96-161

No. 96-161

IN THE SUPREME COURT OF THE STATE OF MONTANA

1997

MARLENE L. STERNHAGEN, as the Personal

Representative of the Estate of Charles J. Sternhagen

Plaintiff and Respondent,

vs.

DOW COMPANY, CHEVRON CHEMICAL

COMPANY, MONSANTO COMPANY,

STAUFFER CHEMICAL COMPANY and

JOHN DOE COMPANIES 1 through 4,

Defendants and Appellants.

CERTIFIED QUESTION FROM:United States District Court

District of Montana, Great Falls Division

The Honorable Paul G. Hatfield, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Robert M. Carlson, Corette, Pohlman, Black, Carlson, Mickelson &

Johnston, Butte, Montana; Laurence F. Janssen, Lane, Powell, Spears,

Lubersky, Los Angeles, California (Dow Chemical Company); Christopher

Mangen, Jr.,Crowley, Haughey, Hanson, Toole & Dietrich, Billings,

Montana (Chevron Chemical Company and Stauffer Chemical Company)

For Respondent:

William A. Rossbach, Elizabeth A. Brennan, Rossbach & Whiston,

Missoula, Montana

For Amicus Curiae Montana Trial Lawyers Association:

Lawrence A. Anderson, Great Falls, Montana

Heard and Submitted: January 28, 1997

Decided: April 10, 1997

Filed:

__________________________________________

Clerk

Justice James C. Nelson delivered the Opinion of the Court.

 The United States District Court for the District of Montana, Great Falls Division,

has certified to this Court the following question:

 In a strict products liability case for injuries caused by an inherently

 unsafe product, is the manufacturer conclusively presumed to know the

 dangers inherent in his product, or is state-of-the-art evidence admissible to

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/96-161%20Opinion.htm (1 of 9)4/11/2007 2:38:58 PM
96-161

 establish whether the manufacturer knew or through the exercise of

 reasonable human foresight should have known of the danger?

 We conclude that Montana law precludes the admission of state-of-the-art evidence

in products liability cases brought under the theory of strict liability.

 FACTUAL AND PROCEDURAL BACKGROUND

 The United States District Court for the District of Montana, Great Falls Division,

found the following facts relevant to the question of law certified to this Court:

 1. In her complaint filed in the United States District Court for the District of

Montana, plaintiff Marlene L. Sternhagen, as the personal representative of the estate of

Charles J. Sternhagen, seeks recovery for injuries and damages allegedly sustained by

Charles Sternhagen as a result of his exposure to the herbicide 2,4-D during the years

1948 through 1950. Plaintiff claims that the exposure of Charles Sternhagen to 2,4-D

was the cause of the cancer that resulted in his death.

 2. Plaintiff seeks recovery against the defendants under the doctrine of strict

liability in tort. Plaintiff claims that each of the defendants separately manufactured the

2,4-D products to which Charles Sternhagen was exposed during the years 1948 through

1950.

 3. During the summer months of 1948, 1949 and 1950, Charles Sternhagen

was employed by a crop spraying business in northeast Montana. Plaintiff claims that

during that time, Charles Sternhagen was exposed to the herbicide, 2,4-D.

 4. In 1981, Charles Sternhagen, a medical doctor specializing in radiology,

was diagnosed as having a form of cancer which plaintiff claims was caused by his

exposure to the herbicide 2,4-D during the years 1948 through 1950. Defendants dispute

the claim that there is a causal link between the herbicide 2,4-D and the type of cancer

from which Charles Sternhagen died.

 5. The defendants claim neither they, nor medical science, knew or had reason

to know of any alleged cancer-causing properties of the herbicide 2,4-D during the years

1948 through 1950.

 DISCUSSION

 Before addressing the question certified to us by the United States District Court,

we will dispose of an issue injected into these proceedings by the Defendants/Appellants,

Dow Company et al. (the Chemical Companies). The Chemical Companies first argue

that negligence law, not strict liability, applies to this case. Plaintiff/Respondent,

Marlene L. Sternhagen (Sternhagen), responds that this Court should not address this

issue because it goes beyond the scope of the certified question. We agree.

 We accepted the certified question as one involving only the doctrine of strict

liability. The certified question does not ask this Court to determine whether negligence

or strict liability law applies. To address this additional issue would go beyond the scope

of the certified question and effectively render our decision an impermissible advisory

opinion. See State ex rel. Fletcher v. Dist. Court (1993), 260 Mont. 410, 419, 859 P.2d

992, 997. 

 Our judicial power may be validly exercised only over justiciable controversies. 

Hardy v. Krutzfeldt (1983), 206 Mont. 521, 525-26, 672 P.2d 274, 276 (citing Chovanak

v. Matthews (1948), 120 Mont. 520, 525-26, 188 P.2d 582, 584-85). A justiciable

controversy contains three elements:

 First, a justiciable controversy requires that parties have existing and

 genuine, as distinguished from theoretical, rights or interest. Second, the

 controversy must be one upon which the judgment of the court may

 effectively operate, as distinguished from a debate or argument invoking a

 purely political, administrative, philosophical or academic conclusion. 

 Third, [it] must be a controversy the judicial determination of which will

 have the effect of a final judgment in law or decree in equity upon the

 rights, status or legal relationships of one or more of the real parties in

 interest, or lacking these qualities be of such overriding public moment as

 to constitute the legal equivalent of all of them.

Brisendine v. State, Dept. of Commerce (1992), 253 Mont. 361, 364, 833 P.2d 1019,

1020-21 (alteration in original) (quoting Lee v. State (1981), 195 Mont. 1, 6, 635 P.2d

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/96-161%20Opinion.htm (2 of 9)4/11/2007 2:38:58 PM
96-161

1282, 1284-85). 

 In the case at bar, the federal District Court has not asked us to determine whether

negligence or strict liability law applies, and, therefore, the second and third requirements

necessary to establish a justiciable controversy are not satisfied. That is, for us to

address this issue, we would be engaging in a debate "invoking a purely . . . academic

conclusion." Furthermore, our opinion concerning this additional issue will not have the

effect of a final judgment. Additionally, we do not consider this issue to be "of such

overriding public moment as to constitute the legal equivalent" of the second and third

requirements of the test. Consequently, if we were to address this issue, we would

impermissibly render an advisory opinion. Finally, having not been requested to do so,

to address this additional issue would impose upon our comity relationship with the

federal District Court in the pending case. See Phillips v. Duro-Last Roofing, Inc. (Wyo.

1991), 806 P.2d 834, 837. Accordingly, we will not address this issue.

 The Chemical Companies next argue that if Restatement (Second) of Torts 402A

(1965), is the applicable law, then state-of-the-art evidence is admissible because

Montana law recognizes the state-of-the-art defense in failure to warn claims. The

Chemical Companies contend that the certified question must be read in conjunction not

only with Restatement (Second) of Torts 402A (1965), adopted by this Court in

Brandenburger v. Toyota Motor Sales, U.S.A., Inc. (1973), 162 Mont. 506, 513 P.2d

268, but also with the comments to 402A, including Comment j. Specifically, the

Chemical Companies argue that the third sentence of Comment j applies, namely that "the

seller is required to give warning . . ., if he has knowledge, or by the application of

reasonably, developed human skill and foresight should have knowledge, of the presence

of the . . . danger." The Chemical Companies assert that we have cited with approval

decisions of other courts that have adopted Comment j. Additionally, the Chemical

Companies cite to various strict liability cases wherein we have referenced certain

portions of Comment j. See e.g. Brown v. North Am. Mfg. Co. (1978), 176 Mont. 98,

576 P.2d 711 (Shea, J., concurring); Rost v. C.F. & I. Steel Corp. (1980), 189 Mont.

485, 616 P.2d 383; Krueger v. General Motors Corp. (1989), 240 Mont. 266, 783 P.2d

1340; and Emery v. Federated Foods, Inc. (1993), 262 Mont. 83, 863 P.2d 426. Based

on these references, the Chemical Companies claim that we essentially have adopted some

of the language contained in Comment j.

 The Chemical Companies concede that we limited the extent to which we adopted

Comment j in Riley v. American Honda Motor Co. (1993), 259 Mont. 128, 134-35, 856

P.2d 196, 200. However, the Chemical Companies assert that in Riley we only rejected

that portion of Comment j regarding presumption of causation which they contend is

irrelevant to the certified question before us. Therefore, the Chemical Companies

conclude that because this Court has not expressly rejected the third sentence of Comment

j, we recognize the state-of-the-art defense. 

 Furthermore, the Chemical Companies contend that in Tacke v. Vermeer Mfg. Co.

(1986), 220 Mont. 1, 713 P.2d 527, the plaintiff offered state-of-the-art evidence on the

issue of the feasibility in a design defect case. The Chemical Companies assert that if a

plaintiff is allowed to offer state-of-the-art evidence to prove feasibility in a design defect

case, a defendant may also offer state-of-the-art evidence to rebut feasibility as part of its

defense. Therefore, the Chemical Companies argue a defendant should also be allowed

to offer state-of-the-art evidence to disprove the feasibility of a warning in a failure to

warn case.

 Sternhagen responds that the certified question must be answered based on the

fundamental principles underlying strict products liability in Montana. Sternhagen asserts

that when this Court, in Brandenburger, adopted strict liability in tort for defective

products as defined in Restatement (Second) of Torts 402A (1965), it did so based on

substantial public interest and public policy grounds which included principles of fairness

and economics, maximum protection for the consumer and placement of responsibility

for injury on the manufacturer. Sternhagen asserts that over the past two-plus decades,

this Court has consistently returned to and relied upon these core principles.

 Furthermore, Sternhagen contends that this Court has never adopted the state-ofthe-art defense, but rather this Court has made it clear that even careful manufacturers

may be strictly liable for unreasonably dangerous products which contained unforeseeable

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/96-161%20Opinion.htm (3 of 9)4/11/2007 2:38:58 PM
96-161

dangers. Therefore, Sternhagen argues that the critical question for this Court is

"whether imposition of liability for undiscovered or even undiscoverable dangers of

inherently unsafe products will advance the goals and policies sought to be achieved by

Montana's adoption of strict liability." In answering the certified question, Sternhagen

urges this Court to again return to the core principles underlying the doctrine of strict

liability and thereby reject the state-of-the-art defense.

 We agree with Sternhagen that we have not previously adopted the state-of-the-art

defense. Further, we expressly reject the state-of-the-art defense, as this defense is

contrary to the doctrine of strict products liability as that body of law has developed in

Montana. In reaching these conclusions, we emphasize that despite the Chemical

Companies' assertion that the certified question involves a failure to warn cause of action,

we note that the certified question is not so limited. Consequently, we address the

certified question by addressing strict products liability law in Montana generally and

without differentiating as among manufacturing defect, design defect, or failure to warn

cases.

 We first recognized the doctrine of strict liability by adopting the language set

forth in Restatement (Second) of Torts 402A (1965) in Brandenburger. However,

"[o]ur adoption of [ 402A], was not a wholesale adoption of the comments

accompanying that provision; nor are we constrained by the comments in developing a

body of products liability law." Riley, 856 P.2d at 200 (citing Stenberg v. Beatrice

Foods Co. (1978), 176 Mont. 123, 128-29, 576 P.2d 725, 729). The Chemical

Companies assert that we have either previously adopted or should now adopt the

language of Comment j to 402A. However, after researching Montana law on strict

products liability, we conclude that the language in Comment j, which the Chemical

Companies contend supports the state-of-the-art defense, is inconsistent with our

established law concerning strict products liability and we therefore decline to adopt that

language. Rather, we conclude that the imputation of knowledge doctrine, as discussed

below, is more consistent with existing Montana law.

 Furthermore, the Chemical Companies rely on only one part of the third sentence

of Comment j which, when considered in its entirety, indicates that this sentence is not

applicable to the question certified to this Court. The Chemical Companies rely on the

language, "the seller is required to give warning . . ., if he has knowledge, or by the

application of reasonably, developed human skill and foresight should have knowledge,

of the presence of the . . . danger." However, the third sentence of Comment j, from

which that language is extracted, states:

 Where, however, the product contains an ingredient to which a substantial

 number of the population are allergic, and the ingredient is one whose

 danger is not generally known, or if known is one which the consumer

 would reasonably not expect to find in the product, the seller is required to

 give warning against it [the ingredient to which people are allergic], if he

 has knowledge, or by the application of reasonable, developed human skill

 and foresight should have knowledge, of the presence of the ingredient [to

 which people are allergic] and the danger. [Emphasis added.]

 

The certified question before us involves an alleged cancer-causing ingredient, not one

to which the decedent is alleged to have been allergic. Therefore, the third sentence of

Comment j is not applicable to the certified question.

 We adopted strict liability in torts for defective products based on important public

policy considerations, to which we have consistently adhered for the past two-plus

decades. "[T]he doctrine of strict liability was evolved to place liability on the party

primarily responsible for the injury occurring, that is, the manufacturer of the defective

product." Brandenburger, 513 P.2d at 273 (quoting Leakage, Inc. v. Montgomery

(Ariz.1970), 467 P.2d 256, 261 (Jacobson, J., concurring)). We, thereafter enumerated

various public policy considerations supporting adoption of the strict liability doctrine:

 1. The manufacturer can anticipate some hazards and guard against

 their recurrence, which the consumer cannot do.

 2. The cost of injury may be overwhelming to the person injured while

 the risk of injury can be insured by the manufacturer and be

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/96-161%20Opinion.htm (4 of 9)4/11/2007 2:38:58 PM
96-161

 distributed among the public as a cost of doing business.

 3. It is in the public interest to discourage the marketing of defective

 products.

 4. It is in the public interest to place responsibility for injury upon the

 manufacturer who was responsible for [the defective product]

 reaching the market.

 5. That this responsibility should also be placed upon the retailer and

 wholesaler of the defective product in order that they may act as the

 conduit through which liability may flow to reach the manufacturer,

 where ultimate responsibility lies.

 6. That because of the complexity of present day manufacturing

 processes and their secretiveness, the ability to prove negligent

 conduct by the injured plaintiff is almost impossible.

 7. That the consumer does not have the ability to investigate for himself

 the soundness of the product.

 8. That this consumer's vigilance has been lulled by advertising,

 marketing devices and trademarks.

Brandenburger, 513 P.2d at 273 (citations omitted). Furthermore, we stated:

 The essential rationale for imposing the doctrine of strict liability in

 tort is that such imposition affords the consuming public the maximum

 protection from dangerous defects in manufactured products by requiring

 the manufacturer to bear the burden of injuries and losses enhanced by such

 defects in its products. 

Brandenburger, 513 P.2d at 275.

 Subsequent to our adoption of strict liability, we identified three elements essential

to the establishment of a prima facie case in strict liability pursuant to 402A:

 (1) The product was in a defective condition, "unreasonably" dangerous

 to the user or consumer;

 (2) The defect caused the accident and injuries complained of; and

 (3) The defect is traceable to the defendant.

Brown, 576 P.2d at 716.

 The Chemical Companies argue that if this Court recognizes the imputation of

knowledge doctrine, rather than the state-of-the-art defense, we will eliminate all of the

elements that a plaintiff must prove to establish a strict products liability cause of action. 

Specifically, the Chemical Companies assert that the imputation of knowledge doctrine

removes a plaintiff's burden of proving that a defect in the product caused the injury. 

In effect, the Chemical Companies are arguing that adoption of the imputation of

knowledge doctrine will transform strict liability into absolute liability. We disagree.

 From the time we initially adopted strict products liability, we have reassured

defendants that strict liability is not absolute liability:

 The adoption of the doctrine of strict liability does not relieve the

 plaintiff from the burden of proving his case. Vital to that proof is the

 necessity of proving the existence of a defect in the product and that such

 defect caused the injury complained of.

Brandenburger, 513 P.2d at 274. We explained again, in Brown, that by imposing upon

a plaintiff the burden of proving a traceable defect, causation, and damage or injury, even

with a flexible rule of evidence, we assured "an appropriate limitation to a manufacturer's

liability." Brown, 576 P.2d at 717. This has not changed. 

 Under the imputation of knowledge doctrine, which is based on strict liability's

focus on the product and not the manufacturer's conduct, knowledge of a product's

undiscovered or undiscoverable dangers shall be imputed to the manufacturer. Our

adoption of the imputation of knowledge doctrine, and concomitant rejection of the statefile:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/96-161%20Opinion.htm (5 of 9)4/11/2007 2:38:58 PM
96-161

of-the-art defense, does not change the requirements of plaintiff's prima facie case; it only

reinforces our commitment to provide the maximum protection for consumers, while still

assuring "an appropriate limitation to a manufacturer's liability." 

 In fact, for the past two-plus decades, we have consistently adhered to the core

public policy principles underlying strict products liability as set forth in both

Brandenburger and Brown. As stated in the certified question, state-of-the-art evidence

is used to establish whether the manufacturer knew or through the exercise of reasonable

human foresight should have known of the dangers inherent in his product. That is, the

state-of-the-art defense raises issues of reasonableness and foreseeability--concepts

fundamental to negligence law--to determine a manufacturer's liability. To recognize the

state-of-the-art defense now would inject negligence principles into strict liability law and

thereby sever Montana's strict products liability law from the core principles for which

it was adopted--maximum protection for consumers against dangerous defects in

manufactured products with the focus on the condition of the product, and not on the

manufacturer's conduct or knowledge.

 Contrary to the Chemical Companies' assertion, our references to Comment j and

our use of certain ambiguous language in previous case law does not support a conclusion

that we have adopted the state-of-the-art defense. As discussed below, we conclude that

in none of our prior cases was the state-of-the-art defense raised as an issue, much less

adopted. Rather, these cases illustrate our strict adherence to the remedial policies

underlying strict liability and our recognition of the basic differences between strict

liability and negligence principles.

 Attempting to demonstrate that we have adopted the state-of-the-art defense, the

Chemical Companies cite to Rost and note that we referenced Comment j, and thereafter

stated:

 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. This standard focuses on the condition

 of the product and the degree of danger which would be tolerated by the

 reasonable manufacturer [who], apprised of the danger, would not sell the

 product without a warning.

Rost, 616 P.2d at 385 (citing Phillips v. Kimwood Machine Co. ( Or. 1974), 525 P.2d

1033, 1036-37) (emphasis added) (other citations omitted). The Chemical Companies

assert that this language is synonymous with the state-of-the-art defense, and, therefore,

that we recognized the state-of-the-art defense in Rost. We disagree. Rather, in making

this assertion, the Chemical Companies take the language in Rost out of context from the

authority cited. 

 To explain the nature of the duty to warn standard that the plaintiffs in Rost

asserted, we cited Phillips. The Oregon Supreme Court stated in Phillips that to prevent

strict liability from becoming absolute liability, a test for unreasonable danger is

necessary to show that something about a product makes it dangerously defective without

regard to whether the manufacturer was at fault for the condition. Phillips, 525 P.2d at

1036. 

 A dangerously defective article would be one which a reasonable person

 would not put into the stream of commerce if he had knowledge of its

 harmful character. The test, therefore, is whether the seller would be

 negligent if he sold the article knowing of the risk involved. Strict liability

 imposes what amounts to constructive knowledge of the condition of the

 product. 

Phillips, 525 P.2d at 1036. The Court in Phillips also explained that a difference exists

between strict liability and negligence law because a product could be unreasonably

dangerous even though the manufacturer's actions were reasonable in light of what he

knew at the time he planned and sold the manufactured product. Phillips, 525 P.2d at

1037. Furthermore, the Oregon Supreme Court explained that a way to determine

if a product is unreasonably defective, is to assume that the manufacturer knew of the

product's potential dangers and then ask whether a manufacturer with such knowledge

should have done something about the danger before the product was sold. Phillips, 525

P.2d at 1037. When viewed in this context, it is apparent that this portion of the Phillips

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/96-161%20Opinion.htm (6 of 9)4/11/2007 2:38:58 PM
96-161

opinion to which we cited in Rost does not support the state-of-the-art defense, but rather

describes the imputation of knowledge doctrine.

 Moreover, after citing Phillips, we further distinguished strict liability from

negligence law and reiterated the public policy supporting strict products liability:

 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. 

Rost, 616 P.2d at 386 (other citations omitted).

 As in Rost, one portion of our opinion in Kuiper v. Goodyear Tire & Rubber Co.

(1983), 207 Mont. 37, 673 P.2d 1208, seems to support an argument that we recognized

the state-of-the-art defense. In Kuiper, we concurred with the trial court's opinion

denying defendant's motion for new trial and quoted a portion of that opinion which

provided in pertinent part:

 There is no requirement that a design remain in substantially the

 same condition since obviously the design of the product does not change

 from the date of its original manufacture, absent some modification in

 design which was not an issue in this case.

 [I]t is the [trial] court's concerted opinion that in a [product liability]

 design case, the changes in the product through wear, tear, or even abuse

 do not affect the question of whether the original design was defective and

 unreasonably dangerous. Design is judged not by the condition of the

 product, but the state of scientific and technical knowledge available to

 the designer at the time the product was placed on the market.

Kuiper, 673 P.2d at 1221 (third alteration in original) (emphasis added).

 To conclude, however, that the emphasized language illustrates our adoption of the

state-of-the-art defense is again to read this language out of context. Rather, when

viewing the language in context with the trial court's opinion, it is obvious that the trial

court was explaining the nature of design defect cases. That is, the trial court was

explaining that, in a design defect case, a plaintiff is not required to show that the

product was in substantially the same condition at the time of injury as when the product

left the manufacturer. Kuiper, 673 P.2d at 1221. This requirement is not necessary

because the changes in the condition of the product due to regular use or abuse are

irrelevant as the design itself does not change after the product leaves the manufacturer. 

Kuiper, 673 P.2d at 1221. Consequently, the issue addressed by the trial court did not

involve the state-of-the-art defense, and, therefore, our concurrence with the trial court

cannot be read as our adoption of the state-of-the-art defense. That was not the issue in

Kuiper.

 Rather, in Kuiper we reiterated the public policy supporting strict liability as set

forth in Brandenburger and Brown:

 On whatever theory, the justification for strict liability has been said

 to be that the seller [manufacturer], by marketing his product for the use

 and consumption, has undertaken and assumed a special responsibility

 toward any member of the consuming public who may be injured by it; that

 the public has a right and does expect, in a case of products which it needs

 and for which it is forced to rely on the seller [manufacturer], that reputable

 sellers [manufacturers] will stand behind their goods; that the public policy

 demands that the burden of accidental injuries caused by products intended

 for consumption to be placed upon those who market them, and be treated

 as a cost of production against which liability insurance can be obtained;

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/96-161%20Opinion.htm (7 of 9)4/11/2007 2:38:58 PM
96-161

 and that the consumer of such products is entitled to the maximum of

 protection at the hands of someone, and the proper persons to afford it are

 those who placed the product in the market.

Kuiper, 673 P.2d at 1222 (quoting Restatement (Second) of Torts 402A, cmt. c

(1965). We also explained that the law of strict liability recognizes that the seller

[manufacturer] is in the best position to insure product safety. Kuiper, 673 P.2d at 1222. 

Therefore, under strict liability, a seller [manufacturer] has a duty to prevent the release

of any product in a defective condition unreasonably dangerous "into the stream of

commerce." Kuiper, 673 P.2d at 1222. Furthermore, we distinguished this duty under

strict liability from the law of negligence.

 This duty is unknown in the law of negligence and it is not fulfilled

 even if the seller takes all reasonable measures to make his product safe. 

 The liability issue focuses on whether the product was defective and

 unreasonably dangerous, not only upon the conduct of the user or seller. 

Kuiper, 673 P.2d at 1222.

 Subsequently, in Rix v. General Motors Corp. (1986), 222 Mont. 318, 723 P.2d

195, and in Krueger, we stated that, in a specific category of design defect cases,

evidence of the technological knowledge about dangers in a design and the existence of

alternative safer designs at the time of manufacture may be admitted. However, we

expressly limited these opinions to cases where the alternative designs were available at

the time the product at issue was manufactured.

 We do not attempt to set forth an analysis which addresses all facets

 of strict liability under a design defect theory. We render an opinion only

 with regard to the following facet of defect: Was the GMC single brake

 system defective and unreasonably dangerous in view of the fact that a dual

 brake system was technologically feasible at the time of manufacture and

 was offered by GMC for sale? We do not rule upon the fact situation

 where a claim of design defect is made and where no alternative design

 is technologically feasible. See O'Brien v. Muskin Corp. (N.J. 1983), 463

 A.2d 298 [holding that state-of-the-art evidence is relevant to a risk-utility

 analysis and admissible in a strict liability case involving defectively

 designed products]. 

Rix, 723 P.2d at 201 (emphasis added). Likewise in Krueger, we relied on the

limitations imposed in Rix and held that to determine the defectiveness of the transfer

case design at issue, only evidence concerning other transfer case designs available at the

time the transfer case at issue was manufactured would be admissible. Krueger, 783 P.2d

at 1345.

 Similarly, in a case prior to Rix, we held that a trial court erred in refusing to

instruct the jury concerning plaintiff's central contentions that compression rollers in 

defendant's hay balers were an unnecessary hazard and that defendant enhanced injuries

by failing to provide an emergency stop device. Tacke, 713 P.2d at 534. In Tacke,

plaintiff presented evidence that open-throat, non-compression balers eliminated a place

where humans could be injured and that these non-compression balers were

technologically available at the time plaintiff purchased a baler containing the

compression rollers which injured him. We held that the trial court's failure to give an

instruction which included the issue of an unnecessary hazard amounted to a directed

verdict and denied plaintiff's right to have jury instructions which are adaptable to his

theory of the case. Tacke, 713 P.2d at 534. 

 The Chemical Companies argue that the plaintiff in Tacke offered state-of-the-art

evidence on the issue of feasibility in a design defect case. The Chemical Companies

assert that if a plaintiff may offer such evidence, then we should also permit a defendant

to do so. We disagree. Like the fact situations in both Rix and Krueger, the plaintiff in

Tacke offered evidence of existing alternative designs, and, therefore, such evidence was

admissible to prove a product's defectiveness. In both Rix and Krueger, we expressly

limited the admissibility of evidence concerning alternative designs to situations where

those designs existed at the time of manufacture. Furthermore, while we allowed the

plaintiff to present this evidence in Rix and Krueger, we did not require it as a part of

plaintiff's prima facie case.

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/96-161%20Opinion.htm (8 of 9)4/11/2007 2:38:58 PM
96-161

 We decline to extend this rule to cases where alternative designs did not exist and

a product's dangers were undiscovered or undiscoverable at the time of manufacture. If

we were to do so, we would inject negligence concepts into Montana's strict products

liability law and eviscerate the public policy underlying strict products liability law in this

State. Therefore, we hold that the rule employed in Tacke and expressly stated in Rix

and Krueger is limited to situations where alternative designs existed at the time of

manufacture.

 Alternatively, the Chemical Companies argue that even if the cases, discussed

above, do not show that Montana has adopted the rule allowing state-of-the-art evidence,

we should do so now based on the experience of other jurisdictions which favor the

adoption of the rule. After discussing numerous cases from other jurisdictions, the

Chemical Companies contend that an overwhelming majority of jurisdictions that have

adopted 402A also admit state-of-the-art evidence. Additionally, the Chemical

Companies argue that the Restatement (Third) of the Law of Torts: Products Liability

(Proposed Final Draft, Preliminary Version) (Oct. 18, 1996) would also allow state-ofthe-art evidence. Furthermore, the Chemical Companies assert that public policy

supports adoption of the state-of-the-art defense.

 Despite the adoption of the state-of-the-art defense in other jurisdictions,

recognition of the defense in the Restatement (Third) of the Law of Torts: Products

Liability (Proposed Final Draft, Preliminary Version) (Oct. 18, 1996) and the Chemical

Companies' assertion that public policy supports adoption of the defense, we choose to

continue to adhere to the clear precedent we have heretofore established which focuses

on the core principles and remedial purposes underlying strict products liability. Strict

liability without regard to fault is the only doctrine that fulfills the public interest goals

of protecting consumers, compensating the injured and making those who profit from the

market bear the risks and costs associated with the defective or dangerous products which

they place in the stream of commerce. See Brandenburger, 513 P.2d at 273. As we

discussed previously, no Montana case supports the Chemical Companies' position that

state-of-the-art evidence is admissible when a product's inherent dangers are undiscovered

or undiscoverable. 

 In fact, both our case law and statutory law make it clear that even careful

manufacturers may be strictly liable for unreasonably dangerous products whose dangers

could not be foreseen. See Rost, 616 P.2d at 386, and 27-1-719(3)(a), MCA.

Moreover, given strict liability's focus on the product and not on the manufacturer's

conduct, knowledge of any undiscovered or undiscoverable dangers should be imputed

to the manufacturer. That is, while a plaintiff must still prove the three prima facie

elements set forth in Brown, evidence that a manufacturer knew or through the exercise

of reasonable human foresight should have known of the dangers inherent in his product

is irrelevant. See Phillips, 525 P.2d 1036-37.

 Accordingly, in answer to the question certified, we conclude that, in a strict

products liability case, knowledge of any undiscovered or undiscoverable dangers should

be imputed to the manufacturer. Furthermore, we conclude that, in a strict products

liability case, state-of-the-art evidence is not admissible to establish whether the

manufacturer knew or through the exercise of reasonable human foresight should have

known of the danger.

 /S/ JAMES C. NELSON

We Concur:

/S/ J. A. TURNAGE

/S/ KARLA M. GRAY

/S/ JIM REGNIER 

/S/ TERRY N. TRIEWEILER

/S/ W. WILLIAM LEAPHART

/S/ WILLIAM E. HUNT, SR.

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/96-161%20Opinion.htm (9 of 9)4/11/2007 2:38:58 PM