No. 12349 INTHE SUPREME COURT OF THE STATE OF MONTANA 1973

KUBY BRANDENBURGER, Administratrix of the Estate of CLARENCE R. BRANDENBURGER, deceased, Plaintiff and Respondent,

TOYOTA MOTOR SALES

## , U.S.A. 

## , INC

# ., and TOYOTA MOTOR CO. 

## ,LTD. 

## , Defendants and Appellants, TAFFORD OLTZ, Defendant.

Appeal from: District Court of the Eighteenth JudicialDistrict, Honorable W. W. Lessley, Judge presiding. Counsel of Record: For Appellants: Berg, ~'Connell, Angel and Andriolo, Bozeman, Montana. Charles F. Angel argued, Bozeman, Montana For Tafford Oltz: Bennett and Bennett, Bozeman, Montana. Lyman H. Bennett, Jr.

## , argued, Bozeman, Montana. For Respondent : Landoe, Gary and White, Bozeman, Montana. Hjalmar B. Landoe and Donald E. White argued, Bozeman,

Montana.

Filed: *tiJb

### '/

# - T$3 Submitted: June 18, 1973 Decided: 

### A1-G

## 7

# -7973

Clerk

### Mr. Justice John C. Harrison delivered the Opinion of the Court. This is an appeal from ajudgment and denial of a motion forjudgment in accordance with motion for directed verdict or for new trial in an action tried inthe districtcourt of the eighteenthjudicial district, county of Gallatin. The case was tried to ajury which returned a verdict in favor of plaintiff Ruby Brandenburger, administratrix of the estate of Clarence R. Brandenburger, deceased. Defendants inthe action were Tafford Oltz, Toyota Motor Sales, U.S.A., Inc., and Toyota Motor Co., Ltd. Tafford Oltz did not appeal thejudgment, but appeared on appeal as a cross-complainant against the remaining defendants for any sums he might be required

to pay plaintiff. The jury verdict indistrictcourt was against a77 defendants in the amount of $125,000. The accident inquestion occurred in the late afternoon of August 3, 1970. Tafford Oltz and his friend and fishing partner, Clarence R. Brandenburger, were driving south from Bozeman, Montana on U.S. Highway 191

todo 

### some fishing. Oltz was drivinghis 7969 Toyota Land Cruiser which he had purchased in February 1969 atRochester, Minnesota. The weather was clear, visibility good and the road was dry. Approximately eight miles south of Bozeman, according to the testimony of Oltz, Brandenburger yelled athim to look out for rocks 

### on the road which Oltz described as about fistsized and scattered over the road. He swerved tothe right to avoid hitting rocks, his vehicle leftthe highway, overturned, and the top of the vehicle came off. Both men were thrown out of the car through the opening created by the top coming off. Brandenburger was crushed by the rolling car; Oltz was injured. There was conflict inthe testimony as 

### towhat happened when the vehicle leftthe road and went onto the soft graveled shoulder. Atthe time of the accident Oltz estimated he was traveling between 50 and 60 miles per hour. The investigating highway patrolman's measurements indicated the 01tz vehicle traveled withthe leftwheels on the pavement and the rightwheels off the pavement some 129 feet, 8 inches, whereupon the leftwheels a1so dropped onto the shoulder and the vehicle traveled down the barrow pitparallel to the road another 83 feet, 7 inches. Atthis point, the vehicle made a sharp leftturn in an attempt to regain the road, skidded sidewards and overturned. The vehicle rolled on the passenger side first, and as it continued 

### toroll, assumed an upright position atwhich time the roof "popped" off, and the eyewitnesses observed the bodies of the passengers flying out. The vehicle continued to roll and itwas apparently atthis time that it crushed Brandenburger. The vehicle was equipped with seat be1ts, but neither man was wearing one atthe time of the accident. The roof panel of the Toyota Land Cruiser was constructed of several layers of laminated fiber glass, riveted to a steel rail, which in turn was bolted tothe steel body of the cab. The rivetswere spaced approximately 4 inches apart around the roof and were 1/8 inch in diameter. Oltz testified when he purchased the Land Cruiser he was aware of the fiber glass top and that ithad no roll bars or supports of steel. This ,isa products liabilitycase. Plaintiff maintained the fact the roof "popped off" was a result of defective design. The respondent conceded the allegedly faulty design did not cause the accident but contended such design greatly increased the chances of death in an accident. The issue here isthe liabilityof Toyota Motor Sales, U.S.A., Inc., and Toyota Motor Co., Ltd.Appellants present four issues for this Court's consideration which

we summarize in thismanner: 1. Mhether strictliability in tort should have been submitted to the jury? 2. Whether there was substantial evidence showing negligence on the part of the manufacturer, and if so, was the defect resulting from such negligence a proximate cause of Clarence R. Brandenburger's death? 3. Whether there was an irregularity in the proceedings which prevented the manufacturer and distributor from having a fair trial when plaintiff and defendant Oltz settled the matter between themselves during the trial?Before discussing the issues, we reiterate the rules stated in Strong v. Williams, 154 Mont. 65, 68, 460 P.2d 90: "It iswell settled in thisjurisdiction thatwherever there is a conflict in the evidence this Court may only review the testimony for the purpose of determining whether there isany substantial evidence in the record tosupport the verdict of thejury, and we must accept the evidence there found as true, unless that evidence is so inherently impossible 

### or improbable as 

### not to be entitled tobe1ief. Where the evidence isconf1icting

### , but substantial evidence appears in the record to support the judgment, thejudgment will not be disturbed on appeal, and this isespecially truewhen the district court, as here, has passed upon the sufficiency of the evidence on motion for a new trial and upheld its sufficiency. Batchoff 

### v. Craney, 119

### Mont. 157, 172 P.2d 308; Wallace 

### v. Wallace, 85 Mont. 492, 279 P. 374, 66 A.L.R. 587. The evidence must be viewed in the lightmost favorable to the prevailing party. If that evidence sustains the verdict then we 

### must sustain the action of the trial judge.

### " See also: StateHighway Commission 

### v. Vaughan, 155Mont. 277, 470 P.2d 967; Knudson 

### v. Edgewater Automotive Division, 157 Mont. 400, 486 P.2d 596. Issue 1. Whether strict liability in tort should have been submitted to thejury? Counsel for all parties recognize that this Court has not previously squarely faced the proposition as towhether or not strict liability isthe applicable law in Montana. Itwas considered in Jangula 

### v. United States Rubber Company, 147 

### Mont. 98, 410 P.2d 462, 149Mont. 241, 425 P.2d 319, but under the facts there itwas deemed not applicable. Appellants argue this Court has refused to apply the doctrine of strict liability in three recent cases, therefore itisnot the law of Montana and the trial court erred in itsinstructions to the jury. We will consider each of the cases cited by appellants to show that in each instance the case was decided on grounds other than strictliability. Knudson 

### v. Edgewater Automotive Division, 157 Mont. 400, 486 P.2d 596: There we held that the trial court did not insert strict liability into the case, under the instructions given. As to the instructions given, we noted an instruction that a manufacturer of "a product that isreasonably certain to be dangerous if negligently made has a duty to exercise reasonablecare in the design, testing, inspection and manufacture of such product so that the product may be safely used in a manner and for the purpose forwhich itwas made", when considered with the other instructions, and the instruction to consider all the instructions as a whole, did not improperly imply strictliability

### on the manufacturer. Duchesneau 

### v. SilverBow County, 158Mont. 369, 378, 492 P.2d 926: In this case the 

### Court said: "The gistof the claim by Wilson Motors and itsproperty damage insurer against Roberts and Mack Trucks isnegligent design and installation of the powering steering unit, constituting the proximate cause of the accident." But, this case was argued on negligence and not strictliability. However, Justice Haswell noted and itisof interest here, that: "The foregoing testimony indicates the power steering unit was purchased in 1967 from Mack Trucks, and if it was in fact negligently designed, there isa possible basis for strictliabilityagainst Mack Trucks." Ford 

### v. Rupple, Mont

# . ,504 P.2d 686, 691, 29 St.Rep. 1081: This case involved an action against General Motors and others for injuries sustained by a passenger riding in a 1968 Corvette involved in a sideswipe which col1 ision./went out of control and collided headon with another vehicle. Under the facts presented, the trial court granted summaryjudgment in favor of General Motors and plaintiff appealed. This Court upheld the district courtIs ruling. 

### Mr. Justice Daly, after thoroughly reviewing the cases cited and text writers

### ,concluded: "In Mang v. Eliasson, 153Mont. 431, 458 P.2d 777, this Court rejected any doctrine of abstract foreseeability and affirmed the doctrine of reasonable foreseeabi1 ity

### , but in that case found no necessity to reach the law of 'causation

### ' absent a finding of duty. However, causation was most recently discussed in terms of proximate cause and the 'but for' rule affirmed in DeVerniero 

### v. Eby, Mont. 

### ,496 P.2d 290, 293, inthis language: 

### "'Proximate cause isa twofold legal concept which may limit liability depending upon the existence of (1) an intervening act and (2) the unforeseeability of that intervening act. This Court stated in Sztaba 

### v. Great Northern Ry., 147 Mont. 185, 195, 411 P.2d 379, 385: ""'Causation isa fact. Itis important todetermine causation firstto avoid itsconfusion with the issues to follow. Thisisnot a re1atiorlship between negligence and injury, but rather a causal relation between conduct and hurt, both of which are factual concepts. Itisonly after the causal relationship, duty, and itsscope arefound that the negligence issue isreached. 61 Co1.L.R. 1401. ""'The testmost generally employed in determining causation is the 'but foryest. Montana has adopted this test in numerous cases. ""'Proximate cause isone 'which in a natural and continuous sequence, unbroken by any new, independent cause, produces the injury, and without which the injurywould 

### nothave occurred.' Stroud 

### v. Chicago M. 

### [&I St. P. 8 P. Ry. Co., 75 Mont. 384, 393, 243 P. 1089, 1092." (Emphasis added.)

### ' "The principle urged by plaintiff under the facts of this case falls into the area of 'abstract foreseeability' condemned in Mansand fai1s tomeet the law in re1ation to causation as itexists in Montana." This brings us to the instant case and the question of whether Montana should adopt the doctrineof strict liability. We note here that both the federal districtcourt of Montana and the Ninth Circuit Court of Appeals have considered Montana case law and have anticipated action by this Court, in cases heard in those courts recently. Federal Judge Russell E. Smith in Hornung 

### v. Richardson-Merrill, Inc., 317 F.Supp., 183, 184, held: "The tort limitation isapplied tothe warranty count for these reasons: In the absence of a control1ing decision of the Supreme Court of the Stateof Montana, the federal courts in Montana sitting in diversity cases have looked to and adopted as the applicable rule of law inMontana the Restatement of the Law of Torts, Second, and the strictliabilityrule announced therein. The strictliabilityrule will be applied in this case." The Ninth Circuit 

### Court noted in the Sabin oral vaccine case, Davis 

### v. Wyeth Laboratories, Inc., 399 F.2d 121, 127: "We can find no Montana decision in point on the issue of a drug manufacturer's duty towarn of dangers inherent in itsproduct. Privity of contract between buyer and selleras a prerequisite to recovery in an implied warranty action has long been abolished inthat state in cases involving food, and strictliabilityhas been imposed on those who sold it. Itwould seem that the same approach would be adopted by the Montana Supreme Court incases involving drugs meant for internal use. Faced with the absence of controlling stateprecedent, 

### we choose to assume thatMontana would follow the majorityof other states in finding that liabilitycan attach to the sale of drugs, in either tort or warranty, despite lack of privity, and would adopt the views setforthbelow on the manufacturer's duty towarn ofdangers in 'nondefective' but potentially harmful products. 

## * *

## * "The clearest statement ofthe law as itexists today isinour view that set forth inthe Restatement (Second) ofTorts (1965). Relevant toour case are Section 402A and comments j and k. 

## *

## * *" The trend seems to be toadopt the theory of strict liability and ithas now been adopted by a majorityofthe states. Inconsideration ofthe instant case as tothe adoption of the doctrine of strict liability, we first look tothe definition ofthat theory. We adopt the definition, as other jurisdictions have, set forth in2 Restatement ofTorts 2d S402A: "(1) One who sells any product ina defectivecondition unreasonably dangerous tothe user or consumer or tohis property issubject t o l i a b i l i t yfor physical harm thereby caused tothe ultimate user or consumer, or tohis property, if "(a) The seller isengaged inthe business ofselling such a product, and "(b) itisexpected toand does reach the user or consumer without substantial change inthe condition inwhich itissold. "(2) The rulestated inSubsection (1) applies although "(a) the seller has exercised all possible care in the preparation and sale of his product, and "(b) the user or consumer has not bought the product from or entered into any contractual relationwith the seller." InLechuga, Inc. v. Montgomery, 12 Ariz. App. 32, 467 P.2d 256, 261, Judge Jacobson ina concurring opinion discussed the reasons for the application ofthe doctrine of s t r i c t l i a b i l i t ytothat case: "Itisapparent from a readingof the Restatement, and the leading cases on this subject, that the doctrine of strict liabilitywas evolved toplace liabilityon the party primarily responsible for the injuryoccurring, that is, the manufacturer ofthedefective product. This, as Justice Traynor stated inhis concurring opinion inEscola v. Coca Cola Bottling Co. of Fresno, 24 Cal.2d 453, 150 P.2d 436 (1944), isbased on reasons of public policy: "'Ifpublic policy demands that a manufacturer ofgoods be responsible for their quality regardless ofnegligence there isno reason not tofix that responsibility openly.

### ' 150 P.2dY at441."These pub1ic policy considerations have been variously enumerated as follows: "(1) The manufacturer can anticipate some hazards and guard against their recurrence, which the consumer cannot do. Restatement, supra, comment c. 

### "(2) The cost of injurymay be overwhelming tothe person injured while the risk of injury can be insured by the manufacturer and be distributed among the public as a cost of doing business. Greenman 

### v. Yuba Power Products, Inc. [59 Cal.2d 571

### ,27 Cal

# . Rptr

# . 697, 377 P.2d 897 (1 962). '(3) Itis in the public interest

### todiscourage the marketing of defective products. Escola 

### v. Coca Cola Bottling 

### Co. of Fresno, supra. "(4) It is in the public interest to place responsibility for injury upon the manufacturer who was responsible for itsreaching the market. Greenman 

### v. Yuba Power Products, Inc., supra. "(5) That this responsibility should also be placed upon the retailer and wholesaler of the defective product in order that they may act as the conduit through which liabilitymay flow to reach the manufacturer, where ultimate responsibility 1 ies. Vandermark v. Ford Motor Co. [61 Cal.2d 2561, 37 Cal.Rptr. 896, 391 P.2d 168 (1964). 

### "(6) That because of the complexity of present day manufacturing processes and their secretiveness, the ability to prove negligent conduct by the injured plaintiff isalmost impossible. Escola 

### v. Coca Cola Bottling Co. of Fresno, supra. "(7) That the consumer does not have the abilityto investigate for himself the soundness of the product. Santor 

### v. A and M Karagheusian, Inc. 44 N.J. 52, 207 A.2d 305 (1 965). "(8) That this consumer's vigilance has been lulled by advertising, marketing devices and trademarks. Concurring opinion, Lockwood, J., Nalbandian 

### v. Byron Jackson Pumps, Inc., 97 Ariz. 280, 399 P.2d 681 (1965). "Inherent in these policy considerations isnot the nature of the transaction by which the consumer obtained possession of the defective product, but the character of the defect itself, that is, one occurring in the manufacturing process and the unavailability of an adequate remedy 

### on behalf of the injured plaintiff." We recognize this Ss a major change 

### inMontana's tort law by way of judicial decision, but as'Chief JusticeVanderbilt of the New Jersey Supreme Court said in State

### v. Culver, 23 N.J. 495, 129 A.2d 715, 721, cert. denied 354 U.S. 925, 77 S.Ct. 1387, 1L ed 2d 1441:"One of the great virtues of the common law is its dynamic nature that makes itadaptable tothe requirements of society atthe time of itsapplication in court." Issue 2. Whether there was substantial evidence showing negligence on the part of themanufacturer, and if so, was the defect resulting from such negligence a proximate cause of Clarence R. Brandenburger's death? The adoption of the doctrine of strict liabilitydoes not relieve the plaintiff from the burden of proving his case. Vital to that proof is the necessity of proving the existence of a defect in the product and that such defect caused the injury complained of. Inasmuch as this isa "second collision" case, we recognize that the design defect in the vehicle did not cause the accident. Generally injury to car occupants results not from the immediate accident of one car hitting another, commonly called "firstcollision" but from the ensuing impact upon persons being tossed around the interior of the car, or as here, being thrown through the roof, or "second collision". While the construction of the vehicle isnot the cause of the accident, itismost often the contributing factor in the case of "second collision" injuries. In the recentyears courts have held thatwhere the manufacturer's negligence in design causes an unreasonable risk to be imposed upon the user of itsproducts, the manufacturer should be liable for the injury caused by its failure to use reasonable care in design. These injuries are readily forseeable as an incident to the normal and expected use of the car. While automobiles are

### notmade for the purpose of colliding with each other, a frequent and inevitable contingency of normal automobile use will result in collisions and injury-producing impacts. In Larsen 

### v. General Motors Corporation, 391 F.2d 495, the court speaking concerning the "second collision" said: 

### " 

### *

## * * No rational basis exists for limiting recovery to situations where the defect in design or manufacture was a causative factor of the accident, as the accident and the resulting injury, usually caused by the so-called 'second collision' of the passenger with the interior part of the automobile, all areforseeable. Where the injuries or enhanced injuries aredue 

### tothe manufacturer's failure to use reasonable care to avoid subjecting the user of itsproducts to an unreasonable risk of injury,general negligence principles should be applicable

## *

## **". See too: Ford Motor Company 

### v. Zahn, 265 F.2d 729; Carpini 

### v. Pittsburgh and Meirton 

### Bus Company, 216 F.2d 404. Accordingly the duty of Toyota to provide a saferoof isnot eliminated simply because the defective roof did not cause the accident. Accepting this case as a "second collision" case, itmust be determined whether there can be liabilityforthe alleged defective construction of the vehicle. Appellants contend, relying on 

### Ford, thatrespondent

### Is position isthat appellants owed a duty tomanufacture a "crash proof" vehicle. 

### Not 

### so! The law does not require such an obligation. Greco 

### v. Bucciconi Engineering Co., 407 F.2d 87. It* isof'import here to setforth the evidence needed to prove the defect. Although appellants do 

### not directlymake the claim that respondent had to introduce direct evidence that the design of the roof of the Land Cruiser was faulty, itis clear that they would have 

### us adopt this standard. However, the better rule is to permit proof of defect tobe established by circumstantial evidence and inferences therefrom, as we11

as by direct evidence. The essential rationale for imposing the doctrineof strict liabilityin tort isthat such imposition affords the consuming public the maximum protection from dangerous defects in manufactured products by requiring the manufacturer to bear the burden of injuries and losses enhanced by such defects in itsproducts. If this be so, itrequires littleimagination to see that if a strictrule of direct evidence was required, the supposed benefit of the theory of strictliabilitywould be lost to the consuming public. The Eighth Circuit Court of Appeals said inLindsay 

### v. McDonnell Douglas Aircraft Corp., 460 F.2d 631, 639: "There would be littlegain tothe consuming public if the courts would establish a form of recovery with one hand and take itaway withthe other by establishing impossible standards of proof. The proof required ina strictliability casemust be realistically tailored 

### tothe circumstanceswhich caused the form of action to be created." Lindsay 

### v. McDonnell Douglas Aircraft Corp., 352 F.Supp. 633.We adopt the following standard of proof, as setforth by the Hawaii Supreme Court in Stewart 

### v. Budget Rent-A-Car Corp., 52 Haw. 71, 470 P.2d 240, 243, as the acceptable type of evidence tobe used by a plaintiff to prove a defect in a manufacturer's or distributor's product, ina strictliabilitycase: "The.natureand qua1ityof evidence used in products liabilitycases to show the defect and the nexus between the defect and accident naturally varies. The most convincing evidence isan expert's pinpointing the defect and giving his opinion on the precise cause of the accident after a thorough inspection. If an accident sufficientlydestroys the product, or the crucial parts, then an expert's opinion on the probabilities that a defect caused the accident would be helpful. If no such opinion ispossible, as in the present case, the user's testimony 

### on what happened isanother method of proving that the product was defective. If the user is unable to testify, as where the accident killed him or incapacitated him, no other witness was present atthe time of the accident, and the product was destroyed, the fact of the accident and the probabilities are all that remain forthe party seeking recovery. Atthis point the plaintiff can attempt to negate the user as the cause and further negate other causes not attributable to the defendant. These kinds of proof introduced a1one orcumulatively areevidence which help establish the presence of a defect as the cause of the damage." See also: Franks 

### v. National Dairy Products Corporation, 414 F.2d 682; Reader v. General Motors Corp., 107 Ariz. 149, 483 P.2d 1388; Brownell

v. White Motor Corp.

### ,260 Ore. 251

### ,490 P.2d 184-Prosser, Law of Torts, 

# -3

, @+ ';Ymi&t.-* 4th Ed,, g 103. 50 Minn.L.Rev. 791; 2 Frumer, Products Liability, 

## s 16A[41[el

# . Turning now to the record, we find appellants failed to introduce expert testimony contradicting that oQrespondent instead of contenting themselves with cross-examination of respondent's witnesses. Hence, there

was no expert testimony, indeed no testimony atall, to offset that introduced by respondent. Respondent's expert witness, Prof. Ralph Challender of the engineering school atMontana StateUniversity, testified atlength as to two defects in the Land Cruiser manufactured by Toyota; (1) that the vehicle was unstable and had a tendency to roll, (2)that the roof was 

### not safe. In giving his testimony Prof. Challender compared the Toyota Land Cruiser with the WillysJeep, the International Scout, Ford Bronco and the British Land Rover. Summarizinghis testimony he noted that in comparison toconventional automobiles, because of the shortwheel base of such vehicles, all four wheel drive vehicles are less stable in an exposure condition, such as sitting

### on

a sidehill, and rounding corners, where the centrifugal force effect becomes more pronounced making the tendency to tipgreater. He noted that manufacturers of such vehicles should have anticipated this facet, due to the type of use contemplated, and advertised accordingly. In assessing the various vehicles compared as tothe structure above waist 1 ine, he noted only one other had a fiber glass top, the Chev Blazer--but that vehicle has in addition a fiber glass liner inside, and the structural parts were sandwiched in between the inner and outer faces. All other vehicles compared had steel tops. Concerning the Toyota Land Cruiser top, Challender testified that because of the method of construction when a force, such as was applied during the accident, hit the roof panel the roof would not tend to crumple, as in the case of a steel roof, but would simply blow up and out, either shearing or pulling the rivets through the roof. He further testified that

a steel top can withstand greater force than fiber glass, particularly where there arereinforcing members across the roof to absorb the impact energy. The other vehicles compared, except the Chev Blazer, have steel tops with reenforcing structural members in the roof, whereas the Toyota Land Cruiser had no such reenforcement, only amere fiber glass she11

# . The testimony of Challender was corroborated by witness Donald J,Thiesen, amechanic hired 

### torepair the Land Cruiser. He noted that the upper structures were damaged severely; that the top panel was completely severed from the vehicle; that the sideswere crushed from the roll ;and that the rivets that attached the fiber glass top to the steel rail upon which the roof sat, were sheared and some pulled through and remained with the top. He further noted that the bolts used in the Land Cruiser, compared with American bolts, were softer and seemed to shear off easier.considering this testimony in the light of the testimony of the eyewitness Bruce Leeson that "itturned over and hit the passenger side first, made a complete turn, and upon approaching a position in which you would refer to as upright the topcame off of the vehicle as itwas coming up to an upright position, and itflew up in the air. Silhouetted between the top and the vehicle were two bodies." and the deposition testimony of Mrs. Bundy, another eyewitness, "My distinct impression was that itlooked

so much like a child's toy car 

### thatwas falling apart in the air, that the roof was coming off.", thejury could well have come tothe conclusion that the roof and superstructure of the Land Cruiser was unreasonably dangerous. The top itself was submitted into evidence for thejury's inspection. We find there was substantial evidence submitted to thejury for it

### tofind that the Toyota Land Cruiser's defectivedesign proximately contributed to the death of Brandenburger. Issue 3. Whether there was an irregularity in the proceedings which prevented the manufacturer and distributer from having a fairtrial when plaintiff and defendant Oltz settled the matter between themselves. We find no merit to this contention. Appellants contend that during the course of trial a settlementwas made between respondent and defendant 01tz, whereby there was an agreement that the sum of $50,000 would be paid to respondent on behalf of Oltz. Not so! An affidavit was filed by counsel for appellants tothis effect in support of the motion for a new trial. Counsel for Oltz appeared and quite competently represented his client throughout the entire trial. In his brief and argument tothis Court he set forth the fact that no settlementwas reached during trial and that itwas not until after thejury verdict that agreement was reached. Judgment isaffi

### / ~h%f 

### Justice



## ........................................ Justices

### Mr. Justice Wesley Castles dissenting: I respectfully dissent. I do not disagreewith the strict liabilityrule. What I disagree with is itsapplication toa "second collision" situation such as here. The defect here under discussion was the defective top. Ithad nothing to do with the cause of the accident. If the vehicle had no top, as in a convertible, nothing would have Mont

# .-, 

# - changed as tothe causation. I believe under Ford 

### v. Rupple,/504 P.2d 686, 691, 29 St.Rep. 1081, this Court rejected the applicabilityof strict liability in "second collision" cases; that iswhere the initial accident isnot caused by any breach of duty of amanufacturer; but itiscontended,

as here, thatthe damages are enhanced by some defect in construction or design. I would reverse and grant a new trial.