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. Milodragovich argued, Missoula, Montana 

For Respondent: 

Poore, Roth, Robischon & Robinson, Butte, Montana 

Wildeman, Harrold, Allen & Dixon, Chicago, Illinois 

James Dorr argued, Chicago, Illinois 

For Amicus Curiae: 

Charles A. Smith, Helena, Montana 

Submitted: January 11, 1983 

Decided: March 3, 1983 

Filed: March 3, 1983 
Mr. 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 Zahrte v. 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 

but we find the first question 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, Brown v. North American Mfg. Co., 576 P.2d 711 

(Mont. 1978); Kopischke v. First Continental Corp., 

610 P.2d 668 (Mont. 1980); Zahrte v. 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 discusses and analyzes 

Brown v. North American Mfg. Co. (1978), 176 Mont. 98, 576 

P.2d 711, and Kopischke v. First Continental Corp., (1980), 

Mont . , 610 P.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 complete bar. 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 

subjective knowledge of the danger and not upon a "reasonable 

man" standard. The issue of whether assumption of risk was 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 liability case. 

In Kopischke v. First Continental Corp. (1980), 

Mont. , 610 P.2d 668, 37 St.Rep. 437, this Court 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 risk were present in Kopischke, we held that in 

the future, in Montana, assumption of risk conduct would be 
compared just as contributory negligence was compared under 

the new 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. In Abernathy 

we abolished implied assumption of risk as a defense to 

negligence actions but reserved decision on the applicability 

of assumption of risk where the defense was 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 later date. 

Assumption of the risk involves application of a 

subjective standard to the plaintiff'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 Kopischke v. 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 concepts are distinct. The 

thrust of Kopischke is to allow assumption of risk to he 

compared rather than have it operate as an absolute bar. We 

did not intend in Kopischke to merge 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 plaintiff who 

voluntarily exposed himself to a known danger. Plaintiff was 

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 law defense of assumption of risk, the 

defense as applied in a strict liability case involves 

unreasonable exposure to a known danger. 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 liabilty case. If 

those elements are found to exist the defense becomes 

operative and must be compared with the conduct of defendant. 

The mechanics 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 defense must 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 same Montana law which governs comparison of contributory 

negligence controls comparison of assumption of risk. 

We concur: 

Chief Justice 

Mr. Justice L. C. Gulbrandson respectfully dissenting: 

I respectfully dissent. 

The United States Court of Appeals for the Ninth 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. 

In my view, the majority has used the certification process 

to announce a change in the law, without guidance to the federal 

court as to when that change occurred. 

In Brown v. North American Mfg. Co. (1978), 176 Mont. 98, 576 

P.2d 711, a strict liability case, this Court reiterated assumption of risk as a bar to recovery by setting out 2 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 first certified question is 

"yes". 

In Kopischke v. First Continental Corp. (1980) , -- Mont . 

-- , 610 P.2d 668, 37 St.Rep. 437, not a strict liability case, 

this Court 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 

like any other form of contributory negligence 

and apportion it under the comparative negligence statute." 610 P.2d at 687. 

In Abernathy v. Eline Oil Field 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 in Montana and further stated: "In 

this case, we are not ruling upon the application of the doctrine 

of assumption of risk in product liability cases." 650 P.2d at 
776. 

As of that date, the answer to the first certified question 

would appear to remain "yes " . 

In Abernathy, this Court, in essence, merged the defense of 

assumption of risk in negligence cases into the general scheme of 

comparative negligence, following the reasoning that assumption 

of risk is a variant of contributory negligence, citing Li v. 

Yellow Cab Co. of California (1975), 13 Cal.3d 804, 119 Cal.Rptr. 

858, 532 P.2d 1226, a case previously cited with approval in 

Kopischke. ---- 

The California Supreme Court in Daly 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 act ions 

founded in strict products liability, thereby joining the 

majority of states which 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 that by applying 

comparative negligence or fault principles, the bar to recovery 

under the assumption of risk defense is removed. See cases cited 

in Trust Corp. of Montana v. Piper Aircraft Corp. (1981 D.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 interpret Montana law to this date. 

Here, the majority, in effect, has refused to extend comparative principles except in the 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 or where the plaintiff has engaged in negligent conduct. 
I would retain the defense of assumption of 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 

Court or the Montana legislature.