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 an Appellants. 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, 

The Honorable Robert Holmstrom, Judge presiding. 

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. Michael Jordan, 

Beirne, Maynard & Parsons, Houston, Texas 

Submitted on Briefs: September 24, 1992 

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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 

District Court, Yellowstone County. The order granted plaintiff's 

motion for a new trial and denied plaintiff's motion for judgment 

notwithstanding the verdict. Defendant appealed and plaintiff 

cross-appealed. Reversed in part, affirmed in part. 

The issues raised by the appeal and cross-appeal are: 

Whether the District Court was correct in submitting the 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 in viewing the evidence in the 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 discretion by 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 serious burns in the explosion. 

A 1060 gallon propane tank in the yard supplied propane to the 

house. The tank was manufactured in 1949 by Butler Manufacturing 

2 
Company. 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 the valve contacts the rim of a valve port. When 

the seat disk firmly contacts the rim, it seals the port so gasses 

cannot escape through the valve. 

The valve contained a seat disk 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 the propane-fired hot water heater. 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 

strong odor of propane when she entered the house, so she went into 

the basement to investigate. She testified that the smell of 

propane was so strong in the basement it made 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, she went back into the basement, tightened the cap 

and did a second test with the dish of soapy water. At trial, she 

testified that the line still leaked after she tightened the valve 

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 to where the water heater had 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 conclusions are 
correct. Steer, Inc. v. Dept. of Revenue (lggO), 245 Mont. 470, 

474, 803 P.2d 601, 603. 

I. 

Was the court correct in submitting the issue of assumption 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 she did not know of any defects in the valve assembly she 

could not assume the risk. We disagree for two reasons. 

First, if the valve 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 it was leaking both times. 

Second, at the time Greytak's cause of action accrued, it was 

not necessary for a plaintiff to know of the specific defect before 

the defense of assumption of risk became operative. Rather, the 

plaintiff must have known of the particular condition that 

constituted the danger. See Kopischke v. First Continental Corp. 

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

has repeatedly held, the defense of assumption of risk applies upon 

a showing that the plaintiff knew of the danger, then both 

voluntarily and unreasonably exposed herself to the danger. Kuiper 

v. Goodyear Tire and Rubber Co. (1983), 207 Mont. 37, 64, 673 P.2d 

1208, 1222; Zahrte v. 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 condition was 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 smelled propane when she entered the house. 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 she knew the accumulation of propane in the 

basement constituted a dangerous and hazardous condition. She 

testified she knew sparks could cause the propane 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. 

Is plaintiff entitled to a new trial because of alleged errors 

in the jury instructions on assumption of risk? 

Greytak contends that question 3 of the special verdict 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 court submitted the case to the jury. 

As a result, Greytak waived the right to appeal based on the 

sufficiency of any instruction except the first part of instruction 

23. See Rule 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 court patterned instruction 23 after Montana Pattern Jury 

Instruction (MPI) 7.07 (Civil). Instruction 23 reads in pertinent 

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 the defect rather than knowledge of the danger in the 

defect. Greytak's counsel stated that the proposed instruction 

came directly from Krueser, 783 P.2d 1340. He argues that Krueqer 

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, 

GG1 P.2d at 18-19. In Krueser, we endorsed the language of Zahrte 

and MPI 7.07 as an 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 case and the remaining portion was nearly identical 

to plaintiff's proposed instruction 27. Therefore, the District 

Court did not err by giving instruction 23, rather than plaintiff Is 

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. 

In viewing the evidence in the light most favorable to RegO, 

could a jury find that Greytak voluntarily and unreasonably exposed 

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 presents no room whatsoever for honest difference 

of opinion over the factual issue in controversy.It Walters v. 

Getter (l988), 232 Mont. 196, 203, 755 P.2d 574, 578. A court must 

not grant a motion for judgment notwithstanding the verdict 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 

accumulation of propane, then voluntarily and unreasonably exposed 

herself to the danger. As a matter of law, that is all that was 

required to justify a finding that Greytak assumed the risk of her 

injuries. See Krueqer, 783 P.2d at 1347. The District Court was 

correct in denying Greytakls motion 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 sole reason that the court stated in granting a new trial, 

is that the jury instructions did not clarify that Greytak was 

barred from recovery if the jury found that she was more than 50 

percent responsible for her injuries. The court determined that 
instruction 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 of the risk on the part of Plaintiff does 

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 the percentage 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 is the total amount of Sigrid Greytak's damages 

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 

[instruction 231 was the jury advised that a finding by 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 injuries was 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 required both for this Court to review 

them and for the District Court to grant a new trial. See Rule 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. She contends that the problem could have been 

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 

Greytakls counsel, however, did not offer the added language 

at trial. On the contrary, the special verdict he offered 

contained language substantially similar to that used 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 

contain an error in law; and (2) plaintiff's counsel did 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 trial based on errors in the jury instructions. The court 
correctly ruled that the affidavits were not admissible to impeach 

the verdict based on a misunderstanding of the jury instructions. 

The court was correct in denying Greytak's judgment notwithstanding 

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 ,' 

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G' 

/ /* Chief Justice