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, 1977 
Mr. Justice Daniel J. Shea delivered the Opinion of the Court. 

Plaintiff appeals from a judgment entered in the District 

Court, Flathead County, favoring defendant Beatrice Foods Co . 

in a 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 

in not designing a shield for the intake end of the grain auger, 

and (2) that defendant was liable under the doctrine of strict 

liability in tort for its failure to place a shield on the 

intake end of the grain auger. 

At the close of plaintiff's case the trial court took 

the case away from the jury on the design negligence theory on 

the ground plaintiff was guilty of contributory negligence as 

a matter of law. Thereafter, the jury returned a verdict for 

defendant on the strict liability issue. Plaintiff appeals from 

the trial court's ruling and from the judgment in favor of defendant. 

Plaintiff presents many issues for review, but because 

we reverse and grant a new trial we discuss only those issues 

that are determinative of our ordering a new trial and those 

which may be helpful on retrial. We will discuss the following 

issues : 

(1) Whether the trial court erred in granting a 

nonsuit on the negligence count of plaintiff' s complaint 

on the basis that plaintiff was contributorily negligent 

as a matter of law. In this regard, plaintiff also alleges 

it was improper for the District Court to instruct the jury 
that he had taken the case away from it because he had 

found plaintiff to be contributorily negligent as a 

matter of la^. 

(2) Whether the jury 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 in a "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' 

as given to the jury were inconsistent, and whether 

the Restatement definition of "unreasonably dangerous1' 

should properly be given where the condition complained 

of is one that is open and obvious as opposed to one 

that is hidden or latent. 

(3) Whether the jury was properly instructed on assumption of risk and whether such an instruction was justified 

under the facts. 

Plaintiff Stenberg worked as a grain truck driver for 

Grosswiler Dairy, Inc. from the fall of 1971 until August 31, 

1972, the day of the injury. In the course of his work he observed the procedures followed in unloading grain trucks into 

the grain auger and he had done it himself a few times. Normally, 

however, he did not unload his own truck. When he did unload a 

grain truck, he followed the procedures he had observed. His 

employer had never instructed him in the 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 in a 

homemade box and grain was dumped from the trucks into the box. 

The box was approximately four feet square and a foot and a half 

high. Plaintiff was aware the auger was dangerous. He also knew 

that his employer owned a newer auger with a shield over the intake end. 

On August 31, 1972, plaintiff was unloading his truck at the 

grain auger. He was out of the truck, had placed his left hand 

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

a 2 x 4 board from the tailgate with his right hand. In order 

to grasp the handle on the tailgate plaintiff had to reach forward approximately two feet and leaned over the box in doing so. 

While removing the board the tailgate suddenly slammed shut, 

he lost his balance and fell forward into the moving grain 

auger. His left arm was severed below the elbow. The intake 

end of the auger was not equipped with a shield, nor was it 

designed to be equipped with a shield. 

Stenberg first contends that the jury should have been 

allowed to determine whether or not he was contributorily 

negligent. 

The test, of course, of plaintiff' s contributory negligence 

is whether he acted as an ordinarily prudent man. Even where 

the facts are not disputed, the question is one for the jury if 

reasonable minds might draw different conclusions from the evidence. Dahlin v. Rice Trusk Lines, (1960), 137 Mont. 430, 352 

P.2d 801; Stahl v. Farmers Union Company, (1965), 145 Mont. 106, 

399 P.2d 763. In ruling on defendant's motion for a 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 contributory negligence. 
Plaintiff testified he was never instructed as to how 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 that he was doing so because plaintiff should 

have hung on to the tailgate, and thus would not have slipped 

and lost his balance. The trial court stated: 

"* * * This is clearly 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 to get into it, 

you are in trouble. And he didn't hang on. He 

was negligent. * * *I1 (Emphasis added.) 

While the trial court concluded that plaintiff had a duty to 

"hang on", and was negligent in not 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 

the jury. 

On a related issue plaintiff complains when the court 

took the case away from the jury that at the defendant's request 

the court told the jury he had taken the issue of design negligence from it, because he had found plaintiff to be guilty of 

contributory negligence as a matter of law. Plaintiff complains 

this prejudiced his case on the remaining issue of strict liability. 

In situations such as this, the trial courts must be 

careful to not give the wrong impression to the jury. Here, since 

the court ruled as a matter of law that plaintiff was guilty of 

contributory negligence, and so informed the jury, the jury could 

well conclude the court did not think much of the plaintiff's 

entire case. This could affect the remainder of the trial, as 
the jury could get the impression, however subtle, or however unjustified, that the court leaned in defendant's favor. This is 

particularly true where the case is a close one or where a ruling 

on one issue may well give the jury a feeling as to how the court 

felt about the plaintiff's conduct. The distinctions between 

contributory negligence and assumption of risk have never been 

that clear to the courts and the legal .profession, let alone a 

lay jury. 

While a jury need not be kept in the dark that the trial 

court has taken a cause of action away from it, nevertheless, 

the trial judge must be extremely careful as to what he tells 

the jury. Here, the judge could have told the jury 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 strict liability. He also could have informed 

the jury that it was not to be concerned why the court made 

this ruling. See, for example, McBride, The Art of Instructing 

the Jury, (1969), Sec. 4.12, page 141. After the jury returned 

with its verdict the court could then have explained its ruling 

to it. 

The remaining two issues relate to the plaintiff's claim 

that the jury was not properly instructed on the questions 

relating to its products liability claim. Montana has adopted 

the rule of strict liability as set out in the Restatement of 

Torts. Bcandenberger v. Toyota Motor Sales, U.S.A., Inc., 

(1973), 162 Mont. 506, 513 P.2d 268. Most of the claimed errors 

relate directly to an interpretation of the rule of strict liability 

set out in 2 Restatement of Torts 2d, §402A, which provides: 
"(I) 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 and does reach the user 

or consumer without substantial change in the 

condition in which it is 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." (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 to hamstring us in 

developing and defining the rule of strict liability. To the 

extent that the comments are helpful in our development of the 

law, we shall accept them; but we will reject 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 strict liability, 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 in adopting 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 

situation where the condition complained of is open 

and obvious rather than one which is hidden or latent. 

These issues are interconnected by the terminology of 

the Restatement it6el.f. - 

The issue as to "defective condition" arose when plaintiff 

offered two instructions defining "defective condition" which 

the trial court rejected. The defense offered no instructions 

defining this term, and the court did not give any of its own. 

The result was that the jury was without guidance as to the 

meaning of "defective condition". Plaintiff contended at trial 

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, 

501 P.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 that Montana 

should also eliminate the requirement of "unreasonably dangerous". 

The issue of defining "unreasonably dangerous" arose in 

the context of Instruction No. 10 defining "unreasonably dangerous". It gave the jury 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 in these instructions pertaining to the 

doctrine of strict liability has a particular 

meaning applicable to this legal doctrine. For 

liability to be imposed under this doetrine, you 

must find that the product was unreasonably 

dangerous, by which is meant dangerous to an extent beyond 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 first paragraph of 

Instruction No. 10 is obviously inconsistent with the definition 

contained in the second paragraph, The first views "unreasonably 

dangerous" from what the consumer could see at the time of 

purchase or use. The second views "unreasonably dangerous" 

from what the manufacturer knew or should have known at the 

time of manufacture. By these definitions a jury could conclude 

under the first test that the unshielded auger was not "unreasonably dangerous" but under the second test that it was "unreasonably 

dangerous". What then was the jury to do? This instruction 

could only have confused the jury as to what is meant 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 a jury with a built-in reason to conclude that an 

open and obvious condition is not "unreasonably dangerous". 

He argues that it effectively confines possible recovery to a 
condition which may be la tent or hidden. 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 that which 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 situations where 

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 situations where the danger is not an open and obvious one. 

Comment i. to 8402A does not cite any example where that danger 

may be one that is open and obvious. However, this Court 

recently held there is no legitimate reason to refuse recovery 

in a situation where 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' is well illustrated by 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 seen by 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 also recognized it as being dangerous. 

Surely, if he could see the danger, he could contemplate the 

danger. Under the court's instruction therefore, it was a 

simple matter for the jury to conclude that the unshielded 
intake end of the grain auger was not unreasonably dangerous, 

because plaintiff saw it and could contemplate what he had seen. 

At the close of all evidence 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 liability were not 

proved, particularly with regard to the unreasonably dangerous and defective condition which is 

required under the strict liability law in Montana. 

ÿ he determination of unreasonably dangerous, it is 

felt that the Montana law with respect to that 

involves a determination of whether the user 

contemplates a danger. In this case all of 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 trial court denied this motion, defendant, 

later armed with an instruction which stated in effect that an 

open and obvious danger is not "unreasonably dangerous" if it 

can be contemplated by the user, was able to make a more convincing argument to the jury. Under this instruction 

it would be virtually impossible for an open and obvious condito be unreasonably dangerous. For all practical purposes 

recovery would be limited to latent conditions. As stated in 

Brown v. North American Manufacturing Co., supra, there are no 

policy reasons to refuse recovery if the condition is one that 

is open and obvious. 

In the last issue concerning jury instructions, plaintiff 

attacks the assumption of risk instruction given in this case. 

Plaintiff offered no instructions on this doctrine because he 

contended the doctrine did not apply to the facts of this case. 

Furthermore, even when defendant did offer such an instruction, 

which was the standard Montana Jury Instruction No. 

plaintiff made no specific objection to it. Moreover, in Brown 
we recently discussed in detail the doctrine of assumption of 

risk as it applies to strict liability, and the decision there 

is a sufficient guide 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 the jury 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 should be precluded 

from presenting its evidence on the defense of assumption of 

risk. The trial court can then make a determination of whether 

there is sufficient evidence of assumption of risk to present it 

to a jury. 

We reverse the judgment of the District Court. This cause 

is remanded for retrial with directions to proceed in accord 

with this opinion. 

We Concur: 

Chief Justice 
Mr. Justice Daniel J. Shea's Special Concurring Comment to Opinion: 

While we concluded herein that if the term "defective 

condition" is given to the jury it must somehow be defined, 

L believe that it is not necessary to present the issues to the 

jury in the 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 in the 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 is not 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 is to protect the public, or give 

them redress against manufacturers whose products for some reason 

are rendered unreasonably dangerous. 

The change in the 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 in the marketing chain has been from 

fault to defect. The plaintiff is no longer 

required to impugn the maker, but he is required 

to impugn the product. Simply stated, the product 

must be defective as marketed, and it may be defective as marketed 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 at the time of sale 

by the maker or other seller in the condition that 

the maker intended it to be; or (2) it may have 
been improperly designed; and (3) purchasers and 

those who are likely to use the product may have 

been misinformed or inadequately informed, either 

about the risks and the dangers involved in the use 

of the product or how to avoid or minimize the 

; 

harmful- consequences from such risks. In so 

categories of defects are recognized, there has 

been no resolution of the ultimate question as to 

the meaning of defect." (Emphasis added.) 

The first question for determination is whether the 

plaintiff is required to prove that the product was "defective" 

and also that it was "unreasonably dangerous". If both are 

required then clearly the jury must understand the meaning of 

"defect" or "defective". Otherwise a jury would be left without 

meaningful guidelines concerning the key language or core test 

of strict liability. It is axiomatic that where material elements 

of the law turn on key words or terms, those words or terms, as 

well as the elements, must be defined for the jury. First Nat. 

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 the jury); 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 the jury). Likewise the term "defective condition" 

is a technical term, difficult to understand, particularly in the 

context of strict liability, and should be defined for the jury 

if the literal terminology of the Restatement "defective condition unreasonably dangerous" is to be given to the jury. In 

the instant case since the term "defective condition" was twice given 

to the jury, 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 to wrestle with the meaning of "defective condition" . Concerning "defective condition unreasonably dangerous" 

Professor Keeton states in 5 St. Mary's Law Journal 30, 

"ik * It is unfortunate perhaps that 

Section 402A of the Restatement (Second) 

of Torts, provides that as a 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 definition of defect. The phrase 

was not intended as setting forth two requirements 

but only one, the notion being that the product 

was not defective for the purpose of shifting 

losses due to physically harmful events unless it 

I was unreasonably dangerous' . * * 9;" (Emphasis 

added. ) 

By this explanation there is only one requirement, rather than 

two, and I believe it to be the most reasonable approach. 

For a detailed discussion concluding that the term "unreasonably 

dangerous" is the core of strict liability under the Restatement, 

see also: Tobias & Rossbach, A Framework for Analysis of 

Products Liability in Montana, 38 Montana Law Review 221, 

Two comments to 2 Restatement 2d, $402~4 also lead me to 

believe the focal point is whether or not the condition complained 

of is "unreasonably dangerous". Comment g. provides in relevant 

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, in a condition not contemplated by the ultimate consumer, 

which will be unreasonably dangerous to him." 

(Emphasis added.) 

Comment j. provides in pertinent part: 

"In order to prevent the product from being 

unreasonably dangerous, the seller may be 

required to give directions or warning, on the 

container, as to its use." (Emphasis added.) 

Each of these comments centers around the ultimate finding that 

the condition complained of must render the product unreasonably 

dangerous. Otherwise, there is no 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 to be determined. Instruction 

No. 27 stated: 

"The issues to be determined by you in this action 

are these: 

"First, was the auger in a defective condition 

unreasonably dangerous? If your answer to this 

question is 'No', you will riot consider the matter 

further, but will return a verdict in favor of the 

Defendant, and notify the bailiff, who will return 

you into Court. If your answer to this question is 

',Yes1, you will have a second issue to determine, 

namely: was the defective condition unreasonably 

dangerous a proximate cause of any injury to the 

Plaintiff? * * (Emphasis added.) 

It was not necessary to state the issues in this fashion. 

Without taking any meaning from the focal point of strict liability 

under the Restatement, the jury 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 

will have 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 case was 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 to convert the above 

instruction to one covering each of the allegations. 

As stated earlier in quoting Professor Keeton, supra, 

the issue under strict liability is one of impugning the product rather than impugning the conduct of the manufacturer. 

Accordingly, the focal point is on the condition of the product 

as it entered the stream of commerce. The vital question is: 

Was it unreasonably dangerous? It is vitally important in this 

regard that the jury does not get bogged down in wrestling 

with the nondefinable and unnecessary terminology of "defective 

condition" . /1