NO. 88-87

INTHE SIJPREME COURT OF THE STATF OF MONTANA
1989

NANCY PAPP, Individually and as PersonalRepresentative of the Estate ofALEX PAPP,Plaintiff and Appell-ant,

ROCKY MOUNTAIN OILAND MINERALS, INC.; PETRO-LEWIS CORP.

### ,and PETRO-LEWIS FlJNDS

### , INC., and PARTNERSHIP PROPERTIESCO.; BUCKEYE ENERGY CORP., and RALCROTJ OIL COMPANY, Defendants and Respondents.

APPEAL FROM: District Court of the Thirteenth Judicial District, In and for the County of Yellowstone, The Honorable G. Todd Raugh, Judgepresiding.

COUNSEL OF RECORD:

ForAppellant: TJgrin,Alexander, Zadick & Slovak; John

### D.Alexander and Neil E. Ugrin argued, Great Falls,Montana

For Respondent: Moses LawFirm; Charles F. Moses, Billings, Montana Dorsey and Whitney; James L. Jones argued for Rocky Mountain Oil,Billings, Montana :$TcNamerand Thompson,Mark S. Werner argued for PetroLn .--i Lewis,Billings,Montana >keefer,Roybal, Hanson, Stacey & Jarussi;Neil S.
7-1 11 ,i ~:'jKeefer araued for Buckeye & Ralcron, Billings,Montana

Submitted: January 1211989 Decided: March 2, 1989Mr. Chief JusticeJ. A. Turnage delivered the Opini-onof the Court.This is an appeal from an order of the Thirteenth Judicial District, Yellowstone County, granting summarv judgment to respondents, Rocky Mountain Oil, Petro-Lewis Corporation, and Buckeye Energy Corporation. Appellant, Nancy Papp, brought suit in strict liability in tort and negligence for the wrongful death of her husband. Alex Papp died of lethal inhalation of hydrogen sulphide (H2S) gas while working for Balcron Oil Company. Appellant claims the facility in which Papp was working and its components were defective and unreasonably dangerous. The court aranted summary judgment in favor ofdefendants. We affirm. The issueshere are:

(1) Whether the District Court properly found that respondentswere entitled to summarv judgment as amatter OF law on the grounds that the claim for strict liability does not fulfill the requirements of Restatement (Second) of Torts, section 402A. (2)Whether the negligence issue must be dismissed on the qrounds that the builders of the separator facility are too remote. 

### (3)Whether Buckeye Energy Corporation and Balcron Oil

are joint venturers in the State B lease, thus immunizinc! Buckeye from appellant's negligence claim.

FACTS 

### In 1951, the State of Montana, State Board of Land Commissioners, entered into an oil and gas lease agreement with Phillips Petroleum Company and Ada Oil Company for property located southwest of Conrad,Montana. Known as the "State R" lease, it was assigned to Rocky Mountain Oil and Minerals, Tnc. (Rocky Mountain) inAuuust 1971. On September1, 1978, Rocky Mountain sold its interest to the Petro-Lewis Corporation,Petro-Lewis Funds,Inc., and Partnership Properties Co. (Petro-Lewis), reserving a 50 percent interest in the leasehold estate. On October 

### 4, 1981, Petro-Lewis sold bv way of assignment, bill of sale, and conveyance, oil and gas leases in PonderaCounty, including the StateB lease,to Buckeye Energy Corp. (Buckeye),who, in the same meeting, sold two-thirds interest in its Pondera Countv oil and qas leases to Balcron Oil Co. (Ralcron). In 1979,Alex Papp was hired by Ralcron as an oil and gaspumper andworked for Balcron from 1979 until the date of his death, June 6, 1985. He spent up to 90percent of his time in the gas fields and 10 percent working in the oil fields. On the State R lease southwest of Conrad was an oil "treater" or "separator" facility. The facility's purpose was to separate water and qas from the crudeoil being pumped out of the ground. There are two tanks in the separator facility, the water knock-out tank and the gun barrel tank. An incoming flow line enters the facility from anunderground pipe depositing oil into the knock-out tank. The tank separates salt water from the oil and allows hydrogen sulphide
gas (HZS) to separate from the crude oil and vent into the atmosphere. Once the initial impurities are separated and siphoned out, the oil is transqerred to the gun barrel tank where it is heated to remove any remaining impurities. The treated oil is then put into storage. Prior to the State R lease acquisitionby Rocky Mountain, the treater facility had become worn from use. After the acquisitionby Rocky Mountain, Rocky Mountain dismantled and rebuilt the facility and its components, completely enclosing it. After Ralcron took over the lease in 1985, it began replaci-ng 

### the 

### flow pipes entering the facility

# . Ralcronreplaced PVC pipe, which was unflexible and brittle, with a more flexible poly pipe. Alex Papp and Larry Rannelr were assigned to complete an auxiliary flow line in the facility. On June 6,1985, shortly after lunch, Papp and Ranneywent to finish the flow line. Later that afternoon, Jerry Griggs, another employee of Balcron, went to the facility and found bothmen overcomeby H S inhalation. 2 Hydrogen sulphide is a deadly gas, exposure to which can quickly cause death. The building which houses the separator facility had at the time of Papp's death only one door for ingress and egress and no ventilation. There were no signs warning against the H S gas. Both decedents were 2 aware of thepresence of H2Sgas in the oil and at least some of its dangers. However, employees of Balcron were given no formal-training concerning thedangers of

### H S gas. 2 When Griggs arrived at the treater facility, Papp was found sitting against the east wall with his feet under the steel flow line. Larry Ranney was found twelve feet from Alex Papp against the inside west wall,with a wrench in his hand. Griggs realized that therewas the presence ofH2S gas in the air. Despite the presence of the gas,he went inside and pulled Alex Papp out. Another employee arrived and pulled out Larry Ranney. Oil was steadily flowing out of the pipes into the facility and both Papp and Ranney were coveredwith dirt and oil which had apparently sprayed from a cracked PVC pipe. After the deaths, employees of Balcron were given formal H S training. Furthermore, changes in the treater 2 facilityweremade. These included constructingan additional entrance for cross-ventilation, erectingwarning signs of H S gas,and finishing the replacement of the PVCpipe.

2 The Occupational Safety and Health Administration (OSHA)issued to Ralcron Oil citations for ~riolationsof theOccupational Safety and Health Act. Specifically, Balcron

was cited for inadequate warning of H2S gas and for not providing respirators for the employees. Decedent's wife, Nancy Papp, received workers' compensation benefits from the death of her husband, paid out by Balcron Oil. She later filed a complaint on behalf of herself and on behalf of the estate of Alex Papp,against Rocky Mountain, Petro-Lewis, Buckeye, and Balcron, alleging strict liability, negligence, and negligent failure to warn on the basis that the separator facility and its components were defective and unreasonably dangerous. After the defendant^ answered the complaint, plaintiff took the depositions 

### of three of Papp's fellow employees and filed sets of interroqatories. In February, March, and April, 1987, defendants filed motions for summary judgment. Plaintiff thereafter moved to compel discovery, and filed briefs in opposition to themotions for summary judgment. On December 10, 1987, the District Courtgranted the motion for summary judgmenton the grounds thatno disputeas tomaterial facts existed and that the defendantswere entitled to summary judgment as a matter of law.

DISCUSSION The first issue iswhether the District Courtproperly granted summary judgment on the grounds that appellant fail-ed to show that the treater facilitywas within the Restatement

(Second)of Torts,S 402A definition of "product."

"PRODUCT" DEFINITION The standardof review forgranting or denying amotion for summary judgment is the same as that used by the trial court--that is, the moving party is entitled to judqment at law i.f there Is 

### no genuine issue of material. fact and themoving party is entitled to judgment as a matter of law. Rule 56(c)

## , M.R.Civ.P. ; Frigon v. Morrison-~aierle,Inc.

(Mont. 1988), 760 P.2d 57, 45 St.Rep. 1344; Sevalstad 

### v. Glaus (Mont. 1988), 737 P.2d 1147, 44 St. Rep 930; Kronen 77. Richter (1984),211Mont. 288, 683P.2d 1315;Reaganv. Union Oil Company of California (1984),208Mont. 1,675 P.2d 953. Appellant alleges that there are material facts in dispute--namely, whether the design and manufacture of the facility and its componentpartswere defective or whether it.

was negligent use or misuse of the equipmentby Papp himself which caused his death. The reason for the death, according to appellant,was that the treater facilitywas defectiveand unreasonably dangerous. The facility lacked ventilation, there was insufficient ingressand egress, and there were no signs warning of the dangers of H2S. Moreover, Papp had receivedno formal training regarding the dangers of thegas. To prove that the respondents are liable under strict liability, appellant must demonstrate that the treater facility was a "product" within the $$ 402A definition, that this productwasbuilt andmaintained by the respondents,and that the productwas in a defective condition unreasonably dangerous. If the appellant is unable to show that the separator facility was a product, then S 402A is inapplicable to this
case, and the summary judgment order will be affirmed. Respondents allege that the appellant has not met the requirements of the 5 402A strict liability claim. To find strict liability of the seller of the facility, the facility and its component parts must be a "product" for S 402A purposes. Restatement (Second)of Torts, 5 402A states inpertinentpart: (1) One who sells any product in a def ect.j~7e condition unreasonablydangerous to the user or consumer or to hisproperty is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if (a) the seller is engaged in the business of selling such a product

# ... From the time that the second Restatement was published in 1965, courts have struggled to find an all-inclusive definition for the term "product." The Restatement writers themselves began the list in the official comments following S 402A. The list included the sale of food for human consumption, or other products for intimate bodily use. The authors of the Restatement also embraced any product which reached the consumer or ultimate user in substantially the

same condition in which it was intended, such as an automobile, an airplane, a grinding wheel, a water heater, a gas stove, a power tool, a riveting machine, a chair, or an insecticide. It also included any product which harmed the consumer's chattels or land. Since 1965, the list has expanded tremendously and courts have adopted policy reasons for defining a product, rejecting a strict dictionary definition of the word "product. " The social policy justifications for determining whether a "product" is found have been discussed by this Court in Brandenburger v. Toyota Motor Sales, U.S.A., Inc.

(1973), 162 Mont. 506, 514-515, 513 P.2d 268, 273. The policy considerationsapplicable to the case at har include:

(3) It is in the public interest to discourage the marketing of defective products;

(4) It is in the public interest to place responsibility for injuryupon themanufacturerwhowas responsible for its reaching the market;

(5)That this responsibility should also he placed upon the retailer and wholesaler of the defective product in order that theymay act as the conduit through which liability may flow to reach the manufacturer, where ultimate responsibility lies;

(7)That the consumer does not have the ability to investigate for himself the soundnessof the product; (8) That this consumer's vigilance has been lulled by advertising, marketing devices and trademarks.

See also: Lecherga, Inc. v. Montgomery (Ariz.App. 1970), 467 P.2d 256; Nalbandian v. Byron Jackson Pumps, Inc. (19651,97 Ariz. 280, 399 P.2d 681; Greenman v. Yuba Power Products, Inc. (1962), 27 Cal.Rptr. 697, 377 P.2d 897; Escola 

### v. Coca Cola Bottling Co. of Fresno (1944), 24 Cal.2d 453, 150 ~.2d 436; "Products Liability Symposium: What is or is not a Product within theMeaning of Section 402A," 57 Marq. L. Rev. 623 (1974). Therefore, courts analyzing a cause of injurv to see if the injury-causing thing is a "product" within the confines of a strict liability definition for S 402A purposes, t.est the injury-causing thing against these preceding policy justifications. If itpasses muster, it is then deemed to be a product. Inapplying thepolicy justifications, most courts have refused to adopt the contention that a building is a "product." 

### In Lowrie v. City 

### of Evanston (Il1.App. 1977), 365 N.E.2d 923, decedent died from a fall in a parking garage. The Tll.inoisAppeLI-ateCourt held that neither the parkingrampnor theparking spacewas a "product" within the product liability definition. In Trentv. Brasch Manufacturing Co., Inc. (I11.App. 1 Dist. 1985), 477N.E.2d 1312, the plaintiff

was injured while "checking a thermostat" of the heating, ventilation, and air-conditioning system (HVAC) in a building. Defendants claimed that the HVAC was a component and indivisible part of the building. The court disagreed, reasoning that the HVAC was attached to real estate. The court applied the social policy considerations, ultimately sending the issue back to the trial court. See also: Imrnergluck v. Ridgeview House, Inc. (I11.App. 1977)

## , 368 N.E.2d 803 (inwrhich a sheltered-care facility was held not to be aproduct); and Heller v. Cadral Corp. (Ll1.App. 19801, 406N.E.2d 88. Other jurisdi.ctions have also held that huildinqs are outside the scope of the "product" definition area. In Messier v. Association of Apartment Owners (Hawaii App. 1987), 735 P.2d 939,plaintiff was injured during a storm blr

an allegedly defective metal panel which dislodged from the roof of his condominium. The Hawaii court held that the condominium was not a product. The Washington Appellate Court in Charlton v. Day Island Marina, Inc. (Wash.App. 1987), 732 P.2d 1008, held that a boathouse builder was not liable for the deaths of plaintiffs' decedentswho died from carbonmonoxide poisonins after being overcome by exhaust fumes caused 

### by the boat's running engine within the boathouse. The plaintiffs claimed that there was inadequate ventilation in the boathouse. The court found that the plaintiffs failed to show that the boathouse was a product given its similarities with other buildings. Formore caseswhich regard buildings tobe outside the purview of "products" for strict liability in tort, see:McClanahan v. America Gilsonite Co. (D.C. Colo. 1980), 494 F.Supp. 1334; and K-Mart Corp. v. Midcon Realty Group of Connecticut,Ltd. (D.C. Conn. 1980), 489 F.Supp. 813. A case which is nearly identical in terms of facts to the case at bar is Cox v. Shaffer (Pa.Super. 1973), 302A.2d 457. In - Cox, the decedentdied by asphyxiationwhileworking in a silo. The Pennsylvania court held that a silo constructed in place on an employer's land is not a product. Some states have alternatively held that a building is

a product within the scope of strict liability in tort, but onl:7 under limited circumstances. In 1965, the New Jersev Supreme Courtwas the first court to extend strict liability to home development in Schipper

### v. Levitt & Sons, Inc. (N. J. 1965), 207A.2d 314. In Schipper, a child of plaintiffs was scalded by hot tap water and plaintiffs sued the builder-vendor for failure to install a mixing valve to reduce thewater temperatureafter thewater left theheating boiler. In holding the builder-vendor strict1.y liable, the court stated: When a vendee buys a development house froman advertisedmodel, as in a Levitt or 

### in a comparable project, he clearly relies on the skillof thedeveloper and on its implied representations that the house will be erected in reasonably workmanlike manner and will be reasonably fit for habitation. He has no architect or other professional adviser of his own,he has no real competency to inspect on his own, his actual examination is, in thenature of things, largely superficial

# . .

# . Schipper, 207A.2d at 325. The court continued, saying that if injuries are the result of defective const.ructi.on,the builder should hear the cost.In 1969, California followed New Jersey in adopting strict liability formass production and sale of tract homes in Kreigler 

### v. Eichler Homes, Inc. (1969), 269 Cal.App.2d 224, 74 Cal.Rptr. 749. Defendant had constructed over 4000 homes in which steel tube radient systemshad been installed in the concrete floor. Kreigler was injuredwhen the floor collapsed from corrosionof the steel tubing. The California court, in holding defendant strictly liable, analogized mass-production ofhomes andmass-production of cars, stating that the buyer is not in a position to protect himself and that the policy reasons for "product" status were the same. In Kanecko 

### v. Hilo Coast Processing (Hawaii19821, 654 P.2d 343, the Hawaii Supreme Court also held in favor of strict liability in cases of construction of prefabricated buildings. See also: Lantisv. Artec Industries, Inc. (7th Cir. 1981), 648F.2d 1118. An alternative view in a few states is that the home itself is not a "product1'but that the component parts or additions to the building are "products" within the § 403A definition. In Philadelphia National Bank 

### v. Dow Chemical Co. (E.D.Pa. 1985), 605 F.Supp 60, one of Dow's products, Sarahond, was a chemical in the mortar used in erecting plaintiff's bank building. The Sarabond corroded metals embedded in the mortar and brick panels of the building, causing structural damage. Defendants alleged that the mortar had become incorporated in the structure and indivisible from the building. The court rejected this argument holding that the Sarabond was a product and not part of the realproperty or 

### a fixture thereto. In S.L Rowland Construction Co. v. St. Paul Fire and Marine Ins. Co. (Wash. 19671, 434P.2d 725,the courtheld that in caseswhere an insurance policv limited liability in case of fire, the house itselfwas not a product, but the component parts therein were products. Another dimension of "product1' definition was added by the Nevada Supreme Court in Elley v. Stephens (Nev. 19881, 760P.2d 768. There,the SupremeCourt ofNevada held:



# .. . even ifwe assumed, arguendo,that a prefab house is a product subject to the law of strictproducts liability, a strict liability theory is not applicable to an occasional seller of a product, who doesnot, in the regular course of his business, sell such a product.

[Emphasisadded.

### 1 Elley, 760 P.2d at 771. The foregoing discussion sets out the development of case law considering buildings in terms of "product"definition. In summary, a "product"is definedby policy considerations. Where a building is the alleged product, most. jurisdictions do not subject defendants to strict liability7 scrutiny unless the homes are prefabricated andmass-produced and the defendants are in the business of constructing or selling these types of homes, thus eliminating the unique status ofmost buildings.

PRODUCTLIABLLITY INMONTANA Strict liability is not new to Montana. Section 402A

was first adopted in Brandenburger,inwhich we discussed the policy reasons for applying strict liability in tort. There are two decisions in Montana which are pertinent here. The first is Thompson v. Nebraska Mobile Home Corp. (1982), 198 Mont. 461, 647 P.2d 334; the second, McJunkin 

### v. Kaufman

(Mont. 1987) 748 P.2d 910, 44 St.Rep. 2111. InThompson,the plaintiff complained of defects inher 1972Magnolia Futurama Mobile Home, including loose shingles on the roof and poor seals in the corners of the home. We held that strictliabilty was expanded to those instances where there is damage onlv to the defective product. Personal injury isnot required. In McJunkin, a K & B Mobile Home had numerous alleged defects shortly after the home was purchased. It was held that theplaintiff failed to show that the product was defective. We also held that the phrase "defective conditior. unreasonably dangerous" in S 402A is an indivisible requirement to he proved by the plaintiff. Defendants contender? that the plaintiffs were required to prove that the mobile home was both in a defective condition 

### - and unreasonably dangerous. Montana, however, has not addressed the initial question of whether the injury-causing thing is a product. We did not consider whether themobile homes were "products"

### in Thompson or McJunkin, although, in the case ofprefabricated homes and mobile homes which are mass-produced and sold in the stream ofcommerce,theymay qualify as "products." We hold that the summary judgment decision that the treater facility was not a "product" by the District Court must he upheld because: 

### (1)The respondentswere not in the husiness of selling separator facilities as required

### hv the Restatement; (2) The alleged product did not reach the stream of

commerce nor was the decedent a consumer as defj-nedby the policy considerations inBrandenburger; and (3)The treater facility, abuilding, isnot a product. Section 402A refers specifically to "one who sells a product in a defective condition," where the seller is engaged in the business of selling the product. The respondents here are not sellers oftreater facilities. They engage in the business of extracting oil and gas for refinement. They are, therefore, not sellers within the 5 402Adefinition. This provision was incorporated in our statutes in 1987. See

### 5 27-1-719,MCA. In testing the alleged cause of death for "product" status, it is necessary to test the alleged product aqainst the list of policy considerations. According to the policy consj-derationsin Brandenburger, whether the product is in the streamof commerce is relevant. Seealso: Immergluckv. RidgeviewHouse, Inc. (111.App. 1977), 368N.E.2d 803;Roddie

v. Litton Unit Handling Systems (111.App. 1 Dist. 19831, 455 N.E.2d 142; Moorman Manufacturing Co. 

### v. National Tank Co.

(I1l.App. 1980), 414 N.E.2d 1302, rev'd in part, aff'd in part (1982), 435 N.E.2d 443. This is apparent in three specific policy considerations, i.e., the public interest in discouraqFngthe marketing ofdefectiveproducts,the limitations and solicitationsof the manufacturers to the purchaser of the product, and the ability of the consumer to inspect theproduct. The separator facility did not enter the stream cf

commerce. It was part 

### of thepropertypassed fromone lessee to another. The facilitywas not a product which was in the stream of commerce. Because Pappwas not a "consumer,"usin? the treater facility after it had reached the stream of commerce, therewas no issue ofdisparity in bargaining power

or a manufacturer's use ofpersuasive advertising ormarketing devices to cause the consumer tobuy theproduct. Moreover,no issuehas arisen as towhether thedecedentwas able to inspect the facility. The treater facility is not a product under thewidely used policy considerations. A "product" is narrowly defined in the area of buildings, and the treater facility and the building which houses it do not fit within the definition prescribed by the Restatement. Leadinq caseshave held that a building is not a "product,'Anless the buj.1dins is mass-produced 

### orprefabricated. The separator facility is not mass-produced but is unique in nature. Considering that the structure which houses the separator facility isa building, the facility is not a "product"within a strict liability definition. Other jurisdictions have held that componentswithin a building are "products." However, even though the cracked PTTC pipe is a component and is known to be brittle and ofpoorer quality than the poly pipe, it is not that component alone which caused the death here. The H2S gas leaking from the pipe was deadly because itwas not allowed to evaporate into the atmosphere, but was confined within the housing structure. Thebuilding and its componentparts are indivisible in this case. We hold that the building is not a "product" within the definition of § 402A of the Restatement.

NEGLIGENCE The second issue is whether the claim of negligence must be dismissed on the ground that the builders of the separator facility cannot be liable for negligence once they have sold the facilityand released all controlof it. Appellant alleges that the respondents were negligent in their constructionof thebuilding and in their failure to

warn decedent. Each of the defendants--Rocky Mountain, Petro-Lewis, Buckeye, and Balcron--denied liability,declaring instead that the decedent was negligent inmisusing the components of the facilitv, specifically, putting too much strainon the PVCpipewhile replacing it,causing the crack. Also, once the pipe had cracked, the decedents took improper steps inpreventing theH2Sgas from filling the facilityand did not use caution to save themselves. Rocky Mountain and Petro-Lewis also blamed subsequent lessees for not properly inspectinq and preventing any hazards.Restatement (Second)of Torts, SS 352 and 353,propose that liability of builders is terminated once they have relinquished ownership and control of the property. The California Supreme Court has addressed the issue of a former owner's liability in a negligence claim. In Isaacsv. Huntington Memorial Hospital (1985),38 Cal.3d 112, 134, 695P.2d 653, 664,the court stated that: [a]defendant cannothe held liable for the defective or dangerous condition of property which it did not own,possess, or control. Where the absence of ownership, possession, or control has been unequivocably established, summary judgment isproper. Furthermore, in Prestonv. Goldman (1986),42Cal.3d 108, 720 P.2d 476, in a case where a previous owner was sued for injuries to a child who fell in a pond built by the former owner, the court held that a former owner is not subject to liability for injuries sustained on the property long after he had relinquished ownershipand control. We apply the same reasoning here and hold that Rocky Mountain and Petro-Lewis are not liable to the appellant for decedent's death. They do not own, nor are they in possessionof, the treater facility. Even asbuilders, the respondents should not be held responsible for reasons similar to the accepted "work rule doctrine." Once the builders finished thework on the facilityand relinquished controlof it to the subsequent owners, the subsequent owners accepted the property as finished. Therefore, the builders of the facility are not liable. Harrington

### v. LaBelle'sofColorado, Inc.

(1988),765 P.2d 732, 45 St.Rep. 2176.JOINTVENTURE The third issue is whether Buckeye is immune from negligence liability as a joint venturer with Balcron Oil. Appellant was awarded workers' compensation benefits from Balcron. Pursuant to $ 39-71-411, MCA (1985), if a claimant is awarded workers' compensation benefits, workers' compensation is the exclusive remedy, and employers are immune from further liability. If Buckeye and Balcron are joint venturers, Buckeye is an employer and is immune from negligence liability. Appellant claims that there is no joint venture and Buckeye is a separate owner and liable to appellant. Buckeve and Balcron must meet the four elements of a joint venture, to qualify as joint venturers. They are as follows: 1) an express or implied agreement or contract creating the joint venture; 2) a common purpose among the parties; 3) community of interest; and 4) an equal right of control of the venture. Bender 

### v. Bender (1965), 144 Mont. 470, 480, 397P.2d 957, 962. On October 26, 1984, Petro-Lewis sold its interest to Buckeyewho sold two-thirds of its interestto Balcron Oil on the same day. The parties arranged an agreement which declared that Buckeye held a one-third investment interest and Balcron held a two-thirds operations interest. Information income tax returns are filed as a joint venture and their respective income taxes are calculated thereon. Buckeye reimbursed Balcron for one-third of the wages and workers' compensation insurancepremiums. We hold that the four elements have been met here. From the agreement between the parties, it can be discerned that they have entered into an agreement which created a joint venture. Co-ownership is not sufficientby itself to establish a joint venture, however. Sunbird Aviation, Inc.v. Anderson (1982), 200 Mont. 438, 651 P.2d 622. The two companies have a common purpose, thatbeing the financing and operation of oil fields. The operation of the State R lease also shows the community of interest between Buckeye and Balcron. Appellant contends that the fourth elementhas notbeen met because Buckeye's two-thirds interest is not an equal share and they are not actively involved in the business affairsof the alleged venture. However,we have established that the parties can choose to delegate management duties to one venturer and still establish equal right of control. Murphy v. Redland, (1978), 178 Mont. 296, 583 P.2d 1049. Buckeye has sufficiently established that a jointventure is present. Therefore, as a jointventurerwith Balcron,Buckeye is

an employer of the employees working in the State B lease oil and gas fieldsand is immune fromnegligence liability pursuant to S 39-71-411,MCA.

CONCLUSION The District Court found that because the S 402A requirements were not met and there were no material facts at issue, summary judgment would be granted in favor of respondents. We affirm the summary judgment decision. The treater facility is not a "product" and, therefore, strict liability is not applicable as a matter of law. Fl~rthermore,Rocky Mountain and Petro-Lewis were not negligent at the time of decedent's death, and Buckeye, as an employer, is immune from negligence claims. The appellant has failed to show that the treater facility was a product and concomitantly has failed to show any genuine issue of material fact. If the movant has met the initial burden of showing no genuine issue of materialfact, "it then shifts to the non-moving party to demonstra.te

a genuine issue of material fact.

### " Gamble Robinson Co. 

### v. Carousel Properties (1984), 212Mont. 305, 312, 688P.2d 283, 287; Frigon 

### v. Morrison-Maierle, Inc. (Mont. 1988), 760 P.2d 57, 45 St.Rep. 1344. Appellant has failed to show a genuine issue of material fact regarding respondentsPetro-Lewis and Rocky Mountain. Moreover, appellant has failed to show any genuine issue of material fact that any of the respondentsare liable in negligence. The District Court was correct in ordering summary judgment. Afftrmed.

We concur: Chief Justice 

# fLF<