No. 81-136 

IN THE SUPREI\IE COURT OF THE STATE OF MONTANA 

1982 

ANTOINETTE ABERNATHY, MOTHER OF JOHN 

MARK ABERNATHY, and DAVID J. ABERNATHY, 

Plaintiffs and Appellants, 

ELINE OIL FIELD SERVICES, INC., 

Defendant and Respondent. 

Appeal from: District Court of the Ninth Judicial District, 

In and for the County of Pondera 

Honorable R. D. McPhillips, Judge presiding 

Counsel of Record: 

For Appellants: 

Hoyt and Trieweiler, Great Falls, Montana 

Goetz, Madden and Dunn, Bozeman, Montana 

James Goetz argued, Bozeman, Montana 

Por Respondent : 

Robert J. Emmons argued, Great Falls, Montana 

Submitted: May 13, 1982 

Decided: September 9, 1982 
Mr. Justice Fred J. Weber delivered the Opinion of the 

Court. 

David Abernathy brought an action for personal injuries 

and his wife brought an action as representative of their 

deceased son John in the Ninth Judicial District, Pondera 

County, against Eline Oil Company. A jury returned a verdict 

for Eline, holding that David had suffered $20,000 in damages 

but could not recover because he was 75 percent comparatively 

negligent and that Eline's negligence was not a proximate 

cause of John's death. We vacate the judgment for defendant 

Eline. 

The Abernathys raise the following issues: 

(1) Did the trial court err in instructing the jury on 

the elements of assumption of risk as a form of negligence? 

(2) Did the trial court err in failing to dismiss 

Juror Peterman for cause and in its examination of the 

juror? 

(3) Whether the verdicts rendered by the jury are 

inconsistent and require reversal? 

On the morning of January 19, 1979, David Abernathy and 

his 6 year old son, John, began a drive in the family 1977 

Chevette from their home west of Dupuyer to Pendroy where 

John attended school. The weather conditions on Highway 89 

included blowing snow, but the road was bare. David drove 

through two snowplow cuts on the highway, both of which had 

blowing snow and reduced visibility. As David hit a third 

cut, his car hit one drift which slowed his momentum and 

caused him to veer to the right side of the road. He then 

became stuck in the second drift perpendicular to traffic 

and in the right lane. He put the car in reverse but was 

unable to move it. He got out of his vehicle and saw that 

the front wheels were buried in the snow. David testified 
that as he reached through the driver's door to get a shovel 

to dig the car out, the vehicle was struck. David was 

injured and John was killed. 

The Abernathy vehicle was struck by a 16,000 pound, 

1960 International truck, owned by Eline. The truck had 

left Cut Bank at 7:30 a.m., headed for a gas plant south of 

Dupuyer. The truck had been traveling approximately 40 

miles per hour for most of the trip but had slowed to about 

35 miles per hour just before the accident because of worsening 

weather conditions. The driver and a passenger first saw 

the Abernathy vehicle when it was 10 to 15 feet away and 

were unable to avoid hitting it. 

Did the trial court err in instructing the jury on the 

elements of assumption of risk as a form of negligence? 

The following instruction was offered to and given by 

the trial court: 

"INSTRUCTION NO. 28. 

"In considering whether or not David J. 

Abernathy was contributorily negligent, you 

may consider, among other aspects of contributory negligence the question whether he 

placed himself in a position to chance known 

hazards. Thus, one aspect of contributory 

negligence exists if you find 

"1. That the Plaintiff had knowledge, actual 

or implied, of the conditions which existed 

at the time of and after Plaintiff's vehicle 

became stuck in the snow drift. 

"2. That he appreciated the condition as dangerous. 

"3. That he voluntarily remained or continued in the face of the known dangerous condition. 

"4. That injury resulted as the usual or 

probable consequence of this dangerous condition. " 

In offering the instruction, counsel for Eline relied 

on Kopischke v. First Continental Corp. (1980), - Mont. 
- , 610 P.2d 668, 687, 37 St.Rep. 437, 462, where this 

Court stated that ". . . we will follow the modern trend and 

treat assumption of risk like any other form of contributory 

negligence and apportion it under the comparative negligence 

statute." Section 27-1-702, MCA, provides: 

"Comparative negligence--extent to which contributory negligence bars recovery in action 

for damages. 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 greater than the negligence of the person 

against whom recovery is sought, but any damages allowed shall be diminished in the proportion to the amount of negligence attributable to the person recovering." 

The Kopischke quote was taken from dicta. This Court 

adopts the rationale used in Kopischke as being the proper 

basis for the present holding. 

"Once comparative negligence is adopted, implied assumption of risk can take on new and 

extraordinary importance; if plaintiff's assumption of risk continues to provide a separate 

defense, defendant avoids paying any damages. 

Clearly, the Supreme Courts of Florida, Maine, 

Minnesota, Montana, North Dakota, Texas, Washington, and Wisconsin did not believe that the 

policy underlying assumption of risk merited 

this drastic result. Thus, those courts treated 

conduct that amounted to implied assumption of 

risk as if it was contributory negligence and 

allowed the jury to apportion damages accordingly." Schwartz, Comparative Negligence 

(1981 Supp.) 5 9.4 at 170. 

Rather than allow the harshness of the traditional 

assumption of risk defense, 

". . .the plaintiff's conduct should be judged 

in terms of contributory fault and weighed 

against the causal negligence of the defendant. 

This approach avoids the harsh 'all or nothing' 

effect of assumption of the risk while at the 

same time permitting a defendant to reduce 

his liability for damages when he can demonstrate that the plaintiff's fault contributed 

to the injuries." Wilson v. Gordon (Me. 1976), 

354 A.2d 398, 402; Kopischke, 610 P.2d at 686, 

37 St.Rep. at 461. 

The California court in Li v. Yellow Cab Co. of Calif. 

(1975), 119 Cal.Rptr. 858, 873, 532 P.2d 1226, 1241, stated: 
"We think it clear that the adoption of a 

system of comparative negligence should entail the merger of the defense of assumption 

of the risk into the general scheme of assessment of liability in proportion to fault in 

those particular cases in which the form of 

assumption of risk involved is no more than 

a variant of contributory negligence." 

Kopischke, 610 P.2d at 687, 37 St.Rep. at 

460. 

Historically in Montana, the defense of assumption of 

risk required: 

"(1) knowledge, actual or implied, of the 

particular condition creating the risk, (2) 

appreciation of this condition as dangerous, 

(3) a voluntary remaining or continuing in 

the face of the known dangerous condition, 

and (4) injury resulting as the usual and 

probable consequence of the dangerous condition." Kopischke, 610 P.2d at 683, 37 

St.Rep. at 458; Hanson v. Colgrove (1968), 

152 Mont. 161, 447 P.2d 486, 488. 

Instruction No. 28 given in the present case contains these 

elements of assumption of risk. Applying the proof to the 

standards set forth in Instruction No. 28, the jury could 

have found: 

(1) That David had actual knowledge of the dangerous 

condition; 

(2) That David had an appreciation of this being 

dangerous; 

(3) That David remained at the vehicle in the 

face of the known danger; and 

(4) That David's injury resulted as the probable 

consequence of the dangerous condition. 

In applying Instruction No. 28 in this manner, the jury 

could have based their conclusions solely upon the thinking 

on David's part, that being his "subjective" knowledge. The 

jury then could have reached the conclusion that under 

Instruction No. 28 this assumption of risk constituted the 

75 percent negligence which was included in the jury verdict 

on the part of David. 

This illustrates the contradictory position in which 

the instructions placed the jury. In pertinent part Instruction No. 5 defined negligence in this manner: 
"When used in these instructions, negligence 

means want of. . .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 circumstances of 

the situation. . ." 

The jury, based upon the evidence, could have concluded that 

David acted in the same manner as a reasonable and prudent 

person would ordinary have done under the circumstances of 

this case. If they reached that conclusion, under Instruction 

No. 5, there would have been an absence of "negligence" on 

David's part. Notwithstanding such a conclusion under 

traditional negligence doctrine, the jury still could have 

concluded that there was negligence under the above-described 

assumption of risk theory. We find these two approaches to 

be incompatible. This illustrates the contradiction present 

between the theories of assumption of risk and negligence. 

As pointed out in Kopischke, 610 P.2d at 684, 37 St.Rep. at 

458, "I. . .[a]ssumption of risk is governed by the subjective 

standard of the plaintiff rather than the objective standard 

of the reasonable man. . .I Deeds v. United States (D. Mont. ,S$* fi3'4y 

1969). 309 F.Supp. 348, 3G%f" g& use of assumption of risk 

will only serve to confuse a jury in its attempt to determine 

the negligence on the part of all parties and to compare the 

same under our comparative negligence standard. 

We therefore hold that the doctrine of implied assumption 

of risk is no longer applicable in Montana. In a retrial of 

this case, instructions on negligence and contributory 

negligence shall use the traditional standards of conduct of 

a reasonable and prudent person under the circumstances and 

shall not contain any of the assumption of risk standards 

contained in Instruction No. 28, and, in particular, shall 

not contain any of the subjective standards of assumption of 

risk as previously discussed here. In this case, we are not 
ruling upon the application of the doctrine of assumption of 

risk in product liability cases. 

Did the trial court err in failing to dismiss Juror 

Peterman for cause and in its examination of the juror? 

During voir dire, the following questions were asked by 

plaintiff's counsel, Mr. Dunn, and answered by Mrs. Peterman: 

"A. I don't see how suing -- I do not understand this God bit myself. I do not see how 

-- he is probably going through, you know, a 

lot of emotions and stuff, but I do not see 

how money will bring back his relationship to 

God. I do not understand that at all. 

"Q. Let me ask you this. 

"If the claim for damages were not the money 

that was going to try and compensate for a 

personal relationship, but the claim were 

more to the effect the difficulty he is having in that relationship prevents him from 

continuing the work he was doing, and, therefore, he loses that employment, would you be 

able to consider that? 

"A. I do not know. I do not see where money 

brings happiness. I cannot understand why 

people sue for the loss of a member of their 

family or -- I can see suing for like his expenses, damages, stuff like that, but I cannot follow how people, especially -- I understand that if he has lost his belief in God, 

he probably would not continue his work, because that is what his work was. I do not 

understand how a court can award something 

like that. 

"Q. Then do you have some -- as you sit there, 

you have some reservation about awarding damages for what we call intangible items? 

"A. Yes, I do. 

"MR. DUNN: I would ask the juror be excused. 

"MR. EMMONS: I resist. 

"THE COURT: I think we will excuse her. 

"MR. EMMONS: May I ask a question? 

"THE COURT : You may. 
"MR. EMMONS: We are talking about 12 impartial people. The plaintiffs naturally prefer 

12 jurors that will be basically preferential 

to them. The defendant prefers 12 people that 

will be preferential to the defendant; do you 

understand that? 

"MR. DUNN: I object. I hope he is not speaking for himself. 

"THE COURT: You may be excused. 

"MR. EMMONS: I have a question for the Court, 

though. 

"If this were a criminal case, and she was opposed to capital punishment, you could not exclude her from the jury. This is a personal 

injury, and because she has strong feelings 

about this type of damages not being awarded, 

does not mean she has to be excluded as a juror 

in this case. 

"THE COURT: It is my understanding you have 

these personal beliefs, and they could well 

affect whether you would follow the law. 

"MRS. PETERMAN: In my family, we have had -- 

my sisters have each lost children through accidents, and to me, that brings you closer to 

God, not away from Him. I just do not understand how people do this. 

"THE COURT: I understand that. And you are 

entitled to that belief. And it is a belief 

many, many people have. My question is, because of that belief, would you be inclined 

to not follow the law which might award damages? 

"MRS. PETERMAN: Again I find that hard. It 

is hard to say until I sat through, and listened to what he said about -- like if you do not 

believe in capital punishment -- it is hard to 

answer this question. 

"THE COURT: I am aware of that. The only 

thing I want to do is be satisfied you would 

be impartial and would follow the law, aside 

from what you personally think the law should 

be. 

"MRS. PETERMAN: I could sit; I am sure I could. 

"THE COURT: You could decide the case aside 

from what you think the law should be, and 

follow the instructions of the Court? 

"MRS. PETERMAN: Yes. 

"THE COURT: Many times we have to lay aside 

our personal feelings. 
"MRS. PETERMAN: Yes. 

"THE COURT: I guess I will reverse the challenge. " 

During voir dire, Mrs. Peterman indicated that she had 

strong negative feelings about suing to recover money for 

the death of a child. Abernathys moved to challenge the 

juror for cause on the grounds that she could not render a 

fair and impartial verdict. The trial court initially 

granted the challenge, but then permitted defense counsel to 

examine and attempt to rehabilitate Mrs. Peterman. Following 

defense counsel's examination, the trial court conducted its 

own examination. The court then denied Abernathys' challenge 

for cause. At that point the Abernathys moved for a mistrial 

on the grounds that the colloquy between the court and Mrs. 

Peterman had influenced the panel to such a degree as to 

render a fair verdict impossible. The trial court denied 

the motion. 

Section 25-7-223, MCA, provides: 

"Challenges for cause may be taken on one or 

more of the following grounds: 

"(6) having an unqualified opinion or belief 

as to the merits of the action;" 

Our standard of review of denial of challenges has been 

stated: 

"The examination of a juror on his voir -- dire 

is no more nor less than the taking of testimony on the issues raised as to his qualifications to serve in the case before the Court. 

(Citations omitted.) The determination must 

be left largely to the sound discretion of 

the trial court (Citations omitted.) and, in 

determining the question, the trial court, 

as in passing upon any other question of fact 

established by oral testimony, has the advantage of observing the witness on the stand, 

his demeanor and candor, or lack of candor, 

and a review of the court's rulings and findings should be governed by the same rules as 

in reviewing any other findings and judgment 

based thereon. They should not be set aside 

unless error is manifest, or there is shown 
a clear abuse of discretion. . ." State v. 

Williams (1979), Mont. , 604 P.2d 

1224, 1229, 36 St.Rep. 2325, 2334-2335; State 

v. Russell (1925), 73 Mont. 240, 235 P. 712, 

715. 

We agree with the Abernathys that Mrs. Peterman showed 

"an unqualified opinion or belief as to the merits of the 

action." She should have been excused for cause. We find 

that the failure to excuse Mrs. Peterman for cause was 

manifest error. In addition, we point out that where a 

trial court determines that considerable questioning by the 

court is necessary, as was done in this case, such questioning should take place out of the presence of the remaining 

members of the jury panel, thereby eliminating the possibility 

of the prejudice claimed by the Abernathys. 

Mrs. Peterman was excused as a juror when the Abernathys 

exercised the first of their four peremptory challenges. 

The Abernathys contend that it was prejudicial error to 

compel a party to waste one of its peremptory challenges to 

accomplish that which the trial judge should have done. 

Several jurisdictions have considered this argument and 

adopted it. The Utah Supreme Court remanded Crawford v. 

Manning (Utah 1975), 542 P.2d 1091, 1093, for a new trial 

and stated: 

"By exercising one of their peremptory challenges upon this prospective juror, plaintiffs had only two remaining. The juror 

which remained because the plaintiffs had 

no challenge to remove him may have been a 

hawk amid seven doves and imposed his will 

upon them. 

"A party is entitled to exercise his three peremptory challenges upon impartial prospective 

jurors, and he should not be compelled to waste 

one in order to accomplish that which the trial 

judge should have done." 

The Supreme Court of Arizona returning a case for a new 

trial stated: 
"The right of a party to peremptory challenges is a substantial right of which he should 

not be deprived. (Citations omitted.) Peremptory challenges form an effective method 

of assuring the fairness of a jury trial. 

Hence, forcing a party to use his peremptory 

challenges to strike jurors who should have 

been stricken for cause denies the litigant a 

substantial right." Wasko v. Frankel (1977), 

116 Ariz. 288, 569 P.2d 230, 232. 

However, not all jurisdictions agree with the interpretation of the Utah and Arizona courts. See: Colbert v. 

Journal Pub. Co. (1914), 19 N.M. 156, 142 P. 146; Williams 

v. Hendrickson (1962), 189 Kan. 673, 371 P.2d 188; Wilson v. 

Ex-Cell-0 Corp. (1968), 12 Mich.App. 637, 163 N.W.2d 492. 

"[TJhe forced use of a peremptory challenge 

to excuse a juror, even if he should have 

been excused for cause, is not, in and of itself, sufficient ground for reversal of a 

judgment in accord with the verdict." Love 

v. Harvey (Okla. 1968), 448 P.2d 456, 459. 

While this Court agrees that the right of a party to 

peremptory challenges is a substantial right, we do not hold 

that every case of the forced use of a peremptory challenge 

is a sufficient ground for reversal. In considering an 

issue of the failure to dismiss a juror for cause, we hold 

that the standard to be applied is whether there was an 

abuse of discretion on the part of the trial judge. Discretion, of course, should be granted to the trial judge in 

these instances. Only where there is an abuse of this 

discretion is there reversible error. In this case, the 

actions of the District Court as previously set forth resulting 

in a rebuilding of the juror constituted an abuse of discretion 

and therefore constitutes reversible error. 

Whether the verdicts rendered by the jury are inconsistent 

and require reversal? 

The special verdict asked the jury the following question 

regarding the claim of David for himself: 
"QUESTION NO. 1: Was the defendant herein, Eline 

oilfield Services, Inc. (or its employee, William Kacsmarek), 

negligent, which negligence was a proximate cause of the 

injury to the plaintiff, David J. Abernathy?" 

The jury answered "yes" to this question. 

The special verdict later asked the jury the following 

question regarding the claim of Antoinette Abernathy for 

herself and on behalf of David J. Abernathy: 

"QUESTION NO. 1: Was the defendant herein, Eline 

Oilfield Services, Inc. (or its employee, William Kacsmarek), 

negligent, which negligence was a proximate cause of the 

death of John Mark Abernathy?" The jury answered "no" to 

this question. 

David was injured and his son, John, killed when their 

vehicle was struck by the Eline truck. Abernathys contend 

that the injury and death were caused by the identical 

mechanism and that if Eline was negligent in causing David's 

injury, it was logically negligent in causing John's death. 

Eline contends that the verdicts are consistent because 

different questions are involved. The jury found that Eline 

was negligent and that this negligence was the proximate 

cause of David's injuries. As to the wrongful death case, 

the jury found that Eline was negligent but that this negligence was not a proximate cause of John's death. In one 

case, David got out of the automobile which was struck. In 

the other, David left the boy in the car which creates a 

proximate causation question. 

This Court finds the argument of the Abernathys more 

persuasive. Both avid's injuries and John's death occurred 

as a result of the Eline truck striking the Abernathy vehicle. 

The form of verdict shows that the jury concluded that the 

negligence of Eline was at least - a proximate cause of the 

injury to David. Under the facts of this case, that conclusion 
mandates a further conclusion that the negligence of Eline 

was also - a proximate cause of John's death. That is true 

even though the jury might have concluded that the negligence 

of David was also - a proximate cause of the death of John, or 

that David's negligence was the primary proximate cause of 

John's death. 

When two conflicting verdicts are reached from the same 

evidence, a new trial is required. See: Utecht v. Steinagel 

(1972), 54 Wis.2d 507, 196 N.W.2d 674; Crohn v. Dupre (Minn. 

1971), 190 N.W.2d 678; May v. Pittsburg Railways Co. (1966), 

209 Pa.Super. 126, 224 A.2d 770. 

We vacate and remand for a new trial. 

We Concur: 

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