February 24 2012
DA 11-0049
IN THE SUPREME COURT OF THE STATE OF MONTANA
2012 MT 43
PATTERSON ENTERPRISES, INC.,
Plaintiff and Appellant,
v.
ARCHIE JOHNSON, d/b/a ARCHIE
JOHNSON CONTRACTING,
Defendant and Appellee.
APPEAL FROM: District Court of the Fourth Judicial District,
In and For the County of Missoula, Cause No. DV-07-1212
Honorable Ed McLean and Honorable John Warner, Presiding Judges
COUNSEL OF RECORD:
For Appellant:
Christian T. Nygren (argued), P. Brad Condra (argued), Milodragovich,
Dale, Steinbrenner & Nygren, P.C., Missoula, Montana
For Appellee:
Nicholas J. Pagnotta (argued), Williams Law Firm, P.C., Missoula,
Montana
Bruce M. Feichtinger, Whittington Von Sternberg, Houston, Texas
Argued: December 12, 2011
Submitted: December 13, 2011
Decided: February 24, 2012
Filed:
__________________________________________
Clerk
Justice James C. Nelson delivered the Opinion of the Court.
¶1 Patterson Enterprises, Inc. (Patterson) appeals the judgment of the District Court
for the Fourth Judicial District, Missoula County, denying Patterson’s motion for
summary judgment on its strict liability claim. We affirm.
¶2 Patterson raises two issues on appeal:
¶3 1. Whether the District Court erred when it permitted the defense of assumption
of the risk to go to the jury.
¶4 2. If this Court determines it was proper to instruct the jury regarding assumption
of the risk, whether the District Court abused its discretion in failing to instruct the jury
regarding the subjective knowledge requirement set forth in Lutz v. National Crane
Corp., 267 Mont. 368, 884 P.2d 455 (1994).
Factual and Procedural Background
¶5 In the fall of 2006, Patterson was hired by Doug Ferraro and Dan Vanderzwaag to
construct a road on property owned by Ferraro and Vanderzwaag located approximately
20 miles west of Missoula. Because the road was to be constructed in mountainous
terrain, it was determined that a significant amount of blasting would be required.
Patterson did not have any personnel trained or knowledgeable in blasting techniques, so
he hired Archie Johnson Contracting (AJC) to perform all necessary blasting on the
project.
¶6 On January 2, 2007, Patterson and AJC entered into an agreement for the blasting
on the project which they referred to as the Nine Mile Project. This agreement required
AJC to drill and blast various small rock outcroppings as well as a main cliff section
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which was approximately 400 feet in length. Adam Pummill was the project
superintendent for Patterson as well as the excavator operator. His job was to work with
AJC’s crews to remove blasted material as the project progressed. Despite his experience
building roads and performing general excavation work, Pummill did not have any
background in drilling, blasting or geology. Thus, AJC was in charge of the blasting
while Patterson was in charge of the excavating.
¶7 Testimony at trial indicated the following standard sequence of events during the
project. Patterson would use its equipment to clear or build a flat pad for AJC’s drilling
equipment to sit on. AJC would then place its drilling equipment on the pad, drill a series
of holes in the rock, and fill the holes with explosives. Before detonating the explosives,
AJC would clear the area of personnel and equipment. The explosion was intended to
fracture the rock sufficiently for Patterson to use its excavators to remove the blasted
material. AJC and Patterson repeated this basic process numerous times as they worked
to construct the road.
¶8 On February 26, 2007, AJC detonated 503 pounds of explosives in 46 holes along
500 yards of rock. This blast created a rock overhang that caused both Patterson’s and
AJC’s crews to be concerned. On the evening of February 28, 2007, Archie Johnson and
the owners of the project met on site to discuss how to deal with the overhang. One idea
was for AJC’s crews to come in from above using ropes and drills so that they could
safely get to the overhang and bring it down without having to be underneath it. Since
this would take several days, the owners were opposed to the idea.
3
¶9 Trial testimony differed on whether AJC continued blasting in the area of the
overhang to try to bring it down. However, Pummill testified that when he arrived for
work on the morning of March 1, 2007, it was apparent to him that the overhang had
been altered. Pummill moved his excavator into an area near the overhang and began
excavating the blasted rock. AJC’s crew arrived sometime later and checked on
Pummill’s progress. Henry Bentley, AJC’s driller, did not advise or warn Pummill that
the overhang was still dangerous because, according to Bentley, Pummill already knew
that it was dangerous. When Bentley stopped by the area again more than an hour later,
he noticed that Pummill was working directly below the overhang, so he signaled for
Pummill to exit the excavator. Almost immediately after Pummill exited the excavator,
an entire section of rock above the excavator collapsed crushing it. Pummill was not
injured.
¶10 AJC denied liability for the accident, consequently Patterson filed suit on
September 11, 2007. In its second amended complaint, Patterson asserted claims of
negligence, breach of contract, breach of the implied covenant of good faith and fair
dealing, and strict liability. AJC denied all of the allegations and asserted various
affirmative defenses including contributory negligence and assumption of the risk. AJC
also asserted a counterclaim for breach of contract for money still owed to AJC for the
work AJC performed on the project.
¶11 Patterson filed a Motion for Summary Judgment on November 25, 2008, arguing
that blasting constitutes an abnormally dangerous activity thereby subjecting AJC to strict
liability for Patterson’s damages. Thereafter, AJC filed a cross-motion for partial
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summary judgment on the grounds that (1) the case should not be governed by strict
liability because the damages claimed by Patterson did not occur until days after any
blasting done by AJC and after Patterson’s operator had excavated under the overhang,
(2) if the court found that the case was governed by negligence, then Patterson was
contributorily negligent as a matter of law, and (3) if the court found that the case was
governed by strict liability, then Patterson assumed the risk as a matter of law.
¶12 The District Court entered an Opinion and Order on October 5, 2009, finding that
blasting is inherently an abnormally dangerous activity subjecting it to strict liability.
However, the court pointed out that, in this case, the damage to the excavator occurred
more than 24 hours after the blasting process had occurred and after Pummill spent at
least three hours removing rock from underneath the overhang. The court stated that
“someone who engages in an abnormally dangerous activity does not have the legal duty
to in essence ‘insure’ damages for any and all harm that may result at some time in the
future following the performance of the abnormally dangerous activity . . . .” Thus, the
court determined that when AJC’s strict liability started and stopped were factual
questions for the jury’s determination.
¶13 The court further noted that this case is primarily an ordinary negligence action
and that there was “plenty of evidence upon which the jury could find the parties
contributorally [sic] negligent at trial.” In addition, the court stated that “the causal
question under [Patterson’s] claim of strict liability under the abnormally dangerous
activity legal theory is a question for the jury to determine because of the intervening
work of the excavator more than 24 hours after the blasting activities occurred.” Based
5
on these findings, the court denied Patterson’s motion for summary judgment. The court
also denied AJC’s motion for partial summary judgment stating that there were questions
of fact regarding AJC’s affirmative defenses of contributory negligence and assumption
of the risk.
¶14 Trial of this case began on December 13, 2010. During trial, Patterson filed a
supplemental trial brief arguing that the assumption of risk defense should not be
submitted to the jury as a defense to Patterson’s strict liability claims. Patterson argued
in its brief that AJC failed to satisfy the elements of the defense as enunciated in Lutz,
267 Mont. at 377, 884 P.2d at 460. In addition, during the settling of the jury
instructions, Patterson objected to the wording of the assumption of the risk instruction
on the basis that it failed to properly instruct the jury regarding the subjective knowledge
standard set forth in Lutz, 267 Mont. at 378, 884 P.2d at 461.
¶15 Following the close of evidence, the court determined that it would submit the
case to the jury as a strict liability case, and that it would permit the jury to be instructed
on the assumption of risk defense. The court also submitted AJC’s counterclaim for
breach of contract to the jury.
¶16 On December 17, 2010, the jury returned a verdict finding that AJC’s blasting
caused the damages sustained by Patterson and that Patterson and its employees assumed
the risk of harm. The jury allocated 51% of the fault to AJC and 49% to Patterson, and
awarded damages to Patterson in the amount of $50,000. The jury also returned a verdict
in favor of AJC on its breach of contract claim and awarded damages to AJC in the
amount of $19,255.16.
6
¶17 Patterson appeals the District Court’s decision to allow the defense of assumption
of the risk to go to the jury as well as the court’s failure to instruct the jury regarding the
subjective knowledge requirement set forth in Lutz.
Issue 1.
¶18 Whether the District Court erred when it permitted the defense of assumption of
the risk to go to the jury.
¶19 Patterson contends on appeal that the District Court incorrectly concluded that the
defense of assumption of the risk was applicable under the facts of this case, thus the
court erred in permitting that defense to go to the jury. Patterson argues that the jury’s
focus should have been on the dangerous condition, not on the conduct of the injured
party. Thus, Patterson maintains that in this case, allowing the jury to focus on
Pummill’s conduct, in the face of an obviously dangerous condition which he lacked the
knowledge to assess, impermissibly inserted questions of contributory negligence into a
purely strict liability case.
¶20 AJC argues on the other hand that to hold it strictly liable for blasting activities
that occurred days before the incident at issue here, yet find that Patterson and its
employees only assumed the risk of harm if the stringent standards set out in Lutz are
met, would be fundamentally unfair and contrary to the intent of the Restatement
(Second) of Torts. AJC contends that there was sufficient evidence presented to the jury
to show that Pummill knew that overhangs are dangerous and unstable, and that it was
unsafe to place the excavator under the overhang. AJC further contends that there was
sufficient evidence presented to the jury that Pummill knew that digging underneath the
7
overhang would undercut support for the overhang, yet Pummill did so resulting in the
overhang falling on the excavator.
¶21 Whether the trial court erred in permitting the defense of assumption of the risk to
be submitted to the jury is a question of law which we review de novo. Jacobsen v.
Allstate Ins. Co., 2009 MT 248, ¶¶ 17, 26, 351 Mont. 464, 215 P.3d 649 (citing State v.
Mackrill, 2008 MT 297, ¶ 37, 345 Mont. 469, 191 P.3d 451).
¶22 Assumption of the risk is a statutory affirmative defense in Montana under
§ 27-1-719(5), MCA. This statute provides that the defense may be asserted if 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.”
Section 27-1-719(5)(a), MCA. In addition, assumption of the risk “must be applied in
accordance with the principles of comparative fault set forth in 27-1-702 and 27-1-705.”
Section 27-1-719(6), MCA.
¶23 In the instant case, Patterson points out that Montana’s leading case on the
assumption of risk defense is Lutz. Thus, Patterson urges this Court to extend the Lutz
standard applicable in product liability cases to those cases involving allegations of
abnormally dangerous activities. We decline to do so under the facts in this case.
¶24 Lutz was killed when the crane cable he was using to retrieve drilling pipe that had
spilled onto the highway from a semi-trailer contacted a power line. Before lifting the
pipe, Lutz and his supervisor, who were both aware of the overhead power lines in the
area and that the crane cable with which they were working was uninsulated, marked off
the pipes that they did not believe were safe to move. Lutz’s supervisor operated the
8
crane while Lutz hooked metal chains attached to the uninsulated crane cable around the
ends of the pipe and guided the pipes to a waiting semi-trailer. At one point the crane
cable came into contact with a power line thereby electrocuting Lutz. Lutz, 267 Mont. at
372, 884 P.2d at 457.
¶25 On behalf of Lutz’s estate, Lutz’s widow, Lori, sued National Crane Corporation
(National) on the theory of strict liability in tort, alleging that the crane was defectively
designed and unreasonably dangerous because it lacked an insulated link. National raised
the statutory affirmative defenses of assumption of risk and misuse. Lutz, 267 Mont. at
372-73, 884 P.2d at 457.
¶26 The jury returned a verdict in favor of Lori, but reduced the amount of her award
by 20 percent, the percentage of responsibility the jury allocated to Lutz. National
appealed from the verdict and judgment while Lori cross-appealed on the issues of
assumption of risk and misuse, seeking to recover the jury’s full determination of
damages. Lutz, 267 Mont. at 373, 884 P.2d at 458.
¶27 We stated in Lutz that assumption of the risk in a product liability case is analyzed
under a subjective standard rather than under the objective “reasonable person” standard,
and we set forth that standard as
what the particular plaintiff sees, knows, understands and appreciates. In
this it differs from the objective standard which is applied to contributory
negligence. . . . If by reason of age, 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 [comparative] negligence
because it does not conform to the community standard of the reasonable
man.
9
Lutz, 267 Mont. at 378, 884 P.2d at 461 (citing Krueger v. General Motors Corp., 240
Mont. 266, 276, 783 P.2d 1340, 1347 (1989)).
¶28 Despite the fact that there was a known objective hazard in Lutz; that Lutz
recognized the hazards associated with operating a crane next to live power lines; and
that Lutz knew he could be killed if the cable came into contact with those power lines,
this Court determined that the assumption of the risk defense was not available in that
case because the contact between the cable and the power lines was inadvertent. It was
not a voluntary act by either the crane operator or Lutz. Lutz, 267 Mont. at 380, 884 P.2d
at 462. We ruled in Lutz that the assumption of the risk defense in a product liability case
is inapplicable as a matter of law without evidence that the victim actually knew that
serious injury or death would result, and knowing that, the victim voluntarily exposed
himself to a known danger. Lutz, 267 Mont. at 379-80, 884 P.2d at 461-62.
¶29 Patterson’s theory in the case sub judice was simply that AJC created the
dangerous condition and should be held strictly liable for all damages that resulted
therefrom. Patterson maintains that AJC’s employees were the blasting and rock experts
on the project and, as such, they recognized the danger. Pummill on the other hand was
not an expert in blasting or geology, hence he had to rely upon AJC’s employees to
determine whether the situation was safe. Patterson maintains that while Pummill may
have understood that there was some danger, he did not understand that taking the
excavator into the area would result in its destruction. According to Patterson, this falls
short of the subjective knowledge requirement set forth in Lutz.
10
¶30 We decline to apply the subjective knowledge requirement of Lutz to the facts in
this case because unlike in Lutz, where the contact with the power line was inadvertent,
Pummill’s actions in the instant case of excavating beneath the overhang were
intentional. Furthermore, Pummill knew the dangers associated with excavating there.
¶31 Patterson also relies on our recent decision in Patch v. Hillerich & Bradsby Co.,
2011 MT 175, 361 Mont. 241, 257 P.3d 383, to support its claim that the assumption of
risk defense should not have gone to the jury.
¶32 In Patch, eighteen-year-old Brandon Patch was struck in the head by a batted ball
during an American Legion baseball game. The ball was hit by a player using an
aluminum bat manufactured by Hillerich & Bradsby Co. (H&B). Brandon died from his
injuries. His parents and his estate sued H&B in strict products liability asserting
manufacturing and design defect, and failure to warn claims. Plaintiffs claimed the bat
was in a defective condition because of the enhanced risks associated with its use. The
aluminum bat increased the velocity of a batted ball when struck by the bat thus
decreasing infielders’ reaction times, and resulting in a greater number of high energy
batted balls in the infield. Patch, ¶¶ 8-9.
¶33 Before trial, the District Court granted H&B’s motion for summary judgment on
Plaintiff’s manufacturing defect claim, but denied summary judgment on Plaintiff’s
design defect and failure to warn claims. The court granted Plaintiff’s motion in limine
excluding H&B’s assumption of the risk defense. Patch, ¶ 10. The court concluded that
Brandon’s voluntary participation in the game did not make assumption of the risk
applicable. Patch, ¶ 32.
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¶34 At trial, Plaintiff’s design defect and failure to warn claims were submitted to the
jury. The jury concluded that the bat was not designed defectively, but that it was in a
defective condition due to H&B’s failure to warn of the enhanced risks associated with its
use. The jury awarded Plaintiffs $850,000 on their failure to warn claim. Patch, ¶ 10.
¶35 On appeal, we examined both § 27-1-719(5)(a), MCA, the assumption of the risk
statute, and our holding in Lutz. We concluded in Patch, that an assumption of the risk
defense was not applicable in that case because there was no evidence that Brandon
actually knew that he would be seriously injured or killed while pitching to a batter using
one of H&B’s aluminum bats. Patch, ¶¶ 33-34.
¶36 We hold that Patch is distinguishable from the instant case because the evidence
here indicates that, unlike Brandon Patch who was unaware of the danger from balls hit
from H&B’s aluminum bat, Pummill was aware of the danger from the overhang.
¶37 Pummill testified at trial as follows.
Q. [Plaintiff’s counsel]. Okay, and did any of the blasters ever
express any concern to you about this overhang, that we know, now,
eventually, came down on your excavator?
A. [Pummill]. They did, yes.
Q. What did they tell you?
A. They – we discussed it, and they felt that it was a very hazardous
condition, that was presented, also, up there, and I expressed my concerns
that I, also, felt it was very hazardous.
. . .
Q. Okay, and could you reach this large overhang? When you
crawled your excavator on top of that ramp, and extended the arm, as high
as you could, could you reach the overhang with the excavator?
A. No, I couldn’t completely reach it, and to be able to do that, it
would have been very dangerous because the only position, that I could
have been in, would have been right underneath it, to be able to reach it,
and do anything with it with the machine.
12
¶38 Thus, rather than apply Lutz in this case, we will follow our holding in Matkovic v.
Shell Oil Co., 218 Mont. 156, 707 P.2d 2 (1985). In response to certified questions posed
to this Court by the United States District Court, for the District of Montana, we stated
in Matkovic that we saw no reason to apply a different standard to strict liability which
arises as the result of conducting an abnormally dangerous activity than to strict liability
which arises in the case of a defective product. Consequently, in Matkovic, we extended
the defense of assumption of the risk to strict liability based on abnormally dangerous
activities. Matkovic, 218 Mont. at 160, 707 P.2d at 4. In addition, we stated in Matkovic
that while assumption of the risk is a defense to both strict products liability and strict
liability for abnormally dangerous activities, that defense may be used only in rare
circumstances. Matkovic, 218 Mont. at 160, 707 P.2d at 4 (citing Zahrte v. Sturm, Ruger
& Co., 203 Mont. 90, 661 P.2d 17 (1983)).
¶39 AJC contends that Pummill, by placing his excavator underneath the overhang and
digging out from underneath that overhang, voluntarily participated in the abnormally
dangerous activity in this case. Hence, in evaluating whether Pummill assumed the risk
of harm, AJC maintains that the focus is properly on Pummill’s actions in voluntarily
participating in an abnormally dangerous activity that his employer, Patterson, was hired
to do. On that basis, AJC urges this Court to apply the Restatement (Second) of Torts
§ 523 (1977), which provides:
Assumption of Risk
The plaintiff’s assumption of the risk of harm from an abnormally
dangerous activity bars his recovery for the harm.
In particular, AJC urges us to adopt comment d to § 523 which provides:
13
The risk is commonly assumed by one who takes part in the activity
himself, as a servant, an independent contractor, a member of a group
carrying on a joint enterprise or as the employer of an independent
contractor hired to carry on the activity or to do work that must necessarily
involve it. Thus a plaintiff who accepts employment driving a tank truck
full of nitroglycerin, with knowledge of the danger must be taken to assume
the risk when he is injured by an explosion.
¶40 We conclude that in this case, the District Court reached the right result, but for
the wrong reason. In that respect, although there was argument that § 523 was not
effectively raised below, we conclude that comment d of § 523 currently sets forth the
law that applies to these types of cases. Here, Patterson and AJC entered into a joint
enterprise regarding an abnormally dangerous activity. Under the Restatement (Second)
of Torts § 523 (cmt. d) Patterson and his employees assumed the risk of harm.
¶41 Accordingly, we hold that the District Court did not err when it permitted the
defense of assumption of the risk to go to the jury.
Issue 2.
¶42 Whether the District Court abused its discretion in failing to instruct the jury
regarding the subjective knowledge requirement set forth in Lutz.
¶43 During the settling of the jury instructions, Patterson’s counsel renewed his
objection to allowing the assumption of the risk defense to go the jury. Counsel also
objected to the specific wording of the proposed jury instruction. The District Court
overruled counsel’s objections and instructed the jury as follows:
Assumption of risk is a defense to plaintiff’s claims. In order to
establish assumption of risk, the defendant must prove:
First, that the condition which caused damage was open and obvious
or the plaintiff’s employee discovered such condition;
14
Second, that even though the condition was open and obvious, or the
plaintiff’s employee discovered the condition, the plaintiff unreasonably
proceeded in the face of the danger; and
Third, that the plaintiff was damaged as a result of its employee
proceeding in the face of the danger.
Assumption of risk by the plaintiff’s employee does not bar its
recovery unless its responsibility for the damage is greater than the
defendant’s. However, any damages you award will be reduced by the
Court according to the percentage of plaintiff’s responsibility as determined
by you.
¶44 Patterson argues on appeal that the District Court improperly instructed the jury
regarding the assumption of risk defense. The court determined that § 27-1-719(5),
MCA, had been enacted or substantively amended subsequent to this Court’s decision in
Lutz and thus the plain language of the statute controlled. As a result, the court did not
instruct the jury regarding the subjective knowledge requirement set forth in Lutz.
Patterson maintains that the amendments to § 27-1-719(5), MCA, were not substantive
and did not alter the basic analytical framework set forth in Lutz. Consequently,
Patterson contends that the District Court erred in determining that § 27-1-719(5), MCA,
superseded the guidance in Lutz.
¶45 AJC contends that the instruction given by the District Court on assumption of risk
substantially tracked the language in Montana Pattern Instruction (MPI) Second 7.06 and
correctly states the law on assumption of the risk in Montana. In this case, the court
modified the instruction to refer to a condition rather than a defective product.
¶46 MPI2d 7.06 was written by the Montana Supreme Court Commission on Civil
Jury Instruction Guidelines (the Commission) in 2003. In promulgating MPI2d 7.06, the
Commission listed as its source § 27-1-719(5)(a), MCA, and noted that it “considered the
15
language of Lutz v. National Crane Corp., (1994), 267 Mont. 368, 884 P.2d 455, on the
subject of assumption of risk in drafting this instruction.” Although the Commission did
consider Lutz, it did not adopt in its model instruction the language regarding subjective
knowledge from Lutz that Patterson urged the District Court to include in the jury
instruction at issue in this case.
¶47 A district court’s decision regarding jury instructions is reviewed for an abuse of
discretion. Goles v. Neumann, 2011 MT 11, ¶ 9, 359 Mont. 132, 247 P.3d 1089 (citing
State v. Christiansen, 2010 MT 197, ¶ 7, 357 Mont. 379, 239 P.3d 949). Although a
district court’s discretion is broad, it is restricted by the overriding principle that jury
instructions must fully and fairly instruct the jury regarding the applicable law. Thus, to
constitute reversible error, the instructions must prejudicially affect the defendant’s
substantial rights. Goles, ¶ 9. “The purpose of jury instructions is to guarantee decisions
consistent with the evidence and the law, which can be accomplished when the
instructions are as plain, clear, concise, and brief as possible.” Goles, ¶ 9.
¶48 We find no prejudice in the court’s refusal to include the language proposed by
Patterson in this jury instruction.
¶49 Accordingly, we hold that the District Court did not abuse its discretion in failing
to instruct the jury regarding the subjective knowledge requirement set forth in Lutz.
¶50 As for the Dissent, Lutz and § 27-1-719(5), MCA, both deal with strict products
liability, not with abnormally dangerous activities. While Patterson and the Dissent
would have us apply legal principles governing the former to resolve the latter, we
conclude that is unwarranted here. Foremost, no defective product is involved in the
16
instant case. Rather, this case concerns an abnormally dangerous activity involving two
participants. Accordingly, we have determined that, on the facts of the instant case,
Restatement (Second) of Torts § 523 (cmt. d) best expresses the legal principles that
should govern.
¶51 Applying those principles and based on the record before us, we are not persuaded
that Pummill failed to recognize the danger of operating his excavator under the rock
overhang as the Dissent contends. Dissent, ¶ 57. Pummill was, after all, an experienced
contractor—indeed, he was in charge of the construction project for his employer, as far
as the excavation went. He was engaged with AJC in a road construction project that
involved blasting and excavating rock. The blasters had expressed concern to Pummill
about the rock overhang that eventually fell on the excavator; they told him “it was a very
hazardous” condition and Pummill testified that he “also, felt it was very hazardous.” In
fact, Pummill testified that placing the excavator “right underneath” the overhang would
have been “very dangerous.”
¶52 We are also not persuaded that AJC knew Pummill was operating the excavator
underneath the overhang as the Dissent contends. Dissent, ¶ 57 . When Bentley, AJC’s
driller, first checked on Pummill’s progress on the morning of the accident, Pummill was
working to one side of the overhang. However, when Bentley returned some time later,
he noticed that Pummill had moved the excavator directly below the overhang and that is
when Bentley signaled for Pummill to exit the excavator. Opinion, ¶ 9.
¶53 Under these circumstances, we are satisfied that Pummill possessed the subjective
knowledge of the danger that the overhang posed. The trial evidence showed that, in the
17
face of this knowledge, Pummill operated his excavator “right underneath” the “very
dangerous” rock overhang that he, himself, felt was “very hazardous.” In so doing, it is
clear that Pummill assumed the very risk that what could happen, did happen. The
overhang collapsed while Pummill was excavating underneath it. The District Court
correctly instructed the jury, and the fact-finder’s decision was fully supported by the
evidence before it.
¶54 Affirmed.
/S/ JAMES C. NELSON
We Concur:
/S/ MIKE McGRATH
/S/ PATRICIA COTTER
/S/ BRIAN MORRIS
/S/ BETH BAKER
/S/ JIM RICE
Justice Michael E Wheat dissents.
¶55 The District Court correctly concluded that blasting is an abnormally dangerous
activity, thus subjecting Archie Johnson Contracting (AJC) to strict liability. Strict
liability arising from an abnormally dangerous activity, such as blasting, is confined to
the damages that arise from the abnormal danger of the activity itself. Restatement
(Second) of Torts § 519 cmt. e (1977). One obvious danger associated with blasting is
the chance that falling rock will cause injury to a person or property, which is exactly
what happened here.
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¶56 However, I believe the District Court erred when it allowed the assumption of the
risk defense to go to the jury. To establish the assumption of the risk defense, the
defendant must establish (1) that the injured party discovered the defect, or the defect was
open and obvious; and (2) that the injured party unreasonably made use of the product (or
condition). Section 27-1-719(5), MCA. This Court applied these standards to strict
liability for an abnormally dangerous activity in Lutz v. National Crane Corp., 267 Mont.
368, 884 P.2d 455 (1994). As to the first element of § 27-1-719(5), MCA, a defendant
must prove that the victim knew that serious injury or death would result, and knowing
that, the victim voluntarily exposed himself to a known danger. Lutz, 267 Mont. at 378,
884 P.2d at 461. This Court further noted that in the context of strict liability, allowing
the assumption of the risk defense to be submitted to the jury under any other set of facts
would “only enlarge the concept of contributory negligence to consume the separate
defense of assumption of the risk[.]” Lutz, 267 Mont. at 380, 884 P.2d at 462. As to the
second element, this Court found that if a given use of equipment in a particular location
is reasonably foreseeable, then the use is reasonable as a matter of law. Lutz, 267 Mont.
at 379-80, 884 P.2d at 462.
¶57 Here, as in Lutz, the elements of § 27-1-719(5), MCA, were not met. Regarding
the first element, Pummill did not fully understand the danger posed by the overhang; he
was not a geologist, he had no background in blasting, and he did not have the requisite
experience to assess the danger of the overhang. As to the second element, AJC knew it
was possible that the overhang might fall, and knew Pummill was operating an excavator
19
under the overhang. Accordingly, Pummill’s operation of the excavator beneath the
overhang was reasonable as a matter of law.
¶58 Based on these facts, I believe that the District Court would have found the
assumption of the risk defense inapplicable had it applied this Court’s holding in Lutz. In
this case, Patterson could not have assumed the risk that the excavator would be
destroyed because (1) Pummill lacked the subjective knowledge of the danger the
overhang posed, and (2) it was foreseeable to AJC that the overhang could collapse while
Pummill was operating the excavator beneath it. For these reasons I believe that the
District Court erred in allowing the assumption of the risk defense to go to the jury, and I
would modify the judgment to reinstate the full verdict against AJC, less an offset for
AJC’s breach of contract claim.
/S/ MICHAEL E WHEAT
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