No. 79-23 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1980 

JACK E. ROST, VIRGIL HINES 

and HELEN OLSON et al., 

Plaintiffs and Appellants, 

C. F. & I. STEEL CORPORATION, 

formerly Colorado Fuel and 

IRON CORPORATION, 

Defendant and Respondent. 

Appeal from: District Court of the Sixteenth Judicial District, 

In and for the County of Rosebud. 

Honorable M. James Sorte, Judge presiding. 

Counsel of Record: 

For Appellants: 

Colgrove and Hanson, Miles City, Montana 

Terry Hanson argued, Miles City, Montana 

For Respondent: 

Lucas and Monaghan, Miles City, Kontana 

Thomas M. Monaghan argued, Pliles City, Montana 

Submitted: April 16, 1980 

Decided: SE[r 17 

Filed: - 8EP 1 9 19@ 

0 

Clerk 
Mr. Daniel J. Shea delivered the Opinion of the Court. 

Plaintiffs appeal from a judgment of the Rosebud County 

~istrict Court entered on a jury verdict in favor of the 

defendant in a products liability case tried under the 

theory of strict liability. The sole issue is whether a 

jury instruction defining a manufacturer's duty to warn in a 

strict liability action was an inaccurate statement of the 

law which requires a new trial. We affirm the judgment. 

Although we determine that the jury instruction was 

inaccurate, we also find that it was not prejudicial because 

the most explicit warnings would not have prevented the 

accident. It was well within the province of the jury to 

determine that the proximate cause of the accident was the 

failure of the grocery store owner to properly inspect, and 

see what was plainly there to be seen--a frayed and torn 

elevator cable which signaled an awaiting accident. 

Plaintiffs were injured when the elevator in which they 

were riding fell ten feet to the basement of a supermarket 

where they were delivering freight. They settled their case 

against the store owner for $200,000 and proceeded against 

defendant C. F. & I. Steel Corporation upon the ground that 

the defendant who sold the cable, failed to warn the elevator 

owner of the dangerous use of the cable, and therefore that 

the cable was rendered defective as a matter of law. The 

sole issue on appeal concerns a jury instruction stating the 

defendant's duty to warn--defendant contends that the instruction 

provided a subjective standard by which the jury was to 

determine the defendant's duty to warn, and that it should 

have been an objective standard. The instruction stated 

that the manufacturer has a duty to warn users of the dangerous 

character of its products "insofar as it is known to the 

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manufacturer if, but only if, the manufacturer has no reason 

to expect that those for whose use the product is supplied 

will discover its condition and realize the danger involved." 

Because this instruction distorts the duty of a manufacturer 

to warn in a case sounding in strict liability, the instruction 

is error. But here the evidence established that the proximate 

cause of the accident was the failure of the store owner to see 

upon inspection, what was plainly there to be seen. 

The defendant, C. F. & I. Steel Corporation, defends 

the jury instruction as given, but offers no citation of 

authority or rationale in its support. This, we feel, is an 

implicit admission that the instruction is error. But we 

must, nonetheless, agree with the defendant's argument that 

the instruction as given was not prejudicial and therefore 

not a ground upon which to grant a new trial. 

A manufacturer may be required to provide a warning in 

relation to its product if it is to avoid a determination 

that the product is unreasonably dangerous. See Restatement 

(Second) of Torts S402A, Comment j at 353 (1965). The 

product is automatically defective if it is unreasonably 

dangerous, and a warning is required but not given. Jacobson 

v. Colorado Fuel & Iron Corporation (9th Cir. 1969), 409 

F.2d 1263, 1271. Based on this law, the plaintiffs contend 

that the cable was defective because no warning concerning 

dangerous use of this cable was given to the ultimate purchaser 

and user of the cable. Plaintiffs contend that this duty to 

warn is measured by an objective standard, the care which 

would be exercised by a reasonable seller or expected by the 

ordinary consumer. See Ulrich v. Kasco Abrasives Co. (Ky. 

1976), 532 S.W.2d 197; Berkebile v. Brantley Helicopter 

Corporation (Pa. 1975), 337 A.2d 893; Phillips v. Kimwood 

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~achine Company (Or. 1974), 525 P.2d 1033. This standard 

focuses on the condition of the product and the degree of 

danger which would be tolerated by the reasonable manufacturer, 

apprised of the danger, would not sell the product without a 

warning. Phillips, supra, 525 P.2d at 1036-1037. 

The negligence standards, on the other hand, are measured 

by subjective criteria. An action against a manufacturer on 

a negligence theory focuses on the degree of care used by 

the defendant manufacturer. See Restatement (Second) of Torts 

8388 at 300 (1965); Jackson v. Coast Paint and Lacquer 

Company (9th Cir. 1974), 499 F.2d 809, 812. This is a 

subjective standard of care and is measured by the knowledge 

and reasonable expectations of the purchaser and of the 

manufacturer. 

This strict duty mandated by the theory of strict 

liability is warranted even though in some situations it may 

result in liability being imposed upon careful manufacturers. 

Unforeseeable product defects often cause severe physical 

injuries to members of the public. The manufacturer can 

distribute the risk from such accidents among the body of 

consumers, while the individual consumer must bear the 

financial burden alone. Placing the risk of loss on the 

manufacturer provides an incentive to design and produce 

fail-safe products which exceed reasonable standards of 

safety. Phillips, supra, 525 P.2d at 1041. Nor can we 

ignore the fact that a manufacturer with research capabilities 

can anticipate hazards better than unsophisticated purchasers. 

Strict liability has its underpinnings in public policy. 

Midgley v. S. S. Kresge Company (Cal. Ct. App. 1976), 55 

Ca1.App.W 67, 74, 127 Cal.Rptr. 217, 221. 

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Based upon a strict liability standard, the jury 

instruction stating the duty of one manufacturer to warn, 

was incorrect. This instruction could have led the jury to 

believe that the manufacturer was relieved of a duty to warn 

because the store owner had a prior direct experience with the 

elevator failing. What may happen at a future time does not 

relieve a manufacturer of an antecedent duty to warn of the 

care to be taken or the uses to which the cable can or should 

not be put. But even if we assume that the jury so reasoned, 

we cannot ignore the fact that there was ample evidence in 

the record for the jury to determine that the proximate cause 

of the accident was the failure of the store owner to properly 

inspect the cables and to see what was plainly there to be 

seen. 

A products liability action sounding in strict liability 

does not relieve the plaintiff from proving that the manufacturer's defective product was the proximate cause of the 

accident. See Brown v. North Am. Mfg. Co. (19781, - Mont . 

, 576 P.2d 711, 719, 35 St.Rep. 194, 202. Thus, a 

manufacturer is not liable where the product owner's failure 

to properly maintain or inspect the product is the superseding 

cause of the plaintiff's injuries. Several factors may 

operate to break the necessary causal chain, such as the 

owner's knowledge and ability to prevent the danger, the 

relative safety of the product in the condition which it was 

sold, or the lapse of time from the date of sale to the 

accident in question. Though none of these are necessarily 

determinative in themselves, they may operate to shift the 

responsibility to prevent an accident from the manufacturer 

to the owner. See Restatement (Second) of Torts §452(2) 

Comment f at 490 (1965); Balido v. Improved ~achinery, Inc. 

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(Cal. Ct. App. 1973), 29 Cal.App.3d 633, 105 Gal-Rptr. 890. 

As we shall set forth, the facts here amply establish a 

basis for the jury to determine that the proximate cause of 

the plaintiffs' injuries was the failure of the store owner 

to properly inspect the elevator cable. 

The store owner maintained and inspected the elevator 

from 1951 to 1972 when the accident occurred. During this 

period of time, he had replaced the cable several times. 

Some years before this accident, he was a passenger on the 

elevator when the cable failed and the elevator fell. In 

spite of these experiences, the store owner failed to install 

safety devices to catch a falling elevator. 

Because elevator cables generally have a lifespan of 

uncertain duration, prevention of accidents resulting from 

cable fatigue depends in large part upon careful inspection 

for signs of wear. The serviceable life of cable, moreover, 

depends upon the wear experienced in the particular apparatus 

where it is installed. Use of this particular cable did not 

create an immediate danger to elevator passengers, for the 

cable was purchased in 1968 and was in use for well over 

four and a half years before plaintiffs were injured. 

Evidence clearly established that the store owner did not 

carefully inspect the cable. (We note, parenthetically, 

that plaintiffs' lawsuit against the store owner was settled 

for $200,000.) The store owner testified that he personally 

inspected the elevator cable every four to six weeks and 

that he had visually inspected the entire cable just eight 

to ten days before the accident. If this was so, he failed 

to see what was plainly there to be seen. Evidence established 

that a reasonable inspection two to three months before the 

elevator fall would have shown the cable to be on the verge 

of snapping. 
Considering the responsibility of the store owner to 

maintain and inspect the elevator, and the other factors 

mentioned here, we have no doubt that the defendant's failure 

to warn of the dangerous uses of its cables would have 

fallen on deaf ears. A failure to warn was not the proximate 

cause of the accident. Rather, the store owner's own negligence 

intervened as the operative conduct leading to the plaintiffs' 

injuries. Indeed, the plaintiffs' own expert witness, 

during cross-examination as to the condition of the cable 

eight to ten days before the accident, stated that the sight 

of the cable then would have "scared the hell" out of him. 

Had he seen what was there to be seen, the store owner 

should have had the same reaction. 

Under the circumstances, the instruction, although 

inaccurate, was not prejudicial. 

The judgment of the District Court is affirmed. 

ice 

We Concur: 

/hie£ Justice 

Justices