respectfully dissenting:
I respectfully dissent.
The United States Court of Appeals for the Ninth Circuit has requested this Court’s answers to certified questions for application in the instant case, tried during May 1980, and in the case of Shekell v. Sturm, Ruger & Company, Inc., in the United States District Court (D. Montana) case no. D.C. CV-80-70-PGH, judgment entered June 10, 1981.
In my view, the majority has used the certification process to announce a change in the law, without guidance to the federal court as to when that change occurred.
In Brown v. North American Mfg. Co. (1978), 176 Mont. 98, 576 P.2d 711, a strict liability case, this Court reiterated assumption of risk as a bar to recovery by setting out 2 Restatement of Torts 2d, §402A, Comment (n) and stating: “We find the above standard of conduct of the plaintiff as related to the injury must be considered under the Montana case law on the assumption of risk when applied to strict liability cases.” 576 P.2d at 719. Under Brown, the *95answer to the first certified question is “yes.”
In Kopischke v. First Continental Corp. (1980), Mont., 610 P.2d 668, 37 St.Rep. 437, not a strict liability case, this Court stated:
“As stated earlier, the elements of the doctrine of assumption of the risk are not present in this case. However, 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.” 610 P.2d at 687.
In Abernathy v. Eline Oil Field Services, Inc. (1982), 200 Mont. 205, 650 P.2d 772, 39 St.Rep. 1688, not a strict liability case, this Court held that the doctrine of implied assumption of risk is no longer applicable in Montana and further stated: “In this case, we are not ruling upon the application of the doctrine of assumption of risk in product liability cases.” 650 P.2d at 776.
As of that date, the answer to the first certified question would appear to remain “yes.”
In Abernathy, this Court, in essence, merged the defense of assumption of risk in negligence cases into the general scheme of comparative negligence, following the reasoning that assumption of risk is a variant of contributory negligence, citing Li v. Yellow Cab Co. of California (1975), 13 Cal.3d 804, 119 Cal.Rptr. 858, 532 P.2d 1226, a case previously cited with approval in Kopischke.
The California Supreme Court in Daly v. General Motors Corp. (1978), 20 Cal.3d 725, 144 Cal.Rptr. 380, 575 P.2d 1162, used the Li case to extend the principles of comparative negligence to actions founded in strict products liability, thereby joining the majority of states which have considered the issue. Those states have recognized the semantic incongruity of applying negligence concepts to cases in strict liability, but have noted that strict liability does not mean absolute liability, and that by applying comparative negligence or fault principles, the bar to recovery under the assumption of risk defense is removed. See cases *96cited in Trust Corp. of Montana v. Piper Aircraft Corp. (1981 D.Mont.), 506 F.Supp. 1093, footnote 3.
The signers of the majority opinion, by refusing to apply general comparative principles in strict liability cases, and taking a unique position will surprise those federal judges who have had occasion to interpret Montana law to this date.
Here, the majority, in effect, has refused to extend comparative principles except in the limited area where a plaintiff has voluntarily and unreasonably exposed himself to a known danger, a departure from the rule enunciated in Brown. The result is that comparative principles will not be applied where the plaintiff voluntarily and reasonably exposes himself to a known danger or where the plaintiff has engaged in negligent conduct.
I would retain the defense of assumption of risk as set forth in 2 Restatement of Torts 2d § 402A, Comment (n) until pure comparative principles are applied in strict liability cases by this Court or the Montana legislature.