No. 12349 

IN THE 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 Judicial District, 

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 a judgment and denial of a motion for judgment in accordance with motion for directed verdict or for new trial in an 

action tried in the district court of the eighteenth judicial district, 

county of Gallatin. The case was tried to a jury which returned a verdict 

in favor of plaintiff Ruby Brandenburger, administratrix of the estate of 

Clarence R. Brandenburger, deceased. Defendants in the action were Tafford 

Oltz, Toyota Motor Sales, U.S.A., Inc., and Toyota Motor Co., Ltd. Tafford 

Oltz did not appeal the judgment, 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 in district court was against a77 defendants in the amount of $125,000. 

The accident in question 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 

to do some fishing. Oltz was driving his 7969 Toyota Land Cruiser which he 

had purchased in February 1969 at Rochester, 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 at him to 

look out for rocks on the road which Oltz described as about fist sized 

and scattered over the road. He swerved to the right to avoid hitting rocks, 

his vehicle left the 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 in the testimony as to what happened when the 

vehicle left the road and went onto the soft graveled shoulder. At the time 

of the accident Oltz estimated he was traveling between 50 and 60 miles per 

hour. The investigating highway patrolman's measurements indicated the 01 tz 

vehicle traveled with the left wheels on the pavement and the right wheels 

off the pavement some 129 feet, 8 inches, whereupon the left wheels a1 so 

dropped onto the shoulder and the vehicle traveled down the barrow pit 
parallel to the road another 83 feet, 7 inches. At this point, the vehicle 

made a sharp left turn in an attempt to regain the road, skidded sidewards 

and overturned. The vehicle rolled on the passenger side first, and as it 

continued to roll, assumed an upright position at which time the roof "popped" 

off, and the eyewitnesses observed the bodies of the passengers flying out. 

The vehicle continued to roll and it was apparently at this time that it 

crushed Brandenburger. The vehicle was equipped with seat be1 ts, but 

neither man was wearing one at the 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 to the steel body of the cab. The rivets were 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 it had no roll bars or supports of steel. 

This ,is a products liability case. 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 is the liability of 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 this manner: 

1. Mhether strict liability in tort should have been submitted 

to the jury? 

2. Whether there was substantial evidence showing negl igence 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 is well settled in this jurisdiction that wherever 

there is a conflict in the evidence this Court may only 

review the testimony for the purpose of determining 

whether there is any substantial evidence in the record 

to support the verdict of the jury, and we must accept 

the evidence there found as true, unless that evidence 

is so inherently impossible or improbable as not to be 

entitled to be1 i ef. Where the evidence is conf 1 icting , but substantial evidence appears in the record to support 

the judgment, the judgment will not be disturbed on appeal, 

and this is especially true when 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 light most favorable 

to the prevailing party. If that evidence sustains the 

verdict then we must sustain the action of the trial 

judge. " 

See also: State Highway Commission v. Vaughan, 155 Mont. 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 the jury? 

Counsel for all parties recognize that this Court has not previously 

squarely faced the proposition as to whether or not strict liability is the 

applicable law in Montana. It was considered in Jangula v. United States 

Rubber Company, 147 Mont. 98, 410 P.2d 462, 149 Mont. 241, 425 P.2d 319, but 

under the facts there it was deemed not applicable. Appellants argue this 

Court has refused to apply the doctrine of strict liability in three recent 

cases, therefore it is not the law of Montana and the trial court erred in 

its instructions 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 strict liability. 

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 is reasonably 

certain to be dangerous if negligently made has a duty to exercise reasonable 
care 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 for which 

it was made", when considered with the other instructions, and the instruction to consider all the instructions as a whole, did not improperly imply 

strict liability on the manufacturer. 

Duchesneau v. Silver Bow County, 158 Mont. 369, 378, 492 P.2d 926: 

In this case the Court said: 

"The gist of the claim by Wilson Motors and its property 

damage insurer against Roberts and Mack Trucks is negligent 

design and instal lation of the powering steering unit, constituting the proximate cause of the accident." 

But, this case was argued on negligence and not strict liability. However, 

Justice Haswell noted and it is of 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 is a possible basis 

for strict liability against 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 col 1 ision ./went out of control and coll ided headon with another vehicle. Under 

the facts presented, the trial court granted summary judgment in favor of 

General Motors and plaintiff appealed. This Court upheld the district court Is 

ruling. Mr. Justice Daly, after thoroughly reviewing the cases cited and 

text writers , concl uded : 

"In Mang v. Eliasson, 153 Mont. 431, 458 P.2d 777, this 

Court rejected any doctrine of abstract foreseeabil i ty 

and affirmed the doctrine of reasonable foreseeabi 1 i ty , 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, in this language: 

" 'Proximate cause is a 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 is a fact. It is important to determine causation 

first to avoid its confusion with the issues to follow. This 
is not a re1 atiorlship between negl igence and injury, but 

rather a causal relation between conduct and hurt, both of 

which are factual concepts. It is only after the causal 

relationship, duty, and its scope are found that the negligence 

issue is reached. 61 Co1.L.R. 1401. 

""'The test most generally employed in determining causation 

is the 'but foryest. Montana has adopted this test in 

numerous cases. 

""'Proximate cause is one 'which in a natural and continuous 

sequence, unbroken by any new, independent cause, produces 

the injury, and without which the injury would not have 

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 Mans and fai 1 s to meet the law in re1 ation to 

causation as it exists in Montana." 

This brings us to the instant case and the question of whether 

Montana should adopt the doctrine of strict liability. We note here that 

both the federal district court 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 is applied to the warranty count 

for these reasons: In the absence of a control1 ing 

decision of the Supreme Court of the State of Montana, 

the federal courts in Montana sitting in diversity cases 

have looked to and adopted as the applicable rule of law 

in Montana the Restatement of the Law of Torts, Second, 

and the strict liability rule announced therein. The 

strict liability rule 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 to warn of dangers inherent 

in its product. Privi ty of contract between buyer and 

seller as a prerequisite to recovery in an implied warranty action has long been abolished in that state in 

cases involving food, and strict liability has been 

imposed on those who sold it. It would seem that the 

same approach would be adopted by the Montana Supreme 

Court in cases involving drugs meant for internal use. 

Faced with the absence of controlling state precedent, 

we choose to assume that Montana would follow the majority of other states in finding that liability can attach 

to the sale of drugs, in either tort or warranty, despite 

lack of privity, and would adopt the views set forth 
below on the manufacturer's duty to warn of dangers in 

'nondefective' but potentially harmful products. * * * 

"The clearest statement of the law as it exists today 

is in our view that set forth in the Restatement (Second) 

of Torts (1965). Relevant to our case are Section 402A 

and comments j and k. * * *" 

The trend seems to be to adopt the theory of strict liability 

and it has now been adopted by a majority of the states. 

In consideration of the instant case as to the adoption of the 

doctrine of strict liability, we first look to the definition of that theory. 

We adopt the definition, as other jurisdictions have, set forth in 2 Restatement of Torts 2d S402A: 

"(1) One who sells any product in a defective condition 

unreasonably dangerous to the user or consumer or to his 

property is subject t o l i a b i l i t y for physical harm thereby 

caused to the ultimate user or consumer, or to his property, 

if 

"(a) The seller is engaged in the business of sell ing 

such a product, and 

"(b) it is expected to and does reach the user or 

consumer without substantial change in the condition 

in which it is sold. 

"(2) The rule stated in Subsection (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 relation with 

the seller." 

In Lechuga, Inc. v. Montgomery, 12 Ariz. App. 32, 467 P.2d 256, 261, 

Judge Jacobson in a concurring opinion discussed the reasons for the application of the doctrine of s t r i c t l i a b i l i t y to that case: 

"It is apparent from a reading of the Restatement, 

and the leading cases on this subject, that the doctrine 

of strict liability was evolved to place liability on the 

party primarily responsible for the injury occurring, that 

is, the manufacturer of the defective product. This, as 

Justice Traynor stated in his concurring opinion in Escola 

v. Coca Cola Bottling Co. of Fresno, 24 Cal.2d 453, 150 

P.2d 436 (1944), is based on reasons of public policy: 

"'If public policy demands that a manufacturer of goods 

be responsible for their quality regardless of negligence 

there is no reason not to fix that responsibility openly. ' 

150 P.2dY at 441. 
"These pub1 ic pol icy 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 injury may be overwhelming to the 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) It is in the public interest to discourage 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 its reaching 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 liability may 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 is almost impossible. Escola v. Coca 

Cola Bottling Co. of Fresno, supra. 

"(7) That the consumer does not have the ability to 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 is not 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 in Montana's tort law by way 

of judicial decision, but as'Chief Justice Vanderbilt 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, 1 L ed 2d 1441: 
"One of the great virtues of the common law is its 

dynamic nature that makes it adaptable to the requirements of society at the time of its application in court." 

Issue 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? 

The adoption of the doctrine of strict liability does 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 is a "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 "first collision" 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 is not the cause of the accident, it is most often the 

contributing factor in the case of "second collision" injuries. In the 

recent years courts have held that where the manufacturer's negligence in 

design causes an unreasonable risk to be imposed upon the user of its products, 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 not made for the purpose of coll iding 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 are forseeable. Where the 

injuries or enhanced injuries are due to the manufacturer's 

failure to use reasonable care to avoid subjecting the 

user of its products 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 safe roof is not eliminated 

simply because the defective roof did not cause the accident. 

Accepting this case as a "second collision" case, it must be 

determined whether there can be liability for the alleged defective construction of the vehicle. 

Appellants contend, relying on Ford, that respondent Is position 

is that appellants owed a duty to manufacture a "crash proof" vehicle. 

Not so! The law does not require such an obligation. Greco v. Bucciconi 

Engineering Co., 407 F.2d 87. 

It* is of' import here to set forth the evidence needed to prove 

the defect. Although appellants do not directly make the claim that respondent had to introduce direct evidence that the design of the roof of 

the Land Cruiser was faulty, it is clear that they would have us adopt this 

standard. However, the better rule is to permit proof of defect to be 

establ i shed by circumstantial evidence and inferences therefrom, as we1 1 

as by direct evidence. 

The essential rationale for imposing the doctrine of strict 

liability in tort is that 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 its products. If this be so, it requires little imagination to see that if a strict rule of direct evidence was required, the 

supposed benefit of the theory of strict liability would be lost to the 

consuming public. The Eighth Circuit Court of Appeals said in Lindsay v. 

McDonnell Douglas Aircraft Corp., 460 F.2d 631, 639: 

"There would be little gain to the consuming public if 

the courts would establish a form of recovery with one hand 

and take it away with the other by establishing impossible 

standards of proof. The proof required in a strict liability case must be realistically tailored to the circumstances which 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 set forth 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 to be used by a 

plaintiff to prove a defect in a manufacturer's or distributor's product, 

in a strict liability case: 

"The .nature and qua1 ity of evidence used in products 

liability cases to show the defect and the nexus between 

the defect and accident naturally varies. The most convincing evidence is an expert's pinpointing the defect 

and giving his opinion on the precise cause of the accident after a thorough inspection. If an accident sufficiently destroys 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 

is possible, as in the present case, the user's testimony 

on what happened is another 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 at the time of the accident, 

and the product was destroyed, the fact of the accident 

and the probabilities are all that remain for the party 

seeking recovery. At this 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 a1 one or cumulatively 

are evidence 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- -3 Prosser, Law of Torts, , @+ ';Y mi&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 oQ respondent instead of contenting 

themselves with cross-examination of respondent's witnesses. Hence, there 

was no expert testimony, indeed no testimony at all, to offset that introduced 

by respondent. 

Respondent's expert witness, Prof. Ralph Challender of the engineering school at Montana State University, testified at length 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 Willys 
Jeep, the International Scout, Ford Bronco and the British Land Rover. 

Summarizing his testimony he noted that in comparison to conventional automobiles, because of the short wheel 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 tip greater. 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 to the 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, Chall ender testified that 

because of the method of construction when a force, such as was appl ied 

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 are reinforcing 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 a mere fiber glass she1 1 . 

The testimony of Challender was corroborated by witness Donald 

J, Thiesen, a mechanic hired to repair the Land Cruiser. He noted that the 

upper structures were damaged severely; that the top panel was completely 

severed from the vehicle; that the sides were 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 "it turned 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 top came off of the vehicle as it was coming 

up to an upright position, and it flew 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 it looked 

so much like a child's toy car that was falling apart in the air, that the 

roof was coming off.", the jury could well have come to the conclusion that 

the roof and superstructure of the Land Cruiser was unreasonably dangerous. 

The top itself was submitted into evidence for the jury's inspection. 

We find there was substantial evidence submitted to the jury for 

it to find that the Toyota Land Cruiser's defective design 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 fair trial 

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 settlement was made between respondent and defendant 01 tz, 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 to this 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 to this Court 

he set forth the fact that no settlement was reached during trial and that 

it was not until after the jury verdict that agreement was reached. 

Judgment is affi 
/ ~h%f Justice 

........................................ 

Justices 
Mr. Justice Wesley Castles dissenting: 

I respectfully dissent. I do not disagree with the strict 

liability rule. What I disagree with is its application to a "second 

collision" situation such as here. The defect here under discussion was 

the defective top. It had 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 to the causation. I believe under Ford v. Rupple,/504 P.2d 

686, 691, 29 St.Rep. 1081, this Court rejected the applicability of strict 

liability in "second collision" cases; that is where the initial accident 

is not caused by any breach of duty of a manufacturer; but it is contended, 

as here, that the damages are enhanced by some defect in construction or 

design. 

I would reverse and grant a new trial.