NO. 82-185 IN THE SUPREME COURT OF THE STATE OF MONTANA 1983

TIM A. ZAHRTE, Petitioner,

VS. STURM, RUGER & CO., INC., Respondent.

ORIGINAL PROCEEDING: Counsel of Record: For Petitioner: ~ilodragovich, Dale & Dye, Missoula, Montana M. J. Milodragovichargued, Missoula, Montana For Respondent: Poore, Roth, Robischon & Robinson, Butte, Montana Wildeman, Harrold, Allen & Dixon, Chicago, Illinois James Dorrargued, Chicago, Illinois For Amicus Curiae: CharlesA. Smith, Helena, Montana

Submitted: January 11, 1983 Decided: March 3, 1983 Filed: March 3, 1983Mr. Justice Frank B. Morrison,Jr. delivered the Opinion of the Court. Petitioner here is the appellant in 

### a federal appeal from a judgment entered by the United States District Court (D.Montana) and reported in Zahrtev. Sturm,Ruger & Company (1980), 498 F.Supp. 389. The appeal was briefed and argued before the United States Court of Appeals,Ninth Circuit,and petitioner was then ordered to submit certified questions from the Court of Appeals to this Court for determination. Petitioner presents multiple questions for resolution butwe find the firstquestion to be dispositive. The following excerpt is taken from the certification: "Because of uncertainty concerning the proper interpretation of Montana law,pursuant to Montana Supreme Court Rule 

### I we certify the following questions: 

### "(1) Does the defense of assumption of risk still exist as a complete bar to plaintiff's recovery in a products liability action in the State of Montana? "There is room for substantial difference of opinion as to the correct answer to this question. See,Brownv. North American Mfg. Co., 576 P.2d 711

(Mont. 1978); Kopischkev. FirstContinentalCorp., 610P.2d 668 (Mont. 1980); Zahrtev. Sturm,Ruger & Co., 498 F.Supp. 389 (D. Mont. 1980); Trust Corp. of Montana v. Piper Aircraft Corp., 506 F.Supp. 1093 (D. Mont. 1981); Ingram v. Dick-Char, Inc., No. 80-107-M (D. Mont. January 7,1982), 39 St.Rep. 96." The answer is "No". This opinion discussesand analyzes Brown v. North American Mfg. Co. (1978), 176 Mont. 98, 576 P.2d 711, and Kopischke v. First Continental Corp., (1980), Mont

# . , 610P.2d 668,37 St.Rep. 437, as cited by the Circuit Court of Appeals in the certification. The last three cases referred to are federal cases and need not be discussed. Since the certification this Court has modified Montana law regarding assumption of the risk in ~bernathy v. Eline Oil Field Services, Inc., (1982), Mont. 

## , 650 P.2d 772, 39 St.Rep. 1688. Therefore, our decision in that

### case must be integrated with an analysis of Brown and Kopischke. Brown v. North American Nfg. Co., supra, predated the enactment of comparative negligence in Montana. At the time Brown was tried both contributory negligence and assumption of risk were, in negligence actions, absolute bars to recovery. Plaintiff contended in Brown that contributory negligence could not be considered as a defense in a case premised upon strict liability. Brown conceded that assumption of the risk would operate as a completebar. The jury was instructed that plaintiff could be defeated if he

were found to have assumed the risk but the jury was instructed that any lack of due care on the part of the plaintiff was not to be considered. The majority of the court disapproved of the instruction because it injected elements of contributory negligence into a strict liability case but did not find the giving of the instruction to be prejudicial error. The court clearly pointed out in Brown that plaintiff was to be judged on the basis of plaintiff's subjectiveknowledge of the danger and notupon a "reasonable man" standard. The issue ofwhether assumption of riskwas a complete bar was not litigated. Following Brown the law in Montana was that assumption of risk was the only affirmative defense in a strict liabilitycase. In Kopischke 

### v. First Continental Corp. (1980), Mont. 

### , 610P.2d 668,37 St.Rep. 437,thisCourt first had an opportunity to address the defense of assumption of risk after the legislature adopted comparative negligence. Although this Court held that none of the elements of assumption of riskwere present inKopischke,we held that in the future, in Montana, assumption of risk conduct would be

### compared just as contributory negligence was compared under thenew statute. Since certification of the issue in this case, we decided Abernathy v. Eline Oil Field Services, Inc., (1982)

### ,

-- 

### Mont

# . , 650 P.2d 772, 39 

### St.Rep. 1688. InAbernathy

we abolished implied assumption of risk as a 

### defense to negligence actions but reserved decisionon the applicability of assumption of risk where the defensewas interposed in a strict liability action. Had we completely abolished assumption of risk as a defense in Abernathy there would have been no defenses remaining for strict liability cases. We therefore reserved judgment to a laterdate. Assumption of the risk involves application of a 

### subjective standard to theplaintiff's conduct. Contributory negligence, on the other hand, involves the application of a "reasonable man" standard which necessarily is objective. Although there is language in Kopischkev. First Continental Corp., supra, quoting from other jurisdictions, which would indicate that assumption of the risk is subsumed in contributory negligence,we feel that, by virtue of the two different standards involved,the conceptsare distinct. The thrust of Kopischke is to allow assumption of risk to he compared rather than have it operate as an absolutebar. We did not intend in Kopischke tomerge the two defenses. In Abernathy v. Eline Oil Field Services, Inc.

## , supra,
we maintained a 

### distinction between assumption of risk as a defense in negligence actions and assumption of risk as a defense in a 

### strict liability case. The common law defense of assumption of risk involved the defeat of a plaintiffwho voluntarily exposedhimself to a knowndanger. Plaintiffwas defeated even if such exposure was done reasonably. In Abernathy we resolved to discard this outmoded doctrine but

### reserved judgment with respect to strict liability actions for two reasons. First, the defense of assumption of risk in

a strict liability action is different from common law assumption of risk as applied to negligence actions. Secondly, we felt that a defense should be retained for strict liability actions and that assumption of risk may be the appropriate defense. Unlike the common lawdefense of assumption of risk,the defense as applied in a strict liability case involves unreasonable exposure to a knowndanger. Plaintiffmust have

a 

### subjectiveknowledge of the danger and then voluntarily and unreasonably expose himself to that danger before assumption of risk will become operative in a strict liabilty case. If those elements are found to exist the defense becomes operativeandmust be comparedwith the conductofdefendant. Themechanics of comparison are the same as comparison for contributory negligence. In summary, assumption of risk is an available defense in 

### a strict liability case. The defensemust establish that plaintiff voluntarily and unreasonably exposed himself to a known danger. If the defense is found to exist then plaintiff's conduct must be compared with that of defendant. The sameMontana lawwhich governs comparison of contributory negligence controlscomparison of assumption of risk.

We 

### concur:

Chief JusticeMr. JusticeL. C. Gulbrandson respectfullydissenting:

I respectfully dissent. The United States Court of Appeals for theNinth Circuit has requested this Court's answers to certified questions for application in the instant case, tried during May 1980, and in the

case of Shekel1 v. Sturm, Ruger & Company, Inc., in the United States District Court (D. Montana) 

### case no. D.C. CV-80-70-PGH, judgment entered June 10

## , 1981. Inmy view, the majority has used the certification process 

### to announce a change in the law, without guidance to the federal court as towhen thatchange occurred. InBrown v. North American Mfg. Co. (1978), 176Mont. 98, 576 P.2d 711, 

### a strict liabilitycase, thisCourt reiterated assumptionof risk as a bar to recoveryby settingout2 Restatement of Torts 2d, §402A, Comment (n) and stating: "We find the above standard of conduct of the plaintiff as related 

### to the injury must be considered under the Montana case 

### law on the assumption of risk when applied to strict liability cases." 576 P.2d at 719. Under Brown, the answer to the firstcertified question 

### is "yes". In Kopischke v. First Continental Corp. (1980)

## , -- Mont

# .

--

## ,610 P.2d 668, 37 St.Rep. 437, not a strict liabilitycase, thisCourt stated: "As stated 

### earlier, the elements of the doctrine of assumption of the risk are not present in this case. However, when this situation does 

### arise, we 

### will follow the modern trend and 

### treat assumption of the risk likeany otherform of contributorynegligence and apportion it under the comparative negligence statute." 610 P.2d at687. In Abernathy v. Eline OilField Services, Inc. (1982) -- Mont. 

### , 650 P.2d 772, 39 St.Rep. 1688, not a strict liability 

### case, this Court held that the doctrine of implied assumption of risk 

### is no longer applicable inMontana and further stated: "In thiscase, 

### we are not ruling upon the applicationof the doctrine of assumption of risk inproduct liability cases." 650 P.2d at776.As of that date, the answer to the firstcertified question would appear to remain "yes

### "

# . InAbernathy, this Court, in essence, merged the defense of assumption of risk innegligence cases into the general scheme of comparative negligence, following the reasoning that assumption of risk is a variant of contributory negligence, citing Li v. YellowCab Co. of California (1975), 13Cal.3d 804, 119Cal.Rptr. 858, 532 P.2d 1226, a case previously cited with approval in Kopischke. 

### ----The California Supreme Court inDaly v. General 

### Motors Corp. (1978) 144 Cal.Rptr. 380, 575 P.2d 1162, used the - Li case 

### to

ex tend the principles of comparative negligence to 

### actions founded in 

### strict products liability, thereby joining the majority of 

### stateswhich have considered the issue. Those states have recognized the semantic incongruity of applying negligence concepts to cases in

### strict liability, but have noted that strict liability does not mean absolute liability, and thatby applying comparative negligence or fault principles, the bar to recovery under the assumption of riskdefense 

### is removed. See cases cited inTrustCorp. of Montana v. PiperAircraftCorp. (1981D.Mont.) 

## , 506 F.Supp. 1093, footnote 3. The signers of the majority opinion, by refusing 

### to apply general comparative principles in strict liability cases, and taking a unique position will surprise those federal judges who have had occasion 

### to interpretMontana law

### to thisdate. Here, the majority, in effect, has refused to extend comparative principles except inthe limited 

### area where a plaintiff has voluntarily and unreasonably exposed himself to a known danger, a departure from the rule enunciated in Brown. The result is that comparative principles will not be applied where the plaintiff voluntarily and --- reasonably exposes himself to a known danger orwhere theplaintiff has engaged innegligent conduct.I would retain the defense of assumptionof risk as set forth in 2 Restatement of Torts 2d S402A, Comment (n)until pure comparative principles are applied in strict liabil 

### cases by this Courtor theMontana legislature.