No. 13706 IN THE SUPREME COURT OF THE STATE OF MONTANA 1977

DEANE BROWN, Plaintiff and Respondent,

NORTH AMERICAN YANUFACTURING COMPANY, Defendant and Appellant.

Appeal from: District Court of the Eleventh Judicial District, Honorable Robert Sykes, Judge presiding. Counsel of Record: For Appellant: Murphy, Robinson, Heckathorn and Phillips, Kalispell,

Montana I. James Heckathorn argued, Kalispell, Montana For Respondent: Morrison, Hedman and Trieweiler, Whitefish,

Montana Frank B. Morrison, Jr. argued,Whitefish, Montana McGarvey, Lance and Heberling, Kalispell, Montana

Submitted: September 28, 1977 Decided: 

## FEB9

# - 1978-

Filed: 

## FEB9

## - 1978Mr. JusticeJohn Conway Harrison delivered the Opinion of the Court:

Plaintiff Deane Brown losthis left leg in the auger of

a self-unloading feed wagon known as a "Grain-0-Vator", manufactured by defendant North American Manufacturing Co., an Iowa corporation. Inhis original complaint, plaintiff specified negligence and strict liability in tort as theories supporting a damage recovery. The trialof the cause ultimately proceeded on the strict liability theory alone. Discovery consisted of depositions of the parties and certain anticipatedwitnesses forplaintiff. The casewas tried before a jury in the District Court, Flathead County, beginning October 19, 1976. The jury returned a verdict forplaintiff in the amount of $318,167 and judgment was entered thereon. Defendant then filedmotions forjudgment notwithstanding the verdict or alternatively, for a new trial. The District Court denied both motions. Defendant appeals from the judgment and denial of 

### itspost-trial motions. For reasons set forth in this opinion, we find no errors

were committed requiring either reversal of thejudgment, a new trialor imposition of judgment notwithstanding the verdict. The facts are: InNovember 1970, plaintiff Deane Brown purchased a piece of farm equipment known as a Grain-0-Vator. The feed machine was approximately one year old atthe time of purchase. The machine

was manufactured by defendant North American Manufacturing Co. During the next three years, the equipment was operated and serviced by plaintiff's son, Calvin Brown. Plaintiff used the machine a few times prior tothe accident involved here.The central function of the Grain-0-Vator 

### is feed unloading and distribution. The feed contained ina large bin drops through an opening intoa transfer auger, and 

### ismoved toan

area where it 

### ispicked up and expelled through a spout. Attached to the bin, just over the transfer auger, 

### is a curved metal door known as an "excess door". The door was hinged atthebottom on the particular model owned by plaintiff, and

was held closed atthe top by two springs. The purpose of the

excess door was toprovide a "relief valve". When excess feed pressure 

### is exerted against the transfer auger, the door 

### is forced open, and the excess feed pressure relieved. The feeder 

### is operated by a power-take-off system, when attached toa tractor. Just prior to the accident plaintiff, an experienced farmer/rancher, 51years of age, was operating the feeder. The feed had ceased coming out of the spout. Plaintiff descended from the tractor and left the power-take-off system-running, to observe if any mechanical problem existed. 

### Hisintentwas to firstview the interior of thebin. There 

### was no ladder or other means provided on the machine for access toa view of the bin. The height of the bin had been increasedby extension boards furnishedby defendant. Plaintiff mounted the machine by firstplacing his right foot on an iron reinforcement bar to the side of the transfer auger; then placed his left foot on the excess door covering the transfer auger. For his third step, he placed hisright foot

on a "gusset" just above and to the right of the excess door, with his left foot inthe airabove the excess door. Plaintiff observed feed inthebin, stepped down with his left foot, withoutlooking down, intending to again place it on the excess door. The excess door had come open and, as a result, plaintiff stepped directly into the transfer auger. His left legwas pulled in and amputated by the mechanism. Plaintiff was alone and remained caught in the machine for some time before he was taken out and given medical aid. Attrial, plaintiff testified that during his prior limited experience with the machine, the excess door had not come open. Whtle recognizing the area surrounding the excess door would be dangerous if the excess door were open, he stated he had no expectation the door would simply "come open'' and felt that the auger area, as covered, was not dangerous. Plaintiff further testified that no warning concerning the excess door appeared anywhere on the Grain-0-Vator. Carlton Zink was the plaintiff's expert witness. He has



### a Bachelor of Science degree inagricultural engineering from the University of Nebraska. Later he served for 12 years in charge of the tractor testing labratory in Lincoln, Nebraska. From 1950 to 1968, he worked forJohn Deere Company and after 1952he "took on the responsibility for product safety for John Deere as a corporate representative inproduct safety." He worked with the National Safety Council on "farm safety'' and

was a president of the Farm Conference. He was a member of the National Institute forFarm Safety, the American Society of Agricultural Engineers, the Society of Automotive Engineers and the National Safety Council. From 1952 to 1968, he was involved with the development of safety design forJohn Deere Company. Zink testified the American Society of Agricultural Engineers recognized the need toeffectually shield augers as early as

### 1964 or even 

### 5 years earlier. Further, the Grain-0-Vator in question*iledto conform to accepted safety design requirements inthree particulars,r- the equipment unreasonably dangerous to the user: 1) The lack of effective shielding of the transfer auger because of the excess door being hinged at the bottom, and much more susceptible toentrywhen open. 

### 2) No ladder or other means was provided for gaining visual

access to thebin. 

### 3) No danger warnings appeared on the equipment or inthe instruction manuel. An expert called by defendant was of the opinion the Grain-0-Vator was not defectively designed. The owner and principal officer of defendant, Elmer K. Hanson, testified he had designed the excess door. He indicated that prior to 1958, the door had been hinged atthe top, but the design was modified so the door was hinged at thebottom in latermodels for added utility. He further stated that atthe present time, the Grain-0-Vator 

### ismarketed with the excess door bolted on firmly and it cannot come open without manual removal. He admitted the Grain-0-Vator displayed no warnings, and no ladder or other access to a view of the interior of the bin was provided. However, he consistentlymaintained the machine was nondefective, and satisfied industry safety standards. Various exhibits were admitted throughout the course of the trialconsisting primarily of pictures and diagrams of the Grain-0-Vator, and a movie introduced by plaintiff demonstrating the steps taken by plaintiff ashe mounted and attempted todismount the Grain-0-Vator, asportrayed by his

son Calvin. 

### Thejury was alsoafforded an opportunity toviewthe particular Grain-0-Vator involved inthe accident. At the close of the testimony and ensuing arguments, a jury verdictwas returned inplaintiff's favor. We summarize the issues raised on this appeal: 1) Was there sufficient evidence to support a finding the product was in a "defective conditionunreasonably dangerous to the user or consumer?" 2) Was there sufficient evidence to support a finding that an unreasonable danger orhazard existedwhich required

a warning? 

### 3) Was there sufficient evidence to support a finding that the alleged defective condition was a proximate cause of injury toplaintiff? 4) Did plaintiff, by his actions, assume the risk as a matter of law? 

### 5) Did the District Court err ingiving 

### its instruction

on the law of assumption of the risk? 

### 6) Did the District Court err ingiving its instruction concerning the elements of proof in a strict liabilityaction? 

### 7). Did the District Court err inadmitting into evidence the movie prepared and offeredby plaintiff? Issue 

### 1. Defendant contends the evidence adduced atthe trial failed to satisfy the elements of a strict liability action

as set forth in 

### 2 Restatement of Torts 2d, 5402A. Rather, it ismaintained, the sole conclusion supported by the evidence is that the danger was "open and obvious'' toplaintiff and therefore

a complete bar torecovery. In support of the latter contention, defendant relies on the holding of cases from certainjurisdictions that a product 

### isnot "defective" or "unreasonably dangerous" if the danger occasioned by itsuse 

### is open and obvious tothe user. Tomicich v. Western-Knapp Engineering Company, (9th Cir. 1970), 423 F.2d 410; Morrow v. Trailmobile Inc., (1970), 12Ariz.App. 578, 473 P.2d 780; Zahora v. Harnischfeger Corp., 

### (7th Cir. 1968), 

### 404 F.2d 172; Halpern v. 

### JAD Const. CoPp.,

This Court, inBrandenburger v. Toyota Motor Sales, U.S.A., Inc., (1973), 162Mont. 506, 513, 513 P.2d 268, adopted the

core definition of the doctrine of strict liability, set forth in 2Restatement of Torts 2d, 5402A: 

## "

## '(1) One who sellsany product ina defective conditionunreasonably dangerous tothe user or consumer or tohis property 

### is subject to liability forphysical harm thereby caused to the ultimate user or consumer, or tohis property, if "'(a) the seller 

### is engaged inthe business of selling such a product, and 

# "'(b) it 

### is expected toand does reach the user or consumer without substantial change in the condition inwhich it 

### is sold. 

## ' (2) The rule stated in Subsection (1) applies a

### 1 though

"

## '(a) the sellerhas exercised allpossible care inthe preparation and sale of his product, and 

### "'(b) the user or consumer has not bought the product or entered into any contractual relation with the seller.

## '" 162Mont. 513. Inorder to establish a prima facie case in strict liability, based upon the above definition, a plaintiff must prove the following elements: (1) The product was ina defective condition, unresonably dangerous tothe user or consumer; (2) The defect caused the accident and injuries complained of; and (3) The defect is traceable to the defendant. Following the well-established rule inthis regard, this Court has stated that a defect in a products liability casemay be shown by circumstantial aswell asdirect evidence. Brandenburger v. Toyota Motor Sales U.S.A., Inc., supra; Pierce

v. Ford Motor Co., (1951), 190 F.2d 910, cert-denied 342 

### U.S. 887, 72 S.Ct. 178, 96 L ed 666; Henningsen 

### v. Bloomfield Motors Inc., (1960), 32 N.

### J. 358,16%A.2d 69, 75 ALR2d 

### 1. In such a case, the defect might well be established through proof of the circumstances of the accident, a prior history of occupational difficulties, similar occurrences under certain circumstances, and elimination of alternative causes, including plaintiff's own conduct. The reasoning behind imposition upon a plaintiff of the more flexible standard of proof was recognized inBrandenburger: "The essential rationale for imposing the doctrine of strict liability in tort 

### is that such imposition affords the consuming public the maximum protection from dangerous defects inmanufactured products by requiring the manufacturer tobear the burden of injuries and losses enhanced by such defects in 

### its products. If thisbe so, it requires littleimagination to see that if a strictrule of direct evidence was required, the supposed benefit of the theory of strictliabilitywould be lost to the consuming public." 162Mont. 517. Recognition of a more flexible rule of evidence does not thereby convert strict liability into absolute liability. Ordinarily, a plaintiff 

### willnot sustainhisburden of proof by merely establishing the fact of the occurrence of an accident. Dunham v. Vaughan & Bushnell Mfg. Co., 42 I11.2d 339, 247 N.E.2d 401 (1969). Imposition upon a plaintiff of the burden of showing

a traceable defect, causation and damage or injury assures an appropriate limitation to a manufacturer's liability. Defendant here advances the "open and obvious dangert' or "patent-latent" rule as a bar toplaintiff

## 's recovery under the theory of strict liabflity. We reject such a rule. Recentauthorities inotherjurisdictions that previously adopted the rule have now abolished it inpersuasive, well reasoned opinions. The "open and obvious danger" rule 

### isnot contained in 2 Restatement of Torts 2d, 5402A nor inthe comments thereto. It derives from the New York case Campo v. Scofield, 301N.Y. 468, 95 N.E.2d 802 (1950), and thereafter found acceptance in variousjurisdictions. Strict liability cases relying on the "open and obvious danger1'rule have typically done soupon the express authority of Campo. See: Morrow v. Trailmobile, Inc., supra. However, the New York Court of Appeals has recently abandoned the "patent-latent" distinction. Micallef v. Miehle Co., Div. of Miehle-Goss Dexter, Inc., 39 N.Y.2d 376, 348 N.E. 2d 571 (1976). Arizona has rejected the authority of Morrow, relied on by defendant. Byrns v. Riddell, Inc., 113Ariz. 264, 550 P.2d 1065 (1976). In so doing, theArizona Supreme Court stated: 

### "*

# ** We do not subscribe to this 'patent-latent' distinction inthe context of a manufacturer's strict liability in tort. 

### Its only function 

### is to encourage patent design defects." 550 P.2d 1068. InDorsey v. Yoder Company, (E.D.Pa. 1971), 331F.Supp. 753, the plaintiff suffered injuries tohishand when he placed it upon a piece of metal near the unshielded opening of a metal slitter, and was accidentallypropelled into the machine. The defendant argued, inpart, that plaintiff be barred from recovery due tothe open and obvious character of the danger. The Dorsey court, after discussing the splitof authority on the issue, rejected the "open and obvious danger" rule, holding:'I* 

# * * Therefore, we hold that even though the danger of unguarded rotary blades was obvious to plaintiff, this does not ips0 factopreclude recovery." 331 F.Supp. 

### 759. We note theNinth Circuit case Tomicich v. Western-Knapp Engineering Co., supra, relied on by defendant, does not infact deny recovery on the basis of the "open and obvious danger" rule. InTomicich, Judge Russell 

### E. Smith, while referring to various decisions supporting the "open and obvious danger" rule, including Campo, and noting that this Court has made no specific ruling on the question, suggests this Court might well be impressed with the criticismvoiced against the rule. Liability

was clearlydenied on other grounds. We reject any rulewhich would operate to encourage 

### misdesign. The fact that a danger 

### is patent does not prevent a finding the product 

### is ina defective condition, unreasonably dangerous to theparticular plaintiff. Rather, the obvious character of a defect or danger isbut a factor tobe considered in determining whether the plaintiff in fact assumed the risk. The evidence in the instant case, however, tends to support a finding that the danger was hidden, rather than open and obvious, as itwas concealed below the excess door. Plaintiff testifiedhe seldom used the Grain-0-Vator and had never personally serviced the equipment. PBH-icularly revealing in this regard is the following testimony of plaintiff, given upon direct examination: Q. Did you realize that door and the auger there asbeing a dangerous area? A. No. "Q. You did not? A. No. "Q. Why not? A. Because itwas dovered."Q. Did you know prior to this accident, was the lid on this thing bolted down orwhether it flipped up or anything about it? A. No. "Q. Prior to the time of the accident, did you know how the lid fastened to the machine? A. I knew itwas hinged. "Q. Did you know whether itwas bolted atthe top or latched atthe top or anything about that? A. No. "Q. No what? A. I did not know whether itwas or whether it wasn't." Further, plaintiff's expert, Carlton Zink, testified the hazard or danger was, in his opinion, hidden. Defendant's reliance on the "open and obvious danger'' rule 

### is thus misplaced. Here, plaintiff testified the fact the auger was shielded prevented him from expecting the injurious potential of the auger. It 

### isunclear as to how the excess door came open. However, the salient fact remains the excess door did come open, in such a manner and under such conditions as to expose plaintiff toan unreasonable danger. The jury was presented with ample evidence of design defectswhich rendered the Grain-0-Vator unreasonably dangerous. Carlton Zink enumerated three specific design defects, based upon industry safety standards: (a) failure tohinge the excess door atthe top, (b) failure towarn of the hazard, and (c) failure toprovide steps or other access formounting the equipment. When asked forhis opinion as towhether the effect of the defectswas torender the machine unreasonably dangerous, the expert responded inthe affirmative. We hold plaintiff clearlymet the burden of proof for a strict liabilityaction, inproving a defect rendering the productunreasonably dangerous. plaintiff's evidence, while to some extent in conflict with certain evidence offeredby defendant,

was sufficient for submission to thejury. We refuse to disturb thejury's findings in this respect. Issue 2. In accordance with 

### itsprior argument, defendant also asserts 

### itwas not under a duty towarn of any danger associatedwith use of the Grain-0-Vator. In support of this contention, defendant advances the position there isno duty towarn of a danger which 

### is obvious or of which the user has knowledge. 

### Aspointed out heretofore, the evidence strongly supports the conclusion the danger was in facthidden, and plaintiff had no subjective knowledge or awareness of the particular danger. Plaintiff's expert in fact listed the failure towarn as

a defect itself. Given such evidence, itwas well within the power of thejury to conclude the danger was hidden and unknown to plaintiff, and a warning should have been given. Defendant also contends the product was not defective or unreasonably dangerous because itwas functioning precisely

as intended atthe time of the accident. This contention 

### is without merit. It has been held that'a failure towarn of an injury causing risk associatedwith use of a technicallypure and fit product can render such product unreasonably dangerous. Davis

v. Wyeth Laboratories, Inc., (9th Cir. 1968), 399 F.2d 121. In further expending the applicationof the Davis rule, the Ninth Circuit Court of Appeals inJacobson v. Colorado Fuel & Iron Corporation, (9th Cir. 1969), 

### 409 F.2d 1263, stated: 

# "**

# * Davis distills the essence of the rule tobe that the manufacturer 

### isunder a duty towarn of dangers in 'non-defective' but potentially harmful products. 

# **

# * if the product 

### isunreasonably dangerous and a warning should be given, but 

### isnot

### given, then the product is automatically 'defective'

# * **." 409 F.2d 1271. Issues 3 and 

### 4. Defendantnext contends there was insufficient evidence that the alleged defect' was the proximate

cause of plaintiff's injury. Rather, it ismaintained the evidence demonstrates plaintiff's own conduct was the proximate

cause of his injuries, such that plaintiff assumed the risk as a matter of law. We disagree. A showing of proximate cause is a necessarypredicate to plaintiff's recovery in strict liability. Strict liability is, of course,not complete "liabilitywithout fault" in the sense that it is absolutely immune to considerations of plaintiff's conduct, That character of plaintiff's behavior which breaks the chain of causationand operates- to bar recovery is described in 2 Restatement of Torts 2d, §402A,Comment (n) : 

# "*

# ** Contributory negligence of the plaintiff is not a defensewhen suchnegligence consistsmerely in a failure to discover the defect in the product, or to guard against the possibility of its existence. 

### On the other hand the formof contributorynegligence which consists involuntarily and unreasonably proceeding to encounter a known danger,and commonly passes under thename of assumptionof risk, is a defense under this Sectionas in other cases of strict liability, If the user or consumer discovers the defect and is aware of the danger, and nevertheless proceeds unreasonably tomake use of the product and is injuredby it,he is barred from recovery." of We find the above standard/conduct of the plaintiff as related to the injurymust be consideredunder the Montana case law. on'theassumption of 

### riskwhen applied to strict liability cases. In the past Montana cases have not been consistent in distinguishingbetween the subjective standard required in the defense of assumption of risk, and the objective standard necessary to a contributorynegligence defense, As Judge Jamesonheld inDeeds v. United States, 306 F.Supp. 348,"While the defense of assumption of risk is usually asserted in employer-employee cases, in Montana the defense has been extended to 'relationships independent of the master-servant relationship'

# . Cassaday v. City of Billings, 1959, 135Mont. 390, 392, 340 P.2d 509, 510 and cases there cited. Assumption of risk 

### is governed by the subjective standard of the plaintiff rather than the objective standard of the reasonable man. 

# * * *'I Henceforth, in product liability cases the defense of

3 assumption of risk. 

### willbe based on a subjective standard rather than that of the reasonable man test. The attributes of the defense of assumption of the risk in the context of strict liability are intelligently phrased and developed inDorsey v. Yoder Company, supra: 

# "** * Inaddition to realizing the existence of the defect ordanger and voluntarily doing an act which exposes him to it, the plaintiff must perceive and appreciate the risk involved, i.e., the probability of harm. 

# * * *" 331F.Supp. 

### 765. Quoting 2 Restatement of Torts 2d, §496D, Comment (c)

## ,the court inDorsey continued: "'The standard tobe applied 

### is a subjective one, of what the particular plaintiff in fact sees, knows, understands and appreciates. Inthis it differs from the objective standardwhich 

### is applied to contributory negligence. 

# ** * If by reason of age or lack of information, experience, intelligence orjudgment, the plaintiff does not understand the risk involved ina known situation, he 

### willnot be taken to assume the risk, although it may be found that his conduct 

### is contributorily negligent because it does not conform to the conrmunfty standard of the reasonable man.'" 331F.Supp. 765. The Ninth Circuit has also followed the rule that the 2Restatement of Torts 2d, 5402A version of assumption of the risk requires a showing of knowledge of the danger which 

### is subjective, conscious and personal to the plaintiff. Jackson



### v. Coast Paint and Lacquer Company, (9th Cir. 1974), 499 F.2dBy the foregoing, 

### we do not intend to impose a burden upon the defendant which 

### isvirtually impossible to discharge. The defendant need not and, in the usual case, cannot prove the subjective requisites of the assumption of the risk defense by direct evidence. Seldom would a products liabilityplaintiff admit through his own testimony that he had knowledge of the danger and appreciated the risk involved. Therefore a defendant, ina given case, may effectively discharge hisburden in this regard through proof of the subjective elements by circumstantial evidence. Sperling v. Hatch, 10 Cal.App.3d 

### 54, 88 Cal.Rptr. 704 (1970). Turning to the record in the instant case, it 

### ismanifest there 

### isno evidence whatsoever plaintiff had subjective knowledge the excess door would open as it did, exposing the blades of the transfer auger. It further appears, and the jury could well have found, that plaintiff did not realize the risk associated with the product relative tohis use of it at the time of the accident. Defendant maint%ns that plaintiff

## ,a knowledgeable and experienced farmer/rancher, assumed the riskof injuryby knowingly and voluntarily climbing onto the machine while leaving the power-take-off system inoperation. While plaintiff's act of climbing upon the Grain-O-Vator to inspect the bin was obviously voluntary, these questions remain: (1) Was it unreasonable for plaintiff toact ashe did? 

### (2) Was the danger actually known and appreciated by plaintiff? Under the evidence, plaintiff may be guilty atmost of 

### failing to discover the defect or guard against 

### itspossible existence. While plaintiff's actions may have amounted to some contributory negligence, it cannot be saidhe assumed the risk

### as a matter of law. The question is not whether plaintiff should

# - have realized the risk,but whether in fact he

# - did realize the risk involved. Defendant, in failing to establish plaintiff's actual knowledge and appreciationof the danger, did not discharge its affirmative burden of proof of the defense. The evidence, to the contrary, sufficiently supports the conclusion that plaintiff's injurywas a direct result of the defective design, failure towarn, and failure to provide safe access to the bin. Plaintiff satisfied the burden, under the standard of proof outlined inBrandenburger,of showing the defectwas the proximate cause of his injuries. Issue 

### 5. The trial court gave as Court's InstructionNo. 10an instructionon the defense of assumption of the risk: "You are instructed that assumption of risk is voluntarily placing oneself in a position to chance knownhazards. If a personhas assumed the risk, he cannot recover for any injury or damage sustained by him. In determining whether or not the plaintiff assumed a risk,youare not to consider whether or not the plaintiff exercised due care for his own safety, but must find the following factors existed: "1. Thathe had knowledge,actual or implied, of the particular condition. "2. 

### Thathe appreciated the condition as dangerous. "3. 

### Voluntarily remaining or continuing in the face of the known dangerous condition. "4. 

### Injury resulting as the usual or probable consequence of this dangerous condition. "If you find all four of the above factors did exist at the time of the plaintiff's injury,he cannot recover .'I 

### This instruction is drawnprimarily from the Montana Jury InstructionGuide (MJIG). However here the

### MJIG approved 

### instructionwas modified by inclusion of the language, "you are

### not to considerwhether or not the plaintiff exercised due

care forhis own 

### safety1'. Defendant contends the instruction

asmodified is an inLorrect statement of the law, confusing and misleading to the jury and therefore itwas error to give it. Defendanturges its proposed instructionNo. 7, taken from the 1975 Revision of the CaliforniaJury Instructions (Civil),

was a correct statement of the law of assumptionof the risk, and shouldhave been given. The scope of our review in this case is well defined. This Court held innumerous cases, includingFoxv. Fifth West, Inc., (1969), 153Mont. 95,101,454 P.2d 612,that: 

# "*** instructions'mustbe considered in their entirety, and to determine whether instructions were properly given or refused this Court will read them in connectionwith other instructions given and consider them in the light of the evidence introduced." 153Mont. 101. Similarly,an error in any instruction considered in isolation may be curedby reviewing the charge as a whole. Northern Pac. R. Co. v. Lynch, 79 

### F. 268, 173

### U.S. 701, 19 S.Ct. 878,43L.Ed. 1185 (1899). A 

### review of the instruction finds it improperly inserts into the case elements of contributorynegligence that could cause jury confusion. Therefore in the interests of clarification, we disapprove of its use in future cases. As previously noted herein, in an instructionon assumption of risk, the subjective standardwill be used and the words "actual" or "implied" will not be used. See: Prosser,Law of Torts,4th ed., 568Assumption of Risk,pp. 445-452. The giving of InstructionNo. 10as to this defendant does not constitute reversible. error. ~efendant's burden of

### proof was clearly reduced due to the deficiency of the instruction. Under the given instruction, defendant couldhave argued plaintiff had implied knowledge,creating a measure for plaintiff's behaviorbased upon the standard of the "reasonable manr'

as an alternative to a showing ofactual, subjective knowledge. Such a 

### standard is inconsistent with the defense of assumption of the risk in the context of strict liability theory,as previously noted. 

### If anything,the error as discussed enured to the benefit of defendant in this case. An error in an instructionwhich is favorable to the objecting party is harmless error. Harding v. H. F. Johnson, Inc., (1952), 126Mont. 70, 244 P.2d 111;Broberg v. Northern Pac. Ry. Co., (1947), 120Mont. 280, 182P.2d 851. The trial court's refusal to give defendant's proposed instructionon assumptionof the riskwas not prejudicial error, as defendant

was not thereby deprived of the potential defense. Wollanv. Lord, (1963), 142Mont. 498, 385 P.2d 102. In fact,defendant

was able under the given instruction to introduce evidence and argue the defense under a burden significantlyreduced in comparison to the standard established above. Any error resulting from inclusion of the phrase concerning "due care" is alsoharmless, in view of the evidence negating the defense of assumption of the risk altogether,and the charges taken as awhole. Foxv. FifthWest, Inc., supra. Defendanthas demonstratedno real prejudice in this regard. Issue 6. 

### Defendantalso alleges as error the trial court's refusal of its proposed instructionNo. 5 concerning the elements ofproof in a strict liabilityaction. Defendant's proposed instruction, in essence, sets forth the elements of proof requiredby Brandenburger. However, theproposed instruction includes the following additional elements

as matters which 

### must be affirmatively established by plaintiff: "First: The defendant placed the Grain-0-Vator inquestion on the market for use, and the defendant 

### knew, or in the exercise of reasonable care should have known, that the particular Grain0-Vator would be used without inspection for defects in the particular part, mechanism or design which 

### is claimed tohave been defective,

"Third: The plaintiff was unaware of the claimed defect." Defendant admits the "inspection for defects" matter 

### is not an element of the law of strict liability as set forth in 

### 2 Restatement of Torts 2d, 5402A. The rule has itsorigin in the landmark products liability case Greemnan v. Yuba Power Products, Inc., (1962), 

### 27 Cal.Rptr. 697, 377 P.2d 897, and 

### is generally limited inapplication to subsequent California

cases. We conceive of no policy which would justify imposing an increased burden of proof upon a products liability plaintiff. The manufacturer 

### is sufficiently insulated from absolute liabilityby 

### a plaintiff's required adherence to the burden of proof heretofore outlined in this opinion. No error could result from refusal to instruct as to an element of proof not imposed by the governing law. Further, plaintiff's lack of awareness of a defect cannot be.considered an element plaintiff must affirmatively establish. Rather, plaintiff's awareness of the defect 

### is a matter going to the affirmative defense of assumption of the risk. 

### As such, the burden of alleging and proving "awareness" 

### isupon the defendant. The trialcourt cannot be placed in

### error for instructing as it did regarding the essential elements of strict liability. Issue 

### 7. Finally,defendant advances error in the trial court's admission, over objection,of plaintiff's offered movie exhibit. The movie, offered as demonstrative evidence intended to illustrateplaintiff's testimony, depicts plaintiff's son mounting the Grain-0-Vatorinvolved in the accident and taking the precise steps plaintiff asserts he took at the time of the accident. For purposes of illustration,the springs were removed from the excess door. As plaintiff's son stepped down towards the excess door, it was pulled openby way of a thin line. Defendant contends that the circumstances of the demonstrationdiffered radically from those at the time of the accident, causing it to appear to the jury as if the excess doorwould suddenly snap and remain open. However,defendant ignores the fact the jurywas cautioned the film was intended as demonstrative evidence only, and was instructed in detail as to the changes in conditions between the actual occurrence and the demonstration. The exhibitwas offered after a reading of the following statement to the jury: "This movie is intended to illustratehow the plaintiff, Deane Brown, thinks this accident happened. The machine had no feed in itwhen the movie was taken. At the time of the accident, the lid over the auger had springs attached to it and they are not on the machine in the movie. The lid over the auger is hinged like it was at the time of the accident, that is, the lidwas hinged at the bottom and swung open from the top as shown in the movie. During the movie, the lid is pulled openwith fish line to demonstrate how it could move from its point of pivot. This of course is not intended to showyouwhat caused it to open at the time of the accident,nor is the jury to use the film in any way in decidingwhat caused the lid to open at the time of the accident. Again, the purpose of the movie is only to illustrate how the plaintiff believes the accidenthappened."

### Themovie was admitted throughplaintiff's own testimony, with counsel establishing additional foundation elements of identificationand accuracy. Generally,allowing demonstrative evidence iswithin the discretion of the trial judge,and is subject to review only upon a showing of a manifest abuse of discretion. Gunderson

v. Brewster, (1970), 154Mont. 405,466 P.2d 589. Particularly

as regardsmovies of reconstructions, it has been held that such movies are admissible if shown tobe accurate and relevant, and any change in conditions is adequately explained. Greenich



### v. Southern Pacific Company, 189 Cal.App.2d 100, 11 Cal.Rptr. 235 (1961), 29Am Jur 2d Evidence, 5801. The trial court is imbuedwithwide discretion in admitting any diagram,map or photograph. Recently this Court in State Mont

# . v. Sharbono, (1977)

## , ,563 P.2d 61, 34 St.Rep. 196, considered a similar objection to the use of a ''burnfilm" offered by the defense. Issuewas taken to the trial court's refusal to allow the showing of the film,and the trial court's ruling was upheld by this Court citing Gobelv. Rinio, (1948), 122Mont. 235, 200 P.2d 700,and Leary v. Kelly Pipe Co., (1976), Mont

# . 9 

### 549 P.2d 813, 33 St.Rep. 413. We conclude the judgment of the District Court entered upon the verdict of the jurywas correct,and it 

### is affirmed.

### We Concur:

Justices.

Mr. Justice Frank I. Haswell, specially concurring: I concur in the resultbut not in all that is said in the foregoing opinion. My principal disagreement concerns the discussion of Issue 

### 5 relating to the defense of assumption of risk. As pointed out in the majority opinion contributorynegligence is not a defense to a products liability case,but assumption of risk is a complete bar to recovery in such a case. The court's Instruction No. 10 read: "You are instructed that assumption of risk is voluntarily placing oneself in a position to chance knownhazards. If a personhas assumed the risk, he cannot recover for any injury or damage sustained by him. Indetermining whether or not the plaintiff assumed a risk,you are not to considerwhether or not the plaintiff exercised due care for his own safety, but must find the following factors existed: "1. Thathe had knowledge,actual or implied, of the particular condition. "2. That he appreciated the condition as dangerous. "3. 

### Voluntarily remaining or continuing in the face of the known dangerous condition.

### "4. Injury resulting as the usual orprobable consequence of this dangerous condition, "If you find allfour of the above factors did exist atthe time of the plaintiff's injury, he cannot recover.11 Inmy view this instruction 

### is a correct statement of the law. The instruction 

### is the standard WIG instructionused in the trialcourts of this state for many years excepting that the phrase "you arenot toconsider whether ornot the plaintiff exercised due care forhis own safety" has been added. This addition conforms toexisting law -andmakes clear to thejury that it 

### isnot tojudge plaintiff's conduct by contributory negligence standards. As the United StatesDistrict Court observed inDeeds v. United States, (D.Montana 1969), 306 F.Supp. 

### 348, 362: 

### "*

# *

# * Contributory negligence arises from a lack of due care. Assumption of risk

### willbar recovery regardless of the fact that plaintiff may have acted with due care.I' I have no objection to striking the words "actual or implied" from the instruction in the future inthe interest of clarity. It may be thatjurors are confusing "implied" knowledge with "constructive" knowledge which 

### willnot support the defense of assumption of risk. There 

### is also other language inthe discussion of Issue No.4 that improperly injects contributory negligence into the case, 

### egg., "(1)Was it unreasonable for plaintiff toact ashe did?"

pJustice.Mr. Justice Daniel J. Shea specially concurring: I agree with the result reached by the majority and with most of its conclusions. However, scattered throughout the opinion there 

### is loose language that could cause some confusion. I willconfine

### my remarks tothat which I believe might cause future confusion. Language in severalplaces implies the plaintiff must prove both that the product was "defective" and "unreasonably dangerous1'. It 

### is virtually impossible todefine "defective" in the context of the various kinds of products liability cases. Moreover, a careful reading of 2Restatement of Torts 2d, $402A and the comments thereto, leads me tobelieve that they arenot sep-- arate elements. The thrust of the doctrine of strict liability 

### is stated inComment g. which provides inpertinent part: "The rule [of strict liability] stated inthis Section applies only where a product 

### is, atthe time it leaves the seller's hands, ina condition not contemplated by the ultimate consumer which willbe unreasonably dangerous tohim." (Emphasis added.) Comment j. provides inpertinent part: "In order toprevent the product from being unreasonably dangerous, the sellermay be required togive directions orwarning, on the container, as to 

### itsuse." (~mphasis added). I emphasize the above language because I believe that depending on the nature of the products liability claim, it may be confusing to thejury to speakboth of "defective" products and "unreasonably dangerous" products. The basic thrust of 

### 5 402 A, 2Restatement of Torts 2d, can be maintained by concentrating on the "unreasonably dangerous" condition of the product

# .I concur with this Court's opinion stating that recovery 

### is allowed where the condition complained of is open and obvious

aswell as latent. However, because of the confining language of the Restatement, care must be taken in instructing thejury. A close reading of 2 Restatement of Torts 2d, 

### 5 402 A and the comments thereto, reveals only silence as towhether an open and obvious condition can give rise toa strict liability claim. The definitionof "unreasonably dangerous" contained inComment i

# . of 

### 5 402 A, 

### ismade inthe context of situations where the condition complained of 

### is latent,' it states:

11i. Unreasonably dangerous. 

# *** The article sold must be dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it,with the ordinary knowledge common to the community as to 

### its characteristics.

# ** *I1 In the present case the danger was latent, and the instructionmay have been appropriate. However, itwould not be appropriate in a situationwhere the danger was one that was open and obvious. I believe the above instruction given in a situation where the danger is open and obvious, would be tantamount to telling thejury to return a verdict for the defendant, thereby effectivelyprecluding any realistichope of recovery. Accordingly, in such situations, the trial courts should adopt a different instruction. I agree with the overallposition taken by the Court on the question of assumption of risk. However, concerning the Instructionquestioned by the defendant, I feel that inmost

cases it 

### isbest to refrain from giving negative instructions to thejury. The inserced language concerning contributorynegligence was negative incharacter, i.e., telling thejury what did not have tobe proved. Inmost cases, I believe, it 

### is sufficient to set out what each party must prove to sustain 

### itsburden of proof, and to refrain from telling thejury what each party does not have toprove. Inany event, I failto

see inwhat way the defendant was prejudiced because the statement of law was accurate. There 

### is language inthe opinion that implies the subjective test of assumption of risk isbeing confined to strict liability

cases only. The opinion states: "Henceforth, in product liabilitycases the defense of assumption of risk willbe based on a subjective standard rather than that of the reasonable man test

# ."

It has been my understanding that, atleast since D'Hoodge v. McCann,(1968), 151Mont. 

### 353, 363, 443 P.2d 747, we have applied the subjective test to assumption of risk. There, we held assumption of risk 

### "is governed by the subjective standard of the plaintiff himself rather than the objective standard of the reasonable man

# **

# *." The problem was not with the testwe adopted, but with the Instruction given tothejury which allowed it to find that plaintiff could have the knowledge required by assumption of risk, if the knowledge was either actual or implied. The word "implied" does ring of constructiveknowledge asnoted by Justice Haswell inhis concurring opinion, and I agree it should be deleted. However, these words should be eliminated from allinstructions where assumption of risk is asserted as a defense, and not solely in strict liability cases. A defendant 

### isnot bound by the plaintiff's testimony simply because the words "or implied" are eliminated from the definition of assumption of risk. Even though a plaintiff testifieshe was not aware of the particular condition involved ordidnot appreciate the danger, circumstantial knowledge may show the plaintiff hadthe actual (subjective) knowledge. If the factsare such thatwould lead a jury tobelieve that the plaintiff did not 

### tell the truth, thejury 

### is free toreject the plaintiff's testimony simplyby applying the standard instructions on credibility of witnesses and weighing the evidence. It 

### is one thing toargue thejury should disbelieve the plaintiff where he testifies thathe didnot have knowledge of the particular condition; it 

### isyet another toargue that a reasonable man should have known of the particular condition involved. The knowledge that a man "should have had'' has no place inthe doctrine of assumption of riskwhere the cornerstone of the doctrine 

### isplaintiff's consent. To allow it comes dangerously close topermitting a defendant toargue contributory negligence under the guise of assumption of risk. 

### I alsodo not agree with the statement in the majority opinion that "seldom would a products liabilityplaintiff admit through his own testimony thathe had knowledge of the danger and appreciated the risk involved." Certainly the human nature of plaintiffs ingeneral has not been shown tobe so dishonest that it 

### is customary for them to liein support of their claims. Furthermore, even if a plaintiff admitted he had knowledge of the danger and appreciated the risk involved, it stillwould not defeat his claim. We have adopted the definition of assumption of risk ascontained in

### 2 Restatement of Torts 2d, 

### 5 402 A, Comment

n. which provides inpertinent part: 

# "**

# * If theuser or consumer discovers the defect and isaware of the danger, and neverthelessproceeds unreasonably tomake use of the product and is injuredby it,he 

### isbarred from recovery.'I (Emphasis added.) Accordingly, recovery would 

### stillbe allowed if the plaintiff didnot proceed unreasonably tomake use of the product. 

### n