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 

A, / , / -- ,.,' ,' , / , , - 1 ,- 4- -,I '-, I 

Submitted: December 13, 1979 

3 - :\:,rT Filed: 6- 

Clerk 
Mr. 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 complaint herein consisted of three counts. Count 

I11 of the complaint, a claim predicated upon strict liability 

of the defendant, was dismissed by defense motion prior to 

trial. The remaining counts were submitted to the jury on 

special verdict, and the jury returned a verdict involving 

comparative negligence. Defendant was found to be 65 percent 

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. 

Defendant moved for a new trial after judgment was 

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 station wagon, 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 that were 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 corrections were 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 is basis 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 1971 Datsun had a somewhat checkered history. The 

car was purchased new in 1971 by 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 "in very good mechanical condition." 

Through an unknown series of events, the car was acquired by 

Swanson Sales in California and resold in California to 

Pierotti Motors. At the time the car was purchased from 

Swanson by Pierotti, the odometer had been turned back to 

41,194 miles. 

Pierotti sold the car to a Robert Graff in July 1975. 

Graff owned the car until it was repossessed in 1976 by 

Credit Associates. 

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 Credit Associates 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, she would 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 

few days 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 repair work 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 this meant she was 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 gas would correct the problem. 

The following day, January 22, 1977, plaintiff drove to 

Chester for an appointment with her doctor. Her husband 
told 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 it was 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 few miles 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. 

Plaintiff was 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 50 m.p.h. just before the 

accident. 

There is no question that plaintiff 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 (lower control 

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 

normal manner except the right front white sidewall, which 
was 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 side motor mount was 

completely separated and sitting in an unusual position, the 

stabilizer bar was disconnected, and the left rear brake 

lining showed lubricant on it which 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 

State University, who ran various 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 

conditions of 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 to the process of metal fatigue, just prior to the 

accident the transverse link bent more, causing the wheel to 

toe-in. The vibration which plaintiff described served to 

accelerate the fatigue process causing the cracks to propagate in an accelerated manner which, superimposed upon the 

already weakened link, abruptly increased the angle of bend 

from 10' or less to approximately 20°. This occurred in 

approximately one second and resulted in a heavy pull to the 

left causing the vehicle to go into the lane for oncoming 

traffic. 

The vibration or shimmy was caused by the unbalanced 

retread tires. With the tread separation on the right front 

and two inches of free play at the rim of the steering wheel 

and the MacPherson struts low on dampening fluid, the 

vibration occurred. In addition, the disconnected motor 

mount would allow the engine vibration to reach a larger 

amplitude therefore shaking the engine more. McHenry completely ruled out driver error. 

The reason the car veered to the right was because of 

steering input by plaintiff. 

With the right front stabilizer bar disconnected, the 

car veered farther to the right, causing it to face the 

direction it was traveling at the time it came to the 

shoulder of the road and then to roll over. 

In test runs 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 in the transverse link to go entirely into 

the opposite lane. The bend now seen in the plaintiff's 

transverse link is 20". In addition to the effort to hold 

the steering wheel straight on the test car at 50 m.p.h. 

with a 20' bend in the transverse link, the steering wheel 
had to be turned 60' to the right just to hold the car in a 

straight line. 

Testimony indicated that defendant did not inspect 

plaintiff's car for defects after it was acquired at the 

repossession sale. Testimony of defendant's employees 

indicated that a 5O bend in the transverse link would have 

been obvious if the car were placed on a hoist or if a 

front-end alignment check were made. (Defendant did not 

require safety inspections on used cars.) However, one 

employee testified that it was 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 inspection which included an 

undercarriage inspection but 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 advertisement published by Great Falls radio station KEIN after 

the accident was admitted which stated: 

"You really can't tell a heck of a lot about a 

used car by kicking the front tires. So at 

Continental Datsun-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 signals and 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 is undisputed 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 were buying a reliable car, one that was 

safe for highway use. 

Over thirty issues were presented for review on this 

appeal. A number of these issues were consolidated by 

counsel in general headings. We will therefore discuss the 

issues in a consolidated form. 

There are five major issues, the resolution of which 

determines the outcome of this appeal. They are: 

1. Did the District Court err in instructing the jury 

that a used car dealer has a legal duty to inspect and 

discover any defects in a used car which would have been 

discoverable in the exercise of ordinary care and then to 

either repair such defects or at least warn a buyer of their 

existence? 

(a) What effect does the "as is" clause have on such a 

duty? 

(b) Did the District Court err in refusing to permit 

testimony, argument, or instructions on the "as is" clause 

contained in the purchase agreement? 

2. Did the District Court err in refusing to present 

to the jury the question whether plaintiff's failure to use 

seat belts contributed to her injuries? 

3. Did the District Court err in refusing to give 

instructions on plaintiff's alleged contractual and noncontractual assumptions of risk? 

4. Did the District Court err in denying 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 is whether 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 

is what effect the "as is" provision in the purchase agreement had on this duty. 

Defendant contends 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 

definite meaning 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 (4th ed. 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, 110 N.E.2d 419, 423; Pokrajac v. Wade 

Motors (1954), 266 Wisc. 398, 63 N.W.2d 720. Defendant 

argues it was 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 

not permitted to do. Section 1-4-101, MCA; ~anielson v. 

Danielson (1977), 172 Mont. 55, 560 P.2d 893. 

Plaintiff contends that defendant was negligent as a 

matter of law. This contention is based on defendant's 
failure to inspect and on defendant's knowingly placing a 

damaged front tire on plaintiff's car. Plaintiff argues 

that a person cannot contract away liability because to do 

so would contravene public policy. Haynes v. County of 

 is sou la (1973), 163 Mont. 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), 133 N.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), 155 Mont. 1, 465 

P.2d 834. In Hilger, however, the defendant was not held 

liable because the evidence indicated that "[dlefendant did 

not warn 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 front door. Defendant's duty 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 defect was an obvious 

one and a reasonable inspection would have revealed it. In 

the instant case, however, defendant concedes that no inspection took place. In fact, defendant contends there was no 

duty to inspect. 
There is also the added factor in this case of defendant's "active negligence" in replacing worn tires with 

three good tires and a defective one. The act of placing 

the white sidewall on the inside was apparently a means of 

purposefully hiding from plaintiff a defect which inevitably 

accelerated the breakdown of the transverse link. 

In deciding Hilger this Court cited the Eighth Circuit 

case of Egan Chevrolet Co. v. Bruner (8th Cir. 1939), 102 

F.2d 373. In Egan Chevrolet the court was presented with a 

similar fact situation in that the steering mechanism of the 

truck broke down, causing a collision. The court held for 

the plaintiff and stated: 

"A retail dealer who takes a used truck in trade 

and undertakes to repair and recondition it for 

resale for use upon the public highways owes a 

duty to the public to use reasonable care in the 

making of tests for the purpose of detecting defects which would make the truck a menace to 

those who might use it or come in contact with 

it and in making the repairs necessary to render 

the truck reasonably safe for use upon the public 

highways, and is charged with knowledge of defects 

which are patent or discoverable in the exercise 

of ordinary care. . . The rule does not mean--as 

the appellant seems to fear--that a dealer in 

used motor vehicles, who undertakes to recondition a truck for resale, becomes virtually an 

insurer of the safety of the truck he sells, nor 

does it mean that he is required to disassemble 

an entire truck to examine each of its parts. 

It does mean that he must use reasonable care to 

ascertain whether the truck is equipped with the 

minimum essentials for safe operation, one of 

which unquestionably is a steering mechanism 

which will work and which will not shortly shake 

apart under normal use. One who permits a truck 

with a dangerously defective steering mechanism 

to be used upon the public highways, not only 

has reason to anticipate that it will cause an 

accident, but may 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. (Citations omitted.) 

In accord with the above are Gaidry Motors v. Brannon 

(Ky. 1953), 268 S.W.2d 627 and Turner v. International 
Harvester 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 cars before 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 , 

". . . 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 that when a used 

motor vehicle, for example, is sold for use as 

- a serviceable motor vehicle (and not as junkparts), absent special circumstances, the seller 

be responsible for safety defects whether known 

or unknown at time of sale, present while the 

machine was under his control. Otherwise, the 

buyer and the general public 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 (where no 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 (7th Cir. 1970), 435 F.2d 197; 

Thrash v. U-Drive-It Co., supra; 60 C.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 fact points the finger of liability 
at defendant. Thrash involved the sale of a used truck "as 

is" from the U-Drive-It Company to the Spot Motor Company 

and then a subsequent sale from Spot to Thrash. Shortly 

after the sale a lock ring on the left front wheel 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 Spot Motor was an intervening factor relieving it from liability and transferring 

its duty to Spot. The court stated: 

"We conclude that where 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 

held liable for injuries occasioned --- to one whopurchased 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 it was in the possession of such 

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

The court, however, ruled in effect that Spot Motor's 

negligence was still at issue and stated: 

"Although a 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, 110 N.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. Hilger 
Chevrolet Company, supra, it becomes 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', 'with all 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 comment on this section is of little help here. It 

states: 

"Paragraph (a) of subsection (3) deals with 

general terms such as 'as is,' 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. It would 

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 damages may be limited or excluded unless the limitation or exclusion is unconscionable. Limitation of consequential damages 

for injury to the person in the case of consumer 

goods is prima facie unconscionable but limitation 

of damages where the loss is commercial is not." 

Montana subscribes to the general rule: 

'I I . . . that persons may not contract against 

the effect of their own negligence and that agreements which attempt to do so are invalid. However, 
it is not true that any agreement of this kind is 

void as against public policy. Whether a person 

can relieve himself by agreement from the duties 

attaching as a matter of law to a legal relationship created by contract between himself and another person, is a 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 so where either (1) the interest of 

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 to the stipulation .' " Haynes 

v. County of Missoula (1973), 163 Mont. 270, 517 

P.2d 370, 376. 

One of the issues presented for review in Haynes was 

the propriety of the District Court's pretrial order suppressing the plaintiff's general release in the Western 

Montana Fair Entry Blank. The defendants argued the release 

was a valid and enforceable contract absolving the defendants 

from liability. The release provided: "I hereby release the 

Missoula County Fair Board from any liability by loss, 

damage or injury to livestock or other property, while said 

property is on the Fairgrounds." 517 P.2d at 376. This 

Court held the District Court was correct in suppressing the 

release stating, ". . . [i]n our view the release is illegal 

and unenforceable because it is contrary to the public 

policy of this state and against the public interest." 517 

We further stated in Haynes: 

"Directing our attention to Montana law, we note 

an express public policy of this state to fix responsibility for damage to person or property 

upon those who fail to exercise ordinary care or 

skill. Section 58-607, R.C.M. 1947 [now section 

27-1-701, MCA] , provides: 

"'Every one is responsible, not only for the result of his willful acts, but also for an injury 

occasioned to another by his want of ordinary 

care or skill in the management of his property 

or person, except so far as the latter has, willfully or by want of ordinary care, brought the 
injury upon himself. The extent of liability in 

such cases is defined by the title on compensatory relief.' 

"The purpose of this statute is twofold: (1) To 

fix primary responsibility and liability on the 

tortfeasor whose conduct occasioned the loss or 

injury, and (2) to make 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 law intended solely for his benefit. But a law established for a public reason 

cannot be contravened by a private agreement.' 

"We hold the County is precluded from disclaiming 

liability by virtue of the release when performing an act in the public interest. This principle 

is recognized in Restatement, Contracts, § 575, 

providing in pertinent part: 

"'(1) A bargain for exemption from liability for 

the consequences * * * of negligence is illegal if 

"'(b) one of the parties is charged with a duty 

of public service, and the bargain relates to 

negligence in the performance of any part of its 

duty to the public, for which it has received or 

been promised compensation.'" Haynes, 517 P.2d 

at 376-78. 

While Haynes dealt with a release of liability for 

future negligence, there is no reason the rules enumerated 

in Haynes should not apply here. Defendant was under a duty 

to reasonably inspect for defects. It failed to do so. To 

allow it to disclaim liability by a simple "as is" phrase 

would be a violation of the public policy espoused in Haynes. 

Montana has never determined what effect the "as is" 

phrase has on tort liability. Other jurisdictions have 

interpreted the phrase, with varying results. Defendant 
urges 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. It provided: 

"' * * * In case the car covered by this order is 

a used car, the undersigned purchaser states that 

he has examined it, is familiar with its condition, is buying 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 * * *'" 63 N.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, is distinguishable because of the 

extensive disclaimer provision, including a statement by the 

buyer that he inspected the car--a factor not present here. 

Further, in Montana, unlike Wisconsin, there is a duty to 

inspect independent of 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: 

"The plaintiff 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 judgment would 

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 is prima 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', 'with all 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 goods merely 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 disclaim warranties 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. 

(Citations omitted. ) 

The court further stated: 

"Even if the 'as is' term were 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 chattel does 

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 is particularly 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 defendants and the degree of care required of them. 

Summary judgment on the negligence count is singularly inapt on the facts before us." 351 So.2d 

at 1085-86. 

Turner v. International Harvester Company, supra, 

involved the "as is" sale of an International tractor-truck. 
The court applied a strict liability standard to the seller 

of defective used products. The court held that when 

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 accident which 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 

contract need not be impaired if a buyer wishes 

to contract away his right to protection, an 

unequivocal waiver of safety defects must be 

shown. . . Otherwise, when the additional indirect costs will 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. (Citations omitted.) 

The court ultimately held that the issue of the effect of 

the "as is" clause was 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 . . . 

"This determination, however, does not fully answer the question of the effect of the 'as is' 

statement, for it will have a very real evidentiary effect at the trial. What conditions did 

the 'as is' designation disclaim? A jury must 

eventually determine what 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. (Citations omitted.) 
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 transmission was "in gear." 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-in was made "as is." 

The facts of Fleming are easily distinguishable here. 

However, the court's discussion of the "as is" disclaimer is 

relevant: 

". . . in certain circumstances . . . parties 

may bargain for exemption from liability for 

the consequences of negligence . . . However, 

in order to effectuate such a result, a provision for such an exemption must 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 in which they 

are . . . Such a sale, unless otherwise provided 

in the contract, excludes and negatives warranties . . . 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 on much the same 

grounds as stated above. 

In Kothe v. Tysdale (1951), 233 Minn. 163, 46 N.W.2d 

233, the defendant asserted that his status was 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 public 
highways owes a duty to the public using such 

highways to exercise reasonable care in supplying 

the purchaser or the lessee with a vehicle that 

will not constitute a menace or source of danger 

thereon; that liability attaches to such vendor 

or lessor for injuries which are the result of 

patent defects in the vehicle thus provided, or 

if defects therein which could have been discovered by the exercise of ordinary care; and 

that such liability exists irrespective of any 

contractual obligations between the parties to 

the original transaction . . ." 46 N.W.2d at 

236. (Citations omitted. ) 

It is clear that in Montana a used car dealer has a 

duty to discover and repair any defects which are patent or 

discoverable in the exercise of ordinary care. Hilger, 

supra. It is equally clear that it is against the public 

policy of this State to disclaim liability when performing 

an act in the public interest. It cannot be denied that 

inspecting used cars to insure their safe operation is an 

act in the public interest. 

In light of the above-enumerated public policies, we 

find the better rule to be that the "as is" language does 

not absolve used car dealers from tort liability for accidents caused by defects in the car sold. This is especially 

true in cases where, as here, there was a breach of a duty 

to discover and repair the defects. 

"Tort liability is not based upon representations or warranties. It is based on a duty 

imposed by the law upon one who may foresee 

that his actions or failure to act may result 

in an injury to others." Gaidry Motors, supra, 

268 S.W.2d at 629. 

Here defendant failed to inspect the car for defects 

before the sale to plaintiff. The defect would have been 

discovered in a reasonable safety inspection. The defect 

was the proximate cause of plaintiff's accident and subsequent injuries. Defendant should not be allowed to hide 

behind the cloak of a simple "as is" disclaimer. When the 
ordinary person purchases a car "as is," he expects to have 

to perform certain repairs to keep the car in good condition. He does not expect to purchase a death trap. Public 

policy requires a used car dealer to inspect the cars he 

sells and to make 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 trial court did not 

err in instructing the jury of defendant's duty to inspect 

and in suppressing evidence on the "as is" clause. 

The second issue is whether the trial court erred in 

refusing to instruct on the defense of plaintiff's failure 

to use a seat belt. 

The Montana statutes regarding seat belts are sections 

61-9-409 and -410, MCA. Section 61-4-409 provides: 

"Seat belts required in new vehicles. It is unlawful for any person to buy, sell, lease, trade 

or transfer from or to Montana residents at retail an automobile which is manufactured or 

assembled commencing with the 1966 models unless 

such vehicle is equipped with safety belts installed for use in the left front and right 

front seats thereof, and no such vehicle shall 

be operated in this state unless such belts 

remain installed." 

Section 61-9-4H deals with seat belt specifications. 

There is no statutory requirement in Montana that a 

person must wear a seat belt while operating or riding in an 

automobile, nor are there any Montana cases on the subject. 

The seat belt defense has, however, been raised repeatedly 

in other jurisdictions with varying results. 

Plaintiff contends that the overwhelming majority of 

jurisdictions are in accord that there is no common law duty 

to wear a seat belt, and absent a statute requiring the 

wearing of a seat belt, negligence cannot be predicated upon 
failure 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 overwhelming majority 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), 99 N.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; Lipscomb v. 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; Robinson 
v. Lewis (1969), 254 Or. 52, 457 P.2d 483; Selgado v. Commercial Warehouse Company (1975), 88 N.M. 579, 544 P.2d 719; 

Stallcup v. Taylor (1970), 62 Tenn.App. 407, 463 S.W.2d 416. 

In Amend, supra, the defendants argued that under the 

doctrine of comparative negligence, evidence was admissible 

to prove that plaintiff's wife was not wearing 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 seat belt was not 

contributory negligence. In Amend the defendants contended, 

as does defendant here, that the comparative negligence 

statute abrogated prior case law on the seat belt defense 

and therefore evidence on the defense was admissible. The 

court disagreed and stated: 

". . . While the result of contributory negligence 

and comparative negligence is much 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. 

"The premise 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 conduct must occur to have negligence. [Citation omitted.] 

"Our legislature has not mandated the use of 

seat belts as a standard of conduct. RCW 46.37.510 

only requires installation of front seat belts on 

automobiles manufactured after 1964 [similar to 

Montana]. We have held, along with the vast 

majority of other states, that such a statute 

does not make mandatory the use of the seat 

belts. [Citation omitted. 1 

"The question then is whether the court should 

impose a standard of conduct upon all persons 

riding in vehicles equipped with seat belts. We 

think we should not. 
"The defendant should not diminish 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 seat belt 

prior to the accident. 

"There are a number of reasons why we reach this 

conclusion. We have noted that the plaintiff 

need not predict the negligence of the defendant. 

Second, seat belts are not required in all vehicles. Defendant should not be entitled to take 

advantage of 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 

seat belts. Studies show that as many as twothirds of observed drivers did not use seat belts. 

'Belt Use '76,' Insurance Institute for Highway 

Safety, 1976. Belt use by passengers and children 

is even lower, one research paper revealing that 

93 percent of observed children under 10 were 

not restrained by belts and 89 percent of passengers 10 years or older were not using available 

belts. Alan F. Williams, 'Observed Child Restraint 

Use in Automobiles,' The American Journal of 

Diseases of - Children, vol. 130, December 1976. 

"Fourth, allowing the seat belt defense would 

lead to a veritable battle of experts as to what 

injuries would have or have not been avoided had 

the plaintiff been wearing a belt. At best it 

would cause substantial speculation by 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-feasor whose 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 

result would be contrary to the entire 'fault' 

philosophy which is found throughout the law of 

tort. 
"Moreover, to us, it would be improper for an 

injured driver or passenger to be penalized in 

the eyes of the jury by permitting evidence to 

be presented that a seat belt was available 

which had not been put in use. The seat belt 

defense would soon become a fortuitous windfall 

to tort-feasors and would tend to cause rampant 

speculation as to the reduction (or increase) in 

the amount of recoverable damages attributable 

to the failure to use available seat belts. [Citations omitted.] In comparing the cases which 

we have cited, it is apparent that the acceptance of the seat belt defense can only be justified as a deviation from common-law negligence 

on a public policy theory. [Citation omitted.] 

The legislature, and not the judiciary, serves 

as the barometer of public policy in Colorado. 

Prior to the adoption of our comparative negligence statute, the legislature did not enact, 

although it considered, seat belt legislation. 

Therefore, we are not inclined to alter the common law in the face of the legislature's failure 

to act in order to create a negligence defense 

which is wholly grounded on public policy considerations. 

"In short, the seat belt defense, under the law 

that existed prior to the adoption of our comparative negligence statute, is not an affirmative defense to an action for negligence, and 

evidence that the injured party failed to wear 

a seat belt may not be brought before the jury 

in any form to establish contributory negligence 

or to reduce the amount of the injured party's 

damages." 517 P.2d at 459-60. 

Other cases which leave such a decision up to the 

legislature or refuse to enforce a seat belt defense on the 

basis of statutes similar to Montana's are: Britton v. 

Doehring, supra, 242 So.2d at 675; 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 at 73; Fields v. Volkswagen of America, Inc., supra, 

555 P.2d at 62. Two of the above cases give comprehensive 

discussions concerning the use and practicality of seat 

belts. Both reject the seat belt defense and cite numerous 

cases in support of this rejection. 

Based on a lengthy discussion and a review of the case 

law, the court in Miller v. Miller, supra, stated: 
"It would be a harsh and unsound rule which would 

deny all recovery to the plaintiff, whose mere 

failure to buckle his belt in no way contributed 

to the accident, and exonerate the active tortfeasor but for whose negligence the plaintiff's 

omission would have been harmless. [Citation 

omitted.] Furthermore, it is doubtful that such 

a rule would increase the use of seat belts. 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 

will have virtually no effect on the actual 

seat-belt wearing habits of automobile occupants. 

Its only effect would be to give an admitted 

wrongdoer a chance to dodge a substantial portion 

of his liability.' It could never, of course, 

defeat a plaintiff's claim for property damage. 

"Needless to say, the seat-belt defense, which 

would bar an otherwise wholly innocent victim, 

would not be popular with the jury or trier of 

facts. [Citations omitted.] 

"Due care is measured by the customary conduct 

of the reasonably prudent man. The scant use 

which the average motorist makes of his seat 

belt, plus the fact that there is no standard 

for deciding when it is negligence not to use an 

available seat belt, indicates that the court 

should not impose a duty upon motorists to use 

them routinely whenever he travels upon the 

highway. If this is to be done, it should be 

done by the legislature. [Citation omitted.]" 160 

S.E.2d at 73. 

In McCord v. Green, supra, the court cited Miller 

extensively and concluded: 

"'Unfortunately, the use of occupant restraints 

has traditionally been low in this country. Even 

now, the average use rate for cars of all model 

years is about 5 percent for lap and shoulder 

belts and 25 percent for lap belts alone.' 

"To characterize plaintiff's behavior in this case 

as lacking in ordinary prudence would be paradoxical, as it did not differ from that of 75% of the 

motorists in this country with respect to the use 

of seat belts." 362 A.2d at 725. (Citation omitted.) See also, Romankewiz v. Black (1969), 16 

Mich.App. 119, 167 N.W.2d 606, 609, and Nash v. 

Kamrath, supra, 521 P.2d at 163-64. 

Although the study quoted in McCord v. Green, supra, 

was conducted over a decade ago, it is apparently still 

applicable today. Witness this discussion 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 seat belts. 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 seat belt phenomenon 

is in its infancy. It is in a state of influx. 

"Both industry and government are now aware 

that while seat belts are beneficial, their use 

and acceptance cannot be arbitrarily thrust 

upon the traveling public. Consequentially, 

on October 28, 1974, the controversial mandatory seat belt interlock system was 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 is damaged. The failure to minimize must occur after the injury. At most the 

failure of the appellee to use the seat belt 

merely furnished a condition by which the injury 

was possible. It did not contribute to or cause 

the accident. It is well established in our 

court that if the negligence merely furnishes a 

condition by 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. 

"Although there is a conflict in other jurisdictions who have been confronted with this issue, 

the majority of the cases hold that the failure 

to use seat belts is not a defense to establish 

contributory negligence or to reduce the amount 

of damages to the injured party. 

"In view of the lack of unanimity on a proper 

seat belt 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, 149 N.W.2d 626. The court in 

Bentzler stated: 

"While we 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 installation of 

the seat belts 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 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 seat 

belts. . ." 149 N.W.2d at 639, 640. 

However, the court held that the trial judge had properly 

refused - a requested instruction on the seat belt defense: 

"There was 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 seat belts, 

but his injuries were minimal." 149 N.W.2d at 

640. 

See also Sams v. 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 defense must be submitted to the 

jury are: Dudanas v. 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 that must be considered to effectively extend the 

seat belt rule of law, we have concluded that the wellreasoned position of the Washington court in Amend v. Bell, 

supra, produces the better rule and reach the conclusion 
that to adopt a seat belt defense when the legislature has 

failed to do so would be ill-advised. The trial court 

properly refused to allow defendant to introduce a seat belt 

defense into this case. 

The third issue is whether the trial court erred in 

refusing to present to the jury the question of assumption 

of risk, both contractual and noncontractual. 

Defendant contends that the trial court mistakenly 

acted on the assumption that the comparative negligence 

statute merged the defense and erred in refusing to instruct 

separately on the issue of the defense. 

Plaintiff initially contends that "assumption of risk" 

is not involved here because the traditional elements of 

assumption of risk are not involved. Plaintiff further 

asserts that even if the doctrine applies here, it is no 

longer a separate affirmative defense but merely one form of 

contributory fault to be compared, which the jury did. 

We agree with plaintiff that the doctrine of assumption 

of risk does not apply in the instant case. 

Historically in Montana, the defense of assumption of 

risk required: "(1) knowledge, actual or implied, of the 

particular condition creating the risk, (2) appreciation of 

this condition as dangerous, (3) a voluntary remaining or 

continuing in the face of the known dangerous condition, and 

(4) injury resulting as the usual and probable consequence 

of the dangerous condition." Hanson v. Colgrove (1968), 152 

Mont. 161, 447 P.2d 486, 488. (Emphasis added.) See also 

Dean v. First National Bank of Great Falls (1969), 152 Mont. 

474, 452 P.2d 402, 405. Here, there is no evidence that 

plaintiff knew of the particular condition which caused the 

accident. " . . . Assumption of risk is governed by the 
subjective 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 

it may 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. (Emphasis supplied.) 

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, one must have knowledge of the particular 

condition that creates such risk. Such knowledge was lacking on the part of plaintiff. Defendant here has failed to 

prove the requisite elements of the defense of assumption of 

risk. The trial court properly 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 comparative negligence statute. Defendant 

contends that because Montana recognized that the defenses 

of assumption of risk and contributory negligence were 

separate defenses requiring separate instructions before the 
Passage of comparative negligence, the same result should 

accrue after adoption of comparative negligence. Plaintiff 

contends that assumption of risk should be merged into the 

general scheme of assessment of liability in proportion to 

fault and should not be a separate defense, and that if a 

state, like Montana, recognized that assumption of risk and 

contributory negligence were separate defenses, they have 

consistently retained "assumption of risk" as a separate 

defense under comparative negligence rules. Arkansas Kraft 

Corporation v. Johnson (1975), 257 Ark. 629, 519 S.W.2d 74; 

Blum v. Brichacek (1974), 191 Neb. 457, 215 N.W.2d 888; 

O'Brien v. Smith Brothers Engine Rebuilders, Inc. (Tenn.App. 

1973), 494 S.W.2d 787. Defendant argues that Montana should 

follow the above jurisdictions and 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 decisions made 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 assumption of 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), 158 Mont- 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 comparative negligence 

and are not good authority for defendant's argument since 
the precise issue presented 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 comparative negligence. 

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 it does a definition of 

the theoretical outline of the specific form 

to be adopted. Although several states which 

apply comparative negligence concepts retain 

the last clear chance doctrine [citation omitted], 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 is made 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 situations within 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 would 
not 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 is no more than a variant of contributory negligence. [Citations omitted.]" 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 

comparative negligence doctrine. Springrose v. Willmore 

(1971), 292 Minn. 23, 192 N.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 comparative negligence statute . . ." 192 N.W.2d at 827. [Citations omitted. I 

In Lyons v. Redding Construction Company (1973), 83 Wash.2d 

86, 515 P.2d 821, the court stated: 

". . . Adoption of the standard of comparative 

negligence is necessarily accompanied by a more 

flexible weighing 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 relative measurements of fault 

inevitably incorporates the degree to which the 

plaintiff assumed the risk. Accordingly, it 

has been held the effect of the comparative negligence 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), 15 Wisc.2d 387, 113 N.W.2d 
In Wilson v. Gordon (Me. 1976), 354 A.2d 398, the ~aine 

court presents 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 comparative negligence 

statute is clearly intended to abolish the doctrine of so-called voluntary assumption of the 

risk. 

"While it is true that 14 M.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, except where 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, 199 N.W.2d 125 (1972); Kentucky, Parker v. 

Redden, Ky., 421 S.W. 2d 586 (1967) ; Michigan, 

Felgner v. Anderson, 375 Mich. 23, 133 N.W.2d 

136 (1965); New Hampshire, Bolduc v. Crain, 104 

N.H. 163, 181 A.2d 641 (1962); New Jersey, Meistrich v. Casino Arena Attractions, Inc., 31 

N.J. 44, 155 A.2d 90 (1959), and McGrath v. 

American Cyanamid 41 N.J. 272, 196 A.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, 120 N.W.2d 63 (1963). 
"In Meistrich, supra, Chief Justice Weintraub 

expounded upon the confusion which 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 .that where the thought - is projected 

-- in that aspect, the terminology of assumption of 

-- the risk should --- not be used. at her . . . thesubject should be subsumed under the charge of - contributory nesiqence.' 155 A.2dat 96. 

"Other courts have interpreted their comparative 

negligence statutes as 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, 192 N.W.2d 826 (1971); Mississippi, 

Braswell v. Economy Supply Co., Miss., 281 So.2d 

669 (1973); and Washington, Lyons v. Redding 

Construction Co., 83 Wash.2d 86, 515 P.2d 821 

(1973). 

"A statement of 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- 

--- Gr of 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, 532 P.2d at 1241. 

"There appear to be few jurisdictions which adhere 

to the position that comparative negligence and 

voluntary assumption of the risk can be harmonized. 

See Bugh v. Webb, 231 Ark. 27, 328 S.W.2d 379 (1959); 

Harris v. Hercules, Inc., 328 F.Supp. 360 (E.D. Ark. 

1971). 

"Appellant directs 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 comparative negligence.' 302 So.2d at 

451. 
"More recently, however, another Florida District 

Court of Appeals took a contrary approach, holding that 

"'[tlhe defense of assumption of the risk is no 

less "a primitive 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 recovery where 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. 

The Wilson 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." 354 A.2d at 403. 

As stated earlier, the elements of the doctrine of 

assumption of the risk are not present 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 is whether the District Court erred in 

not granting summary judgment on plaintiff's Count No. 11. 

Count I1 of 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 "has misunderstood" 

the Montana Unfair Trade Practices and Consumer Protection 

Act and 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 federal Act and decisions thereunder. It contends 

a reading of the cases annotated under 15 U.S.C.A. 545 

(1973) shows that the purpose of the federal statutes is to 

prevent unlawful restraint of trade and submits that since 

the Montana Department of Business Regulations may not adopt 

rules inconsistent with the federal law, it is improper to 

have a regulation which deals with sales. Such regulation 

is, according to defendant, outside the scope of the enabling legislation. 

Defendant's arguments are misplaced. 

Section 30-14-103, MCA, states: 

"Unfair methods of competition and unfair or deceptive acts or practices in the conduct of any 

trade or commerce are unlawful." 

Section 30-14-104, MCA, provides: 

"1. It is the intent of the legislature that in 

construing Section 30-14-103 due consideration 

and weight shall be 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 (15 U.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 inconsistent with the rules, regulations, 

and decisions of the federal trade commission 

and the federal courts in interpreting the provisions of section 5(a)(l) of the Federal Trade 

Commission Act (15 U.S.C., 45(a) (I)), as amended." 

A.R.M. 58-2.4(2)-S440 provides in part: 

"It shall be an unfair or deceptive act or practice for a motor vehicle dealer to: 
"(3) represent the previous usage or status of a 

motor vehicle to be something that, in fact, it 

was not; or make such representations unless the 

dealer has sufficient information to support the 

representations. " 

Section 30-14-133, MCA, provides in part: 

"(1) Any person who purchases or leases goods or 

services primarily for personal, family, or household purposes and thereby suffers any ascertainable 

loss of money or property, real or personal, as a 

result of the use or employment by another person 

of a method, act, or practice declared unlawful 

by 30-14-103 may bring an individual but not a 

class action under the rules of civil procedure 

in the district court of the county in which the 

seller or lessor resides or has his principal 

place of business or is doing business to recover 

actual damages or $200, whichever is greater. The 

court may, in its discretion, award up to three 

times the actual damages sustained and may provide 

such equitable relief as it considers necessary 

or proper." 

While the main purpose of the federal statute is to 

prevent unlawful restraint of trade, there is nothing in the 

cases to indicate that the above rule of the Department of 

Business Regulations is inconsistent with the federal cases 

or the enabling legislation. 

The District Court was therefore correct in denying 

summary judgment on this matter. A determination of whether 

the alleged violation was a cause of plaintiff's damages is 

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

was not ripe for summary judgment. 

As part 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 

to trial. Objection was made upon the grounds of repetition, inadmissibility of the deposition and improper impeachment evidence. The court adjourned to chambers to hear the 

evidence and argument, and after offer of proof, denied the 

use of the deposition as proposed. 
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 not present 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 issue presents a question of interpreting what the 

rules allow regarding depositions used for impeachment 

purposes. It is to be noted that Rule 32(b), M.R.Civ.P., 

provides : 

". . . objection may 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." 

The matter 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 statement need not be shown or 

its contents disclosed 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 statement by a witness is not 

admissible unless the witness is afforded an 

opportunity to explain or deny the same and the 

opposite party is afforded an opportunity to 

interrogate him thereon, or the interests of 

justice otherwise require. This provision 

does not apply to admissions of a partyopponent as defined in Rule 801 (d) (2) . " 

This rule is fairly new, and practitioners would be 

well-advised to study its provisions. If the witness is on 

the stand and testifying, a cross-examiner may ask the 

witness about prior statements made by the witness, without 
first 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 opposite party was a£- 

forded an opportunity to interrogate her on the deposition. 

This foundational requirement not having been met by the 

cross-examiner, the District Court was 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 impeachment evidence 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 (see Advisory 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 that 
point 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), 164 Mont. 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 determine whether 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), 172 Mont. 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 Justice 
Mr. Justice John Conway Harrison concurring in part and dissenting in part: 

I concur with all issues with the exception of the seat 

belt issue with which I respectfully dissent. I would 

return the case to the court for retrial for failure to give 

the requested instructions on the use of seat belts. 

If ever there was a case presented to this Court indicating the necessity of using seat belts, this is the case. 

The very fact that respondent and her husband, from the very 

time of purchase, had difficulties with 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 

seat belts during any drive that she took in the car. 

Before purchasing the car she and her husband took the car 

out for a test drive and they noted it had 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 to a friend's garage. He 

indicated after working on the car that she should take the 

car back; that it needed lots of work and was "not safe on 

the road." Despite that advice, she drove back from Missoula to Great Falls and noticed that the car lost power due 

to extreme vibration, that it "dieseled", and that the motor 

continued to run some time after the ignition had been 

turned off. When she got home her husband tested the car 

and noted some difficulty with the steering. In addition, 

the day she drove the car to Chester to see Dr. Buker, she 

did so against the advice of her husband who felt that the 

car should not be on the road and that she should take the 

other family car. 
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 "belt up" contributed to the seriousness of her injuries. 

There is no 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 she worn 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 seat belt be considered. In my opinion, that is 

error. 

Recognizing that my view is a minority view, I find it 

is the better view and should be stated. The support for my 

view comes initially from Sams v. Sams (1966), 247 S.C. HI, 

148 S.E.2d 154, in which the matter 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 defendant be 

allowed to prove, if he can, that the failure 

of the plaintiff to use a seat belt, under 

the facts and 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 Braun 
626, in which the court made the following rulings: (1) the 

failure to use seat belts is not negligence per se under 

statutes like Montana'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 independent of any statutory mandate"; (2) the occupant of a car is charged with knowledge of the additional 

safety factor produced by the use of a seat belt; and (3) 

the test is: did the failure to use the seat belts contribute to the injury? 

"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 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 149 N.W.2d at 640. 

Here the evidence shows that respondent, from her own 

experience, had trouble with the car and had been warned, at 

least by the mechanic Marquart and I think also by her 

husband, that the vehicle was unsafe. Inasmuch as we are at 

the threshold of the opinion stage of comparative negligence 

in Montana, under the circumstances here, I think that 

because the alleged negligence of appellant had been discovered before the accident a jury question exists on the 

use of seat belts. I believe first, that where a state has 

a comparative negligence 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 seat belt occurred, 

there is a jury question as to avoidable consequences. See 

King Son Wong v. Carnation Company (Tex.Civ.App. 1974), 509