No. 13413 IN THE SUPREME COURT OF THE STATE OF MONTANA

PHILIP STENBERG,Plaintiff and Appellant,

BEATRICE FOODS, COMPANY, a corporation, Defendant and Respondent.

Appeal from: District Court of the Eleventh Judicial District, Honorable Robert Keller, Judge presiding. Counsel of Record: For Appellant: Hash, Jellison and O'Brien, Kalispell, Montana Kenneth E. O'Brien argued, Kalispell,Montana For Respondent: Garlington, Lohn and Robinson, Missoula, Montana Gary L. Graham argued and Candace C. Fetscher argued,

Missoula, Montana

Submitted: January 19, 1977Mr. Justice Daniel J. Shea delivered the Opinion of the Court. Plaintiff appeals from a judgment entered inthe District Court, Flathead County, favoring defendant Beatrice Foods Co

# . ina products liability case. Plaintiff Philip Stenberg's left

arm was amputated below the elbow when his arm slipped into the intake end of a grain auger (a mechanical, screw-type grain elevator) manufactured by the defendant Beatrice Foods Co. The action was tried on two theories:(1) that defendant was negligent innot designing a shield for the intake end of the grain auger, and (2) that defendant was liableunder the doctrine of strict liability in tort for itsfailure toplace a shield on the intake end of the grain auger. Atthe close of plaintiff's case the trialcourt took the case away from thejury on the design negligence theory on the ground plaintiff was guilty of contributory negligence as

a matter of law. Thereafter, thejury returned a verdict for defendant on the strict liability issue. Plaintiff appeals from the trialcourt's ruling and from thejudgment infavor of defendant. Plaintiff presents many issues for review, but because

we reverse and grant a new trialwe discuss only those issues that aredeterminative of our ordering a new trialand those which may be helpful on retrial. We willdiscuss the following issues: (1) Whether the trialcourt erred ingranting a nonsuit on the negligence count of plaintiff's complaint

on the basis that plaintiff was contributorilynegligent

as a matter of law. In this regard, plaintiff also alleges itwas improper fortheDistrict Court to instruct thejurythathe had taken the case away from itbecause he had found plaintiff tobe contributorilynegligent asa matter of la^. (2) Whether thejury must be instructed in the literal terminology of the Restatement of Torts 2d, §402A, that recovery for strict liability 

### is allowed only where the product 

### is ina "defective condition unreasonably dangerous to the user or consumer

# ." In this context we also discuss whether the term "defective condition" must be defined for the jury, whether the two definitions of "unreasonably dangerous1'

asgiven tothejury were inconsistent, and whether the Restatement definitionof "unreasonably dangerous1' should properly be given where the condition complained of 

### is one that 

### is open and obvious as opposed toone that ishidden or latent. 

### (3) Whether thejury was properly instructed on assumption of risk and whether such an instruction was justified under the facts. Plaintiff Stenbergworked as a grain truck driver for Grosswiler Dairy, Inc. from the fallof 1971untilAugust 31, 1972, the day of the injury. Inthe course of hiswork he observed the procedures followed inunloading grain trucks into the grain auger and he had done ithimself a few times. Normally, however, he didnot unload hisown truck. When he did unload a grain truck, he followed the procedures he had observed. His employer had never instructed him inthe proper method of unloading the grain.Grosswiler Dairy used the auger to elevate the grain into

a bin. The unshielded intake end of the auger was placed ina homemade box and grainwas dumped from the trucks intothebox. The box was approximately four feet square and a foot and a half high. Plaintiff was aware the auger was dangerous. He alsoknew thathis employer owned a newer auger with a shield over the intake end. On August 31, 1972, plaintiff was unloading his truck atthe grain auger. He was out of the truck, had placed his lefthand

on the tailgate of the truck, and was inthe process of removing

a 2 x 4 board from the tailgatewith his right hand. In order tograsp thehandle on the tailgate plaintiff had toreach forward approximately two feet and leaned over the box indoing so. While removing theboard the tailgate suddenly slammed shut, he losthisbalance and fellforward into themoving grain auger. His leftarm was severed below the elbow. The intake end of the auger was not equipped with a shield, nor was it designed tobe equipped with a shield. Stenberg firstcontends that thejury should have been allowed todetermine whether ornothe was contributorily negligent. The test, of course, of plaintiff's contributorynegligence 

### iswhether he acted asan ordinarilyprudent man. Even where the facts arenot disputed, the question 

### is one for thejury if reasonable minds might draw different conclusions from the evidence. Dahlin v. Rice Trusk Lines, (1960), 137Mont. 430, 352 P.2d 801; Stahlv. Farmers Union Company, (1965), 145Mont. 106, 399 P.2d 763. Inruling on defendant's motion fora directed verdict, the court relied entirely on the testimony of the plaintiff and we conclude that reasonable minds could differ as to whether he was guilty of contributorynegligence.Plaintiff testified he was never instructed as tohow a truck should be unloaded, and on the few occasions he did unload his own truck he followed the same procedures he observed others follow. There was no evidence in the record as to any other standard of use. In taking the case away from the jury the trial court concluded thathe was doing so because plaintiff should have hung on to the tailgate, and thus would not have slipped and losthisbalance. The trialcourt stated: 

# "*** This isclearly from the Plaintiff's standpoint, he was negligent and he knew the danger was there and there 

### is no question everybody standing next to something like that appreciates, if you are going toget into it, you are introuble. And he didn't hang on. He was negligent. 

# ** *I1 (Emphasis added.) While the trialcourt concluded that plaintiff had a duty to "hang on", and was negligent innot doing so, we cannot say as

a matter of law that the reasonable minds of jurors would make that same determination. Clearly, the question was one for thejury. On a related issue plaintiff complains when the court took the case away from thejury that atthe defendant's request the court told the jury he had taken the issue of design negligence from it,because he had found plaintiff tobe guilty of contributory negligence as a matter of law. Plaintiff complains thisprejudiced his case on the remaining issue of strict liability. In situations such as this, the trialcourts must be careful tonot give the wrong impression to thejury. Here, since the court ruled as a matter of law that plaintiff was guilty of contributorynegligence, and so informed the jury, thejury could well conclude the court did not thinkmuch of the plaintiff's entire case. This could affect the remainder of the trial, asthejury could get the impression, however subtle, orhowever unjustified, that the court leaned indefendant's favor. This 

### is particularly truewhere the case is a close one orwhere a ruling

on one issuemay well give thejury a feeling as tohow the court felt about the plaintiff's conduct. The distinctionsbetween contributory negligence and assumption of riskhave never been that clear to the courts and the legal.profession, letalone a layjury. While a jury need not be kept inthe dark that the trial court has taken a cause of action away from it,nevertheless, the trialjudge must be extremely careful as to what he tells thejury. Here, thejudge could have told thejury that as a result of a ruling he had made on a question of law, the only remaining issue it was concerned with was that of the plaintiff's claim of strictliability. He also could have informed thejury that it was not tobe concerned why the court made this ruling. See, forexample, McBride, The Artof Instructing theJury, (1969), Sec. 4.12, page 141. After thejury returned with itsverdict the court could then have explained 

### its ruling to it. The remaining two issues relate to the plaintiff's claim that thejury was not properly instructed on the questions relating to 

### itsproducts liabilityclaim. Montana has adopted the rule of strict liabilityas set out in the Restatement of Torts. Bcandenberger v. Toyota Motor Sales, U.S.A., Inc., (1973), 162Mont. 506, 513 P.2d 268. Most of the claimed errors relate directly to an interpretation of the rule of strict liability set out in 2Restatement of Torts 2d, §402A, which provides:"(I) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or tohis property 

### is subject to liability forphysical harm thereby caused to the - - ultimate user or consumer, or to hisproperty, if: "(a) the seller is engaged inthe business of selling such a product, and. "(b) it 

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

### is sold. "(2) The rule stated in Subsection (1).applies although "(a) the sellerhas exercised allpossible care inthe preparation and saleof his product, and"(b) the user or consumer has not bought the product from or entered into any contractual relationwith the seller." (Emphasis added.) We emphasize that this Court adopted the rule as set out in the Restatement, but we did not and do not intend the restraints in the comments to this rule tohamstring us in developing and defining the rule of strict liability. To the extent that the comments arehelpful in our development of the law, we shallaccept them; but we willreject them where we believe a more appropriate explanation of the rule of strict liability can be provided. The plaintiff raises three issues concerning the key terminology for'recovery under the Restatement in strictliability, namely, that for recovery the product must be in a "defective condition unreasonably dangerous." (~mphasis added.) (a) He contends the court failed to define the term "defective condition". (b) He contends that inadopting two definitions of "unreasonably dangerous" the court adopted inconsistent definitions.(c) He contends that one of the definitions of "unreasonably dangerous" as taken from a definition in the Restatement, effectively precluded recovery under any situationwhere the condition complained of 

### is open and obvious rather than one which ishidden or latent. These issues are interconnected by the terminology of the Restatement it6el.f. 

### - The issue as to "defective condition" arosewhen plaintiff offered two instructions defining "defective condition" which the trialcourt rejected. The defense offered no instructions defining this term, and the court didnot give any of 

### its own. The resultwas that thejury was without guidance as to the meaning of "defective condition". Plaintiff contended attrial and asserts here that only "defective condition" should be defined, and that the words "unreasonably dangerous" should be eliminated from the proof required of a plaintiff. He relies

on Cronin v. 

### J.B.E. Olson Corp., (1972), 104 Cal.Rptr. 433, 501P.2d 1153, which held that a plaintiff need only prove in

a strict liability case that the product was "defective". Cronin expressly eliminated the requirement that a plaintiff prove the product was "unreasonably dangerous". The basis of the decision

### was that the term "unreasonably dangerous" rings of negligence concepts and the policy of strict liability 

### is to avoid this. However, we reject plaintiff's position thatMontana should alsoeliminate the requirement of "unreasonably dangerous". The issue of defining "unreasonably dangerous" arose in the context of InstructionNo. 10 defining "unreasonably dangerous". 

### It gave thejury two definitions of "unreasonably dangerous". It was agreed by the parties that the condition complained of (unshielded intake end of a grain auger) was open and obvious.Instruct ion No. 10 reads: 

### he term 'unreasonably dangerous' as used elsewhere inthese instructions pertaining to the doctrine of strictliabilityhas a particular meaning applicable to this legal doctrine. For liability tobe imposed under this doetrine, you must find that the product was unreasonably dangerous, by which 

### ismeant dangerous to an extentbeyond that which would be contemplated by the ordinary consumer who purchased it,with the ordinary knowledge common to the community as to the product's characteristics. "Another test of 

## 'unreasonably dangerous

## ' is assuming that the defendant had knowledge of the condition of the product, would the defendant then have been acting unreasonably in placing it on the market?" The definition contained in the firstparagraph of Instruction No. 10 

### is obviously inconsistent with the definition contained in the second paragraph, The firstviews "unreasonably dangerous" from what the consumer could see atthe time of purchase or use. The second views "unreasonably dangerous" fromwhat the manufacturer knew or should have known atthe time of manufacture. By these definitions a jury could conclude under the firsttest that the unshielded auger was not "unreasonably dangerous" but under the second test that it was "unreasonably dangerous". What then was thejury todo? This instruction could only have confused thejury as towhat 

### ismeant by the term "unreasonably dangerous", and it was improper. This also is sufficient reason for reversal. The third issue concerning the definition of "unreasonably dangerous" is connected with the Restatement definition of this term. Plaintiff contends the practical effect of this definition 

### is to provide ajury with a built-in reason to conclude that an open and obvious condition isnot "unreasonably dangerous". He argues that it effectively confines possible recovery to acondition which may be latent orhidden. One of the instructions defining "unreasonably dangerous1' supra, was taken from Comment i.,2 Restatement of Torts 

### Zd, $402A, which states:

'I* 

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

### its characteristics.

# *

# **" We believe this instruction may be adequate in situationswhere the condition complained of is latent, but it should not be given where the condition complained of is open and obvious. Most of $402A, 2 Restatement of Torts 2d, discusses strict liability in situations involving food, medicine, drugs and other situationswhere the danger 

### isnot an open and obvious one. Comment i. to 8402A does not citeany example where that danger may be one that is open and obvious. However, this Court recently held there 

### isno legitimate reason torefuse recovery ina situationwhere the condition is open and obvious. Brown

v. North American Manufacturing Co., (1978), Mont

# . Y P.2d 

## ,35 St. Rep. 194. The problem with using the Restatement definition of "unreasonably dangerous1'

### iswell illustratedby what happened in this case. Defendant manufacturer consistently maintained it

was not liable as a matter of law because the unshielded intake end of the grain auger could be seenby an ordinary consumer or

user of the product, and therefore the danger could be contemplated. Plaintiff did not dispute that he saw the unshielded intake end of the grain auger, and he alsorecognized it asbeing dangerous. Surely, ifhe could see the danger, he could contemplate the danger. Under the court's instruction therefore, itwas a simple matter for thejury toconclude that theunshieldedintake end of the grain auger was not unreasonably dangerous, because plaintiff saw it and could contemplate what he had seen. Atthe close of allevidence defendant moved for a directed verdict precisely on those grounds, stating: "[Defendant] 

# *** moves the Court for a directed verdict or entry of judgment in favor of the Defendant on the grounds and for the reasons that the elements of strict liabilitywere not proved, particularly with regard tothe unreasonably dangerous and defective condition which 

### is required under the strict liability law inMontana. 

### ÿ he determination of unreasonably dangerous, it is felt that theMontana law with respect to that involves a determination of whether the user contemplates a danger. In this case allof the evidence has been that the danger 

### is open and obvious and the Plaintiff himself has testified that he has appreciated the danger." Although the trialcourt denied this motion, defendant, laterarmed with an instruction which stated ineffect that an open and obvious danger 

### isnot "unreasonably dangerous" if it

can be contemplated by the user, was able tomake a more convincing argument to thejury. Under this instruction itwould be virtually impossible for an open and obvious conditobe unreasonably dangerous. For allpractical purposes recovery would be limited to latent conditions. As stated in Brown v. North American Manufacturing Co., supra, there areno policy reasons to refuse recovery if the condition 

### is one that 

### is open and obvious. In the last issue concerningjury instructions, plaintiff attacks the assumption of risk instruction given in this case. Plaintiff offered no instructions on this doctrinebecause he contended the doctrine didnot apply to the facts of this case. Furthermore, even when defendant did offer such 

### an instruction, which was the standard Montana Jury InstructionNo. plaintiff made no specific objection to it. Moreover, inBrownwe recently discussed indetailthe doctrine of assumption of risk as it applies to strict liability, and the decision there 

### is a sufficientguide for the retrial of this cause. Plaintiff also contends the evidence was insufficient for the doctrine of assumption of risk to apply. In this regard

we note thejury in the instant case was not properly instructed

on either of plaintiff's theories of liability, and the entire

cause must be tried again, under proper instructions. Under these circumstances, we do not think the defendant shouldbe precluded from presenting 

### its evidence on the defense of assumption of risk. The trialcourt can then make a determination of whether there is sufficient evidence of assumption of risk to present it to a jury. We reverse thejudgment of the District Court. This cause is remanded for retrialwith directions toproceed inaccord with this opinion.

We Concur:

Chief JusticeMr. JusticeDaniel J. Shea's Special Concurring Comment toOpinion:

While we concluded herein that if the term "defective condition" isgiven to the jury it must somehow be defined, L believe that it 

### is not necessary topresent the issues to the jury inthe precise terminology of the Restatement 

## -- "defective condition unreasonably dangerous." The above wording has, I am certain, caused many problems of interpretation and undoubtedly has been the source of much confusion inthe minds of jurors. Because it is confusing and nondefinable, the term should not be given to the jury unless it is absolutely essential to the meaning of strict liability. I believe that it isnot so essential, and accordingly, the term "defective condition" can be effectively eliminated without taking any of the meaning away from the basic thrust of strict liability. That basic thrust isto protect the public, or give them redress against manufacturers whose products for some reason

are rendered unreasonably dangerous. The change inthe law by the adoption of strict liability and the failure to define "defective condition" or "defect" was discussed by Professor Keeton in 

### 5 St. Mary's Law Journal, 30,33

"The change in the substantive law as regards the liability of makers of products and other sellers inthe marketing chain has been from fault todefect. The plaintiff isno longer required to impugn the maker, but he is required to impugn the product. Simply stated, the product must be defective asmarketed, and it may be defective asmarketed for one or the other of at least three reasons: (1) It may have been fabricated or constructed defectively in the sense that the specific product was not atthe 

### timeof sale by the maker or other seller inthe condition that the maker intended it tobe; or (2) it may havebeen improperly designed; and (3) purchasers and those who are likely touse the product may have been misinformed or inadequately informed, either about the risks and the dangers involved in the use of the product orhow toavoid orminimize the harmful-consequences from such risks. In so 

## ; categories of defects arerecognized, there has been no resolution of theultimate question as to the meaning of defect." (Emphasis added.) The first question for determination iswhether the plaintiff 

### is required toprove that the product was "defective" and also that it was "unreasonably dangerous". Ifboth are required then clearly thejury must understand the meaning of "defect" or "defective". Otherwise a jury would be leftwithout meaningful guidelines concerning the key language or core test of strict liability. It 

### is axiomatic thatwhere material elements of the law turn on key words or terms, those words or terms, as well as the elements, must be defined forthejury. FirstNat. Bank of Portland v. Carroll, (1907), 35 Mont. 302, 314, 88 P. 1012 (holding that an instruction on damages which included the words

11 "actual", remote" and "speculative" should have been defined for thejury); Rand v. Butte Electric Ry. Co., (1910), 40 Mont. 

### 398, 410, 411, 107 P. 87 (holding that "preponderance of the evidence" and "direct and proximate result" should have been defined for thejury). Likewise the term "defective condition" is a technical term, difficult tounderstand, particularly in the context of strict liability, and should be defined for thejury if the literalterminology of the Restatement "defective condition unreasonably dangerous" is tobe given to thejury. In the instant case since the term "defective condition" was twice given to thejury, it should have been defined.Analysis of the Restatement language leads me to conclude that the essential thrust of the ~estatement's position on strict liability can be retained without the courts and juries having towrestlewith the meaning of "defective condition"

# . Concerning "defective condition unreasonably dangerous" Professor Keeton states in

### 5 St. Mary's Law Journal 30,

"ik 

# * It isunfortunate perhaps that Section402A of the Restatement (Second) of Torts, provides that asa basis for recovery, it must be found that the product was both 'defective' and 'unreasonably dangerous'

## ,when as a matter of fact the term 'unreasonably dangerous' was meant only as a definitionof defect. The phrase was not intended as setting forth two requirements but only one, thenotion being that the product was not defective for the purpose of shifting losses due tophysically harmful events unless it I was unreasonably dangerous'

# .*

# * 9;" (Emphasis added.) By this explanation there isonly one requirement, rather than two, and I believe it tobe the most reasonable approach. For a detailed discussionconcluding that the term "unreasonably dangerous" is the core of strictliability under the Restatement,

see also: Tobias & Rossbach, A Framework forAnalysis of Products Liability inMontana, 

### 38 Montana Law Review 221,

Two comments to 2 Restatement 2d, $402~4 also lead me to believe the focal point iswhether ornot the condition complained of is"unreasonably dangerous". Comment g. provides inrelevant part:"The rule [of strict liability] stated in this Section applies only where the product is, at the time it leaves the seller's hands, ina conditionnot contemplated by the ultimate consumer, which willbe unreasonably dangerous tohim." (Emphasis added.) Comment j. provides inpertinent part: "In order to prevent the product frombeing unreasonably dangerous, the sellermay be required to give directions orwarning, on the container, as to itsuse." (Emphasis added.) Each of these comments centers around the ultimate finding that the condition complained of must render the product unreasonably dangerous. Otherwise, there 

### isno liability. Here, the District Court directly injected the term "defective condition" into the ultimate resolution of the case by stating it as part of the issues tobe determined. Instruction No. 

### 27 stated: "The issues tobe determined by you in this action are these: "First, was the auger ina defective condition unreasonably dangerous? If your answer tothis question is 'No', you 

### willriot consider the matter further, but 

### willreturn a verdict in favor of the Defendant, and notify the bailiff, who willreturn you intoCourt. If your answer to this question 

### is ',Yes1,you willhave a second issue todetermine, namely: was the defective condition unreasonably dangerous a proximate cause of any injury tothe Plaintiff?

# *

# * (Emphasis added.) It was not necessary to statethe issues inthis fashion. Without taking any meaning from the focalpoint of strict liability under the Restatement, thejury could have been instructed on the issues as follows: First, did the unshielded intake end of the grain auger render it unreasonably dangerous? If your answer to this question is "yes", you willhave a second issue to determine, namely: was the unshielded intake end of the grain auger the proximate cause of any injury to the plaintiff?The casewas not complex in terms of the condition complained of which rendered the grain auger unreasonably dangerous. If there was more than one allegation of unreasonably dangerous condition, it would be a simple matter toconvert the above instruction to one covering each of the allegations. As stated earlier inquoting Professor Keeton, supra, the issue under strict liability 

### is one of impugning the product rather than impugning the conduct of the manufacturer. Accordingly, the focalpoint is on the condition of the product

as it entered the stream of commerce. The vitalquestion is: Was it unreasonably dangerous? It 

### isvitally important in this regard that thejury does not getbogged down inwrestling with the nondefinable and unnecessary terminology of "defective condition"

# . /1