No. 85-97
IN THE SUPREME COURT OF THE STATE OF MONTANA
1985
ELIZABETH M. NATKOVIC, individually,
and as guardian of the persons and
estates of WILLIAM RUSSELL SWEET
and SCOTT JAMES SWEET, Deceased,
et al.,
Plaintiffs and Petitioners,
SHELL OIL COMPANY and BLACK HILLS
TRUCKING, INC.,
Defendants and Respondents.
ORIGINAL PROCEEDING:
COUNSEL OF RECORD:
For Petitioners:
Butte Legal Center; D.L. Holland argued, Butte,
Montana
For Respondents:
Moulton, Bellingham, Longo & Mather; William H.
Bellingham argued for Shell Oil, Billings, Montana
Alexander & Baucus; John D. Alexander argued for
Black Hills Trucking, Great Falls, Montana
Submitted: June 27, 1985
Decided: September 30, 1985
Filed:
Clerk
Mr. Justice Frank B. Morrison, Jr., delivered the Opinion of
the Court.
This is an action filed for declaratory relief under
Uniform Rule No. 1 of the Montana Rules of Appellate Civil
Procedure in response to Federal District Judge Battin's
certification of certain questions to this Court. This
action was commenced in the District Court of the Second
Judicial District, in and for the County of Butte-Silver Bow,
by the plaintiffs on March 28, 1983. The defendants removed
the case to the United States District Court, for the Dis-
trict of Montana, Billings Division. By an order entered on
December 12, 1984, the Federal District Court certified the
foll-owing questions.
1. Under Montana law, is a person who carries on an
abnormally dangerous activity strictly liable for harm to
persons resulting from said activity, although the person
engaged in the said activity has exercised the utmost care to
prevent the harm?
2. May the defense of assumption of risk be a complete
bar to plaintiff's recovery under the circumstances of ques-
tion number l?
3. If a defense of assumption of risk may not be a
complete bar to plaintiff's recovery as posed in question
number 2, then is the defense of assumption of risk treated
like the defense of contributory negligence under Montana
Code Annotated, 27-1-101 et seq., 1983, and apportioned
as under the comparative negligence statute?
4. Is the doctrine of contributory negligence available
as a defense under the circumstances of question number l?
The facts of this case for certification purposes were
recited by the Federal District Court as follows:
"Elizabeth M. Matkovic is the mother of
Russell William Sweet, Deceased, and the
d u l y - a p p o i n t e d g u a r d i a n o f W i l l i a m Rus-
s e l l Sweet and S c o t t James S w e e t , t h e
minor c h i l d r e n o f R u s s e l l William Sweet,
D e c e a s e d , and t h e p e r s o n a l r e p r e s e n t a t i v e
o f t h e e s t a t e o f R u s s e l l W i l l i a m Sweet,
Deceased. Vicky J e a n S t a c e y i s t h e
mother and duly-appointed c o n s e r v a t o r o f
t h e e s t a t e o f Lawrence S w e e t , a p r o t e c t e d
p e r s o n and t h e m i n o r son o f t h e d e c e d e n t .
William Sweet i s t h e father of the
decedent.
"Defendant, S h e l l O i l , o p e r a t e d o i l w e l l s
i n North D a k o t a . O i l we11 production
w a t e r was p r o d u c e d from t h e w e l l s a s a
by-product. Shell O i l hired defendant
Black H i l l s Trucking t o h a u l t h i s w a t e r
t o a d i s p o s a l a r e a i n Montana. The
p r o d u c t i o n w a t e r was h i g h l y c o n t a m i n a t e d
w i t h hydrogen s u l f i d e .
"On J a n u a r y 2 9 , 1 9 8 1 , B l a c k H i l l s Truck-
i n g b r o u g h t a t r u c k , w h i c h was u s e d t o
haul t h i s water, i n t o a garage i n Sidney,
Montana, f o r s e r v i c i n g a n d r e p a i r . The
d e c e d e n t , a n employee o f t h e g a r a g e , was
a s s i g n e d t h e d u t y o f s e r v i c i n g and re-
pairing t h e truck. P l a i n t i f f s claim t h a t
w h i l e t h e d e c e d e n t was w o r k i n g o n t h e
t r u c k , h e was overcome by h y d r o g e n s u l -
f i d e g a s e m i s s i o n s and d i e d a s a r e s u l t
o f such exposure."
UNDER MONTANA LAW, I S A PERSON WHO CARRIES ON AN ABNOR-
MALLY DANGEROUS ACTIVITY STRICTLY LIABLE FOR HARM TO PERSONS
R M SAID ACTIVITY, ALTHOUGH THE PERSON ENGAGED I N
RESULTING F O
THE SAID ACTIVITY HAS EXERCISED THE UTMOST CARE T PREVENT
O
THE HAm?
The genera 1 r u l e describing liability for abnormally
d a n g e r o u s a c t i v i t y i s found i n R e s t a t e m e n t (Second) - T o r t s
of
§ 519 ( 1 9 7 6 ) , which s t a t e s :
" (1) One who c a r r i e s on a n a b n o r m a l l y
dangerous a c t i v i t y i s s u b j e c t t o l i a b i l i -
t y f o r harm t o t h e p e r s o n , l a n d o r c h a t -
tels of another resulting from the
a c t i v i t y , a l t h o u g h he h a s e x e r c i s e d t h e
u t m o s t c a r e t o p r e v e n t t h e harm.
" ( 2 ) This strict l i a b i l i t y is limited t o
t h e k i n d o f harm, t h e p o s s i b i l i t y o f
which makes the activity abnormally
dangerous."
This Court has previously adopted a similar theory i n
D u t t o n v. Rocky Mountain P h o s p h a t e ( 1 9 6 8 ) , 1 5 1 Mont. 54, 438
P.2d 674. In that case, this Court articulated a standard of
strict liability for damage to crops and livestock caused by
flouride being emitted from a phosphate plant.
Shell Oil Company recognizes that this Court might apply
strict liability principles in an abnormall-y dangerous situa-
tion, but argues that the facts of this case do not warrant
submission of the theory. However, that issue is for the
Federal District Court. We are only asked whether we would
adopt strict liability standards where abnormally dangerous
activities are in fact involved. Our answer to that question
is in the affirmative. The standard set forth in Restatement
(Second) - Torts
of $ 519 (1976), set forth above, is the one
that should be followed in submitting this issue to the jury.
Shell Oil urges this Court to require the submission of
Restatement (Second) - Torts
of § 520 (1976), if $ 519 is to be
given. We agree with this position.
Restatement (Second) - Torts 5 520
of (1976), provides:
"In determining whether an activity is
abnormally dangerous, the following
factors are to be considered:
" (a) existence of a high degree of risk
of some harm to the person, land or
chattels of others;
"(b) likelihood that the harm that
results from it will be great;
" (c) inability to eliminate the risk by
the exercise of reasonable care;
" (d) extent to which the activity is not
a matter of common usage;
" (el inappropriateness of the activity
to the place where it is carried on; and
"(f) extent to which its value to the
community is outweighed by its dangerous
attributes."
The definition of abnormally dangerous activity con-
tained in 5 520 should be given in conjunction with an in-
s t r u c t i o n s e t t i n g f o r t h t h e p r i n c i p l e of l i a b i l i t y enunciated
I1 AND I11
MAY THE DEFENSE OF ASSUMPTION OF RISK RE A COMPLETE BAR
TO PLAINTIFF'S RECOVERY UNDER THE CIRCUMSTANCES OF QUESTION
NUMBER 1; AND, I F NOT, THEN I S THE DEFENSE OF ASSUMPTION OF
RISK TREATED LIKE THE DEFENSE OF CONTRIBUTORY NEGLIGENCE
UNDER MONTANA CODE ANNOTATED, §§ 27-1-101, ET SEQ., 1 9 8 3 , AND
APPORTIONED AS UNDER THE COMPARATIVE NEGLIGENCE STATUTE?
In Z a h r t e v. Sturm, R u g e r & Co. (Mont. 19831, 6 6 1 P.2d
17, 40 St.Rep. 316, t h i s Court h e l d t h a t assumption o f r i s k
was a v a i l a b l e a s a d e f e n s e i n a p r o d u c t s l i a b i l i t y c a s e b u t
t h a t t h e d e f e n s e was t o b e compared w i t h t h e c o n d u c t o f t h e
defendant. W e see n o r e a s o n t o a p p l y a d i f f e r e n t s t a n d a r d t o
s t r i c t l i a b i l i t y which a r i s e s a s t h e r e s u l t o f c o n d u c t i n g an
abnormally dangerous activity. Therefore, we hold that
assumption of risk i s an a v a i l a b l e d e f e n s e w h e r e d e f e n d a n t
c o n d u c t s an a b n o rm a l l y d a n g e r o u s a c t i v i t y , b u t t h e d e f e n s e i s
n o t absolute. The f i n d e r o f f a c t m u s t d e t e r m i n e w h a t p a r t of
t h e t o t a l cause is a t t r i b u t a b l e t o p l a i n t i f f ' s assumption of
risk. If it i s d e t e r m i n e d t h a t p l a i n t i f f ' s c o n d u c t i s more
responsible than defendant, then plaintiff cannot recover.
If plaintiff's c o n d u c t i s found t o b e e q u a l t o o r less t h a n
defendant's conduct, then p l a i n t i f f ' s recovery must be re-
duced by t h e p e r c e n t a g e a t t r i b u t a b l e t o p l a i n t i f f .
I S THE DOCTRINE OF CONTRIBUTORY NEGLIGENCE AVAILABLE AS
A DEFENSE UNDER THE CIRCUMSTANCES OF QUESTION NUMBER 1 3
I n Brown v. N o r t h A m e r i c a n M a n u f a c t u r i n g Co. ( 1 9 7 8 ) , 176
Mont. 98, 576 P.2d 711, this Court held that contributory
negligence i s n o t an a v a i l a b l e defense i n a strict l i a b i l i t y
case for defective products. Matkovic contends that this
Court should likewise hold that contributory negligence is
not a defense t o abnormally dangerous activity. F7e agree.
I n Z a h r t e v. S t u r m , Ruger & Co., supra, we affirmed our
position i n Brown, holding that contributory negligence is
not a v a i l a b l e a s a defense i n a products l i a b i l i t y case based
upon strict liability principles. The same rationale
5
forecloses contributory negligence as a defense to strict
liability arising out of abnormally dangerous activity. We,
therefore, hold that assumption of risk is the only available
defense and, as previously stated, must he compared with the
conduct of the defendant.
A copy of this opinion shall be mailed to the Clerk of
the United States District Court of Montana, Billings
Division. A
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Jdstice
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We concur: /'