No. 81-410 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1982 

NEOMA THOMPSON, 

Plaintiff and Appellant, 

VS. 

NEBRASKA MOBILE HOMES CORPORATION, 

ARNOLD KRUSE, d/b/a AMERICAN IDEAL 

HOMES; and JACK BOLES, 

Defendants and Respondents. 

Appeal from: District Court of the Eighth Judicial District, 

In and for the County of Cascade 

Honorable H. William Coder, Judge presiding. 

Counsel of Record: 

For Appellant: 

Frisbee, Moore & Stufft, Cut Bank, Montana 

David Stufft argued, Cut Bank, Montana 

For Respondents: 

Jardine, Stephenson, Blewett & Weaver, Great Falls, 

Montana 

Lon Holden argued, Great Falls, Montana 

Larsen & Neill, Great Falls, Montana 

Dirk Larsen argued, Great Falls, Montana 

Submitted: May 28, 1982 

Decided: June 23, 1982 
Mr. Justice Frank B. Morrison, Jr., delivered the Opinion of the 

Court. 

Plaintiff, Neoma Thompson, appeals the decision of the 

Eighth Judicial District Court of Montana to dismiss her claim 

of strict liability in tort against defendants. It was 

dismissed because the only injury suffered by plaintiff was 

to the product itself, the mobile home. We reverse the decision 

of the District Court and hold that a strict liability 

action can lie when the only damage suffered is to the 

defective product itself. 

Neoma Thompson purchased a 1972 Magnolia Futurama from 

Arnold Kruse, d/b/a American Ideal Homes, and Jack Boles on 

September 25, 1971. She paid $8,465.00 for the mobile home. 

It was designed and constructed by Nebraska Mobile Homes 

Corporation (Nebraska) . 

The purchase agreement contains the following language: 

"It is mutually agreed that the buyer takes 

the new mobile home, trailer or other described 

unit, 'as is' and that there are no warranties, 

either express or implied, made by the dealer. 

The seller specifically makes no warranty as to 

its merchantability or of its fitness for any 

purpose. 'I 

There was also a repair clause in the agreement whereby 

American Ideal Homes agreed "to return to service Thompson's 

home as required." 

Regarding factory warranties, Mr. Thomas Wilson, Jr., 

General Manager of Nebraska Mobile Homes, stated at trial 

that every mobile home sold by Nebraska in 1971-72 had at 

least a 90 day warranty. Since some states required one 

year warranties, Wilson stated that it was his practice to 

honor all of Nebraska's warranties for one year. 

Thompson's mobile home was delivered and set up on 

November 17, 1971. That night the furnace malfunctioned. 
At Thompson's request and pursuant to the purchase agreement, 

American Ideal returned to Thompson's mobile home and repaired 

the furnace the next day. Within a month, Thompson noticed 

that several interlocking roof shingles had been blown from 

the roof. Again she phoned American Ideal, who delivered 

new shingles to Thompson. She then found a friend to replace 

the shingles and some roof batting for her. At an unspecified 

later date, a sliding glass door was also repaired by American 

Ideal. 

Mrs. Thompson was injured in an automobile accident in 

1966 and suffers memory loss. Although much of her memory 

has returned, she still has some problems. Therefore, 

Thompson's testimony is rather vague with respect to dates 

and time frames. 

During the first winter she owned the Futurama, 1971- 

72, Thompson was plagued by cold air blowing through the 

home's outlets, cupboards and closets. She contacted American 

Ideal regarding this problem and was told a "factory man" 

(from Nebraska Mobile Homes) would be sent to repair the 

leaks. After several more calls to American Ideal and 

sometime during the next two years, 1973 or 1974, a factory 

man did visit Thompson at her home. He spent approximately 

30 to 40 minutes at the mobile home and caulked her bedroom 

closet floorboard. He immediately left as he needed to 

return to Nebraska for his daughter's wedding. Thompson 

testified that she was unable to discuss with him other 

problems with her mobile home due to his quick departure. 

The caulking was insufficient. Thompson found it 

necessary to install a gas heater as well as to purchase 

several electrical heaters in an effort to keep her home 

warm. 
Sometime after the caulking was performed, Mrs. Thompson 

noticed that the living room ceiling was starting to sag. 

She called American Ideal Homes about the problem, to no 

avail. 

On June 6, 1976, Mrs. Thompson saw Mr. Arnold Kruse 

installing another mobile home in her court. She went to 

that site and requested Kruse to come examine her sagging 

roof and ceiling. He did so. He testified at trial that 

the roof and ceiling were sagging approximately four inches 

and that the walls of the mobile home were bowed. He stated 

that he had never before seen a Magnolia in that kind of 

condition. 

Mrs. Thompson is unclear about when she first noticed 

her ceiling was sagging. She testified at trial that it 

could have been a year or a year and a half after her bedroom 

was caulked. She also testified that it had been sagging 

for no less than one year and may be as much as two or three 

years prior to Mr. Kruse's visit. The exact time remains an 

open question of fact. 

Mr. Kruse phoned Nebraska Mobile Homes on June 7, 1976, 

and requested someone come check the Thompson mobile home. 

In response to that call, Mr. Bill Boyer inspected Thompson's 

home in either June or July of 1976. He told Mrs. Thompson 

that he had never seen a Magnolia act that way and that he 

would call Thomas Wilson about the problem. Mr. Boyer later 

told Mrs. Thompson that Mr. Wilson stated there was nothing 

Nebraska could do as her one year warranty had expired. 

Approximately one year later, September 1, 1977, Thompson 

filed a complaint against Nebraska Mobile Homes, Arnold 

Kruse, d/b/a American Ideal Homes and Jack Boles. The 

primary allegations in the complaint were: 
(1) That defendant Nebraska Mobile Homes had failed to 

use due care and had used inferior materials when constructing 

her home ; 

(2) That such actions had resulted in the mobile home 

being in a defective condition when it was delivered to Mrs. 

Thompson; and 

(3) That the defects constituted breach of warranties 

that the home was suitable for Montana's severe winters and 

that the home was fit for general use. 

The complaint was later amended to include a claim against 

defendants for damages, based on strict liability in tort. 

A jury trial was held July 14, 1981. On that same day, 

Nebraska filed a motion in limine prohibiting any testimony 

regarding plaintiff's physical or emotional sickness allegedly 

caused by the mobile home. The motion was granted and there 

is no appeal of that issue. At the close of the trial, both 

defendants moved for dismissal of plaintiff's claim for 

property damages based on strict liability in tort. Plaintiff 

filed a brief in support of her claim, after which defendant's 

motions to dismiss were granted. 

The case was submitted to the jury on negligence, fraud 

and warranty theories. The jury was instructed by the judge 

that disclaimers are a defense to warranties. Defendants 

were thus allowed to rely on Uniform Commercial Code defenses 

not available for strict liability claims. The jury found 

for the defendants on all counts submitted to them. The 

only issue raised in this appeal is whether the District 

Court erred in dismissing plaintiff's claim for strict 

liability in tort. 

This Court adopted strict liability in tort in Brandenburger 

v. Toyota Motor Sales (1973), 162 Mont. 506, 513 P.2d 268. 
We stated several reasons for so doing: 

(1) ". . . to place liability on the party 

primarily responsible for the injury occurring, 

that is, the manufacturer of the defective 

product. I' 

(2) To fulfill such public policy considerations for openly fixing responsibility on the 

manufacturer regardless of negligence as: 

(i) requiring the manufacturer to anticipate 

hazards and guard against their recurrence, 

as the consumer is not able to do so; 

(ii) placing the cost of injury on the manufacturer, who can cover the risk of injury 

through insurance, rather than overwhelming 

the injured consumer with that burden; 

(iii) discouraging the marketing of defective 

products; and 

(iv) placing responsibility on the retailer 

and wholesaler of the defective product as 

they act as a conduit through which liability 

may reach the manufacturer. 

Strict liability in tort is defined in 2 Restatement of 

Torts Second, Section 402(A), as follows: 

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

condition unreasonably dangerous to the user 

or consumer or to his property 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, and 

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

user or consumer without substantial change 

in the condition in which it was sold. 

" (2) The rule stated in Subsection (1) applies 

although 

"(a) the seller has exercised all possible 

care in the preparation and sale of his product, 

and 

"(b) the user or consumer has not bought the 

product from or entered into any contractual 

relation with the seller." 

In Brandenburger, we adopted the above definition and 

held that a claim for strict liability in tort could lie 

whenever a defective product caused physical harm to its 
consumer, or to the consumer's property. As the only physical 

harm caused by Mrs. Thompson's defective mobile home was to 

the mobile home itself, the District Court Judge dismissed 

Thompson's strict liability in tort claim. 

We reverse the District Court's decision to dismiss the 

claim and remand this case for a new trial on the theory of 

strict liability in tort. By doing so, we extend the doctrine 

of strict liability in tort to include those instances where 

the only injury suffered is to the defective product itself. 

The rationale quoted in Brandenburger also applies 

under these circumstances. The public remains in an unfair 

bargaining position as compared to the manufacturer. In the 

case of damage arising only out of loss of the product, 

this inequality in bargaining position becomes more pronounced. 

Warranties are easily disclaimed. Negligence is difficult, 

if not impossible, to prove. The consumer does not generally 

have large damages to attract the attention of lawyers who 

must handle these cases on a contingent fee. We feel that 

the consumer should be protected by affording a legal remedy 

which causes the manufacturer to bear the cost of its own 

defective products. By allowing a claim for strict liability 

in tort we are joining with the jurisdictions of New Jersey, 

Wisconsin, Michigan, Minnesota and Colorado in affording 

legal recourse to all victims damaged by defects resulting 

from the manufacturing process. 

In Hiigel v. General Motors Corporation (Colo. 1975), 

544 P.2d 983, Hiigel's motor home was damaged when its wheel 

studs sheared off, causing the dual rear wheels to separate 

from the vehicle while it was in operation. In extending 

strict liability in tort to cover damages to the motor home 

itself, the Colorado court stated: "Since under S402A the 
burden of having cast a defective product into the stream of 

commerce falls upon the manufacturer, it appears inconsistent 

to limit his responsibility to property other than the 

product sold." Hiigel, 544 P.2d at 989. 

Gautheir v. Mayo (Mich. 1977), 258 N.W.2d 748, involves 

a modular home rendered uninhabitable due to manufacturer 

created defects. In finding the manufacturer liable to the 

purchaser, the Michigan court enunciated the same "stream of 

commerce" rationale and held that "(a) consumer has a cause 

of action directly against a manufacturer for economic loss 

resulting from a defective product, when said defect is 

attributable to the manufacturer. . ." Gautheir, 258 N.W.2d 

Santor v. A and M Karagheusian, Inc. (1965), 44 N.J. 

52, 207 A.2d 305, is one of the first, as well as the bestrea~oned~opinionsin this area. In finding the manufacturer 

of a defective carpet liable to the purchaser for the value 

of the carpet when the defective condition was first discovered, 

the New Jersey court stated: 

". . . the great mass of the purchasing public 

has neither adequate knowledge nor sufficient 

opportunity to determine if articles bought 

or used are defective. Obviously they must 

rely upon the skill, care and reputation of 

the maker. . . It must be said, therefore, that 

when the manufacturer presents his goods to 

the public for sale he accompanies them with 

a representation that they are suitable and 

safe for the intended use. . . The obligation of the manufacturer thus becomes what in 

justice it ought to be -- an enterprise liability . . . The purpose of such liability is to insure 

that the cost of injuries or damages, either 

to the goods sold or to other property, resulting from defective products, is borne by the 

makers of the products who put them in the 

channels of trade, rather than by the injured 

or damaged persons who ordinarily are powerless to protect themselves." Santor, 207 A.2d 

at 311, 312. 
Other cases applying strict liability in tort to instances 

where the only injury is to the defective product itself are 

City of Lacrosse v. Schubert, Schroeder and Associates 

(1976), 72 Wis.2d 38, 240 N.W.2d 124; Superwood Corp. v. 

Siempelkamp Corp. (Minn. 1981), 311 N.W.2d 159; and C & S 

Fuel, Inc. v. Clark Equipment Co. (E.D. Ky. 1981), 524 

F.Supp. 949. 

Finally, respondent Nebraska Mobile Homes asserts that 

even if the District Court erred in dismissing the strict 

liability in tort claim, the error was harmless for two 

reasons : 

(1) Implied warrantability of fitness for use is the 

same thing as strict liability. Since the jury 

returned a verdict for defendants on the warranty 

theory, they would have also done so on the theory 

of strict liability, had it been submitted to 

them. 

(2) The Statute of Limitations for filing the strict 

liability in tort claim had run, thus barring that 

claim. 

We disagree. 

The court did instruct on the breach of implied warranty 

of fitness. However, the court also instructed that such a 

warranty could be disclaimed. The purchase agreement, as 

quoted at the outset of this opinion, disclaims the warranty. 

Therefore, the jury might well have determined that the 

disclaimer barred any action against defendant for a breach 

of an implied warranty of fitness for use. 

Strict liability is not governed by the Uniform Commercial 

Code. It cannot be disclaimed. Therefore, the jury could 

logically have held for Mrs. Thompson under the strict 
liability theory even though they held against her under the 

warranty theory. It was prejudicial error for the judge to 

fail to give the strict liability instruction. 

The evidence of when Mrs. Thompson first discovered her 

ceiling to be defective is both inconsistent and unclear. 

It is a question of fact for the jury to determine. We 

cannot ascertain from the jury's general verdict whether or 

not they found the statute of limitations to have run. The 

applicable period of limitations is three years and commences 

to run from date of discovery, although the period may be 

further tolled by acts creating an estoppel. These are 

fact questions to be considered at a future trial with the 

defendant having the burden to prove this affirmative defense. 

The decision of the District Court is reversed and this 

cause is remanded for a new trial on the theory of strict 

liability in tort. 

We Concur: 

Chief 

'3~4 

,Justice 

&%dl.