NO. 91-143
IN THE SUPREME COURT OF THE STATE OF MONTANA
1993
3. ROBERT RILEY,
Plaintiff and Appellant,
-vs-
AMERICAN HONDA MOTOR CO., INC.,
Defendant and Respondent.
APPEAL FROM: District Court of the Third Judicial District,
In and for the County of Powell,
The Honorable Ted Mizner, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
David M. McLean (argued): Knight, Dahood, McLean &
Everett, Anaconda, Montana
For Respondent:
R. H. Bellingham (argued), Scot Schermerhorn:
Moulton, Bellingham, Longo & Mather, Billings,
Montana
Submitted: December 10, 1992
Decided: June 22, 1993
R-I
Justice Karla M. Gray delivered the Opinion of the Court.
Robert Riley appeals from an order of the Third Judicial
District Court, Powell County, denying his motion for judgment
notwithstanding the verdict or a new trial. We affirm.
We restate the issue on appeal as whether the District Court
erred in directing a verdict on the failure to warn claim.
On May 3, 1980, Robert Riley (Riley) test drove a 1978 Honda
GLlOOO "Goldwing" motorcycle owned by his friend, Michael Dolce.
Riley intended to drive the motorcycle from Missoula to Helena.
Approximately eight miles east of Garrison Junction, however, Riley
lost control of the motorcycle and drove onto a graveled area off
the left shoulder of the highway. The motorcycle flipped as Riley
attempted to negotiate it back onto the pavement, throwing Riley
down a steep embankment. The accident rendered Riley a
quadriplegic.
On April 28, 1983, Riley filed suit against American Honda
Motor Company (Honda), the original distributor of the motorcycle.
Riley asserted several negligence claims, as well as design defect,
manufacturing defect and failure to warn claims under the theory of
strict products liability. Riley abandoned the negligence claims
prior to trial.
A jury trial began on September 17, 1990. Riley contended
that the motorcycle had a propensity to wobble, and that a wobble
caused him to lose control of the motorcycle. At the conclusion of
Riley's case-in-chief, Honda moved for a directed verdict on the
design defect, manufacturing defect and failure to warn claims.
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The District Court directed a verdict on the manufacturing defect
and failure to warn claims: only the design defect claim was
submitted to the jury. On September 2 7 , the jury returned a
verdict in Honda's favor, finding that the motorcycle was not in an
unreasonably dangerous defective condition.
Riley subsequently moved for judgment notwithstanding the
verdict or, in the alternative, for a new trial. He alleged, among
other things, that the directed verdict dismissing the failure to
warn claim constituted an irregularity in the proceedings or an
abuse of the court's discretion which prevented a fair trial.
Riley appeals from the court's denial of his motion; his only
asserted error relates to the directed verdict on his failure to
warn claim.
Did the District Court err in directing a verdict on the
failure to warn claim?
Riley's complaint alleged that Honda had failed to warn of an
inherent danger in the use of the motorcycle. In support of his
allegation that the motorcycle was inherently dangerous, Riley
testified that the motorcycle began to 'Ishimmy and shake"
immediately prior to the accident. A s a result of the "shimmy and
shake," Riley asserted that he had difficulty remaining mounted on
the motorcycle and that his right hand was shaken from the
handlebar. He further testified that he was unable to prevent the
motorcycle from drifting off the highway. Furthermore, Riley's
expert witnesses testified that the 1978 Honda Goldwing motorcycle
had a propensity to wobble and that the propensity was unreasonably
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dangerous.
At the end of Riley's case-in-chief, Honda moved for a
directed verdict on the failure to warn claim. Honda asserted that
there was no evidence of record that could support a jury verdict
in favor of Riley on that claim. As a separate ground for the
motion, Honda contended that the only defect developed by Riley's
case was a design defect, and that a claim based on the failure to
warn of the design defect was superfluous to the design defect
claim. The District Court directed a verdict on the failure to
warn claim, stating "the Court feels that this is a design case,
and that there is no warning that would make this product safe
under the Plaintiff's theory."
Our review of a directed verdict is governed by well-
established principles. We consider only the evidence introduced
by the party against whom the directed verdict is granted. If that
evidence, when viewed in a light most favorable to the party, tends
to establish the case made by the party's pleading, we will reverse
the directed verdict. Boehm v. Alanon (1986), 222 Mont. 373, 379,
722 P.2d 1160, 1163. The test commonly used to determine if the
evidence is legally sufficient to withdraw cases and issues from
the jury is whether reasonable persons could draw different
conclusions from the evidence. Boehm, 722 P.2d at 1163-64.
We will affirm a district court's grant of a directed verdict
if the court's conclusion is correct: the reasons given by the
court for granting the directed verdict are immaterial to our
review. Laurie v. M. Ei L. Realty Corp. (1972), 159 Mont. 404, 408,
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498 P.2d 1192, 1194. Here, we determine that the directed verdict
on the failure to warn claim was proper, but for a different reason
than that given by the District Court. We focus on whether Riley
presented a prima facie case relating to his failure to warn claim.
Where a party fails to present evidence establishing all elements
of a prima facie case, a directed verdict is properly granted.
Nicholson v. United Pac. Ins. Co. (1985), 219 Mont. 32, 37, 710
P.2d 1342, 1345.
Montana law recognizes a failure to warn claim as a distinct
cause of action under the theory of strict products liability. In
Brown v. North American Mfg. Co. (1978), 176 Mont. 98, 110, 576
P.2d 711, 718, we recognized that "a failure to warn of an injury
causing risk associated with the use of a technically pure and fit
product can render such product unreasonably dangerous." The
elements of a failure to warn claim are the same as any other
strict products liability claim:
(1) The product was in a defective condition,
"unreasonably" dangerous to the user or consumer;
(2) The defect caused the accident and injuries
complained of: and
(3) The defect is traceable to the defendant.
Brown, 576 P.2d at 716.
"A showing of proximate cause is a necessary predicate to
plaintiff's recovery in strict liability." Brown, 576 P.2d at 719.
While causation is ordinarily a question of fact for the trier of
fact, it may be determined as a matter of law where reasonable
minds can reach but one conclusion regarding causation. See
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Brohman v. State (1988), 230 Mont. 198, 202-03, 749 P.2d 67, 70.
Because the causation element is dispositive in the case before us,
we do not address whether Riley presented sufficient evidence on
the other elements of his failure to warn claim.
Riley presents two separate arguments regarding the causation
element of his failure to warn claim. He contends that his
testimony relating to his respect for machinery and concern for
safety was sufficient evidence from which to infer that he would
have ridden the motorcycle differently had a warning of the
propensity to wobble been given--creating a question of fact for
the jury on the causation element. Alternatively, Riley contends
that he is entitled to a rebuttable presumption that he would have
followed a warning, thus satisfying the causation element of the
failure to warn claim.
It is true that the causation element in a failure to warn
claim can be satisfied by evidence indicating that a warning would
have altered plaintiff's use of the product or prompted plaintiff
to take precautions to avoid the injury. 63 Am.Jur.2d, Products
Liability, 5 5 356-57 (1984); 9 American Law of Products Liability
3d, 5 32:76 (1987). While we have not expressly stated this
proposition, we have relied on such evidence in determining whether
sufficient evidence supported a finding that a failure to warn was
a proximate cause of plaintiff's injuries. In Krueger v. General
Motors Corp. (1989), 240 Mont. 266, 783 P.2d 1340, plaintiff was
injured while removing the front drive shaft from a General Motors
four-wheel drive pickup truck. Parked on a sloping driveway and
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engaged in "park," the pickup rolled over plaintiff. The pickup
was equipped with a newly designed transfer case which caused the
pickup to act differently while engaged in park than a pickup
equipped with a conventional transfer case. The jury found that
General Motors' failure to warn of the difference was a proximate
cause of the injuries.
On appeal, we determined that substantial evidence supported
the jury's finding of proximate cause. Krueqer, 783 P.2d at 1348.
Integral to our determination was plaintiff's testimony that he
would have altered his method of repairing the truck had he been
warned that a pickup equipped with the new transfer case would not
behave like a conventional four-wheel drive pickup; other witnesses
injured under similar circumstances testified to the same effect.
Krueser, 783 P.2d at 1348. We examine the record before us, then,
to determine whether Riley presented evidence analogous to that
which we relied on in Krueser--evidence establishing that a vaming
relating to the motorcycle's alleged propensity to wobble would
have altered Riley's conduct.
Our review of the record indicates that Riley failed to
establish a causal relationship between the lack of a warning and
his injury. Unlike the plaintiff in Krueser, Riley did not testify
that he would have altered his conduct had he been warned of the
motorcycle's alleged propensity to wobble: nor did he present other
witnesses to testify to that effect. He does not contend that he
presented any direct testimony on causation.
Rather, Riley relies solely on his general testimony that he
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respected machinery and was concerned about safety to meet the
causation element. Based on this testimony, he suggests that he
"might have rode [sic] the motorcycle differently and might not
have taken it on a long trip on the highway" had warnings been
given. This suggestion is not supported by evidence of record,
however. N o r is it analogous to the testimony on which we relied
to support a causal relationship between the lack of warning and
injury in Krueaer; there, plaintiff unequivocally testified that a
warning "would have" altered his conduct.
Considering the evidence presented by Riley in a light most
favorable to him, we find no evidence upon which reasonable minds
could conclude that a failure to warn of the alleged propensity to
wobble was the cause of the accident and injuries. Without such
evidence, Riley failed to present a prima facie failure to warn
claim.
In the absence of evidence establishing a causal link between
the failure to warn and the accident and injuries, Riley urges this
Court to apply a rebuttable presumption of causation. Under this
approach to failure to warn claims, the causation element is
satisfied by a presumption that a warning would be read and heeded.
Wooderson v. Ortho Pharmaceutical Corp. (Kan. 1984), 681 P.2d 1038,
1057. A number of jurisdictions rely on Comment j to Restatement
(Second) of Torts 5 402A (1965) as a basis for such a rebuttable
presumption. Comment j provides in pertinent part:
In order to prevent the product from being unreasonably
dangerous, the seller may be required to give directions
or warning, on the container, as to its use.
8
...
Where warning is given, the seller may reasonably assume
that it will be read and heeded; and a product bearing
such a warning, which is safe for use if it is followed,
is not in defective condition, nor is it unreasonably
dangerous.
Some courts interpret this language as creating a rebuttable
presumption which works in favor of a seller where an adequate
warning is given. Where no warning is given, however, courts have
construed this language as giving rise to a rebuttable presumption
that the consumer would have read an adequate warning and acted to
minimize the risks inherent in the use of the product. See Reyes
v. Wyeth Laboratories (5th Cir. 1974), 498 F.2d 1264, 1281;
Williams v. Lederle Laboratories, Div. of American Cyanamid Co.
(S.D.Oh. 1984), 591 F. Supp. 381, 386-87; and Snawder v. Cohen
(W.D.Ky. 1990), 749 F. Supp. 1473, 1479.
Riley asserts that this Court has adopted Comment j in its
entirety and, therefore, that the presumption of causation is
applicable to his failure to warn claim. We disagree. Our
adoption of Restatement (Second) of Torts 9 402A (1965) was not a
wholesale adoption of the comments accompanying that provision; nor
are we constrained by the comments in developing a body of products
liability law. Stenberg v. Beatrice Foods Co. (1978), 176 Mont.
123, 128-29, 576 P.2d. 725, 729. It is true that we have cited to
Comment j in recognizing the failure to warn claim itself. See
Rost v. C.F. & I. Steel Corp. (1980), 189 Mont. 485, 488 and
Krueger v. General Motors (1989), 240 Mont. 266, 278, 783 P.2d
1340, 1348. However, we have not adopted the s p e c i f i c language i n
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Comment j that-in the view of many courts--gives rise to a
rebuttable presumption regarding causation.
In developing a body of Montana products liability law, this
Court consistently has required a plaintiff to establish a causal
link between the lack of a warning and the accident and injuries in
a failure to warn claim. Brown v. North American Mfg. Co. (1978),
176 Mont. 98, 110, 576 P.2d 711, 719; Rost v. C. F. & I. Steel
Corp. (1980), 189 Mont. 485, 490, 616 P.2d 383, 386; Dvorak v.
Matador Service, Inc. (1986), 223 Mont. 98, 106, 727 P.2d 1306,
1311; Krueger v. General Motors (1989), 240 Mont. 266, 278, 783
P.2d 1340, 1348. We decline to depart from this approach in the
case before us.
It is true that there are policy arguments to be made in
support of the rebuttable presumption. These arguments are ably
advanced by the dissent, notwithstanding Riley's reliance on his
assertion that we previously have adopted the presumption. The
dissent's policy arguments, however, do not convince us to abandon
the traditional causation element and allow Riley to survive a
directed verdict without establishing a prima facie case.
First, the dissent contends that it is "common sense" that if
an adequate warning is given the plaintiff would have read and
heeded it. While this might be common sense in an ideal world, our
own experience does not support it; warnings are everywhere in the
modern world and often go unread or, where read, ignored. We
conclude that the presumption is not appropriate running in either
direction, to the manufacturer/seller where a warning is given or
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to a plaintiff where it is not.
Next, the dissent raises the perceived difficulties involved
in requiring a plaintiff to establish the causation element. We
note that the evidence required to establish this element is not
qualitatively different than other testimony given by a party in
support of her or his prima facie case. Concerns that the
testimony may be speculative or self-serving and that a plaintiff
may die before the testimony is given are not unique to this cause
of action. In any event, these concerns are a red herring in the
case before us where Riley had a full and fair opportunity to
present his case and simply did not establish a prima facie case of
failure to warn.
Finally, the dissent argues that the presumption is consistent
with the policy behind strict products liability. This may be so;
so too would many other changes in a plaintiff's burden of
establishing a prima facie case--including the elimination of any
burden at all--be consistent with that policy. We are unwilling to
shift the respective parties' burdens in such a fashion. In order
to rebut a presumption of causation, the defendant would need to
prove that the warning would not have altered the plaintiff's
conduct or that the plaintiff's own negligence caused the injury.
See 6 3 Am.Jur.2d, Products Liability, 5 358 (1984). A defendant
certainly is in no better position to rebut a presumption which
totally excuses a plaintiff from meeting the causation element than
a plaintiff is in establishing the causation element as part of the
prima facie case.
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We conclude that the District Court did not err in directing
a verdict on the failure to warn claim.
Affirmed.
We concur:
/
Just ices
12
I respectfully dissent.
Riley is entitled to a rebuttable presumption that he would
have followed the warning if such a warning had been given. Thus
he would have satisfied the causation element of his failure to
warn claim in the court's consideration of the motion for a
directed verdict.
The failure to warn case of product liability is different
from the usual products liability case and adherence to the
products liability causation criteria is an example of
ossification. In a failure to warn case it is not the product
itself which is unreasonably dangerous because of a defect in it,
but that it is rendered unreasonably dangerous due to the failure
to warn and inadequate labeling. Generally it is common sense that
if an adequate warning has been presented or given the plaintiff
would have read it and taken heed. For the plaintiff to actually
testify as to whether or not he would have actually done it, is
purely speculative in nature and self serving and in some cases
would be impossible due to a death or lack of communication skills
on the part of the plaintiff. See 53 A.L.R.3d 239, 247. In Harlow
v. Chin (1989), 405 Mass. 697, 545 N.E.2d 602, 606, the court
stated "The law permits an inference that a warning, once given,
would have been followed." The reason the law imposes a duty to
give notice in the first place is the assumption that, because of
the danger not commonly known to users, a warning is needed, and if
given, will be heeded.
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Comment j to the Restatement (Second) of Torts, § 402(a),
1965, states that when the warning is given, the seller may
reasonably assume that it will be read and heeded, and when the
product has such a warning, which is safe for use if it is
followed, such product is not in a defective condition nor is it
unreasonably dangerous. By the same reasoning it is rational to
grant a presumption that if the product should have a warning and
if there had been a warning, it would have been read and acted upon
to so minimize the risk.
In the first instance the rebuttable presumption benefits the
manufacturer and in the second instance the rebuttable presumption
benefits the injured. Placing the burden of rebutting this
presumption of causation in the second example on the manufacturer
is consistent with the policy behind strict liability. It would
encourage manufacturers to provide safe products and to warn of the
known dangers in the use of the products which might cause injury.
It would also discourage any manufacturer from risking liability
when he could have provided a warning, even if he felt that such
warning would impair the salability of his product. See Nissen
Trampoline Co. v. Terre Haute First Natl. Bk., 332 N.E.2d 820. The
rebuttable presumption has been overwhelmingly supported in recent
cases. See Walsh v. Ford Motor Co. (D.D.C. 1985), 106 F.R.D. 401;
Knowlton v. Deseret Medical, Inc (1st Cir. 1991), 930 F.2d 116,
123; Plummer v. Lederle Laboratories (2nd Cir. 1987), 819 F.2d 349;
Reyes v. Wyeth Laboratories (5th Cir. 1974), 498 F.2d 1264, 1281;
Petty v.United States (8th Cir. 1984), 740 F.2d 1428, 1437;
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Brazzell v. United States (N.D. Iowa 1985), 633 F.Supp. 62, 72;
Wolfe v. Ford Motor Co. (Mass-App. 1978), 376 N.E.2d 143, 147; and
Snawder v. Cohen (W.D.Ky. 1990), 749 F.Supp. 1473.
The case of Kruger v. General Motors Corp. (1989), 240 Mont.
266, 783 P.2d 1340, is not analogous to this case. In Kruser there
was no request for the presumption, nor was rebuttable presumption
an issue in the case. The rebuttable presumption was not needed,
nor raised, nor discussed. In this case it has been specifically
raised.
The District Court erred in directing a verdict and I would
reverse and remand for a new trial on the cause of action of a
failure to warn.
Justices William E. Hunt, Sr., and Terry N. Trieweiler join in the
foregoing dissent.
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