No. 92-445
IN THE SUPREME COURT OF THE STATE OF MONTANA
LORI LUTZ, individually and as
personal representative of the
estate of GERALD LUTZ, deceased,
Plaintiff, Respondent and
Cross-Appellant,
NATIONAL CRANE CORPORATION; a Delaware
corporation,
Defendant, Appellant and
Cross-Respondent.
APPEAL FROM: District Court of the Eighteenth Judicial District,
In and for the County of Gallatin,
The Honorable Larry W. Moran, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Carol M. Welch (argued); Hall & Evans,
Denver, Colorado
Robert F. James (argued); James, Gray &
McCafferty, Great Falls, Montana
For Respondent:
Joe Bottomly (argued); Bottomly Law Offices,
Kalispell, Montana
Monte Beck (argued); Beck Law Offices,
Bozeman, Montana
Argued: October 27, 1993
Submitted: March 16, 1 9 9 4
Decided: September 1, 1994
Justice John Conway Harrison delivered the Opinion of the Court.
This is an appeal and cross-appeal from a jury verdict in a
wrongful death/products liability lawsuit in the Eighteenth
Judicial District Court, Gallatin County, Montana. The jury
returned a verdict of $815,400 in favor of Gerald Lutz's estate.
Lutz was killed by electrocution when the crane cable with which he
was working contacted a power line. The jury apportioned 20
percent liability to Lutz and 80 percent liability to National
Crane, the crane manufacturer. We affirm in part and remand in
part.
Although National Crane raises eighteen issues on appeal, we
consolidate and restate the issues as follows:
1. Did the District Court err by submitting the affirmative
defense of misuse to the jury?
2. Did the District Court err by submitting the affirmative
defense of assumption of risk to the jury?
3. Did the District Court err by allowing Lori's expert
witnesses to testify?
4. Did the District Court incorrectly instruct the jury on
strict liability and negligence?
5. Did the District Court err by allowing Lori Lutz to
present rebuttal testimony?
6. Did the District Court err by excluding evidence relating
to causation?
7. Did the District Court err by excluding evidence of OSHA
and ANSI standards?
2
8. Did the District Court Judge err by not recusing himself
or granting a mistrial based on a fee splitting arrangement with
one of Lori Lutzls attorneys?
9. Did the District Court err by not granting a mistrial
based on comments from the bench or on comments by Lori's counsel?
10. Did the District Court err in its evidentiary rulings
relating to Lori Lutzls miscarriage and remarriage?
On April 28, 1989, Gerald Lutz (Lutz) was killed when the
crane cable he was using contacted a 7,200 volt power line. Lutz,
then 28, was a trained and licensed groundman with Montana Ready-
Mix. At the time of the accident, Lutz and his supervisor, crane
operator Jim Lees (Lees), were retrieving drilling pipe which
spilled from a semi-trailer on Highway 191, outside of Bozeman.
Before lifting the pipes, Lees and Lutz discussed the task
before them. They planned to extract several 40-foot pipes. Each
pipe weighed between 300 and 400 pounds. Lees and Lutz were aware
of overhead power lines in the area; that the crane cable with
which they worked had no insulated link; and of the potential for
electrocution. Lees and Lutz selected pipes that they believed
could be safely removed. Because Lees did not feel they could
safely remove some of the pipes which were located beneath the
power lines, they placed a two-by-four board on the ground to
delineate between the safe and unsafe llpick"areas. They then
called in a wrecker to drag the pipe that they believed could not
be safely removed.
Lutzls job entailed hooking metal chains, which were attached
to the uninsulated crane cable, around the ends of the pipe and
guiding the pipes to a waiting semi-trailer. Lees operated the
crane.
Evidently, on the fatal pick--as the slack in the cable was
eliminated--the taut cable, apparently no longer directly beneath
the tip of the crane's boom, contacted the power line. The cable
conducted electricity from the power line to the pipe,
electrocuting Lutz.
On behalf of Lutz's estate, Lutz's widow, Lori Lutz (Lori),
filed suit against National Crane, M & W Repair and Americo
Trucking on March 9, 1990. M & W Repair and Americo Trucking
elected to settle with Lori, leaving National Crane as the sole
defendant in this action. Lori proceeded against National Crane on
the theory of strict liability in tort, alleging that the crane--
absent an insulatedlink--was defectively designed and unreasonably
dangerous. National Crane raised the statutory affirmative
defenses of assumption of risk and misuse.
The jury returned a $815,400 verdict in favor of Lori. That
amount, however, was reduced by 20 percent, the percentage of
responsibility allocated to Lutz. The $110,000 paid in settlement
by other defendants was also deducted. Judgment was entered for
$542,320, plus allowable costs. National Crane appealed from the
verdict and judgment. Lori cross-appealed on the issues of
assumption of risk and misuse, seeking to recover the jury's full
determination of damages.
I -- The Misuse Defense
Did the District Court err by submitting the affirmative
defense of misuse to the jury?
In 1987, the Montana Legislature enacted 5 27-1-719, MCA,
which established misuse as an affirmative defense in products
liability cases. The statute provides that the defense may be
asserted if I1[t]he product was unreasonably misused by the user or
consumer and such misuse caused or contributed to the injury."
Section 27-1-719(5)(b), MCA.
According to National Crane, two types of product misuse
exist: 1) use for an improper purpose, such as using a glass
bottle for a hammer; or 2) use in an improper manner, such as using
a forklift on steep, rather than level, terrain. See Kavanaugh v.
Kavanaugh (Ariz. 1982), 641 P.2d 258, 262-63; Simpson v. Standard
Container Co. (Md. Ct. Spec. App. 1987), 527 A.2d 1337, 1341; see
also Harper, James, Jr., and Gray (2d Ed. 1986), The Law of Torts
5 26.8 at 364-69.
National Crane argues that Lutz used the crane in an improper
manner by sideloading, or dragging the load, from beneath the power
lines. The 13-foot, 9-inch distance between the tip of the boom
and the power line, National Crane asserts, provides uncontroverted
proof that Lutz was sideloading. If the load had been directly
beneath the boom's tip when the pick began and the cable became
taut, then the cable would not have contacted the power line.
Comparing the relative positions of the boom tip and the power line
with the fact that the cable contacted the power line, National
Crane argues, leads to one conclusion: Lutz's misuse of the crane
(sideloading) was the sole cause of t h e accident,
The District Court prevented National Crane from introducing
certain evidence in support of its misuse defense. For instance,
the court restricted opinion testimony by Tom Jones, a Montana
Department of Labor employee. National Crane attempted to elicit
opinion testimony from Jones--who was not disclosed as an expert--
as to misuse, or sideloading, of the crane. Accordingly, the court
limited Jonesf testimony to include only matters within his
personal knowledge.
The admission of evidence rests within the sound discretion of
the district court and will not be overturned absent an abuse of
discretion. State v. Mayes (1992), 251 Mont. 358, 373, 825 P.2d
1196, 1205. The District Courtfs rulings on evidence offered in
support of the defense of misuse were correct; the court did not
abuse its discretion.
According to National Crane, "a manufacturer is not
responsible for injuries resulting from abnormal or unintended use
of his product i f such use was not reasonably f o r e s e e a b l e . " Trust
Corp. of Mont. v. Piper Aircraft Corp. (D. Mont. l98l), 506 F.
Supp. 1093, 1097 (citing 1 Frumer and Friedman, Products Liabilitv,
0 15:Ol). Moreover, National Crane contends, foreseeability
includes only what is objectively reasonable to expect, not
everything that could conceivably occur. Winnett v. Winnett (Ill.
1974), 310 N.E.2d 1, 5-6. National Crane suggests that sideloading
a crane is an abnormal, rather than foreseeable, misuse.
Lori argues that Lutz's conduct did not amount to
unreasonable, unforeseeable misuse. Rather, according to Lori, the
evidence indicates that the crane was being used for its intended
purpose: to lift large, heavy drilling pipes and place them on a
flat-bed trailer. Lori contends that no evidence exists--either
admitted or excluded--that the crane was intentionally misused by
sideloading. To the contrary, Lori argues that Lees and Lutz knew
the power lines were "liveu and potentially dangerous. Lori
further contends the evidence establishes that Lutz and Lees took
careful steps to avoid sideloading: Lees situated the crane
alongside the road, perpendicular to the power lines, and
positioned the crane's boom so that the cable would fall 12 feet
short of the power lines; Lees and Lutz selected the pipes which
they thought could safely be removed without chancing contact with
the power lines; they delineated safe from unsafe pick areas with
a two-by-four board; they called in a wrecker to drag pipes which
they believed could not safely be removed; and Lutz only hooked up
those pipes which he and Lees had selected for removal.
At most, Lori argues, the evidence shows ordinary negligence
through misperception. The record indicates that Lees or Lutz
inadvertently misperceived the distance between the crane cable and
the power line. The difficulty of judging the distance to power
lines was borne out in eye-witness accounts, scientific articles on
visual perception, and expert testimony. Visual misperception of
power lines, Lori asserts, may not rise even to the level of
contributory negligence, let alone misuse. See Burke v. Illinois
Power Co. (Ill. App. 1978), 373 N.E.2d 1354, 1364.
Lori contends that while unreasonable misuse is a recognized
defense in Montana under 5 27-1-719(5)(b), MCA, reasonably
foreseeable misuse is not recognized as a defense. See Kuiper v.
Goodyear Tire & Rubber Co. (l983), 207 Mont. 37, 63, 673 P.2d 1208,
1222; Trust Corp. of Mont., 506 F.Supp. at 1097.
According to Lori, an insulated link, which is readily
available, should have been incorporated into the crane's design.
These links are the seat belt or air bag of the crane industry.
Lori contends that because more than 2,000 people are maimed or
injured by crane/power line electrocutions every year, the danger
has long been known, and should be eminently foreseeable to the
manufacturer. In light of that eminent foreseeability, Lori urges
this Court to determine, as a matter of law, that the affirmative
defense of misuse should never have been submitted to the jury.
In deciding whether the defense of misuse should have been
submitted to the jury, we turn to our recent decision in Hart-Albin
Company v. McLees (Mont. 1994), 870 P.2d 51, 51 St.Rep. 112. In
Hart-Albin, when ruling on the term ttunreasonably
misusedtt set
as
forth in 5 27-1-719(5)(b), MCA, this Court stated:
[A] manufacturer is not responsible for injuries
resulting from abnormal or unintended use of a product if
such use was not reasonably foreseeable. Generally, the
defense of misuse refers to a use not foreseen by the
manufacturer of the product. "Most cases have indicated
that the key issue involved in a determination whether a
product has been misused is foreseeability." 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.
870 P.2d at 53-54 (citations omitted).
In art-~lbin, respondent Leviton manufactured an electrical
extension cord connector which overheated and started a fire that
caused extensive damage to a Hart-Albin department store in
Billings. Among other things, the jury found that Hart-Albin
misused the cord connector and that the misuse was a proximate
cause of the damages.
In responding to a written interrogatory concerning
misassembly or foreseeable misuse of the cord connector, Leviton
agreed that the connector could "be abused or misa~sembled.~~
During trial, a Leviton representative stated that he was aware
that it was possible to misassemble the cord connector. In
reversing on the misuse issue, this Court concluded that "Leviton
admitted it was foreseeable that the Catalog No. 67 cord connector
could be misused through misassembly . Hart-Albin, 870 P. 2d at 54.
In applying the misuse defense of 5 27-1-719 (5)(b) , MCA, to
the facts of this case it is necessary to understand what the
phrase "unreasonable misusen means in the context of the statute.
In using the term t9unreasonable
misuse," the plain language of the
statute requires that if a misuse is ~reasonablefV1 the defense
then
is not available. Our statute clearly contemplates that
manufacturers must expect, or, stated another way, must reasonably
foresee, that their products will not always be used in precisely
the manner for which they were designed or constructed--hence, the
Legislature's use of the phrase "unreasonable misuse."
In the instant case, there is really no factual disagreement
that cranes are often operated in close proximity to live
electrical lines and that, as the evidence here indicates,
sideloading is a not an uncommon, albeit improper, practice of
crane operators and groundcrews. Were that not the case, insulated
links would not be as readily available and as commonly used as
they are and there would not be the high number of deaths and
injuries from crane/power line contacts that there are.
Clearly, if, as here, the manufacturer expects or, stated
another way, reasonably foresees, that its product is or will be
subject to misuse in a certain fashion, then the fact that the user
of the product actually does use--or, in the words of the statute,
misuse--the product in that fashion can hardly be said to be
%nrea~onable.~ In short, reasonably foreseeable misuse is
reasonable misuse. Furthermore, if the manufacturer reasonably
foresees that its product can be misused in a certain fashion--
i.e., that the offending misuse is "reasonableM--then the
manufacturer does not have the benefit of a defense which
exonerates or mitigates its breach of duty and its wrongful conduct
in failing to design out or guard against the defect. To hold
otherwise simply shifts the consequences of the manufacturer's
breach of duty to the innocent, or perhaps, even negligent, user
and, in violation of the statute, injects contributory negligence
into the law of strict liability.
While "reasonableness" is generally a question of fact to be
determined by the jury, see Dean v. Aust.inMutual Ins. Co. (Mont.
1994), 869 P.2d 256, 258, 51 St.Rep. 102, 103, where, as in Hart-
Albin and here, the party assertingthe unreasonable misuse defense
acknowledges the foreseeability of the misuse, then, as a matter of
law, it is improper for the district court to submit that issue for
determination to the trier of fact.
National Crane admits that the cranes which it manufactures
can be misused through sideloading. National Crane also knows that
if sideloading occurs in the vicinity of power lines, the
possibility exists that its crane cables might contact power lines.
It is undisputed that a crane/power line contact was foreseeable to
National Crane. In fact, the record establishes that there are
2,300 crane/power line contacts in the United States each year and
crane/power line electrocutions are the fifth leading cause of
work-related deaths in the United States.
It being admitted that the alleged misuse of the crane through
sideloading was reasonably foreseeable to National Crane, we hold
that, as a matter of law, the affirmative defense of unreasonable
misuse is unavailable to National Crane. Therefore, we need not
review whether the District Court correctly instructed the jury on
misuse.
I1 -- T h e Assumption of R i s k Defense
Did the District Court err in submitting the affirmative
defense of assumption of risk to the jury?
Assumption of risk, like misuse, is a statutory affirmative
defense in Montana. Section 27-1-719 (5), MCA. The statute
provides that the defense may be asserted if:
[tlhe 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. Moreover, assumption of risk I i m u s t be
applied in accordance with the principles of comparative negligence
set forth in 27-1-702." Section 27-1-719(6), MCA; Zahrte v. Sturm,
Ruger & Co., Tnc. (1983), 203 Mont. 90, 94, 661 P.2d 17, 18-19.
In Krueger v. General Motors Corp, (1989), 240 Mont. 266, 783
P.2d 1340, the plaintiff brought a products liability action
against G.M. for a defectively designed four-wheel drive transfer
case. The plaintiff had disconnected the front drive shaft and the
vehicle rolled backwards, severely injuring the plaintiff . This
Court approved the district court's jury instruction on assumption
of risk. The instruction required that G.M. had to prove the
plaintiff: 1) actually knew before he was injured that the vehicle
would roll if he disconnected the drive line; 2) knowing this,
voluntarily exposed himself to that danger; and 3) unreasonably
exposed himself to that danger.
Assumption of risk is analyzed under a subjective standard
rather than under the objective "reasonable person" standard.
Krueqer, 783 P.2d at 1347. The standard by which we evaluate
assumption of risk is:
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.
Krueqer, 783 P.2d at 1347 (citations omitted).
By this definition, it is incumbent upon National Crane to
prove that Lutz actually knew that when the pick was commenced that
the crane cable would come in contact with the live electrical
line; that he knew if that happened he would suffer serious injury
or death; and that, knowing that, he voluntarily exposed himself to
that danger. Krueqer, 783 P.2d at 1347.
National Crane argues that proving "unreasonable usew required
it to present evidence of what Lutz saw, knew, understood and
appreciated. For example, National Crane attempted to introduce
evidence of Lutz's training, such as his responses and
understanding during the licensure procedure; his knowledge and
understanding of the warning decals on the crane; instructions he
received concerning crane safety as a result of his employment; his
knowledge of the information contained in the crane manual; his
knowledge garnered from instructional videotapes; and testimony
about the conversations in which Lutz participated at the accident
scene prior to his death.
National Crane presented evidence in an effort to bolster its
assumption of risk defense, some of which was restricted by the
District Court. For example, the court limited cross-examination
of one of Lori's experts regarding warnings/labels on cranes. It
also partially restricted the testimony of three of National
Crane's witnesses.
We determine that the District Court's evidentiary rulings
were entirely justified. A close examination of the r e c o r d
demonstrates that National Crane consistently attempted throughout
the trial to introduce evidence of ordinary negligence. The court,
in turn, correctly restricted National Crane's efforts to interject
negligence concepts into this design defect case.
Under § 27-1-719(5) (a), MCA, which was not in effect when
Kruecrer was handed down, the assumption of risk defense is
available in a strict liability case if: "[tlhe user or consumer of
the product discovered the defect or the defect was open and
obvious and the user or consumer unreasonablv made use of the
product and was injured by it." (Emphasis added.)
Here, accepting National Crane's arguments that Lutz was aware
that the crane was not insulated against contact with power lines
and that he understood the danger of a crane/power line contact,
such facts establish only the first part of the defense--that the
consumer discovered the defect or the defect was open and obvious.
There remains the second portion of the defense--that Lutz
unreasonably made use of the product. Keeping in mind that, as we
have stated previously, the use of sideloading, albeit improper, is
reasonably foreseeable and, is, therefore, not unreasonable, even
assuming sideloading and knowledge of the uninsulated crane and the
danger, under the statute Lutz did not unreasonablv make use of the
product, unless, of course, he knew in advance that the crane cable
would come in contact with the power line.
Lori argues that National Crane presented no evidence that
Lutz knew or appreciated that the crane cable would touch the power
line when the pipe was about to be lifted. At most, Lori contends,
Lutz may have been guilty of contributory negligence in failing to
correctly judge the distance between the power line and the crane
cable--an understandable misperception, given the abundance of
scientific and on-site evidence presented concerning the
difficulties associated with depth perception.
Lori argues that in order to prove assumption of risk,
National Crane must prove that Lutz continued to hold onto the
metal pipe knowing the cable would contact the power line and
result in certain electrocution. In essence, Lori suggests
National Crane must prove that Lutz had a death wish.
Since, as National Crane admitted, sideloading was a
foreseeable, and, hence, reasonable, though improper, use of the
crane, the second part of the defense of assumption of risk could
not, as a matter of law, be proven under the statute, and it was
error to submit that defense to the jury under such circumstances.
Allowing assumption of risk to be submitted to the jury under
these facts would not only enlarge the concept of contributory
negligence to consume the separate defense of assumption of risk in
products liability cases, but would also undermine this Court's
efforts to ensure that what remains at issue in products liability
cases is not the conduct of the "reasonable person," but the
condition of the product. See Kelly v. General Motors Corp. (D.
Mont. 1980), 487 F.Supp. 1041, 1044; Kui~er,673 P.2d at 1222.
~ationalCrane insists that if the jury had heard evidence
concerning Lutz's specialized knowledge and training, then it would
have concluded that Lutz "unreasonably made use ofttthe crane by
sideloading. Section 27-1-719 ( 5 )(b), MCA (emphasis added) . We
disagree.
As discussed above, use of a crane by sideloading is
reasonably foreseeable to a manufacturer. As such, it cannot be
considered an unreasonable use. Even assuming that sideloading
occurred in this case and that Lutz knew the crane cable was
uninsulated, Lutz did not unreasonably use the crane unless he knew
in advance that the crane cable would contact the power line.
Because Lutz did not know that the crane cable would contact the
power line, he could not have assumed the risk for his own death.
Therefore, under these facts, the District Court erred by
submitting the affirmative defense of assumption of risk to the
jury .
In concluding that the assumption of risk defense was not
available to National Crane, w e need not address whether the
District Court correctly instructed the jury on assumption of risk
or whether it erred by combining the assumption of risk and misuse
defenses on the jury verdict form.
1x1
Did the District Court err by allowing ~ori's expert witnesses
to testify?
National Crane levels serious allegations of discovery abuses
against Lori. Most notably, National Crane contends that Lori did
not respond to interrogatories in accordance with the discovery
schedule and pretrial order, and in accordance with Rule 26(b),
M.R.Civ.P.
Without belaboring the record with regard to discovery, we
note that neither party was altogether cooperative. It is apparent
that the parties jockeyed for position throughout discovery. The
court granted extensions for disclosure deadlines, held a hearing
on discovery issues, ordered simultaneous disclosure, and--to limit
litigation costs--restricted both parties from deposing experts.
While Lori claims to have provided adequate notice of experts
eight and one-half months before trial, National Crane berates
Lori's disclosure of experts. Having compared the disclosures by
both parties, this Court is satisfied that Lori's disclosures were
adequate. As the District Court Judge stated during a November 8,
1992, hearing:
Now, I v gone through all the briefs. I've gone through
'e
the interrogatories. I've gone through the disclosures,
and quite frankly, 1 feel the disclosures that were made
are entirely adequate under the circumstances to give
full and complete warning to each side as to what the
experts are going to testify about at trial.
The District Court Judge was in the best position to determine good
faith discovery efforts. Owen v. F.A. Buttrey (1981), 192
Mont. 274, 627 P.2d 1233. The court did not abuse its discretion;
therefore, we will not disturb its determinations relating to
disclosure of experts and discovery in general. - J.L.
See v.
Kienenberger (l993), 257 Mont. 113, 119, 848 P.2d 472, 476
(citations omitted).
IV
Did the District Court incorrectly instruct the jury on strict
liability and negligence?
National Crane contends that the District Court acted
17
improperly when it advised the jury that National Crane could not
escape liability by proving that Lutz failed to act reasonably or
prudently, Therefore, National Crane objected to Instruction 19,
which stated:
You are instructed that in a strict liability case such
as this, negligence on the part of the decedent, if any,
and negligence on the part of an employer, employee or
other third persons, if any, is not a defense. In other
words, the defendant cannot escape responsibility for the
death of Gerald Lutz by alleging that the decedent or
some other person or persons failed to act reasonably or
prudently.
According to National Crane, Instruction 19 contradicts
Instructions 16 and 17, which provided that National Crane had to
prove that Lutz unreasonably exposed himself to danger and
unreasonably misused the crane. It is obvious that in Instructions
16 and 17, the word "unreasonableu was used in the context of the
defenses of misuse and assumption of risk.
As Lori correctly asserts, Instruction 19 correctly sets forth
the law. The negligence of Lutz, his fellow employees or others is
not a defense to a strict liability claim. We conclude that
contributory negligence, except as provided for in S 27-1-719, MCA,
is not a defense in a strict liability action. The District Court
correctly instructed the jury on strict liability and negligence.
Did the District Court err by allowing Lori Lutz to present
rebuttal testimony?
When presenting her case, Lori's experts testified that
insulated links were sold in commerce, that none had failed, and
that they were electronically and economically feasible. ~uring
its case-in-chief, one of National Crane's experts, Professor Ralph
Barnett, challenged the integrity of insulated links available on
the market. Lori correctly contends that National Crane's
disclosures did not indicate that its expert would testify as to
mechanical problems associated with the use of insulated links.
Therefore, the court allowed Lori to present rebuttal testimony
regarding the strength and mechanical feasibility of insulated
1inks.
The District Court also allowed rebuttal testimony by Charles
Cashell, one of Lori's experts, concerning wage rates and work
schedules in the Bozeman area. Mr. Cashell rebutted testimony by
two of National Crane's witnesses, who provided opinion testimony
on areas which were not disclosed to Lori during discovery.
The law does not require advance disclosure of rebuttal
witnesses. Massman v. City of Helena (1989), 237 Mont. 234, 773
P.2d 1206. In both instances, we hold that the District Court did
not abuse its discretion by allowing rebuttal testimony. See
Valley Properties Ltd. Partnership v. Steadman's Hardware, Inc.
(1992), 251 Mont. 242, 824 P.2d 250.
VI
Did the District Court err by excluding evidence relating to
causation?
Lori's experts testified that two types of insulated links are
available in the United States. The two types have differing
weight capacities, voltage ratings and attachment methods, which
require selection of the link and attachment most appropriate for
the crane's usage; and that the crane cables, or riggings, can
vary--depending on crane usage. Lori's experts acknowledged that
because of the risk of damage to a link, it is not preferable for
a link to be left attached to the cable at all times.
National Crane, in turn, asserted that providing a link at the
time of the sale would not have guaranteed its use or proper use at
the time of the accident. According to National Crane, Greg
Poncelet, Lutzls employer, was prepared to testify as to seven
reasons why he would not use insulated links. Notably, Poncelet
admitted that he Itcame upn with these reasons on the morning of
trial. National Crane argues that the District Court erred by
restricting evidence which was relevant to causation when it would
not allow Poncelet to testify concerning the seven reasons why he
would not use insulated links.
National Crane argues that to recover under a products
liability claim in Montana, Lori must prove that the injury
occurred because the product was defective, unreasonably unsafe and
that "the [design] defect existed when the product left the hands
of the particular defendant." See Barich v. Ottenstror (19761, 170
Mont. 38, 42, 550 P.2d 395, 398 (citation omitted).
We are not convinced by National Crane's argument. Rather,
this was another attempt by National Crane to interject negligence
concepts into a strict liability setting. Allowing Poncelet to
testify as to why he would not have used the insulated links would
only have provided evidence of employer negligence. We reiterate
that in products liability actions, our analysis focuses on the
condition of the product--not the conduct of the employer. Section
27-1-719(6), MCA; Brown v. North Am. Mfg. Co. (1978), 176 Mont. 98,
113, 576 P.2d 711, 720-21.
National Crane's offer of proof, from an employer who was
facing a workersJ compensation claim, is best characterized as
"pure self-serving spec~lation.~~ manufacturer has no right to
A
assume that safety devices, such as an insulated link, will not be
used by an employer and thus defend on that basis, Bexiga v, Havir
Mfg. Corp. (N.J. 1972), 290 A.2d 281, 286. The District Court did
not err by restricting PonceletJstestimony.
VI f
Did the District Court err by precluding evidence of OSHA and
ANSI standards?
During voir dire, the court, upon Lori's counseltsobjection,
prohibited questions by National Crane concerning jurorsf knowledge
of the Occupational Safety and Health Act (OSHA) and American
National Standard Institute (ANSI) standards. The District Court
later granted Lori's motion in limine to exclude any reference to
or testimony about OSHA or ANSI.
National Crane contends that OSHA and ANSI regulations are
admissible as bearing on the existence of a defect. while National
Crane could find no Montana case law dealing with this issue in a
products liability context, it did find one jurisdiction in which
liability for unreasonably dangerous design defects is tested
against general negligence principles. Bolm v. Triumph Corp. (N.Y .
19731, 305 N.E,2d 769, According to National Crane, many courts
have concluded that OSHA and ANSI standards are admissible as some
evidence of the existence or nonexistence of a defect. See, e q ,
..
Price v. Buckingham Mfg. Co. (N.J. App. 1970), 266 A.2d 140, 141.
We note that neither OSHA nor ANSI regulations require that
cranes be equipped with insulated links. In addition, these
regulations mandate observance of all other safety precautions when
operating a crane in the vicinity of power lines. For example, the
regulations suggest: a 10-foot buffer between cranes and power
lines; de-energizing power lines, if possible; and the use of tag
lines .
National Crane argues that having obtained an order directing
its attorneys to avoid the topics of OSHA and ANSI, Lori's counsel
then questioned two of her experts on those topics. Believing that
Lori's attorneys had "opened the door" on OSHA and ANSI, National
Crane asked the court to reconsider its prior ruling and permit
National Crane to show that neither OSHA nor ANSI required links.
The motion was denied.
As Lori correctly asserts, her experts did not testify
regarding any substantive aspects of OSHA or ANSI. Rather, the
"10-foot rule" was acknowledged by both parties independent of
OSHA--and the record shows that National Crane presented
considerable evidence in that regard. Lori argues that OSHA and
ANSI regulations are inadmissible for three reasons. First, the
standards do not take a relevant position on insulated links; they
merely indicate that an employer may use insulated links. Second,
the fact that OSHA does not specifically require an employer to use
insulated links is not relevant to the issues involved in a
products liability design case against a manufacturer. And third,
the evidence would mislead the jury and be unduly prejudicial to
the plaintiff.
The fact that OSHA and ANSI speak to permissive use of
insulated links is not relevant to issues articulated by this Court
as dispositive in design defect cases. Rather, our analyses have
focused on the feasibility and practicality of the design, as well
as marketability. Rix v. General Motors Corp. (1986), 222 Mont.
318, 328, 723 P.2d 195, 201; Krueser, 783 P.2d at 1345.
Allowing OSHA and ANSI regulations to be presented might have
misled the jury. For example, they might have led the jury to
infer or conclude that Lutzls employer--rather than the
manufacturer--had the responsibility to provide the safety device.
See Murphy v. L & J Press Corp. (8th Cir. l977), 558 F.2d 407, 409-
10.
While most courts allow government regulations to be used
against manufacturers in negligence cases, the same is not true
where the issue is strict liability. We hold that the District
Court was correct in excluding evidence of OSHA and ANSI standards.
Even if OSHA and ANSI regulations have some tenuous relevancy in
products liability cases such as this, it is not reversible error
to exclude them. See McKinnon v. Ski1 Corp. (1st Cir. 1981), 638
F.2d 270.
VIII
Did the District Court Judge err by not recusing himself or
granting a mistrial based on a fee splitting arrangement with one
of Lori Lutzrs attorneys?
Immediately after the jury began deliberations, National Crane
asked the court about a rumor it heard on the last day of
testimony--that the District Court Judge and Lori's counsel, Monte
Beck, were sharing attorneyrs fees.
Before becoming a Judge in the Eighteenth Judicial District
Court, the District Court Judge shared office space with Mr. Beck.
When the Judge assumed the bench, he referred his cases to several
Bozeman attorneys, one of whom was Mr. Beck. The Judge referred a
case involving Lawrence A. Chapel to Mr. Beck. Mr. Beck
represented Chapel, who was the plaintiff in a case subsequently
decided by this Court--Chapel v . Allison (lggO), 241 Mont. 83, 785
P.2d 204. That case, which was reversed and remanded by this
Court, was retried in the Sixth Judicial District and a verdict in
favor Chapel was on appeal to this Court when National Crane raised
this issue. Had Chapel's $315,000 verdict been upheld on appeal,
then Mr. Beck and the District Court Judge, by Mr. Beck's
admission, would have split the attorney's fees, perhaps in excess
of $104,000. The parties in Chapel have since stipulated to
dismiss the appeal.
National Crane characterizes the financial arrangement between
the Judge and Mr. Beck as that of debtor/creditor, and asserts that
the appearance of impropriety in this case mandated recusal or the
grant of a mistrial. Canon 2 ( A ) of the Code of Judicial Conduct
provides that "[a] judge shall avoid impropriety and the appearance
of impropriety in all of the judge's activities.I1
While this Court is mindful of the appearance of impropriety,
no "aura of possible bias and prejudiceu existed in this case.
Washington v. Montana Mining Properties, Inc. (1990), 243 Mont.
509, 516, 795 P.2d 460, 464. First, National Crane cites little
authority in support of its argument. Second, National Crane
neither argues nor establishes actual prejudice. Third, there was
no statutory violation by either Mr. Beck or the District Court
Judge. 5 3-1-803, MCA. And fourth, Mr. Beck and the District
Court Judge were not in a debtor/creditor relationship. Rather,
they were creditors of the same person.
National Crane has failed to demonstrate that the District
Court Judge had any interest in the outcome of this case.
Moreover, neither Mr. Beck nor the District Court Judge engaged in
any wrongdoing. The District Court Judge did not abuse his
discretion by not recusing himself or by not granting National
Crane's motion for a mistrial.
IX
Did the District Court err by not granting a mistrial based on
comments from the bench or on comments by Lori's counsel?
During trial, the District Court Judge and counsel for both
parties engaged in an off-the-record discussion at the bench. The
District Court Judge was attempting to discern the point that
Lori's counsel was trying to make in his questioning. According to
National Crane, during that exchange the Judge made a comment to
the effect that National Crane Itdidnothing to try to make a better
product; they didn't even keep statistics."
National Crane contends that the jury may have heard these
statements and may have misinterpreted the discussion. However,
National Crane did not ask the court to admonish the jury or
question it to determine if anyone overheard the conversation.
Therefore, we hold that National Crane failed to preserve its right
to appeal this issue. See Gee v. Egbert (1984), 209 Mont. 1, 19,
National Crane also argues that Lori's counsel delivered a
Iisend a messagen argument during closing which inflamed the jury.
National Crane, anticipating this type of argument, made an oral
motion in limine to prevent statements which might "inject the
notion of punitive damages in the case, although such damages had
not been sought." The court denied the motion, noting that the
record was preserved and that National Crane "needn't object to
this type of argument during closing. Specifically , Lori's
attorney stated that National Crane would not
do anything [to fix the problem] until you tell them to
do something. Hit them in the pocketbook where it makes
a difference a few times and it will change.
According Lori, this argument was appropriate the
context of this case. She contests National Crane's position that
it has done no wrong and continues to do no wrong despite repeated
notice. Montana case law supports ~ori's contention:
Where B.N. took the position that it had done no wrong
under the law, and would continue those practices,
Xalanick rightfully took issue with B.N.'s
contentions.
Kalanick v . Burlington Northern Railroad Co. (19901, 242 Mont. 45,
54, 788 P.2d 901, 907. In Krueaer, this Court declined to
determine whether the "send a message" argument was proper or
prejudicial in products liability litigation when the question of
punitive damages was not at issue. 783 P.2d at 1349.
An improper argument only requires reversal of a verdict when
prejudice has resulted which prevents a fair trial. Krueaer, 783
P.2d at 1349 (citations omitted). No proof has been offered that
the closing argument by Lori's attorney served to inflate the jury
verdict. See, e.s., FMC Corp v. Brown (Ind. 1990) , 551 N. E. 2d 444.
We hold that National Crane was not prejudiced by the closing
argument and is not, therefore, entitled to a new trial on that
basis.
X
Did the District Court err in its evidentiary rulings relating
to Lori Lutz's miscarriage and remarriage?
The District Court admitted evidence, over National Crane's
objection, that Lori suffered a miscarriage ten days prior to
trial. National Crane contends that the testimony was irrelevant
and inflammatory, and presented with the intent of eliciting
sympathy from the jury.
National Crane had no objection to Lori testifying that she
wanted to have two or three children and agreed not to cross-
examine her on that point. Lori contends that her desire to have
children serves as evidence of the serious impact of the loss of
her husband. She asserts that nothing better illustrates her loss
of consortium than the fact of her pregnancy.
The court, aware of National Crane's concerns, limited the
testimony of the miscarriage to function as proof of Lori's intent
to have a family. A district court is vested with the discretion
to weigh the probative value of the evidence against its
prejudicial effect, and to admit or exclude the evidence. Cissel
v. Western Plumbing and Heating, Inc. (1980), 188 Mont. 149, 158,
612 P.2d 206, 211 (citation omitted). Since National Crane has
made no showing of prejudice as a result of the admission of this
evidence, we hold that the District Court committed no error and
did not abuse its discretion.
National Crane also contends that the court should have
allowed voir dire to determine if any of the jurors knew Lori's new
husband, Les Oldenberger (without identifying his relationship to
Lutz). The purpose of the questioning was not to establish that
Lori had remarried, but to determine if any of the prospective
jurors should be excused for cause pursuant to 5 25-7-223, MCA.
We have previously established that a spouse's remarriage
cannot be introduced in a wrongful death action to reduce damages.
Workman v. McIntyre Construction Co. (1980), 190 Mont. 5, 13, 617
P.2d 1281, 1285. However, the District Court in Workman did allow
counsel to question the jury panel during voir dire about whether
they knew the plaintiff's new wife without reference to plaintiff's
marriage to her. Workman, 617 P.2d at 1285. The defendant in that
case disregarded the court's order and asked the jury panel if they
knew the plaintiff's llpresentwife," which was prejudicial and
reversible error. Workman, 617 P.2d at 1285.
Certainly the trial court must allow counsel to identify
potential jurors who may be acquainted with or who may be related
to a wrongful death plaintiff's new spouse in order to allow
counsel to intelligently challenge such a potential juror. If that
sort of voir dire is allowed in open court, then questioning must
be carefully conducted so that no reference is made to the
remarriage or to the relationship of the new spouse to plaintiff.
Voir dire in open court should be limited to determining whether
any of the panel is acquainted with or is related by blood or
marriage to the new spouse. If a panel member responds in the
affirmative, then any further questioning should take place outside
the presence of the panel.
In the instant case, we conclude that the District Court erred
in that it should have allowed National Crane to voir dire the
prospective jurors about whether they knew or were somehow
acquainted with, or related to, Les Oldenberger. However, National
Crane has failed to show any prejudice by providing evidence that
any juror would have been challenged by reason of his or her
acquaintance with, or relationship to, Lori's new husband.
Accordingly, we hold that, while the District Court erred, the
error was harmless.
In light of our rulings on the affirmative defenses of misuse
and assumption of risk, we remand and instruct the District Court
to remove the 20 percent liability the jury apportioned to Lutz and
instruct the District Court to reinstate the jury's full verdict of
$815,400, minus the $110,000 paid by other defendants.
We concur:
Chief Justice
C'
/ Justices
Justice Karla M. Gray, dissenting.
I respectfully dissent from the Court's opinion on the issue
of submitting the affirmative defense of assumption of the risk to
the jury, and I specially concur on the issue of whether the
District Court should have recused itself. In all other respects,
I join in the Court's opinion.
With regard to the assumption of the risk issue, my
disagreements with the Court's analysis are several. First, it is
my view that the Court's extensive reliance on Krueser vis-a-vis
the assumption of the risk defense is misplaced. At the time of
the incident and lawsuit underlying Krueqer, 5 27-1-719 (5)(a), MCA-
--statutorily defining the assumption of the risk defense---had not
been enacted and this Court proceeded on common law interpretations
of that defense. (The Court's statement that 5 27-1-719, MCA, was
not in effect when Krueqer was decided is incorrect; the statute
was in effect but not applicable to the case.) Nor is there any
suggestion in the legislative history that the statute was intended
by the legislature merely to codify this Court's Krueqer definition
of the assumption of the risk defense in products liability cases.
Krueqer has no relevance here in light of the necessity of applying
5 27-1-719(5)(a), MCA, to this case.
Second, the Court's interpretation of the assumption of the
risk defense is circuitous at best and legally insupportable. The
Court concludes that if the statutory misuse defense is unavailable
as a matter of law, as I agree it is here, then the assumption of
the risk defense also is unavailable as a matter of law. The
rationale offered for this conclusion is that if atunreasonable
misuset1in the context of the misuse definition does not exist as
a matter of law, it is impossible as a matter of law for
I1unreasonableuse" to exist in the context of the assumption of the
risk definition. While this proposition has a simplistic logical
appeal, it conveniently ignores the Court's own emphasis on the
different perspectives involved in the two defenses.
In discussing the misuse defense, the Court carefully and
properly explains that the question of reasonable or unreasonable
misuse involves the manufacturer's perspective: whether the
manufacturer can or should reasonably foresee that its product is
subject to misuse in a certain fashion. Then, in discussing the
assumption of the risk defense, the Court goes to some length to
explain that the applicable standard regarding that defense is the
subjective perspective of the user: what this user knew of the
defect and, on that basis, whether this user's use of the product
was unreasonable.
The Court then erases this careful distinction between
perspectives by concluding that because the misuse defense is
unavailable as a matter of law based on National Crane's admitted
ability to reasonably foresee the unloading misuse, so, too, is the
assumption of the risk defense unavailable as a matter of law. The
subjective perspective of the user of the product, on which the
assumption of the risk defense is premised, simply disappears from
the Court's analysis at this point. The end result is to
emasculate the legislaturels careful enunciation of two separate
statutory defenses to products liability cases. I cannot agree.
Moreover, I disagree with the Court's suggestion that
establishing the assumption of the risk defense requires proof that
the user of the product must know the accident is actually going to
occur and still continue using the product. At best, this is a
Krueqer-based standard, while the case before us is governed by §
27-1-719, MCA. Establishing the defense pursuant to 27-1-719,
MCA, requires proof of two elements: (1) that the user of the
product knew of the defect; and (2) that, based on that knowledge,
the user unreasonably made use of the product. The Court adds a
third element--that the user know the accident is actually going to
occur--to a defense defined by the Montana legislature; again, I
cannot agree.
As a final matter relating to the assumption of the risk
defense, and based on my analysis of that defense, I would reverse
a number of the District Court's evidentiary rulings relating to
this defense. National Crane was impermissibly prohibited from
presenting its case on the question of Lutzls knowledge, the
foundational element of the defense,
Finally, with regard to the recusal issue, I agree with the
Court that 5 3-1-803, MCA, did not preclude the District Court from
sitting in this case. I also agree that any "aura of possible bias
or prej~dice'~
which existed here did not rise to the level we
determined to be inappropriate as a mattes of law in Washington v.
Mont. Mining Prop. (lgga), 243 Mont. 509, 795 P.2d 460. I am
concerned, however, that we not minimize in any way the crucial
import of judges1 consideration of these matters.
Our sensitivity as judges to appearances of impropriety, and
to requests for recusal on that basis, is of critical importance in
preserving the integrity of, and the people's trust in, the
judicial system and the administration of justice. The standards
set forth in 5 3-1-803, MCA, are minimal standards; they are the
lines beyond which we cannot go in deciding whether it is
appropriate to sit on a particular case. But those statutory
standards do not begin to reach the mandate of the Canons of
Judicial Ethics which requires us to avoid both impropriety and the
appearance of impropriety.
It is our duty as judges to ensure that people's confidence in
the ability of courts to administer justice will not be diminished.
We must be ever vigilant and sensitive with regard to whether our
own relationship to parties or particular cases will reasonably
appear improper to the people of Montana who entrust their system
of justice to us. In considering whether recusal is appropriate in
a given case, whether on motion of a party or on personal
reflection, we must err on the side of caution. Only then can we
meet the standard set out in Rex v. Sussex Justices (1924), 1 k.b.
256, 259, that "[nlothing is to be done which creates even a
suspicion that there has been an improper interference with the
course of justice."
Chief Justice Turnage:
I join in the dissent of J
Justice Fred J. Weber dissents as follows:
I -- Misuse
Did the District Court err by submitting the affirmative defense of
misuse to the jury?
I respectfully dissent on Issue one of the majority opinion.
Section 27-1-719, MCA, states that the affirmative defense of
"unreasonable misuse" can be used in products liability cases.
Unreasonable misuse is defined as "use of a product in a manner
that is not reasonably foreseeable by the manufacturer." T.
Traverse, 3d American Law of Products Liability, Foreseeabilitv of
Misuse, 5 42.8, p. 18 (1987). This is consistent with the
contention of National Crane as pointed out in the majority
opinion. As further pointed out in the majority opinion, plaintiff
contends that while unreasonable misuse is a recognized defense,
reasonably foreseeable misuse is not recognized as a defense.
Plaintiff contends that in light of the clear foreseeability, this
Court should determine as a matter of law that the affirmative
defense of misuse should not have been submitted to the jury.
The majority opinion states that "foreseeable misuse is
reasonable misuse." I disagree with that conclusion. The result
of the conclusion of the majority opinion is that even though
misuse may by its very nature be classed as unreasonable, still if
it was foreseeable, then it cannot be classed as unreasonable
misuse. I believe that ignores the experience of modern society.
The holding of the majority opinion on this issue is stated as
follows:
It beins admitted that the alleaed misuse of the crane
throuah sideloadina was reasonablv foreseeable to
National Crane, we hold that, as a matter of law, the
affirmative defense of unreasonable misuse is unavailable
to National Crane." (Emphasis added.)
A leading treatise on Products Liability sets out the facts
that the factfinder can consider when trying to determine
reasonably foreseeable:
In determining whether the seller should have reasonably
anticipated the use to which the product was put, the
factfinder may take into account the reasonable use or
uses of the product, the ordinary user's awareness that
the use of the product in a certain way is dangerous, the
likelihood and probable nature of use of the product by
persons of limited knowledge, and the normal environment
for the use of the product and the foreseeable risk in
such environment, as well as any other evidence that may
or may not cause the seller to reasonably anticipate such
use. (Emphasis added.)
T. Traverse, 3d American Law of Products Liability, Foreseeabilitv
of Misuse, 542.8, p. 20 (1987). The key aspect of the above quote
is that the factfinder is required to sift through the facts and
make the determination. I cannot agree with the elimination of the
jury as the finder of fact on this critical issue.
In substance the majority opinion concludes that if a
defendant acknowledges the foreseeability of the misuse, regardless
of how unreasonable such misuse may be, that party may not assert
the defense of unreasonable misuse as a matter of law. I disagree
with that analysis. The key aspect is that the trier of fact must
consider all of the evidence and thereby determine whether or not
the misuse was in fact reasonable or unreasonable under all of the
circumstances.
Perhaps an analogy will be of some assistance in this
analysis. In my analogy, I assume that John Smith has purchased an
American automobile which has a capacity to go 100 mph. I further
assume that in driving the car at 90 mph he is involved in a high
speed accident which results in his death. I next assume that the
estate of John Smith brings an action against the automobile
manufacturer in which the estate contends that because it was
clearly foreseeable that a purchaser of the automobile might drive
at the speed of 90 mph, it was negligent as a matter of law for the
manufacturer to fail to install a governor which would prevent
driving in excess of 75 mph. Would it be appropriate in this
analogy for the estate of Smith to contend that the automobile
manufacturer cannot use the affirmative defense of unreasonable
misuse because the manufacturer could foresee the misuse of the
automobile by driving at 90 mph. . I would not agree that a district
court could conclude as a matter of law that this knowledge bars
the manufacturer from presenting the issue of unreasonable misuse
to a jury. This analogy has more clearly emphasized to me the
importance of allowing the trier of fact to consider all of the
facts before reaching a conclusion.
The majority holds that it has been admitted that the alleged
misuse of the crane through sideloading was reasonably foreseeable
to National Crane and that, as a matter of law, the affirmative
defense of unreasonable misuse is unavailable to National Crane.
In reaching such a conclusion, the majority has substituted this
Court as trier of fact in place of the jury to which that
obligation has been given. I would allow any additional evidence
bearing upon unreasonable misuse which may be submitted by either
party and would allow the jury to determine whether the facts
demonstrated an unreasonable misuse on the part of Mr. Lutz.
I would reverse and remand for a new trial.
I1 -- Assumption of Risk Defense.
Did the District Court err in submitting the defense of assumption
of the risk to the jury?
While I believe that the issue of assumption of the risk
should have been presented to the jury, I disagree totally with the
manner in which the court submitted the issue to the jury. What
the court did in this instance was create an impossible situation
for the defendant. Assumption of risk is a defense to a charge of
strict liability. Section 27-1-719, MCA. In order for defendant
to prove this defense, it must present evidence at trial of the
following:
1. National Crane had to prove that the deceased had
subjective knowledge of the product's defect or that the defect was
open and obvious.
2. The deceased voluntarily used the product, and
3. The use of the product was unreasonable.
What the court did in this instance was prevent introduction of any
evidence that might have gone to prove what Lutz's state of
understanding about the product actually was. The court did this
under the mistaken belief that the evidence was being presented for
the purpose of proving negligence. Having forbidden defendant the
opportunity to present evidence to prove the above three elements,
the court then submitted the issue to the jury.
The majority looks at this situation and holds that because
insufficient evidence was presented at trial to prove the above
three elements, the court should not have presented the jury with
the opportunity to consider the defense. The majority overlooks
entirely the real problem and that is the court's refusal to permit
evidence by which National Crane could prove the elements needed to
sustain its burden of proving assumption of the risk.
The majority has misapprehended the fine line between
negligence and assumption of the risk, that it so precisely defines
in its opinion. Negligence requires proof of what any reasonable
person would have done under the circumstances. Assumption of the
risk needs subjective proof only. What did the deceased know?
What did the deceased believe? Any evidence that goes to prove
what Lutz knew about the possible risks that he was taking by
performing his job in the manner he performed his job is pertinent
and the court should have permitted the evidence of same. The
majority notes the difference between negligence and assumption of
the risk, but then proceeds to the conclusion that the evidence
that was forbidden was evidence of negligence.
Next, the majority says 'well, it doesn't matter anyway
because there is no way that National Crane could have proven that
critical third element of assumption of the riskc--that deceased
unreasonably misused the product. The majority states that it has
already determined in Issue one that sideloading was not
unreasonable use because the manufacturer foresaw this use. I
reiterate, the issue of whether the deceased was in actuality
sideloading is something that the jury should decide.
Again the majority has misapprehended what needs to be proven
here. uReasonableness refers to whether the plaintiff had a
reasonable opportunity to elect whether or not to subject himself
to the danger." T, Traverse, 3d Modern Law of Products Liability,
Assum~tionof Risk, 5 41:9, p . 18 (1987). For the majority to,
here, equate the manufacturer's foresight with the subjective
determination that deceased made as to the reasonableness of
subjecting himself to the risk, is totally erroneous.
What we have here is a circular argument by the majority that
eliminates the defense of assumption of the risk. In addition, the
trial court gave the following jury instruction on assumption of
the risk:
The Defendant has the burden of proving that Gerald Lutz
assumed the risk of his injuries. To establish this
defense, the Defendant must prove:
1. That Gerald Lutz actually knew before he was injured
that the crane cable would touch the power line if the
pipe was lifted;
2. That knowing this, G e r a l d Lutz voluntarily exposed
himself to the danger; and
3. That Gerald Lutz unreasonably exposed himself to
that danger.
First of all, National Crane had to prove not that Lutz knew
that the cable would touch the wire but whether: "the plaintiff
does not understand the risk involved in a known ~ituatkon.'~
Krueger v. General Motors Corp. (1989), 240 Mont. 266, 276, 783
P.2d 1340, 1347. A 'known situationt would be the activity of
s i d e l o a d i n g l o g s i n a n a r e a where a power l i n e is c l o s e . The c o u r t
c a s t an improper l i g h t on what National Crane had t o prove i n o r d e r
t o s u s t a i n t h e i r burden f o r t h e d e f e n s e . There i s no way t o prove
t h a t t h e deceased had a d e a t h wish. But e v i d e n c e did e x i s t t o show
t h a t Lutz knew that sideloading in an area where power lines were
c l o s e was dangerous. There is no way f o r ~ a t i o n a lCrane t o have
m e t t h e requirement of t h e i n s t r u c t i o n a s g i v e n .
1 conclude that the court improperly withheld pertinent
evidence concerning assumption of t h e r i s k from t h e jury--but
nevertheless proceeded to erroneously instruct the jury on
assumption of t h e r i s k by throwing an i m p o s s i b l e burden on t h e
defendant.
I would h o l d t h a t t h e c o u r t e r r e d and t h a t the c a s e s h o u l d be
r e v e r s e d and remanded fox new t r i a l on t h i s i s s u e a l s o .