No. 14810 IN THE SUPREME COURT OF THE STATE OF MONTANA 1979

ROSE KOPISCHKE

## , Plaintiff and Respondent,

VS

# . FIRST CONTINENTAL CORPORATION, Defendant and Appellant.

Appeal from: District Court of the Eighth Judicial District, Honorable H. William Coder, Judge presiding. Counsel of Record: For Appellant: Robert Ernrnons argued, Great Falls,Montana For Respondent: Hoyt,Triewiler, Lewis and Regnier, Great Falls,Montana John Hoyt argued, Great Falls,Montana

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I Submitted: December 13, 1979 

## 3 - :\:,rT Filed: 6-

ClerkMr. Justice Gene B. Daly delivered the Opinion of the Court. his is an appeal from judgment after a jury verdict in the ~istrict Court of the Eighth Judicial District, County of Cascade, in a negligence action. The complaintherein consisted of three counts. Count I11 of the complaint, a claim predicated upon strict liability of the defendant,was dismissed by defensemotion prior to trial. The remaining countswere submitted to the jury on special verdict, and the jury returned a verdict involving comparativenegligence. Defendantwas found to be 65percent negligent and plaintiff was found to be 35 percent negligent. Total damages were assessed by the jury at $650,000,and the court entered judgment for plaintiff in the sum of $422,500. Defendantmoved for a new trial after judgmentwas rendered, but the motion was denied. From the final judgment and denial of the motion for a new trial, defendant appeals. Plaintiff cross-appeals. Defendant, a used car dealer, sold a used car to plaintiff and her husband in late December, 1976. The car in question, a 1971 Datsun stationwagon, was purchased through

one of defendant's salesmen after a short test drive, during which the car pulled slightly to the left. Additionally,plaintiff informed the salesman of several minor things she had noticed thatwere wrong with the car. Some of these were that the horn did not work, poor tires, a wire hanging out of a rear taillight assembly, and that the

car pulled to the left. The sales invoice listed that a number of these correctionswere to be made. The salesman also advised plaintiff that they would take the tires off another 1971 Datsun and put them on plaintiff's car.The sales invoice indicated an odometer reading of 83,615 miles and a disclaimer in fine print that read: "All used cars are sold on an as isbasis with no guarantee either express or implied except as noted above." Above this disclaimer was set forth the aim of defendant: "To

serve you courteously,completely and honestly. To profit, not only in money, but in the good will and friendship of

our customers. To improve whenever possible and correct our

errors when we learn of them. To do our best every day, in every way, to build an establishment which will be known as the finest in our field." No explanation was given to plaintiff pertaining to the "as is1'clause. The 1971Datsunhad a somewhat checkered history. The

car was purchased new in 1971by a couple who lived in San Diego, California. They traded the car in to Melody Toyota, Inc., in 1975. At the time of the trade-in, the car's odometer registered 85,106.4 miles. However, the car was described to be "invery good mechanical condition." Through an unknown series of events, the car was acquired by Swanson Sales in California and resold in California to PierottiMotors. At the time the car was purchased from Swanson by Pierotti, the odometer had been turned back to 41,194miles. Pierotti sold the car to a Robert Graff in July 1975. Graff owned the car until itwas repossessed in 1976 by CreditAssociates. Graff testified that the car was not involved in any accidents and that there was nothing wrong with the car, except for the tires being in fair condition. However, he also testified that at times he noticed vibration in the steering.A representative of CreditAssociates testified that the Datsun was dirty, junky and dented, that the engine needed a tuneup, and the springs and shocks were shot. The car was put out for bids and sold to defendant. Neither plaintiff,nor defendant's salesman,knew that the

car was repossessed or that the odometer reading was incorrect. Plaintiff testified that had she known the car had over 120,000 miles on it, shewould not have bought it. Plaintiff took delivery of the car on December 27, 1976,had a C.B. radio installed,and drove it to Missoula a fewdays later. She experienced vibration in the car and a pulling to the left,but had no real trouble on this trip. She did, however, consult a mechanic about the car, and on two occasions repairwork was done. This work involved a tuneup, fixing the speedometer, installing a heater, fixing the brakes, aligning the front-end,etc. On the last occasion, the mechanic recommended on a repair order, "Take the

car back, needs lots of work, not safe on the road." Plaintiff testified that she thought thismeant shewas to bring the car back for repairs and that she did not think she would be in any danger if she drove the car, except maybe she could be stranded if the car broke down. Plaintiff drove the car around Missoula until January 21, 1977,when she drove it back to Great Falls. She again experienced shaking and vibration in the car during this trip. On arrival in Great Falls,plaintiff called Dave Fender,one of defendant's salesman, about the problem and

was advised that the car was merely "dieseling"and that premium gaswould correct the problem. The following day, January 22, 1977,plaintiff drove to Chester for an appointment with her doctor. Her husbandtold her she should probably take the couple's other car, but she thought she could use her C.B. and get assistance if she had any problems. Plaintiff testified itwas a good day for driving, the roads were excellent,and the car handled fine on the way to Chester and all the way back to the point of the accident. The accident occurred a fewmiles west of Carter on a good stretch of highway. The car suddenly started to vibrate, and the steering wheel and motor began shaking. The car went out of control,veered into the left lane, swung back to the right,went off the road and rolled over. Plaintiffwas thrown out of the car and sustained

severe back injuries,which have left her paraplegic. A driver in the car following plaintiff's testified she was driving prudently and at about 50m.p.h. just before the accident. There isno question thatplaintiff was not using the safety belt in her car at the time of the accident. Raymond McHenry, a consulting engineer, was retained by plaintiff to determine the cause of the accident. McHenry examined the car,viewed the accident scene and discussed the accident with plaintiff. In addition, he removed the wheels, MacPherson struts,and carefully examined the vehicle to determine what caused it to go out of control. McHenry examined the transverse link (lowercontrol arm) on the right front suspension and found that it was cracked extensively, bent and had four compression marks on it, indicating that the bend had been caused by a tool. He also found that there were four white sidewall tires on the

car. All of the white sidewalls turned outward in the normalmanner except the right front white sidewall,whichwas reversed with the white sidewall turned inward. On the white side of that tire there was a tread separation several inches in length, and this tire was out of balance. In addition,McHenry found that the left sidemotor mount was completely separated and sitting in an unusual position, the stabilizer bar was disconnected, and the left rear brake lining showed lubricanton itwhich had been leaking since before plaintiff purchased the car. McHenry performed various tests on a Datsun similar to plaintiff's,using bent transverse links, disconnected stabilizer bar and disconnected left rear brake to determine the effect on the car's handling. He also consulted with Dr. James Magor, a metallurgic engineer at North Carolina StateUniversity, who ranvarious tests on the transverse link. He concluded the transverse link had been deliberately bent to an angle of 30° and then straightened to an angle of 20° and, in straightening this link, cracks were formed. These cracks extended under the alternating loading conditionsof plaintiff's car in a process called metal fatigue. McHenry reconstructed the cause of the accident as follows: Prior to the accident the transverse link had deliberately been bent to an angle considerably greater than lo0 and then reverse bent to an angle of approximately lo0. (Dr. Magor established with certainty that this had been done a long time prior to the acquisition of the car by plaintiff.) Through the process of metal fatigue, the transverse link had progressively weakened as the cracks propagated through the upper section and down the sides of the link. The smaller bend in the link or arm had already created a mild pull to the left,Due tothe process of metal fatigue, just prior to the accident the transverse link bent more, causing the wheel to toe-in. The vibrationwhich plaintiff described served to accelerate the fatigue process causing the cracks topropagate inan acceleratedmanner which, superimposed upon the already weakened link, abruptly increased the angle of bend from 10' or lesstoapproximately 20°. This occurred in approximately one second and resulted ina heavy pull tothe leftcausing the vehicle togo into the lane foroncoming traffic. The vibration or shimmy was caused by the unbalanced retread tires. With the tread separationon the right front and two inches of freeplay attherimof the steering wheel and theMacPherson strutslow on dampening fluid, the vibration occurred. In addition, the disconnectedmotor mount would allow the engine vibration toreach a larger amplitude therefore shaking the enginemore. McHenry completely ruled outdriver error. The reason the carveered to the rightwas because of steering input by plaintiff. With the right front stabilizerbar disconnected, the

carveered farther tothe right, causing it toface the direction itwas traveling atthe time it came to the shoulder of the road and then torollover. In testruns with a similar test car of the same make, it took 1.4 seconds for the test car traveling 50 m.p.h. with a 20' bend inthe transverse link togo entirelyinto the opposite lane. The bend now seen inthe plaintiff's transverse link is 20". In addition tothe efforttohold the steeringwheel straighton the test car at50 m.p.h. with a 20' bend inthe transverse link, the steering wheelhad to be turned 60' to the right just to hold the car in a straight line. Testimony indicated that defendantdid not inspect plaintiff's car for defects after itwas acquired at the repossession sale. Testimony of defendant's employees indicated that a 5Obend in the transverse link would have been obvious if the car were placed on a hoist or if a front-end alignment check weremade. (Defendantdid not require safety inspections on used cars.) However, one employee testified that itwas normal for every used car to receive an inspection by being lifted on a hoist where a mechanic would inspect the undercarriage for defects. Defendant's owner, John Greytak, testified that at one time there was a multi-point inspectionwhich included an undercarriage inspectionbut that this was discontinued in 1974. When Greytak was questioned by plaintiff concerning whether defendant offered used cars for sale to a customer with the representation that they had been checked from end to end, he testified that they would not advertise in that

manner or use those words. After much objection, an advertisementpublished by Great Falls radio station KEIN after the accidentwas admitted which stated: "Youreally can't tell a heck of a lot about a used car by kicking the front tires. So at ContinentalDatsun-Volvo before a used car is offered for sale,we check the compression, front end alignment, inspect the brake lining, test the brakes, check the front end and shocks, test the automatic transmission, safety test the lights, horn, turn signalsand wipers. Plus they change the oil and filter, they give it a grease job and a full reconditioning. So when you kick the tires on a used car at Continental,you're kicking the tires of a darn good car, one that's been checked and corrected from end to end. Continental Datsun-Volvo."It isundisputed that no safety inspection was done on plaintiff's car by defendant. The testimony indicated that defendant's manager and salesmen intended their customers to

assume that they werebuying a reliable car, one thatwas safe for highway use. Over thirty issueswere presented for review on this appeal. A number of these issueswere consolidated by counsel ingeneral headings. Wewilltherefore discuss the issues ina consolidated form. There are fivemajor issues, the resolution of which determines the outcome of thisappeal. They are: 1. Did the DistrictCourt err ininstructing the jury thata used car dealer has a legal duty toinspect and discover any defects ina used carwhich would have been discoverable inthe exercise of ordinary care and then to either repair such defects oratleast warn a buyer of their existence? (a)What effectdoes the "as is" clause have on such a duty?(b) Did the DistrictCourt err inrefusing topermit testimony, argument, or instructionson the "as is" clause contained inthe purchase agreement? 2. Did the DistrictCourt err inrefusing topresent tothe jury the questionwhether plaintiff's failure touse seatbelts contributed toher injuries? 3. Did the DistrictCourt err inrefusing togive instructions on plaintiff's alleged contractual and noncontractual assumptions of risk? 4. Did the DistrictCourt err indenying defendant's motion for summary judgment on plaintiff's Count 11,5. Was it error to refuse to allow the reading of plaintiff's deposition? The key issue in this case iswhether defendant had a legal duty to inspect and discover any defects in the used

car which were obvious or discoverable upon reasonable inspection, and then to repair such defects or at least warn

a buyer of their existence. Tied in closely with this issue iswhat effect the "as is"provision in the purchase agreement had on this duty. Defendantcontends that its duty was defined by the contract--"it was to sell the car in question,nothing more." It further submits that the term "as is" has a definitemeaning in the law. It implies that the buyer is taking delivery of goods in some way defective and upon express condition that he must trust to his own examination. Black's Law Dictionary (4thed. rev. 1968) at 146; 6A C.J.S. As Is at 299. 

### -- From this premise defendant concludes that if a vehicle is sold by a used car dealer "as is", the dealer is not liable to the buyer in negligence for injuries traceable to defects in the vehicle. Thrash v. U-Drive-It Co. (1953), 158 Ohio St. 465, 110N.E.2d 419, 423; Pokrajac v. Wade Motors (1954), 266 Wisc. 398, 63N.W.2d 720. Defendant argues itwas error for the District Court to expressly direct the jury not to consider the "as is" provision. Defendant states that this, in effect, constitutes a rewriting of the agreement--something the ~istrict Court is notpermitted to do. Section 1-4-101,MCA; ~anielson v. Danielson (1977), 172Mont. 55, 560 P.2d 893. Plaintiff contends that defendantwas negligent as a matter of law. This contention isbased on defendant'sfailure to inspectand on defendant's knowinglyplacing a damaged front tire onplaintiff's car. Plaintiff argues that a person cannot contract away liability because to do

so would contravenepublic policy. Haynes v. County of is sou la (1973), 163Mont. 270, 517 P.2d 370. Therefore, the "as is"provision is ineffective to protect defendant from liability for its negligent acts. Plaintiff also cites Turner v. International Harvester Company (1975), 133N.J.Super. 277, 336 A.2d 62, for the proposition that an "as is"disclaimer in the sale of a used vehicle does not bar a negligence action. Defendant, in its reply brief, distinguishes Haynes and argues that Haynes dealt only with contracting away possible future negligence while this case, of necessity, involves past negligence. The general rule in Montana is that a used car dealer has a duty to discover and repair any defects which are patent or discoverable in the exercise of ordinary care. Rogers v. Hilger Chevrolet Company (1970), 155Mont. 1, 465 P.2d 834. In Hilger, however, the defendant was not held liable because the evidence indicated that "[dlefendantdid notwarn plaintiff of any defects because it is obvious from the record defendant did not have any knowledge of a defect. ~efendant's employees checked the automobile over and this check included the right frontdoor. Defendant'sduty does not extend to completely dismantling an automobile and then reassembling it before its resale." Hilger, 465 P.2d at 838. The evidence here shows that the defectwas an obvious

one and a reasonable inspectionwould have revealed it. Inthe instant case, however, defendant concedes that no inspection took place. In fact,defendant contends there was no duty to inspect.There isalso the added factor inthis case of defendant's "activenegligence" inreplacing worn tires with three good tires and a defectiveone. The act of placing thewhite sidewall on the inside was apparently a means of purposefully hiding from plaintiff a defectwhich inevitably accelerated the breakdown of the transverse link. Indeciding Hilger thisCourt cited the Eighth Circuit

case of Egan Chevrolet Co. v. Bruner (8thCir. 1939), 102 F.2d 373. InEgan Chevrolet the court was presented with a similar fact situation inthat the steering mechanism of the truck broke down, causing a collision. The court held for the plaintiff and stated: "A retaildealer who takes a used truck intrade and undertakes torepair and recondition it for resale for use upon the public highways owes a duty to the public touse reasonable care inthe making of tests for the purpose of detecting defectswhich would make the truck a menace to those who might use it or come incontactwith it and inmaking the repairs necessary torender the truck reasonably safefor use upon the public highways, and ischarged with knowledge of defects which arepatent ordiscoverable inthe exercise of ordinary care. 

# .. The rule does not mean--as the appellant seems tofear--that a dealer in used motor vehicles, who undertakes torecondition a truck forresale, becomes virtually an insurer of the safetyof the truck he sells, nor does it mean that he isrequired todisassemble an entire truck toexamine each of itsparts. It does mean that he must use reasonable care to ascertainwhether the truck isequipped with the minimum essentials for safe operation, one of which unquestionably isa steeringmechanism which willwork and which willnot shortly shake apartunder normal use. One who permits a truck with a dangerously defective steeringmechanism tobe used upon the public highways, not only has reason toanticipatethat it willcause an accident, butmay be almost certain that it will do so. 'In such circumstances, the presence of a known danger, attendant upon a known use, makes vigilance a duty.' 

# . . ." 102 F.2d at 375-76. (Citationsomitted.) In accord with the above areGaidry Motors v. Brannon (Ky. 1953), 268 S.W.2d 627 and Turner v. InternationalHarvester Company (1975), 133 N.J.Super. 277, 336 A.2d at

"It is common knowledge that old cars are more likely to be subject to mechanical defects than are new ones. The turnover in ownership of used cars is fairly rapid, and the majority of these cars are sold through used car dealers. The used car dealer is in a better position, by reason of his opportunity, than his average customer to discover what defects might exist in any particular car to make it a menace to the public. We are of the opinion it is not too harsh a rule to require these dealers to use reasonable care in inspecting used carsbefore resale to discover these defects, which the customer often cannot discover until too late." Gaidry Motors v. Brannon, 268 S.W.2d at 628-629. Further

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# ".

. . expectations of quality and durability will be lower for used goods, commensurate with their age, appearance and price. However, safety of the general public demands thatwhen a used motor vehicle, for example, is sold for use as a serviceable motor vehicle (andnot as junk- parts), absent special circumstances, the seller be responsible for safetydefects whether known or unknown at time of sale,present while the machine was under his control. Otherwise, the buyer and the generalpublic are bearing the enterprise liability stemming from introduction of the dangerously defective used vehicle onto the public highways. Public policy demands that the buyer receive a used chattel safe for the purpose intended (whereno substantial change will occur prior to reaching the buyer or forseeable consumer). 

# .." Turner v. International Harvester Company, 336 A.2d at 69. (Citations omitted.) See also Ikerd v. Lapworth (7thCir. 1970), 435 F.2d 197; Thrashv. U-Drive-It Co., supra; 60C.J.S. Motor Vehicles

Defendant cites Thrash for the proposition that use of an "as is" clause protects a used car dealer from liability for negligence for injuries traceable to defects in the vehicle. A careful reading of Thrash shows that defendant has misread the case. It in factpoints the finger of liabilityat defendant. Thrash involved the sale of a used truck "as is" from the U-Drive-It Company to the SpotMotor Company and then a subsequent sale from Spot to Thrash. Shortly after the sale a lock ring on the left frontwheel of the truck blew off, causing an accident in which the plaintiff

was crushed. The plaintiff sued both car dealers. The court ruled that the U-Drive-It Company was not liable for the plaintiff's injuries because the sale to SpotMotor was an intervening factor relieving it from liability and transferring its duty to Spot. The court stated: "We conclude thatwhere the owner of a used motor vehicle sells the same 'as is' to a dealer in those articles 

## -- for such disposition -- as the dealer may make of it, such owner may not ordinarily be 

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### - held liable for injuries occasioned to onewho

### --- purchased the vehicle --- from the dealer or for injuries to another,because of faults or imperfections in the vehicle which existed or occurred during the time itwas in the possession of such owner." Thrash, 110N.E.2d at 423. The court, however, ruled in effect that SpotMotor's negligence was still at issue and stated: "Althougha dealer in used motor vehicles is not an insurer of the safety of the vehicles he sells, he is generally under a duty to exercise reasonable care in making an examination thereof to discover defects therein which would make them dangerous to users or to those who might come in contact with them, and upon discovery to correct those defects or at least give warning to the purchaser 

# .

# .." Thrash, 110N.E.2d at 423.

(Citations omitted.) It is the second ruling by the court, and not the first,which is applicable here as this case does not involve a sale between dealers but between a dealer and a

consumer. Once it has been determined that a used car dealer has a duty to reasonably inspect and discover defects which are patent or discoverable in the exercise of ordinary

care and then to repair those defects, Rogers v. HilgerChevrolet Company, supra, itbecomes necessary to determine what effect the "as is" clause has on such a duty. The phrase "as is" is a statutorily approved method of excluding warranties. The controlling statute is section 30-2-316(3)(a),MCA, which provides: 

### " (3)Notwithstanding subsection (2) : "(a) unless the circumstances indicate otherwise, all implied warranties are excluded by expressions like 'as is', 'withall faults' or other language which in common understanding calls the buyer's attention to the exclusion of warranties and makes plain that there is no implied warranty;" The code commenton this section is of little help here. It states: "Paragraph (a) of subsection (3)deals with general terms such as 'asis,' bs they stand,'

'with all faults,' and the like. Such terms in ordinary commercial usage are understood to mean that the buyer takes the entire risk as to quality of the goods involved 

# . . ." U.C.C. (U.L.A.) 52-316. The area of the code in which this section is located deals with exclusion or modification of warranties, express or implied, in sales of goods. These warranties for the most part deal with quality,merchantability, and fitness of the goods sold. There is nothing enumerated in these sections which deals with exclusion of tort liability. Itwould indeed be inconsistent if the disclaimer had that effect. This is especially the case in light of the legislature's passage of section 30-2-719(3), MCA, which provides: 

### " (3)Consequential damagesmay be limited or excluded unless the limitationor exclusion is unconscionable. Limitation of consequential damages for injury to the person in the case of consumer goods isprima facie unconscionable but limitation of damages where the loss is commercial is not." Montana subscribes to the general rule:

'I I

# . . . that personsmay not contract against the effect of their own negligence and that agreements which attempt to do so are invalid. However,it isnot true that any agreement of thiskind is void as against public policy. Whether a person can relieve himself by agreement from the duties attaching as a matter of law toa legal relationship created by contract between himself and another person, isa matter of some difficulty. The conclusion has been reached that even under the view that a person may, under some circumstances, contract against the performance of such duties, he cannot do sowhere either (1)the interestof the public requires the performance of such duties, or (2) because the parties do not stand upon a footing of equality, the weaker party is compelled to submit tothe stipulation

### .' " Haynes v. County of Missoula (1973), 163Mont. 270, 517 P.2d 370, 376. One of the issuespresented for review inHaynes was thepropriety of the DistrictCourt's pretrial order suppressing the plaintiff's general release inthe Western Montana Fair Entry Blank. The defendants argued the release

was a valid and enforceable contract absolving the defendants from liability. The release provided: "Ihereby release the Missoula County Fair Board from any liabilityby loss, damage or injury tolivestock or other property, while said property ison the Fairgrounds." 517 P.2d at376. This Court held the District Court was correct in suppressing the release stating, 

# ".

.

# . [i]nour view the release is illegal and unenforceable because it iscontrary to the public policy of this state and against the public interest." 517

We further stated inHaynes: "Directing our attention toMontana law, we note an express public policy of this statetofixresponsibility fordamage toperson orproperty upon those who failtoexercise ordinary care or skill. Section 58-607, R.C.M. 1947 [now section 27-1-701, MCA]

### ,provides: "'Every one isresponsible, not only for the resultof hiswillful acts, but also for an injury occasioned toanother by hiswant of ordinary care or skill inthemanagement of hisproperty orperson, except so faras the latter has, willfullyorby want of ordinary care, brought theinjury upon himself. The extentof liability in such cases isdefined by the title on compensatory relief.' "The purpose of this statute is twofold: (1)To fixprimary responsibility and liabilityon the tortfeasor whose conduct occasioned the loss or injury, and (2) tomake the victim whole. "Section 13-6801(2), R.C.M. 1947 [now section 28-2-701, MCA], defines illegal contracts as those: "'Contrary to the policy of express law, though not expressly prohibited.' "Section 49-105, R.C.M. 1947 [now section 1-3- 204, MCA], provides: 'Any one may waive the advantage of a lawintended solely for his benefit. But a law established for a public reason cannot be contravened by a private agreement.'

"We hold the County isprecluded from disclaiming liabilityby virtue of the release when performing an actinthe public interest. This principle isrecognized inRestatement, Contracts, § 575, providing inpertinent part: "'(1) A bargain for exemption from liabilityfor the consequences

## * * 

## * of negligence is illegal if

"'(b) one of theparties ischarged with a duty of public service, and the bargain relates to negligence intheperformance of any part of its duty to the public, forwhich it has received or been promised compensation.'" Haynes, 517 P.2d at 376-78. While Haynes dealtwith a release of liability for future negligence, there isno reason the rules enumerated inHaynes should not apply here. Defendant wasunder a duty toreasonably inspect fordefects. It failed todo so. To allow it todisclaim liabilityby a simple "as is"phrase would be a violation of the public policy espoused inHaynes. Montana has never determined what effect the "as is" phrase has on tort liability. Other jurisdictions have interpreted the phrase, with varying results. Defendanturges this Court to follow the holding in Pokrajac v. Wade Motors, supra. The court in Pokrajac held that the seller was not liable for defects due to the existence of a disclaimer clause. The disclaimer in Pokrajac,however, is different from the one used in the instant case. Itprovided: 

### "'

## * * * In case the car covered by this order is a used car, the undersigned purchaser states that he has examined it, is familiarwith its condition, isbuying it as a used car, as-is, and with no guaranty as to condition,model or mileage, unless otherwise specified herein in writing. No oral representations have been made to the Purchaser and all terms of the agreement are printed or written herein 

## * 

## * *'" 63N.W.2d at 721. The court specifically found no duty to inspect or repair because of the "as-is"clause. Further, it could find no reason in public policy to prevent such a disclaimer. Pokrajac,however, isdistinguishable because of the extensive disclaimer provision, including a statementby the buyer that he inspected the car--a factor not present here. Further, inMontana, unlike Wisconsin, there is a duty to inspect independentof the "as is" clause. Hilger, 465 P.2d

Knipp v. Weinbaum (Fla.App. 1977), 351 So.2d 1081,held that the effect of an "as is" disclaimer on tort liability depended on the interpretation the parties gave to the disclaimer and was thus a question for the jury to decide. In reaching its decision, the court stated: "Theplaintiff in this case alleged that his injuries resulted from a defect in the goods sold. To foreclose consideration of his claim by permitting an 'as is' disclaimer to operate as an automatic absolution from responsibility through the mechanism of summary judgmentwould belie the policy behind Section 672.2-719(3),which states that 'limitation of consequential damages for injury to the person in the case of consumer goods isprima facie unconscionable. "Moreover, Section 672.2-316(3) provides: 

### "

### ' (a)Unless the circumstances indicate otherwise, all implied warrantites are excluded by expressions like 'as is', 'withall faults' or other language which in common understanding calls the buyer's attention to the exclusion of warranties and makes plain that there is no implied warranty 

# .

# . . '[Emphasis supplied.] "It is the clause 'unless the circumstances indicate otherwise' which precludes a finding that automatic absolution can be achieved in the sale of used consumer goodsmerely by the inclusion in a bill of sale of the magic words 'as is.' "This is not to say that a seller of used goods may not absolve himself from responsibility for defects in the goods sold when both he and the buyer understand this to be the intended meaning of the phrase 'as is.' See Comment 3 to Section 672.2-719. The Uniform Commercial Code contemplates that a seller may disclaimwarranties as long as the buyer reasonably understands this is being done 

# . .

# .But a disclaimer, to be effective, must be a part of the basis of the bargain between the parties." 351 So.2d at 1084-85.

(Citationsomitted.) The court further stated: "Even if the 'as is' termwere to be found to negate liability under the causes of action in warranty, an issue by no means settled, the absence of warranties in the sale of chatteldoes not necessarily preclude liability for negligence



# .

# . . On the contrary, in the instant situation, the 'as is' disclaimer serves to add another dimension to the negligence claim, for its effect on the evidence presented may be substantial, especially on the question of whether or to what degree the defendant owed a duty to the plaintiff. The understanding of the parties as to the extent of the disclaimer isparticularly relevant to a jury's determination of what was reasonable under the circumstances 

# .

# . . There remain disputed facts as to the degree of care exercised by defendantsand the degree of care required of them. Summary judgment on the negligence count is singularly inapt on the factsbefore us." 351 So.2d at 1085-86. Turner v. International Harvester Company, supra, involved the "asis" sale of an International tractor-truck.The court applied a strict liability standard to the seller of defective used products. The courtheld thatwhen selling to the ordinary consumer a simple "as is" disclaimer does not effectively insulate the dealer from a claim of strict liability in tort following an accidentwhich resulted from a safety defect present in the vehicle when it

was in the control of the dealer. It stated: 

# ".



# . .Bargaining power and ability to protect one's interests are generally disproportionate as between the buyer of used goods and one in the business of selling them. While freedom to contractneed not be impaired if a buyer wishes to contract away his right to protection, an unequivocal waiver of safety defectsmust be shown. 

# .. Otherwise,when the additional indirect costswill be borne by the public through insurance costs, a decent regard for the public safety requires the thumb of the State to be on the buyer's side of the scale

# . .

# ." 336 A.2d at 70-71. (Citationsomitted.) The courtultimately held that the issue of the effect of the "as is" clausewas a jury question: "The 'as is' notation,however, adds an additional element to the negligence aspects of this case

# ..

# .But, does a disclaimer of statutory warranties also act as a waiver of both tort claims in strict liability and negligence? Without any language of waiver, and without any evidence before this court that the 'as is' language was meant to serve as an intentional relinquishment of a known right, such effect will not be implied 

# . .

# . "Thisdetermination,however, does not fully answer the question of the effect of the 'as is' statement, for itwill have a very real evidentiary effect at the trial. What conditionsdid the 'as is' designationdisclaim? A jury must eventually determinewhat was reasonable with respect to any proven danger present in a product sold 'as is.' Did the parties understand that the 'as is' designation applied only to body damage, gas mileage, worn tires or other such problems that could be discerned by a reasonable inspection or test drive? Was it limited to performance rather than safety defects? Was the designation intended to cover all defects?" 336 A.2d at 72-73. (Citationsomitted.)In Fleming v. Stoddard Wendle Motor Co. (1967), 70 Wash.2d 465, 423 P.2d 926,a former owner of a pickup had modified its automatic transmission so that the motor would start even though the transmissionwas "ingear." When the former owner traded in the pickup, he did not disclose the modification to the automobile dealer. The court held the former owner subject to liability for the plaintiff's injuries, even though the trade-inwas made "as is." The facts of Fleming are easily distinguishablehere. However, the court's discussion of the "as is" disclaimer is relevant: 

# ".

. . in certain circumstances

# . . . parties may bargain for exemption from liability for the consequencesof negligence 

# .

# ..However, in order to effectuate such a result, a provision for such an exemptionmust clearly express an intention to exclude liability for any and all harms however caused 

# . . . "The significance of an 'as is' sale is that the goods are sold in the condition inwhich they are 

# . .

# . Such a sale,unless otherwiseprovided in the contract, excludes and negativeswarranties 

# . .

# . In other words, the term 'as is' by itself amounts solely to a disclaimer of warranty "The absence of warranties in the sale of chattels does not preclude liability for negligence



# . .

# ." 423 P.2d at 928. In its discussion the court specifically distinguished Pokrajac and the "as is" holding in Thrash onmuch the same grounds as stated above. In Kothe v. Tysdale (1951), 233 Minn. 163, 46 N.W.2d 233, the defendant asserted that his statuswas that of a seller of secondhand goods "as is" and that no liability attached to him as a vendor because of any defects therein. The court disagreed and stated: "The authorities seem to clearly establish that either a vendor in a sale or a lessor in a lease of a vehicle intended to be used upon the publichighways owes a duty tothe public using such highways toexercisereasonable care insupplying the purchaser or the lessee with a vehicle that willnot constitutea menace or source of danger thereon; that liabilityattaches to such vendor or lessor for injurieswhich are the result of patent defects inthe vehicle thus provided, or if defects therein which could have been discovered by the exercise of ordinary care; and that such liabilityexists irrespective of any contractual obligationsbetween the parties to the original transaction 

# . . ." 46 N.W.2d at 236. (Citationsomitted.) It isclear that inMontana a used car dealer has a duty todiscover and repair any defects which are patent or discoverable inthe exerciseof ordinary care. Hilger, supra. It isequally clear that it is against the public policy of this State todisclaim liabilitywhen performing

an actin the public interest. It cannot be denied that inspecting used cars toinsure their safeoperation is an actinthe public interest. In lightof the above-enumerated public policies, we find the better rule tobe that the "as is" language does not absolve used car dealers from tortliabilityfor accidents caused by defects inthe car sold. This is especially true incaseswhere, ashere, therewas a breach of a duty todiscover and repair the defects. "Tort liability isnot based upon representations orwarranties. It isbased on a duty imposed by the law upon one who may foresee that his actionsor failure toactmay result inan injury to others." Gaidry Motors, supra, 268 S.W.2d at629. Here defendant failed to inspect the car for defects before the sale toplaintiff. The defectwould have been discovered ina reasonable safety inspection. The defect

was the proximate cause of plaintiff's accident and subsequent injuries. Defendant should not be allowed tohide behind the cloak of a simple "as is"disclaimer. When theordinary person purchases a car "as is," he expects tohave toperform certain repairs tokeep the car ingood condition. He does not expect topurchase a death trap. Public policy requires a used car dealer to inspect the cars he sells and tomake sure they are in safe, working condition. This duty cannot be waived by the use of a magic talisman in the form of an "as is" provision. The trialcourt did not

err ininstructing the jury of defendant's duty toinspect and in suppressing evidence on the "as is" clause.

The second issue iswhether the trial court erred in refusing toinstructon the defense of plaintiff's failure touse a seat belt. The Montana statutesregarding seat belts are sections 61-9-409 and -410, MCA. Section 61-4-409 provides: "Seatbelts required innew vehicles. It isunlawful for any person tobuy, sell, lease, trade or transfer from or toMontana residents atretail an automobile which ismanufactured or assembled commencing with the 1966 models unless such vehicle isequipped with safety belts installed for use inthe leftfront and right front seatsthereof, and no such vehicle shall be operated inthis state unless such belts remain installed." Section 61-9-4H dealswith seatbelt specifications. There isno statutory requirement inMontana that a person must wear a seat beltwhile operating orriding inan automobile, nor are there any Montana cases on the subject. The seatbelt defense has, however, been raised repeatedly inother jurisdictions with varying results. Plaintiff contends that the overwhelming majority of jurisdictions are inaccord that there isno common law duty towear a seat belt, and absent a statuterequiring the wearing of a seat belt, negligence cannot be predicated uponfailure to do so. She then lists numerous cases in jurisdictions rejecting the defense. Defendant, on the other hand, contends that when a state has a comparative negligence rule, use of seat belts to mitigate the injury is always a proper question. It cites a few cases to support its viewpoint, and in its reply brief attempts to distinguish most of the cases plaintiff cites on the ground that they were decided in noncomparative negligence jurisdictions. The overwhelmingmajority of the cases, be they from contributory negligence states or comparative negligence states, refuse to penalize a plaintiff for not using seat belts and have rejected the defense. Amend v. Bell (1977), 89 Wash.2d 124, 570 P.2d 138. See also: Barry v. Coca Cola Co. (1967), 99N.J.Super. 270, 239 A.2d 273; Birdsong v. ITT Continental Baking Company (1974), 160 Ind. 411, 312 N.E.2d 104; Britton 

### v. Doehring (1970),286 Ala. 498, 242 So.2d 666; Brown v. Case (1974), 31 Conn.Sup. 207, 327 A.2d 267; Brown v. Kendrick (Fla.App. 1966), 192 So.2d 49;Cierpisz v. Singleton (1967),247 Md. 215, 230 A.2d 629;D.W. Boutwell Butane Company v. Smith (Miss. 1971), 244 So.2d 11; Fields

v. Volkswagen of America, Inc. (Okl. 1976), 555 P.2d 48; King Son Wong v. Carnation Company (Tex.Civ.App. 1974), 509 S.W.2d 385; Lawrence v. Westchester Fire Insurance Company

r. (La. 1968), 213 So.2d 784; Lipscombv. Diamiani (Dela. ' I 1967), 226 A.2d 914;McCord v. Green (D.C. 1976), 362 A.2d 720;Miller v. Haynes (Mo. 1970), 454 S.W.2d 293;Miller v. Miller (1968),273 N.C. 228, 160 S.E.2d 65;Fischer v. Moore

(1973), 183 Colo. 392, 517 P.2d 458;Nash v. Kamrath (1974), 21 Ariz-App.530, 521 P.2d 161; Placek v. City of Sterling Heights (1974), 52 Mich.App. 619, 217 N.W.2d 900; Robinsonv. Lewis (1969), 254 Or. 52, 457 P.2d 483; Selgado v. Commercial Warehouse Company (1975), 88 N.M. 579, 544 P.2d 719; Stallcupv. Taylor (1970), 62Tenn.App. 407, 463 S.W.2d 416. InAmend, supra, the defendants argued that under the doctrine of comparative negligence, evidence was admissible to prove thatplaintiff's wife was notwearing an available harness seat belt. They further alleged that such failure either caused all her injuries, contributed to, enhanced or aggravated those injuries. Before the passage of comparative negligence statutes, Washington held that failure to wear a seatbelt was not contributory negligence. InAmend the defendants contended,

as does defendant here, that the comparativenegligence statute abrogated prior case law on the seat belt defense and therefore evidence on the defensewas admissible. The courtdisagreed and stated: 

# ".

.

# .While the result of contributory negligence and comparative negligence ismuch different, both are premised upon negligence. In the one case we bar recovery, in the other we compare negligence and potentially reduce damages. However, in either case, we look to the negligence of the plaintiff. "Thepremise upon which negligence rests is that an actor has a legally imposed duty, i.e., a standard of conduct to which he must adhere. That duty may spring from a legislative enactment of the standard of conduct or from a judicially imposed standard. Deviation from that standard of conductmust occur to have negligence. [Citation omitted.] "Our legislature has notmandated the use of seatbelts as a standard of conduct. RCW 46.37.510 only requires installation of front seatbelts on automobiles manufactured after 1964 [similarto Montana]. We have held, along with the vast majority of other states, that such a statute does notmake mandatory the use of the seat belts. [Citationomitted.

### 1 "Thequestion then iswhether the court should impose a standard of conductupon all persons riding in vehicles equipped with seatbelts. We think we should not."Thedefendant should notdiminish the consequences of his negligence by the failure of the plaintiff to anticipate the defendant's negligence in causing the accident itself. Only if plaintiff should have so anticipated the accident can it be said that plaintiff had a duty to fasten the seatbelt prior to the accident. "Thereare a number of reasonswhy we reach this conclusion. We have noted that the plaintiff need notpredict the negligence of the defendant. Second, seat belts are not required in all vehicles. Defendant should not be entitled to take advantageof the fortuitous circumstance that plaintiff was riding in a car so equipped. "Third,while not controlling as to the standard of conduct, it is a fact and persuasive that the majority of motorists do not habitually use their seatbelts. Studies show that asmany as twothirds of observed driversdid not use seatbelts. 'BeltUse '76,' Insurance Institute for Highway Safety, 1976. Belt use by passengers and children is even lower, one researchpaper revealing that 93percent of observed children under 10were not restrained by belts and 89 percent of passengers 10 years or older were not using available belts. Alan F. Williams, 'ObservedChild Restraint Use inAutomobiles,' TheAmerican Journal of Diseases of 

### -Children,vol. 130,December 1976. "Fourth,allowing the seatbelt defensewould lead to a veritable battle of experts as to what injurieswould have or have not been avoided had the plaintiff been wearing a belt. At best it would cause substantial speculationby the trier of the facts." Amend v. Bell, supra, 570 P.2d at 143. In Fischer v. Moore, supra, the court stated: "We conclude, as the Court of Appeals has, that the failure of the driver or passenger in a motor vehicle to use a seat belt does not constitute contributory negligence and may not be pleaded as a bar to recovery of damages in an action against a tort-feasorwhose negligence provides the initiating force and is a proximate cause of an injury to a driver or passenger. [Citation omitted.] If we were to hold otherwise, the person who was driving a Volkswagen, and not a Mack Truck, could be said to be more vulnerable to injury and, therefore, guilty of contributing to his own injury as a matter of law. Such a resultwould be contrary to the entire 'fault' philosophy which is found throughout the law of tort."Moreover, tous, it would be improper for an injured driver orpassenger tobe penalized in the eyes of the jury by permitting evidence to be presented that a seatbeltwas available which had not been put inuse. The seat belt defense would soon become a fortuitous windfall to tort-feasors and would tend tocause rampant speculation as to the reduction (or increase) in the amount of recoverable damages attributable to the failure touse available seat belts. [Citations omitted.] In comparing the cases which we have cited, it isapparent that the acceptance of the seatbelt defense can only be justified asa deviation from common-law negligence on a public policy theory. [Citation omitted.] The legislature, and not the judiciary, serves asthe barometer of public policy inColorado. Prior to the adoption of our comparative negligence statute, the legislature did not enact, although it considered, seatbelt legislation. Therefore, we arenot inclined to alter the common law in the face of the legislature's failure to actinorder tocreate a negligence defense which iswholly grounded on public policy considerations. "In short, the seatbelt defense, under the law that existed prior to the adoption of our comparative negligence statute, isnot an affirmative defense toan action for negligence, and evidence that the injured party failed towear a seatbeltmay not be brought before the jury inany form toestablishcontributory negligence or to reduce the amount of the injured party's damages." 517 P.2d at459-60. Other cases which leave such a decision up to the legislature or refuse toenforce a seat belt defense on the basis of statutes similar toMontana's are: Britton v. Doehring, supra, 242 So.2d at675; D. W. Boutwell Butane Company v. Smith, supra, 244 So.2d at 12; Miller v. Haynes, supra, 454 S.W.2d at 301; Miller v. Miller, supra, 160 S.E.2d at73; Fields v. Volkswagen of America, Inc., supra, 555 P.2d at62. Two of the above cases give comprehensive discussions concerning the use and practicality of seat belts. Both reject the seatbelt defense and citenumerous

cases in support of thisrejection. Based on a lengthy discussion and a review of the case law, the court inMiller v. Miller, supra, stated:"Itwould be a harsh and unsound rulewhich would deny allrecovery to theplaintiff, whose mere failure tobuckle his belt inno way contributed to the accident, and exonerate the active tortfeasor but forwhose negligence theplaintiff's omission would have been harmless. [Citation omitted.] Furthermore, it isdoubtful that such a rule would increase the use of seatbelts. In the case comment on Brown v. Kendrick, supra, 39 Colo.L.Rev. 605, 608, it is said, '[Ilmposing an affirmative legal duty of wearing seat belts willhave virtually no effecton the actual seat-belt wearing habitsof automobile occupants. Its only effectwould be togive an admitted wrongdoer a chance tododge a substantial portion of his liability.' It could never, of course, defeat a plaintiff's claim forproperty damage. "Needless to say, the seat-belt defense, which would bar an otherwise wholly innocent victim, would notbe popular with the jury or trier of facts. [Citationsomitted.] "Due care ismeasured by the customary conduct of the reasonably prudent man. The scantuse which the average motoristmakes of his seat belt, plus the factthat there isno standard for deciding when it isnegligence not touse an available seatbelt, indicates that the court should not impose a duty upon motorists touse them routinely whenever he travels upon the highway. If this istobe done, it should be done by the legislature. [Citation omitted.]" 160 S.E.2d at73. InMcCord v. Green, supra, the court citedMiller extensively and concluded: "'Unfortunately, the use of occupant restraints has traditionally been low inthis country. Even now, the average use rate forcars of allmodel years is about 5percent for lap and shoulder belts and 25 percent for lapbelts alone.' "To characterizeplaintiff's behavior inthis case as lacking inordinary prudence would be paradoxical, as it did not differ from thatof 75%of the motorists inthis countrywith respect to the use of seatbelts." 362 A.2d at725. (Citationomitted.) See also, Romankewiz v. Black (1969), 16 Mich.App. 119, 167N.W.2d 606, 609, and Nashv. Kamrath, supra, 521 P.2d at163-64. Although the studyquoted inMcCord v. Green, supra,

was conducted over a decade ago, it is apparently still applicable today. Witness thisdiscussion from Fields v. Volkswagen of America, Inc., supra:"This is a question of first impression in this court. There is no common law or statutory duty requiring the use of seatbelts. Imposition of new and recent technological advances are not usually inducted into doctrines of law, until such time as they have been sufficiently tried, proven and accepted for the purpose they were intended. Historically, the seatbelt phenomenon is in its infancy. It is in a state of influx.

"Both industry and government are now aware thatwhile seat belts are beneficial, their use and acceptance cannot be arbitrarily thrust upon the travelingpublic. Consequentially, on October 28, 1974, the controversial mandatory seatbelt interlock systemwas withdrawn and industry has intensified its research to determine other possible alternatives. "If the appellants in this case are guilty of the acts of negligence as alleged, which caused the accident and resulting injuries, then they should be held accountable as constitutionally and statutorily required. If the allegations of negligence are true, appellee did nothing to cause the accident. Should he be required to anticipate the negligence of the appellants? We think not. One's duty to mitigate damages cannot arise before he isdamaged. The failure to minimize must occur after the injury. At most the failure of the appellee to use the seatbelt merely furnished a condition by which the injury was possible. It did not contribute to or cause the accident. It iswell established in our court that if the negligence merely furnishes a conditionby which the injury was possible, and a subsequent act caused the injury, the existence of such a condition is not the proximate cause of the injury. "Althoughthere is a conflict in other jurisdictions who have been confronted with this issue, the majority of the cases hold that the failure to use seatbelts is not a defense to establish contributory negligence or to reduce the amount of damages to the injured party. "Inview of the lack of unanimity on a proper seatbelt system, the lack of public acceptance, and in the absence of any common law or statutory duty,we find that evidence of the failure to use seat belts is not admissible to establish a defense of contributory negligence or to be considered in mitigation of damages. For the present time we await the direction of the legislature." 555 P.2d at 61-62.On the other side of the coin is Bentzler v. Braun (1967), 34 Wisc.2d 362, 149N.W.2d 626. The court in Bentzler stated: "Whilewe agree with those courts that have concluded that it is not negligence per se to fail -- to use seat belts where the only statutory standard is one that requires the installationof the seatbelts in the vehicle,we nevertheless conclude that there is a duty, based on the common law standard of ordinary care, to use available seat belts independent of any statutory mandate.

"We therefore conclude that, in those cases where seat belts are available and there is evidence before the jury indicating causal relationship between the injuries sustained and the failure to use seat belts, it isproper and necessary to instruct the jury in that regard. A jury in such case could conclude that an occupant of an automobile is negligent in failing to use seat belts. 

# .." 149N.W.2d at 639, 640. However, the court held that the trial judge had properly refused - a requested instruction

## on the seatbelt defense: "Therewas proof that seat belts were available and were not used, but that fact alone does not prove causation, for the driver of the vehicle also failed to use the available seatbelts, but his injuries were minimal." 149N.W.2d at 640. See also Samsv. Sams (1966), 247 S.C. 471, 148 S.E.2d 154. Illustrative of the cases which state that upon one or both of these aspects, the defensemust be submitted to the jury are: Dudanasv. Plate (1976), 44 Ill.App.3d 901, 3 I11.Dec. 486, 358 N.E.2d 1171; Spier v. Barker (1974), 35

In light of the history and the numerous legislative problems thatmust be considered to effectively extend the seatbelt rule of law, we have concluded that the wellreasoned position of the Washington court inAmend v. Bell,
supra,produces the better rule and reach the conclusionthat toadopt a seatbelt defense when the legislature has failed todo sowould be ill-advised. The trialcourt properly refused toallowdefendant tointroduce a seatbelt defense into this case. The third issue iswhether the trialcourt erred in refusing topresent tothejury the question of assumption of risk, both contractual and noncontractual. Defendant contends that the trialcourtmistakenly acted on the assumption that the comparative negligence statutemerged the defense and erred inrefusing toinstruct separately on the issue of the defense. Plaintiff initially contends that "assumption of risk" isnot involved here because the traditional elements of assumption of risk are not involved. Plaintiff further asserts that even if the doctrine applieshere, it isno longer a separate affirmative defense butmerely one form of contributory fault tobe compared, which the jury did. We agree with plaintiff that the doctrine of assumption of risk does not apply inthe instant case. Historically inMontana, the defense of assumption of risk required: "(1)knowledge, actual or implied, of the particular condition creating the risk, (2) appreciation of thiscondition asdangerous, (3) a voluntary remaining or continuing inthe face of the known dangerous condition, and (4) injury resulting asthe usual and probable consequence of the dangerous condition." Hanson v. Colgrove (1968), 152 Mont. 161, 447 P.2d 486, 488. (Emphasis added.) See also Dean v. FirstNational Bank of GreatFalls (1969), 152Mont. 474, 452 P.2d 402, 405. Here, there isno evidence that plaintiff knew of the particular condition which caused the accident. 

### "



# . .

# . Assumption of risk isgoverned by thesubjective standard of the plaintiff rather than the objective standard of the reasonable man 

# ..." Deeds v. United States (D.Mont. 1969), 306 F.Supp. 348, 363. In Brown v. North Am. Mfg. Co. (1978), -Mont. I 576 P.2d 711, 35 St.Rep, 194, this Court quoted from Dorsey

v. Yoder Company (E.D. Pa. 1971), 331 F.Supp. 753, and stated: "Quoting 2 Restatement of Torts 2d, §496D,Comment (c), the court in Dorsey continued: 

### "'"The standard to be applied is a subjective one, of what the particular plaintiff in fact sees, --- knows, understands and appreciates. In this it differs from the objective standard which is applied to contributory negligence. 

## * * * If by reason ofage,or lack of information, experience, intelligence,or judgment, the plaintiff does not understand the risk involved in a known situation, he will not be taken to assume the risk, although itmay be found that his conduct is contributory negligence because it does not conform to the community standard of the reasonable man."'" 576 P.2d at 719. (Emphasissupplied.) Our discussion above on the "as is" defense indicates that plaintiff did not contractually assume the risk of the defective condition,nor did she impliedly assume it. To

assume the risk, onemust have knowledge of the particular condition that creates such risk. Such knowledgewas lacking on the part of plaintiff. Defendant here has failed to prove the requisite elements of the defense of assumption of risk. The trial courtproperly refused to instruct the jury

on assumption of risk. Although we do not apply the doctrine in this case, it would be helpful to discuss its application since the recent passage of the comparativenegligence statute. Defendant contends thatbecause Montana recognized that the defenses of assumption of risk and contributory negligence were separate defenses requiring separate instructions before thePassage of comparative negligence, the same result should

accrue after adoption of comparative negligence. Plaintiff contends that assumptionof risk should be merged into the general scheme of assessmentof liability in proportion to fault and should not be a separatedefense, and that if a state, likeMontana, recognized that assumption of risk and contributory negligence were separatedefenses, they have consistently retained "assumption of risk" as a separate defense under comparativenegligence rules. Arkansas Kraft Corporationv. Johnson (1975), 257Ark. 629, 519 S.W.2d 74; Blum v. Brichacek (1974), 191Neb. 457, 215 N.W.2d 888; O'Brien v. Smith Brothers Engine Rebuilders, Inc. (Tenn.App. 1973), 494 S.W.2d 787. Defendant argues thatMontana should follow the above jurisdictionsand retain the distinction. To do otherwise, it contends,would be to change the statute itself as to comparative negligence. Defendant also distinguishes the cases cited by plaintiff arguing that the decisionsmade in those states before comparative negligence were different from Montana's. Defendant is correct in its conclusion that prior to the adoption of comparative negligence, Montana distinguished between contributory negligence and assumptionof risk, Deeds v. United States, supra, 306 F.Supp. at 362-363, and allowed the giving of separate instructions on the two issues. Hoffman

### v. Herzog (1971), 158Mont- 296, 491 P.2d 713. The cases it cites, however, do not discuss the effect of a comparative negligence statute on separability of the defenses of assumption of risk and comparativenegligence and are not good authority for defendant's argument sincethe precise issuepresented here was not before the respective courts. Plaintiff contends that under comparative negligence, the issue of assumption of risk is just one of the factors to be considered in determining plaintiff's contributory negligence. In Li v. Yellow Cab Company of California (1975),119 Cal.Rptr. 858, 532 P.2d 1226, the California Supreme Court judicially adopted the doctrine of comparativenegligence. The court discussed the question of the effect of comparative negligence on thedoctrinesof assumption of risk and last clear chance and concluded that neither of these two doctrines were actually necessary under comparative negligence. The court stated: "The third area of concern, the status of the doctrines of last clear chance and assumption of risk, involves less the practical problems of administering a particular form of comparative negligence than itdoes a definition of the theoretical outline of the specific form to be adopted. Although several stateswhich apply comparative negligence concepts retain the last clear chance doctrine [citationomitted], the better reasoned position seems to be that when true comparative negligence is adopted, the need for last clear chance as a palliative of the hardships of the 'all-or-nothing' rule disappears and its retention results only in a windfall to the plaintiff in direct contravention of the principle of liability in proportion to fault. [Citations omitted.

### 1 As for assumption of risk, we have recognized in this state that this defense overlaps that of contributory negligence to some extent and in fact ismade up of at least two distinct defenses. 'To simplify greatly, it has been observed 

# . .. that in one kind of situation, to wit, where a plaintiff unreasonably undertakes to encounter a specific known risk imposed by a defendant's negligence,plaintiff's conduct, although he may encounter that risk in a prudent manner, is in reality a form of contributory negligence 

# . .

# .Other kinds of situationswithin the doctrine of assumption of risk are those, for example, where plaintiff is held to agree to relieve defendant of an obligation of reasonable conduct toward him. Such a situation wouldnot involve contributory negligence, but rather a reduction of defendant's duty of care.' [Citations omitted.] We think it clear that the adoption of a system of comparative negligence should entail the merger of the defense of assumption of 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 isnomore than a variant of contributory negligence. [Citationsomitted.]" 532 P.2d at 1240-41. Minnesota has held that implied assumption of risk as

an affirmative defense in tort actions is to be limited to those situations in which the voluntary encounter with a known and appreciated risk is unreasonable. As such, it is to be considered merely as a phase of contributory negligence, to be submitted with and apportioned under, the comparativenegligence doctrine. Springrosev. Willmore

(1971), 292 Minn. 23, 192N.W.2d 826. 

# ".

. 

# . The doctrine of implied assumption of risk must, in our view, be recast as an aspect of contributory negligence,meaning that the plaintiff's assumption of risk must be not only voluntary but, under all the circumstances, unreasonable 

# . . . The practical and most important impact of this decision is to mandate that, like any other form of contributory negligence, assumption of risk must be apportioned under our comparativenegligence statute

# . .

# ." 192N.W.2d at 827. [Citations omitted.

## I In Lyons v. Redding Construction Company (1973), 83Wash.2d 86, 515 P.2d 821, the court stated: 

# ".

.

# .Adoption of the standard of comparative negligence is necessarily accompanied by a more flexibleweighing of the relative fault attributable to each party. A concomitant effect of this more delicate apportionment of damages will be the elimination of the need for the assumption of the risk doctrine. Thus, the calculus of balancing the relativemeasurements of fault inevitably incorporates the degree to which the plaintiff assumed the risk. Accordingly, it has been held the effect of the comparativenegligence standard shall be to completely abrogate the assumption of risk doctrine as known and applied heretofore." 515 P.2d at 826. See also Colson v. Rule (1962), 15Wisc.2d 387, 113N.W.2dInWilson v. Gordon (Me. 1976), 354A.2d 398, the ~aine courtpresents an excellent discussion on this issue. It states: "Contractual assumption of the risk is not inconsistent with the Maine comparative negligence statute. On the other hand, voluntary assumption of the risk 

# . .. is but a form of contributory fault. That being so, our comparativenegligence statute is clearly intended to abolish the doctrine of so-called voluntary assumption of the risk. "While it is true that 14M.R.S.A. 5156 does not specifically abolish the defense of assumption of the risk, in most cases the apportionment of fault which the statute is designed to effectuate obviates the need for and alleviates much of the harshness of that common law doctrine. In those cases where assumption of the risk is based upon the plaintiff's lack of due care in encountering a known risk created by the negligence of the defendant--so-called 'voluntary' assumption of the risk--the concept overlaps contributory fault. In such circumstances 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. "The treatment of assumption of the risk which we today adopt has long been advocated by Dean Prosser and seems to represent the approach adhered to by most of the courts which have recently dealt with the question. "Some jurisdictions have abolished the defense of assumption of the risk, exceptwhere the risk was contractually assumed, without any reference to whether or not a comparative negligence statute had been adopted. Alaska, Leavitt v. Gillaspie, Alaska, 443 P.2d 61 (1968);Hawaii, Bulatao v. Kauai Motors, Ltd., 49 Hawaii 1, 406 P.2d 887

(1965); Iowa,Rosenau v. City of Estherville, Iowa, 199N.W.2d 125 (1972); Kentucky, Parker v. Redden, Ky., 421 S.W.2d 586 (1967); Michigan, Felgner v. Anderson, 375 Mich. 23, 133N.W.2d 136 (1965);New Hampshire, Bolduc v. Crain, 104 N.H. 163, 181A.2d 641 (1962);New Jersey,Meistrichv. Casino Arena Attractions, Inc., 31 N.J. 44, 155A.2d 90 (1959), and McGrath v. American Cyanamid 41N.J. 272, 196A.2d 238

(1963);New Mexico, Williamson v. Smith, 83 N.M. 336, 491 P.2d 1147 (1972); Oregon, Ritter v. Beals, 225 Or. 504, 358 P.2d 1080 (1961); Wisconsin, Gilson v. Drees Bros., 19 Wis.2d 252, 120N.W.2d 63 (1963)."InMeistrich, supra, Chief JusticeWeintraub expounded upon the confusionwhich has been wrought by the indiscriminate use of the term

'assumption of the risk.' He emphasized the distinction between 'primary' assumption of the risk (i.e., contractual) and 'secondary' assumption of the risk (i.e., implied or voluntary) and concluded: "'We are satisfied there is no reason to charge -- 

### -- assumption ----- of the risk in its secondarysense as -- something distinct from contributory negligence, and hence .thatwhere the thought isprojected 

### - in that aspect, the terminology of assumption of 

### -- the risk should 

### not be used. 

# at her



# . . . the

### -- 

### --- subject should be subsumed under the charge of - contributory nesiqence.' 155A.2dat 96. "Other courts have interpreted their comparative negligence statutesas eliminating the need for assumption of the risk where the defense can be said to overlap with contributory negligence. California,Li v. Yellow Cab Co. of Calif., 13 Cal.3d 804, 119 Cal.Rptr. 858, 532 P.2d 1226

(1975);Minnesota, Springrose v. Willmore, 292 Minn. 23, 192N.W.2d 826 (1971);Mississippi, Braswell v. Economy Supply Co., Miss., 281 So.2d 669 (1973); and Washington, Lyons v. Redding Construction Co., 83Wash.2d 86, 515 P.2d 821

(1973). "A statementof the California court in the Li case is representative of the reasoning whichpervades all of the above opinions: "'We -think 

### - it clear that the adoption of a system -- -- of comparative negligence should entail -- the mer- Grof the defense of assumption of the risk into --- 

### - ---- -.. . the general scheme 

### - of assessment - of liability - in proportion to fault in those particular cases which --- the form of assumption -- of risk involved is

.. - no more than a variant of contributory negligence.' ---- 119 Gal-Rptr. at 873, 532P.2d at 1241. "Thereappear to be few jurisdictionswhich adhere to the position that comparative negligence and voluntary assumption of the risk can be harmonized. See Bugh v. Webb, 231Ark. 27, 328 S.W.2d 379 (1959); Harris v. Hercules, Inc., 328 F.Supp. 360 (E.D. Ark. 1971). "Appellantdirects us to a Florida case, Dorta v. Blackburn, Fla-App.,302 So.2d 450 (1973),in which a Florida District Court of Appeals held that the Florida State Supreme Court "'appears to have recognized the continued existence of the common law defense of assumption of the risk notwithstanding its adoption of the doctrine of comparativenegligence.' 302 So.2d at 451."More recently,however, another Florida District Court ofAppeals took a contrary approach,holding that "'[tlhe defense of assumption of the risk is no less "aprimitive device of achieving justice between parties who are both at fault" than was contributory negligence. It should meet the same fate as contributory negligence and not constitute a complete bar to recoverywhere comparative negligence is the measuring standard for recovery.' Rea v. Leadership Housing, Inc., Fla.App., 312 So.2d 818, 822 (1975)." 354 A.2d at 401-403. TheWilson court concluded with a statement which is applicable to our decision here. "Since,in the case now before us, it cannot be seriously contended that the appellee contractually assumed the risk of his injury and since we now decide that the doctrine of voluntary assumption of the risk is no longer viable, it is evident that appellant's request for an instruction on assumption of the risk was properly denied." 354A.2d at 403. As stated earlier, the elements of the doctrine of assumption of the risk are notpresent in this case. However, when this situation does arise,we will follow the modern trend and treat assumption of the risk like any other form of contributory negligence and apportion it under the comparative negligence statute. The fourth issue iswhether the District Court erred in not granting summary judgment on plaintiff's Count No. 11. Count I1of the complaint is identical to Count I except for an addition which, in effect, claims misrepresentation as to the odometer reading. Count I1 states in pertinent part: "If said vehicle had not been driven an additional forty thousand miles than was represented to plaintiff,plaintiff alleges on information and belief that the accident which is the subject of this action would not have occurred."Defendant contends that plaintiff "hasmisunderstood" theMontana Unfair Trade Practices and Consumer Protection Actand specifically sections 30-14-103 and 30-14-104, MCA. Defendant states that under the Act, the Department of Business Regulations may only adopt rules not inconsistent with the federalAct and decisions thereunder. It contends

a reading of the cases annotated under 15U.S.C.A. 545 (1973) shows that the purpose of the federal statutes isto prevent unlawful restraint of trade and submits that since theMontana Department of Business Regulations may not adopt rules inconsistentwith the federal law, it isimproper to have a regulation which dealswith sales. Such regulation is, according todefendant, outside the scope of the enabling legislation. Defendant's arguments aremisplaced. Section 30-14-103, MCA, states: "Unfair methods of competition and unfair or deceptive actsorpractices inthe conduct of any trade orcommerce are unlawful." Section 30-14-104, MCA, provides: "1. It is the intentof the legislature that in construing Section 30-14-103 due consideration and weight shallbe given to the interpretations of the federal trade commission and the federal courts relating to section 5(a)(1)of the Federal Trade Commission Act (15U.S.C., 45(a)(l)),as amended. "2. The Department may make rules interpreting the provisions of 30-14-103. Such rules shall not be inconsistentwith the rules, regulations, and decisionsof the federal trade commission and the federal courts ininterpreting the provisions of section 5(a)(l) of the Federal Trade Commission Act (15U.S.C., 45(a)(I)), asamended." A.R.M. 58-2.4(2)-S440 provides inpart: "It shallbe an unfair ordeceptive actorpractice for a motor vehicle dealer to:"(3)represent the previous usage or statusof a motor vehicle tobe something that, infact, it was not; ormake such representations unless the dealer has sufficient information to support the representations. " Section 30-14-133, MCA, provides inpart: "(1)Any person who purchases or leases goods or servicesprimarily forpersonal, family, orhousehold purposes and thereby suffersany ascertainable loss of money orproperty, real orpersonal, as a result of the use or employment by another person of a method, act, orpractice declared unlawful by 30-14-103 may bring an individual but not a class action under the rules of civilprocedure inthe districtcourt of the county inwhich the seller or lessor resides orhas hisprincipal place of business or isdoing business torecover actual damages or $200, whichever isgreater. The courtmay, initsdiscretion, award up tothree timesthe actualdamages sustained and may provide such equitable relief asit considers necessary orproper." While the main purpose of the federal statuteis to prevent unlawful restraint of trade, there is nothing inthe

cases toindicate that the above rule of the Department of Business Regulations is inconsistent with the federal cases

or the enabling legislation. The DistrictCourt was therefore correct indenying summary judgment on thismatter. A determination of whether the alleged violationwas a cause of plaintiff's damages is

a question of fact for the jury todetermine. As such, it

was not ripe for summary judgment. Aspart of defendant's case-in-chief, counsel for defendant attempted to impeach plaintiff by introducing in evidence a deposition taken of plaintiff by defendant prior totrial. Objection wasmade upon the grounds of repetition, inadmissibility of the deposition and improper impeachment evidence. The court adjourned to chambers tohear the evidence and argument, and afteroffer of proof, denied the

use of the deposition asproposed.The District Court was correct in so ruling under the circumstances in this case. Plaintiff had been extensively cross-examined by defendant during plaintiff's case-inchief. She had gone to her home because of her physical condition and was notpresent at the time the deposition was offered, nor at the time of the offer of proof (though defendant asked that she be returned to court for the purpose of using the deposition). The issuepresents a question of interpretingwhat the rules allow regarding depositions used for impeachment purposes. It is to be noted that Rule 32(b), M.R.Civ.P., provides: 

# ".

. . objectionmay be made at the trial or hearing to receiving in evidence any deposition or part thereof for any reason which would require the exclusion of the evidence if the witness were then present and testifying." Thematter is governed by the provisions of Montana Rules of Evidence, Rule 613. That rule provides: "(a) Examining Witness Concerning Prior Statement. In examining a witness concerning a prior statement made by him, whether written or not, the statementneed not be shown or its contentsdisclosed to him at that time, but on request the same shall be shown or disclosed to opposing counsel. "(b) Extrinsic Evidence of Prior Inconsistent Statement

### of Witness. ~Zrinsic evidence of a prior inconsistent statementby a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same and the oppositeparty is afforded an opportunity to interrogate him thereon,or the interestsof justice otherwise require. This provision does not apply to admissionsof a partyopponent as defined in Rule 801(d)(2)

# ." This rule is fairly new, and practitioners would be well-advised to study itsprovisions. If the witness is on the stand and testifying, a cross-examiner may ask the witness aboutprior statementsmade by the witness, withoutfirst showing the witness the written deposition or writing in which the prior statement is contained. This is a permitted departure from the former practice, where, in impeachment, it was required that the writing containing the prior inconsistent statement be first shown to the witness. The method chosen by the cross-examiner in this case, however, violated the provisions of subdivision (b)of Rule 613. The witness was not on the stand. The cross-examiner proposed to offer in evidence, in the absence of the witness, a deposition taken of the witness pretrial for the purpose of impeachment. Thus the deposition itself was extrinsic evidence of a prior inconsistent statement. It

was not admissible unless the witness had an opportunity to explain or deny the same, and the oppositeparty was a£- forded an opportunity to interrogate her on the deposition. This foundational requirement not having been met by the cross-examiner, the District Courtwas correct in denying the admission into evidence of the deposition or any part of it under Rule 613(b), Mont.R.Evid., and the provisions of Rule 32(b), M.R.Civ.P., foregoing. It is, of course,not necessary under the new rules of evidence that impeachmentevidence of prior inconsistent statements be offered during the cross-examination of the witness. Under Rule 613(b) it can be done at any time during the trial (seeAdvisory Committee's Note under section 613,Federal Rules of Evidence). Thus in a proper case, a party may demand a return to the stand of any witness not excused for the purposes of impeachment through prior inconsistent statements. Here that demand was properly denied by the District Court on the grounds of repetition of the proposed testimony. Its discretion on thatpoint governs us, and we agree the proposed evidence would have been repetitious. In any event, however, the deposition itself, as extrinsic evidence, is admissible only under the conditions of Rule 613(b), Mont.R.Evid. Therefore, no

error occurred in this trial respecting the proferred impeachment evidence. Plaintiff raises as an issue on cross-appeal whether the jury's reduction of damages from $650,000 to $422,500 should be sustained. It appears that plaintiff made no objection at the trial on this issue. Generally,we will not consider issues raised for the first time on appeal. Hash v. Montana Power Co. (1974), 164Mont. 493, 524 P.2d 1092.Even if this question were to be considered by this Court under a comparative negligence scheme, the question of plaintiff's negligence is a question of fact for the jury to decide. Our function is to determinewhether there is substantial credible evidence to support the jury verdict. To this end we must review the evidence in the light most favorable to the prevailing party in the District Court. No11 v. City of Bozeman (1977),172Mont. 447, 564 P.2d 1296.The jury was entitled under the facts presented to find as it did. We find sufficient credible evidence to support the verdict of the jury on all questions. The remaining issues raised by both parties present alleged elements of error, which even if true,would not be reversible error. Discussion of those issues is therefore unnecessary.In conclusion, the case under consideration was deemed submitted at the close of oral arguments, and no permission to plead further being granted, the supplemental briefs of the parties were neither accepted nor considered in this

cause. The judgment of the District Court is affirmed.

We concur: 

# 24d

# gp@,LdLQ Chief JusticeMr. Justice John Conway Harrison concurring inpart and dissenting inpart:

I concur with allissueswith the exception of the seat belt issuewith which I respectfully dissent. I would return the case tothe court for retrial for failure togive the requested instructionson the use of seatbelts. If ever there was a case presented to thisCourt indicating the necessity of using seat belts, thisis the case. The very factthatrespondent and her husband, from the very timeof purchase, had difficultieswith the car and sought the advice of a friend who was a mechanic, indicates that respondent knew the car's condition and should have worn seatbelts during any drive that she took inthe car. Before purchasing the car she and her husband took the car outfor a test driveand they noted ithad a tendency to pull to the left. When they took the car back, she did not have the same repaired before purchasing it from the dealer. Immediately thereafter respondent drove the car to Missoula, where she took it toa friend's garage. He indicated afterworking on the car that she should take the

carback; that it needed lotsof work and was "not safeon the road." Despite thatadvice, she drove back from Missoula toGreat Falls and noticed that the car lostpower due toextreme vibration, that it "dieseled", and that themotor continued torun some timeafter the ignitionhad been turned off. When she gothome her husband tested the car and noted some difficultywith the steering. In addition, the day she drove the car toChester to see Dr. Buker, she did so against the advice of her husband who feltthat the

car should not be on the road and that she should take the other familycar.Under these circumstances,and considering the accident where she drove off the road and was thrown out of the car, there is no question that her failure to "beltup" contributed to the seriousness of her injuries. There isno dispute that the Datsun had seat belts, and respondent's testimony was that it was her custom or habit to wear a seat belt when driving. The very condition of the

car itself warranted the conclusion that respondent's injuries would have been minimal had sheworn the seat belt and thus remained inside the car. The Court, obviously,holds as a matter of law that under no circumstances could the defense of the failure to

wear a seatbelt be considered. Inmy opinion, that is

error. Recognizing thatmy view is a minority view, I find it is the better view and should be stated. The support formy view comes initially from Samsv. Sams (1966), 247 S.C. HI, 148 S.E.2d 154, in which thematter was considered. The court there held: "Simply stated, the question before us is whether the pleading should have been stricken, or, on the other hand, should the defendantbe allowed to prove, if he can, that the failure of the plaintiff to use a seatbelt, under the factsand circumstances of this case, amounted to a failure to exercise such due care as a person of ordinary reason and prudence would have exercised under the same circumstances,and that such failure constituted a contributing proximate cause of plaintiff's injuries. We think that the pleading should not have been stricken and that the ultimate questions raised by the alleged defense should be decided in the light of all of the facts and circumstances adduced upon the trial, rather than being decided simply upon pleadings." 148 S.E.2d at 155. The Sams case was followed very shortly by the Wisconsin case of Bentzler Braun626, in which the courtmade the following rulings: (1)the failure to use seatbelts isnot negligence per se under statutes likeMontana's section 61-9-409,MCA, but, 

# ".

.

# . we nevertheless conclude there is a duty,based on the common law standard of ordinary care, to use available seat belts independentof any statutory mandate"; (2) the occupant of a car is charged with knowledge of the additional safety factor produced by the use of a seatbelt; and (3) the test is: did the failure to use the seatbelts contribute to the injury? "We therefore conclude that, in those cases where seatbelts are available and there is evidence before the jury indicating causal relationship between the injuries sustained and the failure to use seat belts, it is proper and necessary to instruct the jury in that regard. A jury in such case could conclude that an occupant of an automobile is negligent in failing to use the seat belts. 

# . .I1 149N.W.2d at 640. Here the evidence shows that respondent, from her own experience,had trouble with the car and had been warned, at leastby themechanic Marquart and I think also by her husband, that the vehicle was unsafe. Inasmuchas we are at the threshold of the opinion stage of comparativenegligence inMontana, under the circumstances here, I think that because the alleged negligence of appellanthad been discovered before the accident a jury question exists on the

use of seatbelts. Ibelieve first, thatwhere a state has a comparativenegligence rule, the matter of the use of seat belts to mitigate an injury is always a proper question, and second, if the plaintiff's failure to use a seatbelt occurred, there is a jury question as to avoidable consequences. See King SonWong v. Carnation Company (Tex.Civ.App. 1974), 509