No. 92-568 

IN THE SUP- COURT OF THE STATE OF MONTANA 

HART-ALBIN COMPANY and BROADWAY 

REALTY CORPORATION, 

Plaintiffs, Appellants, 

and Cross-Respondents, 

McLEES INCORPORATED, ACE ELECTRIC, 

INC., LEVITON MANUFACTURING CO., 

INC., RTB DEVELOPMENT, INC., and 

JOHN DOE I through JOHN DOE IV, 

Defendants, Respondents, 

and Cross-Appellants. 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, 

The Honorable Russell K. Fillner, Judge presiding. 

COUNSEL OF RECORD: 

For Appellants: 

L. Randall Bishop (argued), Jarussi & Bishop, 

Billings, Montana 

Thomas S. Felker, Perry, Hiscock, Pierson & 

Ryder, Inc., P.S., Seattle, Washington 

For Respondents: 

L. D. Nybo (argued), Conklin, Nybo, Leveque & 

Murphy, P.C., Great Falls, Montana 

Filed: 

Submitted: September 16, 1993 

Decided: February 17, 1994 

" Clerk 
chief Justice J. A. Turnage delivered the Opinion of the Court. 

Plaintiffs sued defendant Leviton Manufacturing Co., Inc., in 

strict liability, claiming an electrical extension cord connector 

manufactured by Leviton caused a fire in the Hart-Albin store in 

downtown Billings, Montana. A jury in the District Court for the 

Thirteenth Judicial District, Yellowstone County, apportioned fault 

40 percent to Leviton and 60 percent to plaintiffs, and the court 

entered judgment for Leviton. We reverse and remand for retrial on 

limited issues relating to damages. 

The dispositive issues are: 

1, Did the District Court err in instructing the jury on 

Leviton's misuse defense? 

2. Did the court err in prohibiting the plaintiffs from using 

videotaped depositions of Leviton's designated corporatewitnesses? 

3. Did the court err in directing a verdict against the 

plaintiffs on their punitive damage claim? 

4. Did the court err in allowing the testimony of the 

plaintiffs1 human factors expert? 

In December of 1988, an early-morning fire caused extensive 

smoke damage in the flagship Hart-Albin department store located in 

downtown Billings, Montana. The store was closed for two months 

before reopening in February 1989. Just over a year later, HartAlbin Company went out of business. Plaintiffs Broadway Realty 

Corporation, owner of the building in which the department store 
was located, and Hart-Albin Company (hereafter referred to collectively as Hart-Albin) brought this action seeking recovery for 

damages, including loss of the business. 

The fire started in a Christmas display suspended in the 

atrium of the store. Leviton, the only defendant remaining in the 

case at the time of trial, was the manufacturer of an electrical 

extension cord connector used in the Christmas display. During 

trial, Hart-Albin presented evidence that Leviton's Catalog No. 67 

extension cord connector overheated and started the fire. 

The Catalog No. 67 cord connector was sold unattached to any 

electrical cord. In order to fasten an electrical cord to the 

screw terminals inside the connector, the user had to open the 

clamshell casing of the connector. Then, when the cord connector 

was reassembled, brass contact blades inside the clamshell served 

as the electrical contact for the "malew end of a second electrical 

cord plugged into the cord connector. 

In this case, when the clamshell casing was reassembled, one 

of the brass contact blades, which were curved, was put in 

backwards. This prevented a solid electrical contact between the 

contact blades and the '*malew end of the second electrical cord, 

which was plugged into the cord connector. 

Hart-Albin's theory was that the cord connector was a 

defective and unreasonably dangerous product because it was sold 

without assembly instructions and its misassembly caused it to 
overheat. Leviton's defense was that no assembly instructions were 

needed with this particular type of cord connector, because of its 

design. Leviton also argued that the fire was a result of faulty 

construction of the Christmas display, including wiring code 

violations and use of flammable materials in violation of fire 

code. 

After an eight-day trial, the jury answered a set of special 

interrogatories. It found that the fire was started by the Leviton 

cord connector, that the connector was unreasonably dangerous due 

to a failure to instruct, and that the defective connector was a 

proximate cause of Hart-Albin's damages. The jury also found that 

Hart-Albin misused the cord connector and that the misuse was a 

proximate cause of damages. It apportioned fault as stated above. 

Applying the principles of comparative negligence set forth at 

ti 27-1-702, MCA, the District Court entered judgment for Leviton. 

Did the court err in instructing the jury on Leviton's misuse 

def ense? 

Section 27-1-719, MCA, codifies strict liability law in 

Montana. It provides, at subsection (5): 

Except as provided in this subsection, contributory 

negligence is not a defense to the liability of a seller, 

based on strict liability in tort, for personal injury or 

property damage caused by a defectively manufactured or 

defectively designed product. A seller named as a 

defendant in an action based on strict liability in tort 

for damages to person or property caused by a defectively 
designed or defectively manufactured product may assert 

the following affirmative defenses against the user or 

consumer, the legal representative of the user or 

consumer, or any person claiming damages by reason of 

injury to the user or consumer: 

(a) The user or consumer of the product discovered 

the defect or the defect was open and obvious and the 

user or consumer unreasonably made use of the product and 

was injured by it. 

(b) The product was unreasonably misused by the user 

or consumer and such misuse caused or contributed to the 

injury. 

This statute limits defenses in strict liability actions to 

assumption of the risk under subsection (5) (a) and, as in this 

case, unreasonable misuse under subsection (5)(b). 

Leviton contrasts cases concerning failure to warn or instruct 

with cases concerning manufacturing or design defects. It claims 

that a case concerning failure to warn or instruct does not clearly 

fall within the law of strict liability, but is indistinguishable 

from an action for negligence. On this basis, it asserts that the 

range of defenses is broadened. 

Hart-Albin argues that misuse refers to use of a product other 

than for the intended purpose. It points out that, in this case, 

the cord connector was used precisely as intended: as a connector 

on an extension cord. It cites, in contrast, a classic example of 

misuse: a rotary lawnmower misused as a hedge trimmer. Hart-Albin 

argues that neither misassembly of the cord connector nor its use 
in a flammable display constitutes misuse, because neither constitutes use of the product other than for the purpose intended. 

Neither of these arguments is dispositive. This case was pled 

and tried under a theory of strict liability. Therefore, the 

available defenses are limited in Montana as provided in 5 27-1- 

719, MCA. And, although this Court has not previously ruled on the 

definition of the term "unreasonably misusedw as found in that 

statute, we now hold that the generally-accepted definition of 

misuse in relation to strict liability, as discussed below, 

applies. 

Montana's federal district court has stated, in defining the 

defense of misuse, that a manufacturer is not responsible for 

injuries resulting from abnormal or unintended use of a product if 

such use was not reasonably foreseeable. Trust Corp. of Mont. v. 

Piper Aircraft Corp. (Mont. 1981), 506 F.Supp. 1093, 1097, citing 

1 Frumer and Friedman, Products Liability, 5 15.01. Generally, the 

defense of misuse refers to a use not foreseen by the manufacturer 

of the product. See Annotation, Products Liability: Product 

Misuse Defense, 65 A.L.R.4th 263 (1988). "Most cases have 

indicated that the key issue involved in a determination whether a 

product has been misused is foreseeability." American Law of 

Products Liability 3d, Vol. 3, 5 42:8 (T. Travers ed. 1987). The 

definition of misuse, then, incorporates the concept of abnormal or 

unintended use, but emphasizes unforeseeability. The defense of 
misuse is not available if the misuse of the product was reasonably 

foreseeable. We adopt the definition of misuse set forth in Trust 

Corp. of Mont., and now apply it to the facts of this case. 

In answer to a written interrogatory concerning foreseeable 

misuse or misassembly of the Catalog No. 67 cord connector, Leviton 

stated that it "agrees that this product can be abused or misassembled." At trial, Hart-Albin elicited an admission from Leviton's 

corporate representative that he was aware that it was "possiblen 

that the Catalog No. 67 cord connector could be misassembled as it 

was in this case. 

We conclude Leviton admitted it was foreseeable that the 

Catalog No. 67 cord connector could be misused through misassembly. 

That admission on the part of Leviton, in light of the definition 

of misuse set forth above, leads us to conclude that the District 

Court erred in instructing the jury on the misuse defense as it 

related to misassembly of the cord connector. 

Leviton maintains that Hart-Albin did not preserve an 

objection to the giving of the jury instruction concerning misuse 

but only to the burden of proof described therein. The record 

supports Hart-Albinss response that it made known throughout trial 

its position that, because misassembly of the cord connector was 

foreseeable, it did not constitute misuse. For example, at the 

close of Hart-Albinss case, in response to Leviton's motion for 

directed verdict, Hart-Albin's attorney argued: 
Leviton has admitted that they can foresee misuse and 

misassembly of this product, and that admission, foreseeable misassembly, takes the concept of misuse as understood in the law. Completely out of the picture. [Sic] 

We conclude Hart-Albin preserved its objection to a jury instruction concerning misuse through misassembly of the cora connector. 

Misassembly was only one of the misuse theories presented by 

Leviton. The other was use of the cord connector in a flammable 

Christmas display. To the extent that this defense incorporated 

the idea that the cord connector was misassembled, the defense was 

prohibited because of the foreseeability of misassembly, as 

discussed above. However, Leviton also presented expert testimony 

that the fire was caused by sparks resulting from power cord abuse 

unrelated to the cord connector. This defense theory was clearly 

separate from the misassembly defense. 

The jury did not accept this defense theory. It answered 

"yesm to the question, "Was the fire started by the Leviton 

connector?" If the jury had found that the fire was caused by 

sparks resulting from power cord abuse not: related to the cord 

connector, there would be no explanation for this finding, or for 

the finding that Leviton was partially responsible for damages. 

Therefore, we conclude it is not necessary to retry the issue of 

whether the fire was caused by factors other than the cord connector. 
In sum, we hold that the court erred in instructing the jury 

on Leviton's defense that Hart-Albin misused the cord connector 

through misassembly. Because the jury found that the fire was 

started by the Leviton connector, it is unnecessary to retry the 

issue of whether the fire started due to causes unrelated to 

misassembly of the cord connector. 

I I 

Did the court err in prohibiting Hart-Albin from using 

videotaped depositions of Leviton's designated corporate witnesses? 

The two witnesses in the videotaped depositions were present 

in the courtroom during the trial as Leviton's representatives. 

The District Court disallowed use of their deposition testimony on 

that basis. Hart-Albin argues that, despite the presence of the 

two witnesses at trial, their videotaped deposition testimony was 

admissible under Rule 32(a)(2), M.R.Civ.P., "for any purposem 

because they were "managing agentsw of Leviton, 

We agree. "Managing agentw has been generously construed 

under both Rule 32, M.R.Civ.P., and the identical federal rule of 

civil procedure. Whether one is considered a managing agent 

depends on several factors, including the individual's right of 

general control, authority, and judgment within his department: 

whether the interests of the individual are identified to be those 

of the employer; and whether any person of higher authority 

possesses knowledge about the matters at issue. Clark Bros. 

9 
Contractors v. State (1985), 218 Mont. 490, 493, 710 P.2d 41, 43; 

Wright and Miller, Federal Practice and Procedure, 5 2103 (1970). 

The two witnesses in the videotaped depositions were Steve 

Campolo and Dennis Dandeneau. Campolo worked at Leviton's 

corporate headquarters as the head of the department responsible 

for the testing and evaluation of all products manufactured by 

Leviton and for getting those products to Underwriters Laboratory 

(UL) for testing and evaluation. He was designated by Leviton 

during discovery as the person within the company most knowledgeable regarding the Catalog No. 67 cord connector and UL approvals 

of that product. 

Dandeneau had been employed by Leviton for twenty years and 

was the manager of Leviton's quality control department in Rhode 

Island, where the Catalog No. 67 cord connector was manufactured. 

In the pretrial order, Leviton did not list as a potential witness 

either of Dandeneauvs supervisors in the Leviton corporate 

structure. Dandeneau and Campolo were the only Leviton employees 

who testified on Leviton's behalf at trial. They testified 

concerning testing, safety, and UL approval of the Catalog No. 67 

cord connector. We hold that Campolo and Dandeneau were "managing 

agentsw for purposes of Rule 32(a)(2), M.R.Civ.P. 

Leviton argues that Hart-Albin had full opportunity to impeach 

the witnesses at trial using their depositions. However, "[tlhere 

is no provision in Rule 32(a)(2) . . . which requires a finding of 
unavailability of the witness or that notice was given of the 

intended use of a deposition at trial." Clark Bros., 710 P.2d at 

43. The analysis under the federal rule has been similar: 

[Rule 32(a)] must be liberally construed. The trial 

court has discretion to exclude parts of the deposition 

that are unnecessarily repetitious in relation to the 

testimony of the party on the stand, but it may not 

refuse to allow the deposition to be used merely because 

the party is available to testify in person. 

Wright and Killer, Federal Practice and Procedure, 5 2145 (1970). 

The purpose, as stated by Hart-Albin, for use of the videotaped deposition testimony at trial was to allow the jury to 

observe frank and unrehearsed answers to questions about Leviton's 

knowledge of possible problems with its Catalog No. 67 cord 

connector. We hold that the District Court erred in denying HartAlbin's request to use the videotaped depositions of Campolo and 

Dandeneau at trial based on Rule 32(a)(2), M.R.Civ.P. 

I11 

Did the court err in directing a verdict against Hart-Albin on 

its punitive damage claim? 

Hart-Albin asserts that Leviton's actual malice was demonstrated by the testimony of its own witness, Campolo, that it 

marketed the Catalog No. 67 cord connector without assembly 

instructions despite full knowledge that misassembly of the cord 

connector could result in fire, electrical shock, or death by 

electrocution. Hart-Albin further asserts that clear and convinc- 
ing evidence supported its claim that Leviton committed actual 

fraud in placing a UL safety mark on the inside surface of the 

Catalog No. 67 cord connector and in failing to properly identify 

the type of wire to be used with the product. 

In light of our ruling that the deposition testimony of 

Campolo and Dandeneau was admissible into evidence under Rule 

32 (a] (2) , M,R. Civ. P. , the evidence supporting Hart-Albin' s case may 

be different on remand. Therefore, we conclude that the issue of 

punitive damages must be reconsidered on remand. The District 

Court is instructed to determine on retrial whether Hart-Albin has 

presented a sufficient evidentiary basis supporting the claims of 

fraud or malice to allow the jury to consider the question of 

punitive damages. 

IV 

Did the court err in allowing the testimony of Hart-Albinls 

human factors expert? 

This issue is raised by Leviton on cross-appeal. Dr. Dorris, 

the human factors expert, testified that human factors is the field 

of studies that looks at human capabilities and limitations and 

tries to design jobs, workplaces, and products so that human beings 

can use them comfortably, efficiently, productively, and safely. 

He testified that he holds a Ph.D. in industrial engineering and is 

employed in the field of product safety warnings and instructions. 
He further testified that, in his opinion, warnings or instructions 

should have been provided with the Catalog No. 67 cord connector. 

Leviton contends that Dorris is a "junk scientistsg whose 

opinion misled the jury. Leviton states Dorrisls testimony should 

have been rejected because he was testifying as to techniques not 

"generally acceptedw as reliable in the relevant scientific 

community, citing Frye v. United States (D.C, Cir, 1923)' 293 F. 

1013. 

In its recent opinion in Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993), - U.S. -, 113 S.Ct. 2786, 125 L.Ed.2d 469, 

the United States Supreme Court rejected the "general acceptances1 

standard for admission of expert testimony. It affirmed the more 

expansive test embodied in Rule 702, F.R.Evid., of whether the 

expert is proposing to testify to (1) scientific knowledge that (2) 

will assist the trier of fact to understand or determine a fact in 

issue, stating that this is a flexible inquiry. Daubert, - U,S, 

at -i 113 S.Ct. at 2796-97. 

Construing Montana law, this Court has stated: 

[Tlhe determination of the qualification of a skilled or 

expert witness is a matter largely within the discretion 

of the trial judge and, in the absence of a showing of 

abuse, ordinarily will not be disturbed. 

Goodnough v. State (1982), 199 Mont. 9, 18, 647 P.2d 364, 369. 

After reviewing the record, we conclude it supports the determination that Dorris testified regarding scientific knowledge that 
would assist the jury in understanding or determining a fact in 

issue. We hold that the District Court did not abuse its discretion in allowing the testimony of Dorris. 

CONCLUSION 

Because no error has been shown in the jury's findings that 

Leviton's defective cord connector started the fire and was a 

proximate cause of Hart-Albin's damages, that part of the verdict 

is upheld. The court erred in instructing the jury on the defense 

of misuse through misassembly, because such a defense was precluded 

by Leviton's admission of foreseeability. Therefore, application 

of principles of comparative negligence relieving Leviton of 

liability was error. We remand this case for retrial on the issue 

of damages, including redetermination of whether the jury should be 

allowed to consider punitive damages, based on the evidence 

presented. Because the issues on retrial will be limited, it is 

not necessary that we consider issues raised by Hart-Albin other 

than those herein discussed. 

Remanded for further proceedings consistent with this Opinion. 
We concur: 

Justices 
Justice Fred J. Weber specially concurs and dissents as follows: 

I dissent from the majority opinion on Issue I. I concur in 

the dissent of Justice Karla M. Gray on Issues I1 and 111. I 

concur in the majority opinion on Issue IV 

Issue I asks if the District Court erred in i.nstructing the 

jury on Leviton's misuse defense. As pointed out by the majority, 

g 27-1-719(5) (b), MCA, provides that Leviton's defense in this 

strict liability case depends upon whether or not the product was 

"unreasonably misused" by Hart-Albin. The majority points out that 

this Court has not previously ruled on the definition of 

"unreasonable misuse:" and then holds that the generally accepted 

definition of misuse in relation to strict liability applies. The 

majority then makes the following statement: 

Montana's federal district court has stated, in defining 

the defense of misuse, that a manufacturer is not 

responsible for injuries resulting from abnormal or 

unintended use of a product if such use was not 

reasonably foreseeable. Trust Corp. of Mont. v. Piper 

Aircraft Corp. (Mont. 1981), 506 F.Supp. 1093, 1097, 

citing 1 Frumer and Friedman, Products Liability 5 15.01. . . . [Emphasis supplied.] 

The majority states that it adopts the foregoing Trust CorD. of 

Mont. definition of misuse. It further states that the defense of 

misuse is not available if the misuse of the product was 

"reasonably foreseeable." 

In analyzing the evidence, the majority points out that 

Leviton's interrogatory answer stated that it "agrees that this 

product can be abused or misassembled." In addition, the Leviton 

representative stated that he was aware that it was l'possible" that 
the cord connector could be misassembled. From that evidence, the 

majority concludes that Leviton admitted it was foreseeable that 

the cord connector could be misassembled and that such admission by 

Leviton eliminates its argument on misuse. 

Leviton1s admissions that it was "possiblen that the cord 

connector could be misassembled do not meet the test of Trust Corn. 

of Mont. Under that test the manufacturer is not responsible if 

such use was not reasonably foreseeable. The majority has 

disregarded the aspect of reasonableness. It has concluded that 

mere foreseeability is the same as reasonable foreseeability. 

Neither of the admissions by Leviton establish that it was 

reasonably foreseeable that the cord connector would be 

misassembled. Leviton's admissions are perfectly consistent with 

its contention--while it is possible to misassemble, such 

misassembly could only occur upon unreasonable misuse. The 

majority opinion does not consider whether or not the use on the 

part of Hart-Albin could be classed as reasonably foreseeable. The 

effect of the majority opinion is to impose strict liability on 

Leviton without giving to the trier of fact, a jury in this 

instance, the obligation to determine whether or not the misuse was 

unreasonable and whether or not the misuse was reasonably 

foreseeable. I conclude this effectively eliminates Leviton's 

statutory right under g 27-1-719, MCA, to prove that Hart-Albin 

unreasonably misused the cord connector. 

I dissent from the conclusion on Issue I by the majority 

opinion which holds that the court erred in instructing the jury on 
Leviton's defense that Hart-Albin misused the cord connector 

through misassembly. I would therefore grant a retrial on Issue I. 
Justice Karla M. Gray, concurring in part and dissenting in part. 

I concur in the Court's opinion on issues one and four. I 

dissent from the opinion on issue two regarding the use of certain 

depositions and, because the Court's resolution of issue three is 

premised on the resolution of issue two, I dissent on that issue as 

well. 

Rule 32 (a) of the Montana Rules of Civil Procedure allows any 

part or all of a deposition to be used against a party for any 

purpose if certain enumerated conditions are met. In pertinent 

part, the rule authorizes the use of depositions for any purpose if 

the deponent is designated under Rule 30(b) (6) or 31(a), 

M.R.Civ.P., to testify on behalf of a corporation. Rule 32(a)(2), 

M.R.Civ.P. That basis for allowing the use of the depositions at 

issue here is neither asserted by Hart-Albin nor relied on by the 

Court. It is not applicable on the record before us. 

Rule 32 (a) (2), M.R.Civ.P., also allows such use of depositions 

if the deponent is "an officer, director, or managing agent" of the 

corporation. The Court holds that Stephen Campolo and Dennis 

Dandeneau were managing agents of Leviton under this Rule and, 

therefore, that the District Court erred in denying Hart-Albin's 

requested use of their depositions. I disagree. 

It is my view that the Court misapplies or, indeed, fails to 

apply the Clark Bros. factors to these individuals. The applicable 

factors are the individual's right to general control, authority, 
and judgment within his department; whether the interests of the 

individual are identified to be those of the employer; and whether 

any person of higher authority possesses knowledge about the 

matters at issue. Clark Bros., 710 P.2d at 43. I will apply the 

factors to Campolo and Dandeneau separately. 

The burden of meeting the Clark Bros. factors is on the party 

seeking use of the depositions under Rule 32(a) (21, M.R.Civ.P. 

While the record reflects that Campolo was the director of 

Leviton's corporate testing laboratory and agency approval 

department, the record does not establish that that position at 

Leviton gives Campolo the right to general control, authority and 

judgment within the department. Thus, the first factor is not met 

here. Nor does the record support the Court's statement that 

Campolo was designated as the person within Leviton most 

knowledgeable with regard to the cord connector at issue and UL 

approvals of the connector. Indeed, the "discovery" to which the 

Court refers is not part of the transmitted record on appeal. 

Moreover, Hart-Albinls only statement in this regard is that the 

transcript supports a designation by Leviton that Campolo was the 

most knowledgeable person. However, the transcript reference to 

Campolo's testimony reflects only the following: 

Q. You have been designated by Leviton Manufacturing 

Company to come here and testify at this trial, have you 

not? 

A. Yes, sir. 

Q. In fact, when I went back to New York to the offices 

of Leviton, you were designated there as the person that 

I should depose at that time and find out certain facts 

about this particular product, catalog 67 cord connector, 
weren't you? 

A. That was the outcome, yes. 

Nothing therein supports a designation by Leviton of the type made 

by the Court. Thus, the third factor is not met here. 

I have even greater concerns regarding the Court's conclusion 

that Dandeneau was a managing agent of Leviton. A careful reading 

of the Court's opinion makes it clear that Dandeneau did not meet 

even the first Clark Bros. factor. He was not the supervisor of 

Leviton's quality control department in Rhode Island. He was a 

manager in that department and he had a department supervisor. 

There also was a Leviton vice-president of quality control. Thus, 

the record does not establish that Dandeneau had the right to 

general control, authority and judgment within his department. In 

addition, no showing was made that these persons of higher 

authority in Dandeneau's chain of command did not possess knowledge 

of the matters at issue pursuant to the third factor. Finally, the 

Court finds some relevance in the fact that Campolo and Dandeneau 

were the only Leviton employee witnesses at trial. I submit that 

this consideration is totally irrelevant under Rule 32(a), 

M.R.Civ.P., and Clark Bros. in determining who is, and who is not, 

a "managing agent. I' 

The effect of the Court's decision is to render every 

corporate employee at any managerial level who is identified as a 

witness or as having knowledge of matters at issue a "managing 

agent." Such a result is at odds with the requirements of 

Bros. More importantly, it voids the important limitation on the 
use of depositions "for any purpose" which is set forth in Rule 

32(a), M.R.Civ.P. I would affirm the District Court on this issue. 
Justice Terry N. ~rieweiler specially concurring in part and 

dissenting in part. 

I concur with the majority's holding under Issues I, 11, and 

IV. 

With regard to Issue I, I would simply add that defendants1 

product was found to be defective because the manufacturer failed 

to instruct the purchaser or user of that product on how to 

assemble it. The jury found that that defect caused misassembly of 

the product, and that misassembly caused the fire in plaintiffs' 

place of business. The misassembly, which resulted from the 

manufacturer's failure to instruct, cannot, as a matter of law, be 

misuse. To hold otherwise would be to hold that the defect created 

by the manufacturer can cause an affirmative defense to the 

manufacturer's own conduct or omission. Such a result would make 

no sense under the traditional principles of product liability law. 

I would also add that placement of the cord connector near a 

flammable object cannot, as a matter of law, constitute misuse. So 

long as the cord connector was being used for its intended purpose, 

to connect electrical cords, it was not being misused as that term 

is defined in product liability law. Its misplacement may have 

been negligent. However, contributory negligence was not a defense 

to plaintiffs1 claim in this case pursuant to § 27-1-919(5), MCA. 

Under Issue 111, I agree with the majority's reversal of the 

District Court's directed verdict in favor of defendants. However, 

I conclude, based on the deposition testimony which this Court has 

now held admissible, that plaintiffs have presented sufficient 
evidence to raise a factual issue regarding their entitlement to 

punitive damages under F, 27-1-221(1), MCA. Pursuant to that 

statute, punitive damages may be awarded where a defendant is aware 

of facts which create a high probability of injury to a plaintiff 

and deliberately proceeds to act in conscious or intentional 

disregard of the potential for injury. Based upon the deposition 

testimony of Steve Campolo, which this Court has now held was 

admissible, it is clear that Leviton knew that warnings, wiring 

diagrams, and assembly instructions were necessary for its Catalog 

No. 67 cord connector, but that it failed to provide them. It is 

also apparent that Leviton knew that if the cord connector was 

misassembled, the exact type of damage can occur which occurred in 

this case. In spite of this knowledge, Leviton not only failed to 

provide the necessary instructions or diagrams, but continued to 

market the cord connector with an Underwriters Laboratory 

designation which it had been instructed by that organization to 

remove. 

The decision whether or not a factual issue has been raised 

regarding punitive damages will have to be based on the testimony 

that this Court has now held to be admissible. That testimony will 

not change from the time that this case is shipped from our clerk's 

office back to the District Court. Therefore, the District Court 

is in no better position to rule on this issue than we are. 

Furthermore, this issue is properly before this Court based on the 

issues raised by the parties on appeal in this case. 
Therefore, while I concur in the majority's decision to 

reverse the District Court's directed verdict on the issue of 

punitive damages, I dissent from that part of the majority opinion 

which concludes that whether or not a factual issue regarding 

punitive damages has been raised must necessarily be decided upon 

remand by the District Court. 

For these reasons, and with these qualifications, I concur 

with part of the majority opinion, and dissent from part of that 

opinion. 
February 17, 1994 

CERTIFICATE OF SERVICE 

I hereby certify that the following order was sent by United States mail, prepaid, to the following 

named: 

L. Randall Bishop 

JARUSSI & BISHOP 

P.O. Box 3353 

Billings, MT 59103-3353 

Thomas S. Felker 

PEERY, HISCOCK, PTERSON, & RYDER, INC., P.S. 

505 Madison Street, Suite 300 

Seattle, WA 98104 

L.D. Nybo 

CONKLIN, NYBO, LEVEQUE & MURPHY, P.C. 

P.O. Box 2049 

Great Falls, MT 59403-2049 

ED SMITH 

CLERK OF THE SU~EME COURT