No. 86-472 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

KA.THIE NORTH, as Personal Representative of the Estate of TERRANCE J. NORTH, 

and as Guardian Ad Litem for SUSAN A. 

NORTH, a minor, 

Plaintiff and Respondent, 

-vsGARY BUNDAY, d/b/a BUNDAY TRUCKING; 

and THE STATE OF MONTANA, 

Defendants and Petitioners. 

ORIGINAL PROCEEDING: 

COUNSEL OF RECORD: 

For Petitioners: 

Allen B. Chronister argued, Agency Legal Services 

Bureau, Helena, Montana 

Gregory Morgan argued, Bozeman, Montana 

Robert Planalp argued, Bozeman, Montana 

For Respondent : 

Monte Beck argued, Bozeman, Montana 

Terry Trieweiler argued, Whitefish, Montana 

Filed: 

Submitted: January 6, 1987 

Decided: March 31, 1987 
Mr. Justice John C. Sheehy delivered the Opinion of the 

Court. 

In this special proceedings originating in this Court, 

we are called upon to decide whether the District Court is 

correct in holding that, although plaintiff's percentage of 

causal negligence in a tort action exceeded the percentage of 

causal negligence assigned individually to each of two 

concurrent tortfeasor defendants, the plaintiff may 

nevertheless recover a diminished proportion of his damages 

from the concurrent tortfeasors because their combined 

percentages of causal negligence exceeded that of the 

plaintiff. 

We hold that the District Court was correct and we adopt 

the rule that under our comparative negligence statutes and 

cases the percentage of negligence of the plaintiff is to be 

compared to the combined percentages of causal negligence of 

concurrent tortfeasors where recovery is sought against 

multiple defendants. 

Two issues have developed in this cause: 

1. What is the legal effect under § 27-1-702, MCA, of a 

civil jury verdict in a bifurcated trial on negligence only, 

apportioning 45% of the negligence to the plaintiff, 40% to 

the defendant Bunday Trucking and 15% to the defendant State? 

2. In the event that this Court adopts the theory of 

combined negligence of concurrent tortfeasor defendants, 

should this cause be remanded to the District Court to 

reapportion fault under proper instructions? 

The underlying case was tried in the Eighteenth Judicial 

District, Gallatin County. The plaintiff, Kathie North, in 

her representative capacities, sued Gary Bunday and the State 

of Montana for damages arising out of the death of Terrance 
J. North. On the night of August 2, 1983, Terry North was 

driving a pickup and a motorcycle trailer down U.S. Highway 

10, east of Bozeman. Highway 10 is a frontage road with a 

dead end. There was no "dead end" sign or other warning 

placed prior to the roadway's end. Defendant Bunday Trucking 

had parked two unloaded semi-trailers at the end of the 

roadway and on the State's right-of-way. The trailers were 

parked directly in front of and partially blocking the only 

sign indicating the road's closure. North apparently saw the 

trailers, applied his brakes and slid his pickup under one of 

the trailers. He was killed in the collision. Later, 

readings of blood samples taken from Terry's body indicated a 

high blood-alcohol content. 

Plaintiff is decedent's ex-wife, suing on behalf of the 

estate and his daughter. The plaintiff argued that Bunday 

was negligent in the placement of the trailers on the roadway 

and that the State of Montana was negligent in failing to 

adequately warn of the dead-end road. The defendants argued 

that decedent's extreme intoxication was the sole cause of 

the accident. 

The parties agreed that the issues in the District Court 

would be bifurcated, the first jury to determine the 

percentages of negligence, if any, of the parties in causing 

the accident, and a later trial to determine damages, if a 

damages trial was necessary. 

The jury returned a special verdict in which, in 

separate interrogatories, it answered that each of the 

defendants and the decedent Terry North were negligent, and 

that the negligence of each was a legal cause of the 

accident. It fixed the percentages of such negligence at 40% 

for defendant Gary Bunday, 15% for defendant State of 

Montana, and 45% for the plaintiff's decedent Terry North. 

The total, of course, is 100%. 
Following the verdict on special interrogatories, the 

District Court entered an order requiring that counsel for 

each party prepare memoranda regarding their contentions as 

to the effect of the verdict, and their authorities in 

support. After considering the memoranda and contentions, 

the District Court judge entered an order on September 9, 

1986 to the effect that "the court adopts the combined 

negligence rule of the defendants exceeding that of the 

plaintiff and the plaintiff is therefore entitled to damages 

reduced by 45% attributable to plaintiff's negligence." 

Thereupon, the State of Montana made application to this 

Court for a writ of supervisory control directing the 

District Court to modify its order of September 9, 1986. The 

State requested that the plaintiff be barred from recovering 

against the State because the negligence of the decedent 

exceeded the negligence of the State and of each individual 

defendant. The State contended that no further trial was 

necessary as to damages. The defendant Gary Bunday joined in 

the State's application with permission from this Court. 

The statute which bears most directly on the problem is 

5 27-1-702, MCA, which we set forth here: 

Contributory negligence shall not bar recovery in 

an action by any person or his legal representative 

to recover- damages for negligence resulting in 

death or injury to person or property -- if such 

negligence was -- not qreater than the -- negligence of 

the person against whom recovery is sought, but a= 

damages allowed shall be diminished in the 

proportion to the amount of negligence attributable 

to the person recovering. (Emphasis added.) 

The proponents of the individual comparison rule contend 

that 5 27-1-702 is not ambiguous, requiring comparison of the 

plaintiff's negligence "with the person" against whom 

recovery is sought. They further contend that we predicted 
the individual comparison rule in dictum in Cordier v. 

Stetson-Ross (1979), 184 Mont. 502, 604 P.2d 86. They 

further argue that because our comparative negligence statute 

was adopted from Wisconsin that the interpretation of the 

statute by the highest judicial authority in Wisconsin was 

also adopted by us. 

The plaintiff, as proponent for the combined comparison 

rule, contends that the words "the person" in § 27-1-702 must 

be interpreted in accordance with $ 1-2-105, MCA; that the 

policy of the state, and fairness, require interpretation of 

§ 27-1-702 under the combined comparison rule; and that the 

majority of states considering the issue have adopted the 

combined comparison rule. 

The District Court saw the issue as one involving 

nothing but fairness. In weighing the pros and cons of the 

interpretation of the statute, the District Court determined 

that the most fair result would be to adopt the combined 

negligence rule. It did so, although it also foresaw that 

sometimes inequities would result. The District Court said: 

In reaching its conclusion, the court feels bound 

by nothing beyond the question of fairness. But 

even with fairness as the only criterion, one can 

always conjure up some obscure set of facts which 

will appear to treat a mythical plaintiff or 

defendant less fairly than others. Unfortunately, 

the nature of the beast is such that this will 

inevitably happen. 

The defendants further argued that past legislative 

inaction demands the status L 

suo. The Court cannot 

agree. It is true that the legislature has 

refrained from clarifying the existing language, 

but it may also be true that the legislators 

believed an amendment was unnecessary. Who knows 

what is in the minds of one hundred fifty (150) - legislators when the result is no action? 
The 1975 adoption by the legislature of the comparative 

negligence statute, 27-1-702, MCA, was a legislative 

modification of the harsh common law rule in effect in 

Montana before that time that contributory negligence in the 

slightest degree barred a plaintiff from recovering for his 

injuries from any tortfeasor, joint or several. Sztaba v. 

Great Northern Railway Company (1966), 147 Mont. 185, 411 

P.2d 379. The comparative negligence statute appears to be 

identical to that of Wisconsin on the same subject. Wis. 

Stat. Ann. S 895.045. 

The petitioners contend that the language "the 

negligence of the person against whom recovery is sought," 

found in the statute, is unambiguous, and commands individual 

comparison. A similar argument was made in Colorado and 

rejected by its Supreme Court in Mountain Mobil Mix, Inc. v. 

Gifford (Colo. 19831, 660 P.2d 883. There the Colorado 

Supreme Court said: 

The controversy in this appeal arises from the 

language in the statute which purports to limit 

recovery if plaintiffs "negligence was not as great 

as the negligence of the person against whom 

recovery is sought." (Emphasis added.) The 

respondents argue that the plain language of the 

statute dictates that plaintiff's negligence should 

be compared against each defendant's negligence. 

In our view, the issue cannot be resolved by a 

mechanical and narrow reading of the statute. 

(Citing authority.) 

In addition to the previously mentioned canons of 

statutory construction which the General Assembly 

has codified, it has directed us that the use of a 

singular in a statute also includes the plural. 

(Citing authority.) The respondents would have us 

ignore rules for statutory interpretation when 

there is no indication that the comparative 

negligence statute was intended to embody an 

individual comparison rule. If the General 

Assembly truly intended the phrase "the person" to 

exclude the plural, then it could have 
unambiguously provided for that result by using the 

phrase "each individual person." (Citing 

authority.) Even though the General Assembly's 

wording is imprecise, we do not believe that a 

strict parsing of the statutory language compels an 

individual comparison rule. (Citing authority.) 

We must therefore construe the statute in light of 

its intended purpose. 

Montana has a like provision on the matter of statutory 

interpretation. Section 1-2-105, MCA, provides: "The 

following rules apply in this code: . . . (3) he singular 

includes the plural and the plural the singular." 

In like manner, the State of Utah, in Jensen v. 

Intermountain Health Care, Inc. (Utah 1984), 679 P.2d 903, 

908, utilized a statute similar to our S 1-2-105, MCA, to 

determine that "person" in the comparative negligence statute 

should include "persons:" 

Furthermore, it should be noted that the language 

of section 1, as such, is not necessarily 

inconsistent with the unit rule. That section only 

refers to a plaintiff's negligence not being "as 

great as the negligence or gross negligence of - the 

person against whom recovery is sought . . ." 

(Emphasis added.) The statutory language is not 

the "negligence of any person against whom recovery 

is sought"; rather the language used was intended 

to mean "the person or persons" so as to include 

both single-defendant and multi-defendant cases. 

That construction is suggested by the text and is 

in full harmony with UCA 1953, S 68-3-12, which 

provide rules for the construction of Utah 

statutes. Subparagraph (6) states, "The singular 

number includes the plural and the plural the 

singular . . ." 

Wyoming and Idaho on the other hand have refused to 

interpret the word "person" as including the plural. See 

Board of Commissioners v. Ridenour (Wyo. 19811, 623 ~.2d 

1174; Odenwalt v. Zaring (Idaho 1980), 624 P.2d 383. 
The petitioners, however, contend that where the 

language of the statute is plain, unambiguous, direct and 

certain, the statute speaks for itself and there is nothing 

left for the court to construe. Keller v. Smith (1976), 170 

Mont. 399, 553 P.2d 1002. They further cite State ex rel. 

Swart v. Casne (1977), 172 Mont. 302, 564 P.2d 983, to the 

effect that the rules of statutory construction which apply 

to cases involving conflicting or ambiguous provisions of a 

statute have no application where the language of the statute 

is clear and ambiguous. Yet the respected authority of the 

Supreme Courts of Colorado and Utah construing an identical 

provision is persuasive authority. To these may be added the 

Supreme Court of Hawaii, holding similarly on an identical 

provision in Wong v. Hawaiian Scenic Tours, Ltd. (Hawaii 

1982), 642 P.2d 930; and of Arkansas, Walton v. Tull (Ark. 

1962), 356 S.W.2d 20. 

The Supreme Court of Wisconsin, the state from which it 

is contended that our § 27-1-702, MCA, was adopted 

(respondent disputes this point), determined by judicial 

enactment that the language of the statute required the 

application of the unit or individual comparison rule. 

Schwenn v. Loraine Hotel Company (Wis. 1961), 111 N.W.2d 495; 

Walker v. Kroger Grocery and Baking Company (1934), 252 N.W. 

721. Yet in 1978, in May v. Skelly Oil Company (1978), 264 

N.W.2d 574, the Wisconsin Court seemed dissatisfied with its 

own interpretation: 

This case is one of many cases which have come 

before this court involving multiple party 

tortfeasors. May urges the court to re-examine its 

interpretation of the comparative negligence 

statute. The majority of the court has become 

convinced that comparing the negligence of the 

individual plaintiff to that of each individual 

tortfeasor--rather than comparing the negligence of 

the individual plaintiff to that of the combined 

negligence of the several tortfeasors who have 
collectively contributed to plaintiff's 

injuries--leads to harsh and unfair results; the 

majority has further concluded that this rule of 

comparative negligence, a court-made doctrine, can 

be changed by court decision. However, in view of 

our holding that Indian Head is not negligent, the 

majority does not believe that the case at bar is 

the appropriate one in which to structure a change 

in the rule of comparative negligence in cases 

involving multiple defendants. 

Later, as the Hawaiian court noted in Wong, 642 P.2d at 

933 (fn 9), several members of the Wisconsin majority 

recanted, and the rule that "leads to harsh and unfair 

results" remains in effect. See Reiter v. Dyken (Wis. 1980), 

290 N.W.2d 510; Wisconsin Natural Gas Company v. Ford, Bacon 

and Davis Construction Corporation (Wis. 1980), 291 N.W.2d 

825. The Wisconsin Supreme Court decided that the change to 

"combined comparison" should be left to the legislature which 

over the years had tacitly assented to judicial 

interpretation of the comparative negligence statute. 

This Court has expressed the rule that when our 

legislature borrows a statute from another state it borrows 

the construction placed upon it by the courts of that other 

state. Dunham v. Southside National Bank (1976) , 169 Mont. 

466, 548 P.2d 1383. However, while this Court will consider 

the home court construction placed on the borrowed statute, 

such construction is not binding on this Court. State ex 

rel. Mankin v. Wilson (1977), 174 Mont. 195, 569 P.2d 922. 

In Wong, the Hawaii Supreme Court noted that the 

interpretation of a borrowed statute by the court of the 

statute's home state may be rejected when there is a conflict 

with the obvious meaning of the statute, or where foreign 

decisions are unsatisfactory in reasoning, or where the 

foreign interpretation is not in harmony with the spirit or 
policy of the laws of the adopting state. The Supreme Court 

of Utah, in Mountain Mobil Mix, Inc. v. Gifford, supra, also 

refused to follow the Wisconsin interpretation, citing 

fairness and the policy of the Utah legislature in adopting 

comparative negligence. 660 P.2d at 888, 889. 

We have already stated that one of the purposes of our 

legislature in adopting the comparative negligence statute 

was to abate the harshness of the common law rule on 

contributory negligence as preventing any recovery for a 

plaintiff, and apportioning responsibility in accordance with 

fault. 

Out of the Montana statutes, one may distill a statutory 

scheme and policy regarding the civil liability of negligent 

persons. First, everyone - is responsible for injury 

occasioned to another by his want of ordinary care in the 

management of his property or person. Section 27-1-701, MCA. 

This statutory language surely includes the 15% negligent 

State for "everyone" brooks no exception absent state 

immunity. Being "responsible" means being liable for damages 

(if the statutes allow) when one's negligence injures 

another. 

The responsibility of "everyone" negligent for injuries 

to another has an exception in S 27-1-701 'I. . . so far as 

the [injured person] has willfully or by want of ordinary 

care brought the injury upon himself." Here, the 45% 

negligent plaintiff's decedent must share the blame, but only 

"so far" as he was himself at fault. The plaintiff's 

proportion in this case cannot exceed 45% of the damages. 

Any interpretation of the comparative negligence statute 

which increases plaintiff's proportion beyond 45% offends S 

27-1-701. 

Second, the State in this case is, under the present 

status of the proceedings, responsible for 15% of any damages 
judgment the jury in this case might later find. Since the 

State's negligence constitutes 15% as a proximate or legal 

cause of plaintiff's injuries, it cannot complain on the 

ground of unfairness if it is required to pay damages to the 

proportionate extent of its fault. 

In the recent case of State ex rel. Deere & Company and 

Robert L. Campbell v. District Court (Decided December 19, 

19861, - P.2d , 43 St.Rep. 2270, we interpreted the 

clause "the person against whom recovery is sought," 

contained in S 27-1-702, as meaning those defendants who 

remain in the lawsuit, and not other possible tortfeasors who 

may have settled with the plaintiff before judgment was 

entered in the lawsuit. There are any number of other 

possible defendants who might be named in a lawsuit, but 

because of operation of law are immune from judgment, and 

thus not persons against whom recovery may be sought. Such 

possible defendants easily include government officials given 

immunity for their acts, and employers who are insulated by 

the exclusivity of the Workers' Compensation law. Section 

39-71-411, MCA. 

Petitioners have brought to our attention the dictum of 

this Court in Cordier v. Stetson-Ross (1979), 184 Mont. 502, 

520, 604 P.2d 86, 96, where we said: 

. . . in Montana, under section 58-607.1, R.C.M. 

1947, now 27-1-702, MCA (we have not specifically 

held this yet) it appears that the ten percent 

negligent defendant would not be liable for any 

amount to the plaintiff. 

Counsel, however, recognize that the statement was expressly 

dictum. We inserted the clause "we have not specifically 

held this yet" as a flag that this subject was open to 

further discussion. 

The question here has been long in coming to this Court 

considering that the comparative negligence statute in 
Montana was adopted in 1975. A great number of other states 

have passed upon the question. The latest is Elder v. Orluck 

(Pa. 1986), 515 A.2d 517. The court there engaged in an 

extensive discussion of the handling of this question by 

courts in the several states and itself reached the 

conclusion that it would support the combined negligence 

rule. Pennsylvania, however, has a statute somewhat 

different from ours, as do several others of the states that 

have reached the same conclusion. For that reason we have 

not extensively discussed those cases in this decision, 

although it may be said that because of statutes or judicial 

interpretation, the majority of states do adhere to the 

combined comparison of negligence rule. 

Considering all the factors, the rules on interpretation 

of statutes, the holdings of the many other courts, the 

policy of the state as we perceive it in comparative 

negligence cases, and the fairness concept which underlined 

the decision of the District Court, we conclude that Montana 

should join the majority of states that support the combined 

tortfeasors rule. We interpret S 27-1-702, MCA, as 

requiring, in cases of multiple defendants, against whom 

recovery is sought, that the negligence of the plaintiff is 

to be compared with the combined negligence of the concurrent 

tortfeasor defendants to determine if plaintiff may recover. 

For that reason, we decline to issue a writ of supervisory 

control as requested by petitioners which would modify or 

reverse the decision of the District Court on this question. 

Both sides in this case have raised questions relating 

to the effect of either individual comparison or combined 

comparison on the joint and several liability of concurrent 

tortfeasors. In either case such considerations are beside 

the point in this discussion. As the Pennsylvania Supreme 

Court said in Elder v. Orluck, 515 A.2d at 525, "any 
unfairness that results when a tortfeasor cannot be made to 

his proportionate share the damages product 

the joint and several liability doctrine. It does not result 

from applying the 'combined comparisonf rule." 

Since we determine to adhere to the combined comparison 

of negligence rule, this case must go back for further 

proceedings in the District Court on the issue of damages. 

Petitioners, however, object to this, contending that 

instructions given by the District Court in the first trial 

of this bifurcated case misled the jury. 

The District Court's charge to the jury on the subject 

of comparative negligence included these instructions: 

No. 11. Every person is responsible for injury to 

the person or property of another, caused by want 

of ordinary care or skill. When used in these 

instructions, negligence means want of such 

ordinary care or skill. Such want of ordinary care 

or skill exists when there is a failure to do that 

which a reasonable and prudent person would 

ordinarily have done under the existing 

circumstances of the situation, or doing what such 

person under the existing circumstances would not 

have done. 

No. 15. Negligence on the part of the Plaintiff 

does not bar his recovery unless his negligence was 

greater than the negligence of the Defendant from 

whom he seeks recovery. However, the total amount 

of damages the Plaintiff would otherwise be 

entitled to recover will be reduced by the Court in 

proportion to the amount of negligence attributable 

to the Plaintiff. 

No. 16. The laws of the State of Montana provide 

that contributory negligence shall not bar recovery 

in an action by any person or his legal 

representative to recover damages for negligence 

resulting in death or injury to the person or 

property, if such negligence was not greater than 

the negligence of the person against whom recovery 

is sought, but any damage allowed shall be 
diminished in proportion to the amount of 

negligence attributable to the person recovering. 

No. 17. You are instructed that the doctrine of 

"comparative negligence" is applicable to this 

case. You must first decide for each of the 

parties whether each was negligent and whether each 

of the parties' negligence, if any, was a legal 

cause of the accident. If you determine that a 

party was not negligent, or that his negligence was 

not a legal cause of the accident, you should enter 

zero percentage in the appropriate line next to 

that party's name on the verdict form. 

If any party was negligent and his negligence was a 

legal cause of the accident, you must determine the 

degree of his negligence and assess to him a 

percentage of negligence contributing as a legal 

cause to the accident and enter the percentage on 

the appropriate line next to that party's name on 

the verdict form. 

The petitioners contend that because the instructions 

refer to "the defendant" in the singular and not in the 

plural, that the jury was misinstructed if combined 

comparison of negligence is now applied. Therefore, they 

cI.aim, the question of the defendants1 negligence must be 

retried. 

The plaintiff responds that the use of the singular 

"defendant" in the instructions was the result of objections 

made at the time of settling instructions by the petitioners, 

and that the court instructed the jury in the manner it did 

reserving to the parties the right to argue post-verdict as 

to the legal effect of the comparative negligence statute. 

In examining this issue in the light of the proceedings 

before the District Court, it occurs to us that the 

instructions to the jury on the effect of comparative 

negligence were immaterial. This was a bifurcated case, and 

the only issue submitted to the jury was the duty of deciding 

the proportionate negligence, if any, of the parties. 
In State Bank of Townsend v. Maryann's, Inc. (Mont. 

1983), 664 P.2d 295, 301, 40 St.Rep. 637, Justice Weber 

emphasized the duty of a district court to instruct the jury 

as to how to use a special verdict. 

Court's instruction no. 17, which we have set out in 

full above, carefully and properly instructs the jury as to 

its use of the special verdict form. It was the duty of the 

jury to determine factual issues as instructed by the court, 

and not questions of law. The verdict form itself was 

adequate to enable the jury to determine the factual issues 

that were essential in this case. The question of damages 

was reserved for a later trial and was no business of this 

jury. 

It was suggested to us in oral argument in this case, 

that if the jury knew the effect of their findings in this 

bifurcated case, that is, that the combined comparison of 

negligence rule was going to be applied, that perhaps it 

might have altered the percentages so as to achieve a 

no-verdict result for the plaintiff. We cannot impugn the 

integrity of the jury that it indulged in that kind of 

manipulation. The single duty of the jury in this case was 

to determine the applicable percentages of negligence, if 

such negligence existed. We cannot order a new trial in this 

case upon the mere speculation that if the jury could 

foresee the precise effect of their factual determination, 

even though not called on to determine damages, their factual 

determination would be different from what they decided. 

111. 

For the reasons foregoing, we decline to issue a writ of 

supervisory control directed to the District Court to modify 

its determination as to the legal effect of § 27-1-702, MCA, 

or to order a new trial on negligence in this bifurcated 

case. We therefore deny the writ and remand this cause to 
the District Court for further proceedings in accordance with 

this Opinion. 

Justice 

We Concur: 

Chief Justice 

n 
Mr. Justice L. C. Gulbrandson specially concurring and 

dissenting. 

I concur with the adoption of the theory of combined 

negligence of concurrent tortfeasor defendants, but I do not 

agree with its application in this case where the jury was 

not instructed on its application. In my opinion, a new 

trial should be ordered so that a properly instructed jury 

can determine percentages of negligence, if any, of the 

parties and fix, if necessary, an appropria damage award. 

{;? &. 

Mr. Chief Justice J. A. Turnage: 

I concur with Mr. Justice Gulbrandson.