not reasonably foreseeable. Trust Corp. of Mont. v.
Piper Aircraft Corp. (Mont. 1981), 506 F.Supp. 1093, 1097, citing
1 Frumer and Friedman, Products Liability, 5 15.01. Generally, the
defense of misuse refers to a use not foreseen by the manufacturer
of the product. See Annotation, Products Liability: Product
Misuse Defense, 65 A.L.R.4th 263 (1988). "Most cases have
indicated that the key issue involved in a determination whether a
product has been misused is foreseeability." American Law of
Products Liability 3d, Vol. 3, 5 42:8 (T. Travers ed. 1987). The
definition of misuse, then, incorporates the concept of abnormal or
unintended use, but emphasizes unforeseeability. The defense of
misuse is not available if the misuse of the product was reasonably
foreseeable. We adopt the definition of misuse set forth in Trust
Corp. of Mont., and now apply it to the facts of this case.
In answer to a written interrogatory concerning foreseeable
misuse or misassembly of the Catalog No. 67 cord connector, Leviton
stated that it "agrees that this product can be abused or misassem-
bled." At trial, Hart-Albin elicited an admission from Leviton's
corporate representative that he was aware that it was "possiblen
that the Catalog No. 67 cord connector could be misassembled as it
was in this case.
We conclude Leviton admitted it was foreseeable that the
Catalog No. 67 cord connector could be misused through misassembly.
That admission on the part of Leviton, in light of the definition
of misuse set forth above, leads us to conclude that the District
Court erred in instructing the jury on the misuse defense as it
related to misassembly of the cord connector.
Leviton maintains that Hart-Albin did not preserve an
objection to the giving of the jury instruction concerning misuse
but only to the burden of proof described therein. The record
supports Hart-Albinssresponse that it made known throughout trial
its position that, because misassembly of the cord connector was
foreseeable, it did not constitute misuse. For example, at the
close of Hart-Albinss case, in response to Leviton's motion for
directed verdict, Hart-Albin's attorney argued:
Leviton has admitted that they can foresee misuse and
misassembly of this product, and that admission, foresee-
able misassembly, takes the concept of misuse as under-
stood in the law. Completely out of the picture. [Sic]
We conclude Hart-Albin preserved its objection to a jury instruc-
tion concerning misuse through misassembly of the cora connector.
Misassembly was only one of the misuse theories presented by
Leviton. The other was use of the cord connector in a flammable
Christmas display. To the extent that this defense incorporated
the idea that the cord connector was misassembled, the defense was
prohibited because of the foreseeability of misassembly, as
discussed above. However, Leviton also presented expert testimony
that the fire was caused by sparks resulting from power cord abuse
unrelated to the cord connector. This defense theory was clearly
separate from the misassembly defense.
The jury did not accept this defense theory. It answered
"yesm to the question, "Was the fire started by the Leviton
connector?" If the jury had found that the fire was caused by
sparks resulting from power cord abuse not: related to the cord
connector, there would be no explanation for this finding, or for
the finding that Leviton was partially responsible for damages.
Therefore, we conclude it is not necessary to retry the issue of
whether the fire was caused by factors other than the cord connec-
tor.
In sum, we hold that the court erred in instructing the jury
on Leviton's defense that Hart-Albin misused the cord connector
through misassembly. Because the jury found that the fire was
started by the Leviton connector, it is unnecessary to retry the
issue of whether the fire started due to causes unrelated to
misassembly of the cord connector.
II
Did the court err in prohibiting Hart-Albin from using
videotaped depositions of Leviton's designated corporate witnesses?
The two witnesses in the videotaped depositions were present
in the courtroom during the trial as Leviton's representatives.
The District Court disallowed use of their deposition testimony on
that basis. Hart-Albin argues that, despite the presence of the
two witnesses at trial, their videotaped deposition testimony was
admissible under Rule 32(a)(2), M.R.Civ.P., "for any purposem
because they were "managing agentsw of Leviton,
We agree. "Managing agentw has been generously construed
under both Rule 32, M.R.Civ.P., and the identical federal rule of
civil procedure. Whether one is considered a managing agent
depends on several factors, including the individual's right of
general control, authority, and judgment within his department:
whether the interests of the individual are identified to be those
of the employer; and whether any person of higher authority
possesses knowledge about the matters at issue. Clark Bros.
9
Contractors v. State (1985), 218 Mont. 490, 493, 710 P.2d 41, 43;
Wright and Miller, Federal Practice and Procedure, 5 2103 (1970).
The two witnesses in the videotaped depositions were Steve
Campolo and Dennis Dandeneau. Campolo worked at Leviton's
corporate headquarters as the head of the department responsible
for the testing and evaluation of all products manufactured by
Leviton and for getting those products to Underwriters Laboratory
(UL) for testing and evaluation. He was designated by Leviton
during discovery as the person within the company most knowledge-
able regarding the Catalog No. 67 cord connector and UL approvals
of that product.
Dandeneau had been employed by Leviton for twenty years and
was the manager of Leviton's quality control department in Rhode
Island, where the Catalog No. 67 cord connector was manufactured.
In the pretrial order, Leviton did not list as a potential witness
either of Dandeneauvs supervisors in the Leviton corporate
structure. Dandeneau and Campolo were the only Leviton employees
who testified on Leviton's behalf at trial. They testified
concerning testing, safety, and UL approval of the Catalog No. 67
cord connector. We hold that Campolo and Dandeneau were "managing
agentsw for purposes of Rule 32(a)(2), M.R.Civ.P.
Leviton argues that Hart-Albin had full opportunity to impeach
the witnesses at trial using their depositions. However, "[tlhere
is no provision in Rule 32(a)(2) . . . which requires a finding of
unavailability of the witness or that notice was given of the
intended use of a deposition at trial." Clark Bros., 710 P.2d at
43. The analysis under the federal rule has been similar:
[Rule 32(a)] must be liberally construed. The trial
court has discretion to exclude parts of the deposition
that are unnecessarily repetitious in relation to the
testimony of the party on the stand, but it may not
refuse to allow the deposition to be used merely because
the party is available to testify in person.
Wright and Killer, Federal Practice and Procedure, 5 2145 (1970).
The purpose, as stated by Hart-Albin, for use of the video-
taped deposition testimony at trial was to allow the jury to
observe frank and unrehearsed answers to questions about Leviton's
knowledge of possible problems with its Catalog No. 67 cord
connector. We hold that the District Court erred in denying Hart-
Albin's request to use the videotaped depositions of Campolo and
Dandeneau at trial based on Rule 32(a)(2), M.R.Civ.P.
I11
Did the court err in directing a verdict against Hart-Albin on
its punitive damage claim?
Hart-Albin asserts that Leviton's actual malice was demon-
strated by the testimony of its own witness, Campolo, that it
marketed the Catalog No. 67 cord connector without assembly
instructions despite full knowledge that misassembly of the cord
connector could result in fire, electrical shock, or death by
electrocution. Hart-Albin further asserts that clear and convinc-
ing evidence supported its claim that Leviton committed actual
fraud in placing a UL safety mark on the inside surface of the
Catalog No. 67 cord connector and in failing to properly identify
the type of wire to be used with the product.
In light of our ruling that the deposition testimony of
Campolo and Dandeneau was admissible into evidence under Rule
32 (a](2) , M,R.Civ.P. , the evidence supporting Hart-Albin's case may
be different on remand. Therefore, we conclude that the issue of
punitive damages must be reconsidered on remand. The District
Court is instructed to determine on retrial whether Hart-Albin has
presented a sufficient evidentiary basis supporting the claims of
fraud or malice to allow the jury to consider the question of
punitive damages.
IV
Did the court err in allowing the testimony of Hart-Albinls
human factors expert?
This issue is raised by Leviton on cross-appeal. Dr. Dorris,
the human factors expert, testified that human factors is the field
of studies that looks at human capabilities and limitations and
tries to design jobs, workplaces, and products so that human beings
can use them comfortably, efficiently, productively, and safely.
He testified that he holds a Ph.D. in industrial engineering and is
employed in the field of product safety warnings and instructions.
He further testified that, in his opinion, warnings or instructions
should have been provided with the Catalog No. 67 cord connector.
Leviton contends that Dorris is a "junk scientistsgwhose
opinion misled the jury. Leviton states Dorrislstestimony should
have been rejected because he was testifying as to techniques not
"generally acceptedw as reliable in the relevant scientific
community, citing Frye v. United States (D.C, Cir, 1923)' 293 F.
1013.
In its recent opinion in Daubert v. Merrell Dow Pharmaceuti-
cals, Inc. (1993), - U.S. -, 113 S.Ct. 2786, 125 L.Ed.2d 469,
the United States Supreme Court rejected the "general acceptances1
standard for admission of expert testimony. It affirmed the more
expansive test embodied in Rule 702, F.R.Evid., of whether the
expert is proposing to testify to (1) scientific knowledge that (2)
will assist the trier of fact to understand or determine a fact in
issue, stating that this is a flexible inquiry. Daubert, - U,S,
at -i 113 S.Ct. at 2796-97.
Construing Montana law, this Court has stated:
[Tlhe determination of the qualification of a skilled or
expert witness is a matter largely within the discretion
of the trial judge and, in the absence of a showing of
abuse, ordinarily will not be disturbed.
Goodnough v. State (1982), 199 Mont. 9, 18, 647 P.2d 364, 369.
After reviewing the record, we conclude it supports the determina-
tion that Dorris testified regarding scientific knowledge that
would assist the jury in understanding or determining a fact in
issue. We hold that the District Court did not abuse its discre-
tion in allowing the testimony of Dorris.
CONCLUSION
Because no error has been shown in the jury's findings that
Leviton's defective cord connector started the fire and was a
proximate cause of Hart-Albin's damages, that part of the verdict
is upheld. The court erred in instructing the jury on the defense
of misuse through misassembly, because such a defense was precluded
by Leviton's admission of foreseeability. Therefore, application
of principles of comparative negligence relieving Leviton of
liability was error. We remand this case for retrial on the issue
of damages, including redetermination of whether the jury should be
allowed to consider punitive damages, based on the evidence
presented. Because the issues on retrial will be limited, it is
not necessary that we consider issues raised by Hart-Albin other
than those herein discussed.
Remanded for further proceedings consistent with this Opinion.
We concur:
Justices
Justice Fred J. Weber specially concurs and dissents as follows:
I dissent from the majority opinion on Issue I. I concur in
the dissent of Justice Karla M. Gray on Issues I1 and 111. I
concur in the majority opinion on Issue IV
Issue I asks if the District Court erred in i.nstructing the
jury on Leviton's misuse defense. As pointed out by the majority,
g 27-1-719(5) (b), MCA, provides that Leviton's defense in this
strict liability case depends upon whether or not the product was
"unreasonably misused" by Hart-Albin. The majority points out that
this Court has not previously ruled on the definition of
"unreasonable misuse:" and then holds that the generally accepted
definition of misuse in relation to strict liability applies. The
majority then makes the following statement:
Montana's federal district court has stated, in defining
the defense of misuse, that a manufacturer is not
responsible for injuries resulting from abnormal or
unintended use of a product if such use was not
reasonably foreseeable. Trust Corp. of Mont. v. Piper
Aircraft Corp. (Mont. 1981), 506 F.Supp. 1093, 1097,
citing 1 Frumer and Friedman, Products Liability 5 15.01.
... [Emphasis supplied.]
The majority states that it adopts the foregoing Trust CorD. of
Mont. definition of misuse. It further states that the defense of
misuse is not available if the misuse of the product was
"reasonably foreseeable."
In analyzing the evidence, the majority points out that
Leviton's interrogatory answer stated that it "agrees that this
product can be abused or misassembled." In addition, the Leviton
representative stated that he was aware that it was l'possible" that
the cord connector could be misassembled. From that evidence, the
majority concludes that Leviton admitted it was foreseeable that
the cord connector could be misassembled and that such admission by
Leviton eliminates its argument on misuse.
Leviton1s admissions that it was "possiblen that the cord
connector could be misassembled do not meet the test of Trust Corn.
of Mont. Under that test the manufacturer is not responsible if
such use was not reasonably foreseeable. The majority has
disregarded the aspect of reasonableness. It has concluded that
mere foreseeability is the same as reasonable foreseeability.
Neither of the admissions by Leviton establish that it was
reasonably foreseeable that the cord connector would be
misassembled. Leviton's admissions are perfectly consistent with
its contention--while it is possible to misassemble, such
misassembly could only occur upon unreasonable misuse. The
majority opinion does not consider whether or not the use on the
part of Hart-Albin could be classed as reasonably foreseeable. The
effect of the majority opinion is to impose strict liability on
Leviton without giving to the trier of fact, a jury in this
instance, the obligation to determine whether or not the misuse was
unreasonable and whether or not the misuse was reasonably
foreseeable. I conclude this effectively eliminates Leviton's
statutory right under g 27-1-719, MCA, to prove that Hart-Albin
unreasonably misused the cord connector.
I dissent from the conclusion on Issue I by the majority
opinion which holds that the court erred in instructing the jury on
Leviton's defense that Hart-Albin misused the cord connector
through misassembly. I would therefore grant a retrial on Issue I.
Justice Karla M. Gray, concurring in part and dissenting in part.
I concur in the Court's opinion on issues one and four. I
dissent from the opinion on issue two regarding the use of certain
depositions and, because the Court's resolution of issue three is
premised on the resolution of issue two, I dissent on that issue as
well.
Rule 32 (a) of the Montana Rules of Civil Procedure allows any
part or all of a deposition to be used against a party for any
purpose if certain enumerated conditions are met. In pertinent
part, the rule authorizes the use of depositions for any purpose if
the deponent is designated under Rule 30(b) (6) or 31(a),
M.R.Civ.P., to testify on behalf of a corporation. Rule 32(a)(2),
M.R.Civ.P. That basis for allowing the use of the depositions at
issue here is neither asserted by Hart-Albin nor relied on by the
Court. It is not applicable on the record before us.
Rule 32 (a)(2), M.R.Civ.P., also allows such use of depositions
if the deponent is "an officer, director, or managing agent" of the
corporation. The Court holds that Stephen Campolo and Dennis
Dandeneau were managing agents of Leviton under this Rule and,
therefore, that the District Court erred in denying Hart-Albin's
requested use of their depositions. I disagree.
It is my view that the Court misapplies or, indeed, fails to
apply the Clark Bros. factors to these individuals. The applicable
factors are the individual's right to general control, authority,
and judgment within his department; whether the interests of the
individual are identified to be those of the employer; and whether
any person of higher authority possesses knowledge about the
matters at issue. Clark Bros., 710 P.2d at 43. I will apply the
factors to Campolo and Dandeneau separately.
The burden of meeting the Clark Bros. factors is on the party
seeking use of the depositions under Rule 32(a) ( 2 1 , M.R.Civ.P.
While the record reflects that Campolo was the director of
Leviton's corporate testing laboratory and agency approval
department, the record does not establish that that position at
Leviton gives Campolo the right to general control, authority and
judgment within the department. Thus, the first factor is not met
here. Nor does the record support the Court's statement that
Campolo was designated as the person within Leviton most
knowledgeable with regard to the cord connector at issue and UL
approvals of the connector. Indeed, the "discovery" to which the
Court refers is not part of the transmitted record on appeal.
Moreover, Hart-Albinls only statement in this regard is that the
transcript supports a designation by Leviton that Campolo was the
most knowledgeable person. However, the transcript reference to
Campolo's testimony reflects only the following:
Q. You have been designated by Leviton Manufacturing
Company to come here and testify at this trial, have you
not?
A. Yes, sir.
Q. In fact, when I went back to New York to the offices
of Leviton, you were designated there as the person that
I should depose at that time and find out certain facts
about this particular product, catalog 67 cord connector,
weren't you?
A. That was the outcome, yes.
Nothing therein supports a designation by Leviton of the type made
by the Court. Thus, the third factor is not met here.
I have even greater concerns regarding the Court's conclusion
that Dandeneau was a managing agent of Leviton. A careful reading
of the Court's opinion makes it clear that Dandeneau did not meet
even the first Clark Bros. factor. He was not the supervisor of
Leviton's quality control department in Rhode Island. He was a
manager in that department and he had a department supervisor.
There also was a Leviton vice-president of quality control. Thus,
the record does not establish that Dandeneau had the right to
general control, authority and judgment within his department. In
addition, no showing was made that these persons of higher
authority in Dandeneau's chain of command did not possess knowledge
of the matters at issue pursuant to the third factor. Finally, the
Court finds some relevance in the fact that Campolo and Dandeneau
were the only Leviton employee witnesses at trial. I submit that
this consideration is totally irrelevant under Rule 32(a),
M.R.Civ.P., and Clark Bros. in determining who is, and who is not,
a "managing agent.I'
The effect of the Court's decision is to render every
corporate employee at any managerial level who is identified as a
witness or as having knowledge of matters at issue a "managing
agent." Such a result is at odds with the requirements of
Bros. More importantly, it voids the important limitation on the
use of depositions "for any purpose" which is set forth in Rule
32(a), M.R.Civ.P. I would affirm the District Court on this issue.
Justice Terry N. ~rieweiler specially concurring in part and
dissenting in part.
I concur with the majority's holding under Issues I, 11, and
IV.
With regard to Issue I, I would simply add that defendants1
product was found to be defective because the manufacturer failed
to instruct the purchaser or user of that product on how to
assemble it. The jury found that that defect caused misassembly of
the product, and that misassembly caused the fire in plaintiffs'
place of business. The misassembly, which resulted from the
manufacturer's failure to instruct, cannot, as a matter of law, be
misuse. To hold otherwise would be to hold that the defect created
by the manufacturer can cause an affirmative defense to the
manufacturer's own conduct or omission. Such a result would make
no sense under the traditional principles of product liability law.
I would also add that placement of the cord connector near a
flammable object cannot, as a matter of law, constitute misuse. So
long as the cord connector was being used for its intended purpose,
to connect electrical cords, it was not being misused as that term
is defined in product liability law. Its misplacement may have
been negligent. However, contributory negligence was not a defense
to plaintiffs1 claim in this case pursuant to § 27-1-919(5), MCA.
Under Issue 111, I agree with the majority's reversal of the
District Court's directed verdict in favor of defendants. However,
I conclude, based on the deposition testimony which this Court has
now held admissible, that plaintiffs have presented sufficient
evidence to raise a factual issue regarding their entitlement to
punitive damages under F, 27-1-221(1), MCA. Pursuant to that
statute, punitive damages may be awarded where a defendant is aware
of facts which create a high probability of injury to a plaintiff
and deliberately proceeds to act in conscious or intentional
disregard of the potential for injury. Based upon the deposition
testimony of Steve Campolo, which this Court has now held was
admissible, it is clear that Leviton knew that warnings, wiring
diagrams, and assembly instructions were necessary for its Catalog
No. 67 cord connector, but that it failed to provide them. It is
also apparent that Leviton knew that if the cord connector was
misassembled, the exact type of damage can occur which occurred in
this case. In spite of this knowledge, Leviton not only failed to
provide the necessary instructions or diagrams, but continued to
market the cord connector with an Underwriters Laboratory
designation which it had been instructed by that organization to
remove.
The decision whether or not a factual issue has been raised
regarding punitive damages will have to be based on the testimony
that this Court has now held to be admissible. That testimony will
not change from the time that this case is shipped from our clerk's
office back to the District Court. Therefore, the District Court
is in no better position to rule on this issue than we are.
Furthermore, this issue is properly before this Court based on the
issues raised by the parties on appeal in this case.
Therefore, while I concur in the majority's decision to
reverse the District Court's directed verdict on the issue of
punitive damages, I dissent from that part of the majority opinion
which concludes that whether or not a factual issue regarding
punitive damages has been raised must necessarily be decided upon
remand by the District Court.
For these reasons, and with these qualifications, I concur
with part of the majority opinion, and dissent from part of that
opinion.
February 17, 1994
CERTIFICATE OF SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the following
named:
L. Randall Bishop
JARUSSI & BISHOP
P.O. Box 3353
Billings, MT 59103-3353
Thomas S. Felker
PEERY, HISCOCK, PTERSON, & RYDER, INC., P.S.
505 Madison Street, Suite 300
Seattle, WA 98104
L.D.Nybo
CONKLIN, NYBO, LEVEQUE & MURPHY, P.C.
P.O. Box 2049
Great Falls, MT 59403-2049
ED SMITH
CLERK OF THE S U ~ E M E
COURT