No. 79-23 INTHE 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: DistrictCourt of the Sixteenth Judicial District, In and forthe County of Rosebud. Honorable M. James Sorte, Judge presiding. Counsel of Record: For Appellants: Colgrove and Hanson, MilesCity, Montana Terry Hanson argued, MilesCity, Montana For Respondent: Lucas and Monaghan, MilesCity, Kontana Thomas M. Monaghan argued, Pliles City, Montana

Submitted: April 16, 1980 Decided: 

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0 ClerkMr. 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 iswhether a jury instruction defining a manufacturer's duty to warn in a strict liability action was an inaccurate statement of the lawwhich requires a new trial. We affirm the judgment. Although we determine that the jury instructionwas inaccurate,we also find that itwas not prejudicial because themost explicit warnings would not have prevented the accident. Itwas well within the province of the jury to determine that the proximate cause of the accidentwas the failure of the grocery store owner to properly inspect,and
seewhat was plainly there to be seen--a frayed and torn elevator cablewhich signaled an awaiting accident. Plaintiffswere injured when the elevator inwhich 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 defendantwho 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 towarn--defendant contends that the instruction provided a subjective standardby which the jurywas to determine the defendant's duty to warn, and that it should have been an objective standard. The instruction stated that themanufacturer has a duty to warn users of the dangerous character of its products "insofaras it is known to the -2-manufacturer if,but only if, the manufacturer has no reason to expect that those forwhose use the product is supplied will discover its condition and realize the danger involved." Because this instruction distorts the duty of a manufacturer towarn in a case sounding in strict liability, the instruction is error. But here the evidence established that the proximate
cause of the accidentwas 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 implicitadmission that the instruction is error. But we must, nonetheless, agree with the defendant's argument that the instruction as givenwas not prejudicial and therefore not a ground upon which to grant a new trial. A manufacturermay 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 & IronCorporation (9thCir. 1969), 409 F.2d 1263, 1271. Based on this law, the plaintiffs contend that the cablewas defective because no warning concerning dangerous use of this cablewas given to the ultimatepurchaser and user of the cable. Plaintiffs contend that this duty to
warn ismeasured 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; Berkebilev. Brantley Helicopter Corporation (Pa. 1975), 337A.2d 893;Phillipsv. Kimwood -3-~achine Company (Or. 1974), 525 P.2d 1033. This standard focuseson the condition of the product and the degree of dangerwhich would be tolerated by the reasonablemanufacturer, 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, aremeasured by subjectivecriteria. An action against a manufacturer on
a negligence theory focuses on the degree of care used by the defendantmanufacturer. See Restatement (Second)of Torts 8388 at 300 (1965);Jackson v. Coast Paint and Lacquer Company (9thCir. 1974), 499 F.2d 809, 812. This is a subjective standard of care and ismeasured by the knowledge and reasonableexpectations of the purchaser and of the manufacturer. This strictduty mandated by the theory of strict liability iswarranted even though in some situations itmay result in liability being imposed upon carefulmanufacturers. Unforeseeable product defects often cause severephysical injuries tomembers of the public. Themanufacturer can distribute the risk from such accidents among the body of consumers, while the individual consumer must bear the financialburden 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 canwe ignore the fact that a manufacturer with research capabilities
can anticipatehazards 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, 127Cal.Rptr. 217, 221. -4-Based upon a strict liability standard, the jury instruction stating the duty of onemanufacturer to warn,
was incorrect. This instruction could have led the jury to believe that themanufacturer 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 amanufacturer 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 therewas ample evidence in the record for the jury to determine that the proximate cause of the accidentwas the failure of the store owner to properly inspect the cables and to seewhat was plainly there to be
seen. A products liability action sounding in strict liability does not relieve the plaintiff fromproving that the manufacturer's defective product was the proximate cause of the accident. See Brown v. NorthAm. Mfg. 

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, 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 factorsmay operate to break the necessary causal chain, such as the owner's knowledgeand ability to prevent the danger, the relative safetyof the product in the condition which itwas 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 themanufacturer to the owner. See Restatement (Second)of Torts §452(2) Comment f at 490 (1965);Balido v. Improved ~achinery,Inc. -5-(Cal.Ct. App. 1973), 29 Cal.App.3d 633, 105Gal-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' injurieswas the failure of the store owner to properly inspect the elevator cable. The store ownermaintained and inspected the elevator from 1951 to 1972when the accident occurred. During this period of time,he had replaced the cable several times. Someyears 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 ofwear. 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 cablewas purchased in 1968 and was in use forwell over four and a half years before plaintiffs were injured. Evidence clearly established that the store owner did not carefully inspect the cable. (Wenote, parenthetically, thatplaintiffs' 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 thathe had visually inspected the entire cable just eight to ten days before the accident. If this was so,he failed to see whatwas plainly there to be seen. Evidence established that a reasonable inspection two to three months before the elevator fallwould 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 cableswould 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-examinationas to the conditionof 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 notprejudicial. The judgment of the District Court is affirmed.

ice We Concur:

/hie£ Justice

Justices