NO. 92-093 IN THE SUPREME COURT OF THE STATE OF MONTANA 1992 SIGRID M. GREYTAK, Plaintiff, Respondent and Cross-Appellant,

Reg0 COMPANY, a Delaware corporation; and BUTLER MANUFACTURING COMPANY, a Delaware corporation, Defendants anAppellants.

APPEAL FROM: District Court of theThirteenthJudicial District, In and for the County of Yellowstone, The Honorable Robert Holmstrom, Judgepresiding.

COUNSEL OF RECORD: For Appellant: Norman L. Newhall, Floyd D. Corder, Alexander, Baucus & Linnell, Great Falls, Montana For Respondent: Ward Swanser,Moulton, Bellingham, Longo & Mather, Billings, Montana; William C. Callaham, Donahue & Callaham, Sacramento, California;J.MichaelJordan, Beirne, Maynard & Parsons, Houston, Texas

Submitted on Briefs: September 24, 1992 pi 1" ,- ')Go1 t!/i~< !.+ ,-t,JJ Decided: March 2, 1993

### Justice R. 

### C. McDonough delivered the Opinion of the Court.
This is an appeal of an order of the Thirteenth Judicial DistrictCourt,Yellowstone County. Theordergrantedplaintiff's motion for a new trial and denied plaintiff's motion for judgment notwithstanding the verdict. Defendant appealed and plaintiff cross-appealed. Reversed inpart, affirmed inpart. The issues raised by the appeal and cross-appeal are: WhethertheDistrict Court was correct insubmittingthe issue of assumption of risk to the jury. Whether plaintiff is entitled to a new trial because of alleged errors in the jury instructions. Whether affidavits of jurors are admissible to impeach the jury verdict by showing that the jury did not understand the jury instructions. Whether inviewing theevidence inthe light most favorable to RegO, the jury could find that plaintiff voluntarily and unreasonably exposed herself to a known danger. Whether the District Court abused its discretionby granting

a new trial on the grounds that the jury instructions contained an error in law. In Winnett, Montana, on June 24, 1986, 

### a spark ignited a basement full of propane. The resulting explosion completely demolished the house. Sigrid Greytak, who was in the basement, suffered seriousburns in the explosion. A 1060 

### gallon propane tank intheyard supplied propane to the house. The tank was manufactured in 1949 

### by Butler Manufacturing 2Company. The company had equipped the tank with a model 3101CO valve made earlier in 1949 by Bastian-Blessing Company, Reg0 Company's predecessor in interest. To operate that type of valve, a handwheel is turned until a seat disk inside thevalve contacts the rim of avalveport. When the seatdisk firmly contacts the rim, it sealstheport sogasses cannot escape through thevalve. Thevalve contained a seatdisk made of hard rubber. Greytak contends the valve was defective because the company should have used nylon instead of hard rubber as a seat disk material. On June 22, 1986, Greytak closed the valve to shut off the flow of propane from the tank to the rental house. After turning off the valve, she assisted her father and another person in removing thepropane-fired hotwaterheater. They did not cap the propane supply line after they removed the water heater. Two days later, Greytak returned to the rental house to do

some painting and to cap the open propane line. She smelled a strongodorof propanewhen sheentered thehouse, so shewent into the basement to investigate. She testified that the smell of propane was so strong in the basement itmade her dizzy and almost overwhelmed her. Greytak made several trips in and out of the basement during the next few hours. First, she went outside to make certain the propane valve was off. Then she went back into the basement and screwed the cap on the open propane supply line.Greytak then tested the capped line for leaks by submerging the end of the line in a dish of soapy water and watching for bubbles. She testified that she knew there was a leak because bubbles appeared in the dish. After Greytak went outside and cranked the handwheel on the valve tighter, shewent back into the basement, tightened the cap and did a second testwith the dish of soapywater. At trial, she testified that the line still leaked after she tightened thevalve and cap. She left the rental house and drove home to get a fan. When she returned she took the fan to the basement,plugged it in, and turned it on. Later,Greytak went back into the basement and moved the fan closer towhere thewater heaterhad been. While she was adjustinq the location of the fan, the propane exploded, reducing the house to rubble and engulfing Greytak in flames. The jury found that the valve was defective and that the defect caused her injuries. Greytak did not recover damages, however, because the jury found that she assumed the risk and was 55 percent responsible for her injuries. As a jury poll showed,nine jurors of the twelve juror panel determined that the valve was defective. Eight of 

### the nine determined that the defect caused Greytak's injuries. Eleven jurors found Greytak had assumed the risk of her injuries. Our review of a district court's conclusions of law is 

### plenary. We

### determine whether the district court's conclusionsarecorrect. Steer, Inc. v. Dept. of Revenue (lggO), 245 Mont. 470, 474, 803 P.2d 601, 603. I. Was thecourtcorrect in submittingthe issueofassumption of risk to the jury? In her cross-appeal, Greytak argues that as a matter of law she did not assume the risk. Greytak contends that because she testified shedid notknowof anydefects in thevalve assembly she could not assume the risk. We disagree for two reasons. First, if thevalve leaked Greytak surely knew about it. She testified that she turned the valve off, yet the basement filled with propane. She further testified that she tested the propane supply line twice and itwas leakingboth times. Second, at the timeGreytak's cause of action accrued, it was not necessary fora plaintifftoknowof the specificdefectbefore the defense of assumption of risk became operative. Rather, the plaintiff must have known of the particular condition that constituted the danger. See Kopischkev. First Continental Corp.

(l98O), 187 Mont. 471, 500, 610 P.2d 668, 683-84. 

### As this Court has repeatedlyheld,thedefense ofassumptionofriskapplies upon

a showing that the plaintiff knew of the danger, then both voluntarilyandunreasonably exposedherself tothedanger. Kuiper

v. Goodyear Tire and Rubber Co. (1983),207Mont. 37, 64, 673 P.2d 1208, 1222; Zahrtev. Strum, Ruger & Co., Inc. (1983), 203 Mont. 90, 94, 661 P.2d 17, 18-19; Krueger v. General Motors (1989), 240 Mont. 266, 277, 783 P.2d 1340, 1347.In this case, the dangerous conditionwas a basement full of propane. Two days before the accident, Greytak and her father removed a propane hot water heater from the basement. They left the propane line uncapped and the basement filled with propane. On the day of the accident, Greytak returned to the rental house. She smelledpropane when she entered thehouse. The smell of propane in the basement was so strong it made her dizzy and nearly overwhelmed her. She tested the propane line twice and testified that it leaked both before and after she tightened the valve on the tank outside. Greytak testified sheknew the accumulationofpropane in the basement constituted a dangerous and hazardous condition. She testified she knew sparks could cause thepropane to explode. She had been shocked by electrical appliances in the past. Although she testified that she did not know electric motors emit sparks when running, she had seen sparks fly when electrical cords were yanked from outlets. Knowing of the danger, Greytak made several trips into the propane filled basement. On her final trip into the basement, two hours after discovering it was full of propane, the explosion occurred while Greytak was adjusting the location of an electric fan. On this evidence, a jury could and did find that Greytak assumed the risk by voluntarily and unreasonably exposing herself to a known danger. The District Court's decision to submit the issue of assumption of risk to the 

### jury was correct.TI. Isplaintiff entitled toa newtrial because ofalleged errors in the jury instructions on assumption of risk? Greytak contends that question 3 of the specialverdict forms and jury instructions numbered 22, 23, and 24 are not accurate statements of the law. Greytak's counsel objected generally to any instructions on assumption of risk and specifically to the substance of the first part of instruction 23. However,he did not object to the sufficiency of either the special verdict or the other instructions before the courtsubmittedthe caseto the jury. As a result, Greytak waived the right to appeal based on the sufficiencyof any instructionexceptthe firstpart of instruction 23. SeeRule 51,M.R.Civ.P; Ahmann v. American Fed. Savings & Loan Ass'n (1988), 235 Mont. 184, 195, 766 P.2d 853, 860; Reno v. Erickstein (1984), 209 Mont. 36, 46, 679 P.2d 1204, 1209. Greytak also contends that the District Court should have given plaintiff's proposed instruction 27 instead of the court's instruction 23. 

### We disagree. Only the first part of number 23 varies significantly from plaintiff's proposed instruction 27. The courtpatterned instruction 23 after Montana Pattern Jury Instruction (MPI)7.07 (Civil). Instruction 23 reads inpertinent part:The defendants claim Sigrid Greytak assumed the risk of her injury. In order to establish that claim, the defendants must prove (1) that Sigrid Greytak had actual knowledge of the danger, and (2) that Sigrid Greytak then voluntarily and unreasonably exposed herself to that danger. 

## * * *Greytak's proposed instruction differed from the court's instruction in that the proposed instruction required actual knowledge of thedefect rather thanknowledge of the danger in the defect. Greytak's counsel stated that the proposed instruction

camedirectly from Krueser, 783 P.2d 1340. He argues thatKrueqer implies that knowledge of the danger actually means knowledge of the defect. In Zahrte, this Court stated, "Plaintiff must have a subjective knowledge of the danger and then voluntarily and unreasonably expose himself to that danger before assumption of risk will become operative in a strict liability case." Zahrte, GG1P.2d at 18-19. InKrueser,we endorsed the languageof Zahrte andMPI 7.07 asan accurate, comprehensible,and complete statement of the law in the case. 783 P.2d at 1347. That portion of instruction 23 was an accurate statement of the law in this caseand the remaining portionwas nearly identical to plaintiff's proposed instruction 27. Therefore, the District Courtdid not errby giving instruction 23, ratherthanplaintiffIs proposed instruction 27. 111. Are affidavits of jurors admissible to impeach the jury verdict by showing that the jury did not understand the jury instructions? As we recently discussed, Rule 606(b), M.R.Evid., allows the

use of juror affidavits to impeach the jury verdict only to show external influences on the jury. O'Leyar v. Callender (Mont.

### l992), 843 

### P.2d 394, 309-10, 49 

### St.Rep. 2008, 1011. A 

### juror

### may not impeach the 

### verdict by 

### testifying that, because the 

### jurors misunderstood the jury instructions, the verdict had an unintended effect. In this case, there 

### are no allegations 

### of external influence on the 

### jury. The 

### District Court, therefore, properly granted defendant's motion to strike the juror affidavits. IV. 

### Inviewing the evidence in the light most favorable to 

### RegO, coulda jury findthatGreytakvoluntarily andunreasonablyexposed herself to a known danger? Greytak argues that the court should have granted her motion for judgment notwithstanding the verdict because the evidence was insufficient 

### to justify the verdict. The 

### basis for Greytak's argument is essentially the same as her reasoning in the first issue--that she did not know the 

### valve was 

### defective. Greytak further argues that her actions, after discovering that her 

### basemmt was full of propane, 

### were negligence 

### in attempting to rescue herself 

### from the peril 

### rather than assumption of risk. *!A 

### judgment notwithstanding the verdict will be granted only when the evidence presentsno roomwhatsoever for honestdifference of opinion over the 

### factual issue 

### in controversy.It Walters v. Getter (l988),232Mont. 196,203,

### 755 P.2d 

### 574,578. A 

### court

### must not grant 

### amotion for judgment notwithstanding

### theverdict unless it appears that the non-moving party cannot prevail on 

### the issue when 

### the evidence is viewed 

### in the 

### light most favorable to 

### it.Larson v. K-Mart Corp. (l99O), 241 Mont. 428, 433, 787 P.2d 361, 364. 

### As discussed above in issue 

### I,there was ample evidence for the 

### jury to determine that Greytak knew of the dangerous accumulationof propane,thenvoluntarilyand unreasonably exposed herself to the danger. As a matter of law, that 

### is all that was required to justifya finding that Greytak assumed 

### the 

### risk of her injuries. See Krueqer, 783 P.2d at 1347. The District Court was 

### correct 

### in denying Greytaklsmotion for judgment notwithstanding the verdict. 

### v. Did the District Court abuse its discretion by granting Greytak a 

### new trial on the grounds that the 

### jury instructions contained an error in law? The District Court granted Greytak's motion 

### for a new trial. This Court will reverse a district court's 

### order granting a new trial only for a manifest abuse 

### of discretion. 

### Tigh 

### v. College Park Realty Co. (1967), 149 Mont. 358, 362, 427 P.2d 57, 60. We would uphold the District Court's order granting a new trial if it could 

### be sustained on any grounds named by the court. See Tiqh, 427 P.2d 

### at 60. The order in this 

### case, however, cannot be sustained. The solereason that the court 

### stated ingranting a new trial, 

### is that the jury instructions did not clarify that Greytak was barred from 

### recovery 

### if thejury found that she 

### was 

### more than 50 percent responsible for her injuries. The court determined thatinstruction 23 when read with questions 4 and 5 of the special verdict is inappropriate under Montana law. We disagree. Instruction 23 stated in pertinent part: Assumption oftheriskonthepart of Plaintiffdoes not bar her recovery unless her responsibility for the injury is greater than the defendants'. However, the total amount of damages which you award will be reduced by the Court according to thepercentage of plaintiff's responsibility,

### as determined by you. Question 4 of the special verdict stated: You must now apportion the responsibility for the cause of this accident between Sigrid Greytak and RegO Company/Butler Manufacturing Company. If the total responsibility is loo%,what percentage of this 100% is attributable to Sigrid Greytak and what percentage to RegO Company/Butler Manufacturing Company? Question 5 stated: What isthetotal amount of Sigrid Greytak'sdamages without regard to your answers to questions 3 and 4? The court's order does not question whether the evidence was sufficient to support the jury's finding. Rather, the District Court granted a new trial based on errors of law. The order stated that the jury instructions were erroneous because "[nowhere] in [instruction231was the juryadvised that a findingby them of 50%

or more would bar the Plaintiff from recovery." That is simply incorrect. It follows from instruction 23 that if the jury determined Greytak's responsibility for her injurieswas greater than that of the defendants', then assumption of risk on the part of Greytak bars her recovery. Therefore, instruction 23 clearly stated the law.Furthermore, Greytak's counsel did not object to the instructions at trial as is requiredboth for this Court to review them and forthe District Court togrant a new trial. SeeRule 51, M.R.Civ.P.; Ahmann 766 P.2d at 860: 

### 5 25-11-102(7), MCA. In fact, Greytakls counsel proposed instructions that were virtually identical to those he objected to on appeal. In the post-trial motions Greytak asserted that the jury 

### was hopelessly confused. Shecontendsthat theproblem couldhavebeen solved by adding to question 4 of the special verdict, "If you attribute more than 50% of the responsibility for this accident to Sigrid Greytak, then do not proceed to Question 5 

# .. ..II Greytaklscounsel, however, did not offer the added language at trial. On the contrary, the special verdict he offered contained language substantially similar to thatused by the court. Section 25-11-102,MCA, provides the grounds for a new trial. At issue in this case is 5 25-11-102(7), MCA, which allows a court to vacate a verdict and grant a new trial for an "error in law occurring at the trial and excepted to by the party making the application." The District Court manifestly abused its discretion in granting a new trial because (1) the jury instructions did not containan error in law;and (2)plaintiff's counseldid not object to the sufficiency of the instructions at trial. In summary, the District Court was correct in submitting the issue of assumption of risk to the jury. Greytak is not entitled to a new trialbased on errors in the jury instructions. The court

### correctly ruled that the affidavits were not admissible to impeach theverdict based on a 

### misunderstanding of the jury instructions. Thecourt was correct indenyingGreytak's judgmentnotwithstanding the verdict because there was plenty 

### of evidence for the jury to determine that she assumed the risk. Finally, the District Court abused its discretion 

### by granting 

### a new trial. We reverse 

### the order granting a new trial and direct entry of judgment. We affirm 

### all other issues.

Justice 

### ,' mcur: /' G' / 

# /*

Chief Justice