No. 83-457 

IN THE SUPREPlE COURT OF THE STATE OF MONTANA 

1984 

ORRIN STREICH I C EDPIIN FIILLIAMSON I 

and CLIFFORD BOORMAN, 

Plaintiffs and Respondents, 

HILTON-DAVIS, a Division of 

Sterling Drug, Inc., a corp., 

Defendant and Appellant. 

APPEAL FROM: District Court of the Eleventh Judicial District, 

In and for the County of Flathead, 

The Honorable Michael Keedy, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Boone, Karlberg & Haddon; Sam Haddon argued, 

Missoula, Montana 

For Respondents : 

Garlington, Lohn & Robinson; Gary Graham argued, 

Missoula, Montana 

- 

Submitted: April 19, 1984 

~ecided: December 13, 1984 

- 

Clerk 
Mr. Justice John C. Sheehy delivered the Opinion of the 

Court. 

Hilton-Davis appeals from a judgment entered in the 

District Court for the Eleventh Judicial District, Flathead 

County after a jury awarded Streich, Boorman, and Williamson 

a total of $781,119 in damages. Hilton-Davis, as 

manufacturer of a chemical product called Fusarex, was found 

liable for damages based on theories of strict liability in 

tort, negligence, and breach of warranties. We affirm the 

judgment and damage award. 

Fusarex is manufactured and sold by Hilton-Davis as a 

potato sprout suppressant. The directions for use of Fusarex 

require dusting seed potatoes just before storage. The 

Fusarex is expected to keep the treated seed pota-toes from 

sprouting until after they are taken from storaqe, aerated, 

and planted. The Fusarex hag lebel contained the following 

statement: "After planting there may be a slight delay in 

emergence depending on weather conditions and variety." 

Streich is a commercial seed potato grower who used 

Fusarex prior to 1977 in his potato operations in North 

Dakota and then Montana. In the fal.1 of 1977, he purchased 

Fusarex from a Hilton-Davis distributor and dusted a quantity 

of his newly-harvested seed potatoes with it. The seed 

potatoes were then stored for the winter. In the spring, 

after inspecting the potatoes and keeping some for himself, 

Streich sold substantial amounts of the certified seed to 

Williamson and Boorman. 

In June 1978, Streich, Williamson and Roorman began 

noticing problems with their potato crops. The seed potatoes 

treated with Fusarex showed delayed and erratic emergence, 
multiple sprouting, a heavy tuber set resulting in small 

potatoes, and reduced yield.. A complaint was filed alleging 

strict liability in tort, negligence and breach of the 

implied warranties of mercha-ntability and fitness. The jury 

returned a verdict finding Hil-ton-Davis liable on all three 

theories and granting damages to all three plaintiffs. 

Hilton-Davis raises the following issues: 

1. Was expert testimony necessary to establish the 

standard of care owed. by Hilton-Davis to Streich, Wil-liamson, 

and Boorman and to show that Hilton-Davis had breached that 

standard? 

2. Was Hilton-Davis improperly denied adequate 

opportunity to cross-examine plaintiffs' expert witness? 

3. Did the District Court improperly apply the doctrine 

of strict liability in tort to a commercial case, not 

involving personal injury, but involving harm to a potato 

crop? 

4. Did the District Court err in allowing the question 

of whether the product Fusarex is "unreasonably danqerous" to 

go to the jury? 

5. Did the District Court improperly instruct the jury 

on the theory of strict liability in tort and thus prejudice 

Hilton-Davis' right to a fair trial on all of plaintiffs' 

theories of recovery? 

6. Did the District Court improperly submit the case to 

the jury on the theory of implied warranty? 

7. Did the District Court improperlv submit plaintiffs' 

case to the jury on the theory of negligence? 

8. Did the District Court commit prejudicial error by 

refusing instructions which encompassed Hilton-Davis' theory 

of the case? 
Expert Testimony 

Hilton-Davis contends that, under the plaintiffs' theory 

of product liability, the plaintiffs must establish by a 

prepond.erance of the evidence the failure of Hilton-Davis to 

warn of adverse side-effects of Fusarex. Hilton-Davis points 

out that the single expert called by the plaintiffs to 

establish their case made no declaration as to failure to 

warn in his testimony nor did that expert testify that the 

Fusarex was defective. Relying on Hill v. Squibb & Sons, 

E.R. (1979), 181 Mont. 199, 592 P.2d 1383, Hilton-Davis 

contends tha.t without such professional opinion testimony 

that the product was defective and that adequate warnings 

were not given, plaintiffs did not present a prima facie case 

and the court should have granted Hilton-Davis' motion to 

dismiss at the close of the plaintiffs' case. 

In Hill, this Court upheld a directed verdict at the 

close of plaintiffs' case, in favor of Squibb, where the 

plaintiffs had. not produced expert testimony that the package 

insert included with the product inadequately warned of the 

product's side-effects. This Court held that expert opinion. 

was necessary in the Hill case because it involved matters to 

which a layman could have no knowledge at all and the court 

and jury mu.st be dependent on such expert evidence. (181 

Mont. at 207, 592 P.2d at 1388.) 

This Court did not intend, through its decision in Hill, 

to narrow or back away from its statements in Brandenburger 

v. Toyota Motor Sales (1973), 162 Mont. 506, 518, 513 P.2d 

268, 275, respecting the quantum and method of proof in 

product liability cases: 

"The nature and quality of evidence used in 

products liability cases to show the defect and the 

nexus between the defect and the accident natura-lly 
varies. The most convincing evidence is an 

expert's pinpointing the defect and giving his 

opinion on the precise cause of the accident after 

a thorough inspection. If an accident sufficiently 

destroys the product, or the crucial parts, then an 

expert's opinion on the probabilities that a defect 

caused the accident would be helpful. --- If no such 

opinion is possible, --- as in the present - case, - the 

user's testimony -- on what happened is another method 

- of proving -- that the product was defective. If the 

user is unable to testify, as where the accident 

killed him or incapacitated him, no other witness 

was present at the time of the accident, and the 

product was destroyed, the fact of the accident and 

the probabilities are all that remain for the party 

seeking recovery. At this point the plaintiff can 

attempt - to negate ---- the user as the cause and further 

negate other causes not attributable to the 

defendant. These kindsof roof 

L intrcducer alone 

or cumulatively are evidence which help establish 

the presence of a defect as the cause of the 

damage. " (Emphasis added. ) 

The la-nguage in Brandenburqer applies to possible 

methods of proving defects in products, but it applies with 

equal force to the duty of a manufacturer to warn of adverse 

side-effects which may occur from the use of its product. 

Here the only warning on the Fusarex bags was that after 

planting Fusarex might cause a slight delay in emergence, 

depending on weather conditions and variety. The warning 

itself was not sufficient to advise users that the emergence 

might be delayed and erratic, that multiple sprouting could 

result, tha.t smal.1 potatoes could result from a heavy tuber 

set after the use of Fusarex, and that yield could be 

materially reduced. 

The plaintiff's expert in this case produced scientific 

literature which gave results of field tests of the chemical 

in Fusarex on potatoes. The literature reveal-ed a decided 

risk of multiple sprouting, delayed emergence, heavy tuber 

set, and reduced yield. The warning on the Fusarex bag that 

a slight delay in emergence might result hardly matched the 

possible adverse side-effects from its use. Any layman could 
understand the insufficiency of the warning. Expert 

testimony was not necessary. 

We are presented here with a unique products-liability 

case. Fusarex was touted by its manufacturer as a sprout 

suppressant for potatoes. It seems fairly estahl-ished in the 

testimony here that Fusarex did what its manufacturer said it 

would, that is, suppress potato sprouting. The trouble here 

is, when the time came for the seed potatoes to be aired and 

planted, after their Fusarex treatment, side-effects occurred 

of which Fusarex failed to give warning. Under the evidence 

in this case the plaintiffs established a standard of duty, 

that is the duty to warn of adverse side-effects, and that 

the manufacturer of Fusarex breached that d-uty or standard. 

The second issue raised by Hilton-Davis relates to the 

cross-examination of plaintiffs' expert by Hilton-Davis' 

counsel. 

On cross-examination, plaintiffs' expert testified that 

the Fusarex product was manufactured according to the 

company's designs and specifications. The question was then 

propounded to him that "therefore it was not in a defective 

condition at that time in that sense?" The court sustained 

objection upon the ground that the question was outside the 

field of expertise of the expert who had not "been qualified 

as an expert in determining what's in a bag of Fusarex." 

As we have stated, this case involved a product which 

performed its primary function, that is suppressing sprouting 

of potatoes, but had adverse side-effects for which no 

warning had been given. Plaintiffs' expert had testified as 

to the literature on side-effects and his observation of the 

occurrence of those side-effects. The court was correct in 

determining that the question propounded to him on 
cross-examination by Hilton-Davis' counsel was outside his 

expertise. We find no merit in this claim of error. 

Strict Liability -- in Tort 

Hilton-Pa-vis contends that it was error for the District 

Court to submit the issue of strict liability in tort to the 

jury . It is the position of Hilton-Davis that strict 

liability in tort has no application in cases of lost profits 

in a purely commercial setting. 

Montana adopted the theory of strict liability in tort 

contained in Restatement (Second) of Torts, S 402A. 

Brandenburger v. Toyota Motor Sales (1973), 162 Mont. 506, 

513 P.2d 268. In Brown v. North AmericanMfg. Co. (1978), 

176 Mont. 98, 1-05, 106, 576 P.2d 711, 716, we set forth the 

elements of proof necessary to establish a prima facie case 

in strict liability of tort. 

Brandenburqer and Brown both i.nvo1ved. personal injury 

claims. However, the Restatement (Second) of Torts, S 402A 

does not limit the theory of strict liability to personal 

injury cases. It also includes cases involving damage to 

property. It provides: 

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

cond-ition 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. . ." 

Hi-lton-Davis contends that the policy reasons for the 

adoption of strict liability in tort by the courts do not 

apply in a case where the only damages are loss of commercial 

profits. Those policy reasons include spreading the cost of 

personal injury resulting from a defective product to all 

users of t.he product (see Brandenburger, supra), the superior 

bargaining position of the seller of the product, and the 

possible inadequacy of recoveries for damages under the 
contractual concepts of express or implied warranty. 

Hilton-Davis points to cases, such as Moorman Manufacturing 

Company v. National Tank Company (1982), 91 I11.2d 69, 435 

N.E.2d 443, which disallow the application of strict 

liability in commercial loss cases, leaving the partjes to 

their remedies under the Uniform Commercial Cod-e. 

Hilton-Davis also suggests that in addition to the remedies 

under the UCC, commercial users who suffer losses from a 

product obtained in the stream of commerce are better left, 

to a reduction of their losses through deductions and 

provisions of the Internal Revenue Code for income tax or 

even the bankruptcy courts. Thus, says Hilton-Davis, 

Brandenburqer can be justified because the physical injuries 

suffered there and the resulting costs therefrom, including 

damages for pain and suffering and loss of earning capacity, 

are not reducible under the Internal Revenue Code. 

Streich, Williamson and Boorman respond on this issue 

that the damages were in fact physical injuries to property, 

in that the seed potatoes were damaged through the use of 

Fusarex. Therefore, say these respondents, their damages are 

within the mantle of protection assured by Restatement 

(Second) of Torts, 5 402. 

We held in Thompson v. Nebraska Mobile Homes Corporation 

(Mont. 1982), 647 P.2d 334, 39 St.Rep. 1094, that strict 

liability is not governed by the Uniform Commercial Code. 

When, as here, the use of a product for the purpose for which 

it was intended has the foreseeable potential of damaging the 

users property, the doctrine of strict liability applies. 

Here the Fusarex apparently performed. its intended function, 

the suppression of sprouting in the potatoes while they were 

in storage. It was the side-effects of the Fusarex, after it 
had performed its intended function, which resulted in damage 

to the consumers. No warning had been given by Hilton Davis 

of those possible side-effects. The failure of Hilton Davis 

to warn was a species of unsafe conduct on the part of the 

manufacturer. It is this kind of unsafe conduct that fits 

well within the concepts of the doctrine of strict liability. 

Other courts agree. See Cloud v. Kit Mfg. Co. (Alaska 

1977), 563 P.2d 248; Hales v. Green Colonial, Inc. (8th cir. 

1974) , 490 F. 2d 1015; and Shields v. Morton Chemical Company 

(Idaho 1974) , 518 P. 2d 857, where the plaintiff was allcwed 

recovery for damage to its seed beans and additional damages 

for loss of good will and anticipated profits when the seed 

beans failed to germinate properly after the plaintiff 

applied a pesticide-fungicide to the seed beans. 

Our decision in Whitaker v. Farmhand, Jnc. (1977), 173 

Mont. 345, 567 P.2d 91.6, is not in point, although 

Hilton-Davis contends it is. In Whitaker, we found that 

consideration of strict liability was not reversible error in 

the light of the facts of that case but that more precise 

bases of liability were found in negligence and the law of 

warranty. 

We find no error in the application of the District 

Court of the theory of strict liability to this case. 

Hilton-Davis next claims that Fusarex cannot be 

considered "unreasonably dangerous," under the Restatement 

concept of strict liability because Fusarex presented no 

danger to human life or safety. In support, it relies on a 

line of cases, including Erown v. Western Farmers Association 

(1974), 268 Or. 470, 521 P.2d 537. In that case, in which it 

appeared that chicken feed caused lost profits to an egg 

producer, the Oregon court determined that such chicken feed 
could not be considered unreasonabl-y da-ngerous. The Court 

stated it wou1.d not "water down" the "unreasonably" dafigerous 

requirement of S 402(a) of the Restatement so a.s to extend 

the doctrine of strict 1ia.bility to any defect which in any 

way might decrease the value of property. 521 P.2d at 542. 

The other end of the spectrum with respect to the 

Restatement clause "unreasonably dangerous" is found in 

Cronin v. 2. B. E. Olson Corporation (Cal. l972), 501 P.2d 

11-53. Cronin expressly eliminated the requirement that a 

plaintiff prove that the product was "unreasonably 

dangerous." The Montana court refused to follow the lead of 

Cronin in Stenberg v. Beatrice Food Company (1978), 1-76 Mont. 

123, 129, 130, 576 P.2d 725, 729. 

Stenberg involved a worker who was unloading his truck 

at a grain auger. He accidentally fell into the intake end 

of the auger which was not equipped with shield. His left 

arm was severed. We determined in Stenberg that even though 

the intake end of the auger was unshielded, and the lack of 

shield was obvious to anyone looking at it, the doctrine of 

strict liability in tort was not confined to products having 

latent conditions of d.anger. In his specially concurring 

opinion, Justice Shea pointed to authority which stated that 

a product may be defective as marketed for one or more of at 

least three reasons: (1) it may have been fabricated or 

constructed defectively in the sense that the specific 

product was not in the condition that the maker intended it 

to be at the time of sale by the maker or other seller; (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 

or about the dangers involved in the use of the product or 
how to avoid or minimize the harmful consequences from such 

risk. 576 P.2d at 731. 

In this case, the defect involved relates to the 

purchaser and user being misinformed or inadequately informed 

about the risk of danger to the user's property from the 

product. 

We hold that where the "defect" involves an inadequate 

warning, so that the unguided user exposes himself or his 

property to risk or danger in using the product, the test of 

Restatement (Second) of Torts, S 402(a) is met--the product 

is "in a defective condition unreasonably dangerous" to the 

user or to his property. 

The next contention of Hilton-Davis is that the 

instructions of the court on strict liability as given to the 

jury so oversta.te the burden of the defenda.nt as to taint all 

claims of the plaintiffs under all theories of recovery. 

There are four instructions to which Hilton-Davis directs our 

attention, and we will examine them in detail. 

Court's instruction no. 9 stated: 

"One who manufacturers or sells any product in a 

defective condition unreasonably dangerous to the 

user or consumer or his property is subject to 

liability for physical harm caused thereby to the 

ultimate user or consumer or his property if (1) 

the seller is engaged in the business of selling a 

product, and (2) it is expected to and does reach 

the user or consumer without substantial change in 

the condition in which it is sold. 

"This rule applies although the manufacturer or 

seller has exercised all possible care in the 

preparation and sale of its product and the user or 

consumer has not bought the product from or entered 

into any contractual relation with the manufacturer 

or seller." 

Cl-early, court's instruction no. 9 is based on 

Restatement (Second) of Torts, 5 402 (a) and our decision in 

Brandenburger. It paraphrases the Restatement except for the 
insertion of the words "manufactures" and "manufacturer." It 

therefore clearly, properly states the law with respect to 

strict liability in tort. 

Court ' s instruction no. stated: 

"The plaintiffs must establish three essential 

elements to recover, as folJ.ows: 

"First, that the defendant manufactured and. sold a 

product to a dealer which at the time defendant 

sold it was in a defective condition unreasonably 

dangerous to the consumer or user, or his property; 

"Second, that the product was expected to and did 

reach the ultimate consumer or user without 

substantial change in the condition in which the 

defendant sold it; and 

"Third, that the defective condition in the product 

caused loss to the plaintiffs, or damage to their 

property. 

"If you find that the pl-aintiffs have establi shed 

each of these elements by a preponderance of the 

evidence, your verdict should be for the 

plaintiffs. " 

The objection made by Hilton Davis to court's 

instruction no. 10 is that it is based on a form instruction 

contained in Devitt and Blackmar, Federal Jury Practice and 

Instructions 82.02. The original form of the instruction 

contained in Devitt and. Blackmar is intended for use in 

strict liability actions which have resulted in personal 

injuries. In submitting this instruction to the District 

Court in this case, the pl.aintiffs removed references to 

personal FnSuries or physical harm a.nd inserted language 

including "loss" and "damage." 

Thus Hilton-Davis argues the District Court gave the 

iury a personal injury action standard in a property damage 

case and so overstated the burden of the defendant as to 

taint all claims under all theorie; of recovery. 

Court's instruction no. 10 clearly stated the elements 

that the plaintiffs had to prove to establish their case of 
strict liability. We are here asked by Hilton-Davis to 

penalize plaintiffs for utilizing an accepted form 

instruction and modifying it to fit a property damage ca.se 

instead of a personal injury case. It is a salutary practice 

for lawyers to utilize tested i-nstructions adapted to meet 

their case when offering instructions for acceptamce by the 

court. Such a practice makes it less likely that the court 

will fall into error. Moreover, beyond the statement that 

the instruction tainted the other theories of recovery in the 

case, no explanation is put forward by Hilton-Davis in its 

briefs as to how this occurs. 

Court's instruction no. 11 stated: 

"A product is in a defective condition unreasonably 

dangerous to the user when it has a propensity for 

causing damage to the user or his property, beyond 

that which would be contemplated by the ordinary 

user or consumer who purchases it, with the 

ordinary knowledge common to the foreseeable class 

of users as to its characteristics. A product is 

not defective or unreasonably dangerous merely 

because it is possible to sustain property damage 

while using it." 

The instruction is obviously based upon comment i, 5 

402 (a) , Restatement (Second) of Torts. That comment states: 

". . . 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 . . ." 

In Stenburg (1978), 1-76 Mont. 123, 131, 576 P.2d 725, 

730, we approved a like instruction in situations where the 

conditions complained of were latent. Moreover, court's 

instruction no. 11 properly states the law. 

Court's instruction no. 12 stated: 

"A product is defective if the use of the product 

in a manner that is reasonably foreseeable by the 

manufacturer involves an unreasonable danger that 

would not be read-ily recognized by the ordinary 

user of the product and the manufacturer fai.1.s to 

give adequate warning of such danger." 
As to this instruction, Hilton-Davis contends that jt 

misleads the jury into thinking that a product may be 

defective if it does not perform to 100% of expectations, 

that it may be defective without any risk to person or 

property, and that the only risk here was to profits. 

As we have indicated, it is the element of inadequacy of 

warning about the latent side-effects to plaintiffs' property 

that could arise from the use of Fusarex which brings this 

case within the strict liability doctrine. Court's 

instruction no. 12 is an expression of that phase of the 

strict liability theory. Hilton-Davis' theory that only 

profits were involved in this case ignores the contentions of 

plaintiffs that their property, the potato crop itself, was 

subjected to danger and loss through the lack of warning of 

Hilton-Davis. 

We find no merit in Hilton-Davis' objections to the 

instructions given in this case relating to strict liability. 

Breach of Warranty 

The jury in this case was instructed regarding the 

implied warranties of merchantability and fitness for a 

particular purpose. The jury found that Hilton-Davis 

breached an implied warranty. Hilton-Davis now contends that 

the Fusarex used by Streich was merchantable, because it 

worked as a sprout suppressant. It also claims that the 

implied warranty of fitness for a particular purpose did not 

arise in this case because Hilton-Davis did not know of any 

particular purpose for which the Fusarex was required or that 

Streich was relying on Hilton-Davis' judgment or skill in 

selecting or furnishing the Fusarex. 

The District Court refused at the close of plaintiffs' 

case to dismiss the claims founded upon the theory of breach 
of implied warranties of merchantability and fitness. 

Hilton-Davis claims error in submittins the theory of breach 

of warranty to the jury. 

The implied warranty of merchantability is defined in 

sectjon 30-2-314, MCA. Unless the implied warranty is 

excluded or modified, there is a wsrranty that the goods 

shall be merchantable implied in a contract for their sale if 

the seller is a merchant with respect to goods of that kind. 

The implied warranty of fitness for a particular purpose 

is found in section 30-2-315, MCA. Where the seller at the 

time of contracting has reason to know any particular purpose 

for which the goods are required and that the buyer is 

relying on the seller's skill or judgment to select or 

furnish suitable goods, there is, unless excluded or 

modified, an implied warranty that the goods shall be fit for 

such purpose. 

Streich talked with Hilton-Davis' sales representatives 

concerning the use of Fusarex. They were aware of the 

particular purpose for which the product was to be used--fall 

application to seed potatoes. Streich discussed proper use 

of the product and observed the application and storage 

techniques of the sales representatives. To be merchantable 

the Fusarex must have been "fit for the ordinary purposes for 

which such goods are used." Section 30-2-314(2)(c), MCA. 

Hil.ton-Davis would consider that the Fusarex was fit to 

suppress sprouting, without considering the side-effects 

which resulted from its use. We find that position an 

unnecessary stricture to the warranty of fitness of a product 

for its ordinary purposes. Surely goods are not 

merchantable, if in their ordinary use, the goods cause 

damage to the property to which they are applied or harm to 
the person using them. For example in Eichenberger v. 

Wilhelm (N.D. 1976), 244 N.W.2d 691, where the farmer used a 

chemical to control wild oats, which incidentally damaged his 

wheat yield, the North Dakota court concluded the product was 

nonmerchantable as to the merchant selling the chemical, 

though the chemical controlled wild oats. 

Hilton-Davis also contends that there could be no 

warranty for a. particular purpose in this case, contending 

that the particular purpose warranty contemplates "a use to 

which the goods are not crdinaril-y put," citing 3 Anderson, 

Uniform Commercial Code, 5 2-315:37. Hilton-Davis contends 

that here the only use for which the goods were required was 

as a sprout suppressant. It further contends that the 

plaintiffs Boorman and Williamson had no dealings with 

Fusarex, since they bought their seed potatoes after 

treatment with Fusarex from Streich. 

Here Hilton-Davis' representatives knew the use for 

which Streich was purchasing the Fusarex, that is, for fallapplication on his seed potatoes. The ordinary use of 

Fusarex as a seed suppressant meant a particular use by 

Streich, the fall application of the suppressant for storage 

of seed potatoes. Streich has brought himself within the 

statutory language with respect to implied warranty of 

fitness for a particular purpose in showing that the "seller 

at the time of contracting [hadl reason to know any 

particular purpose for which the goods are required." 

There is no merit in Hilton-Davis' contention that 

Williamson and Boorman cannot recover for breach of implied 

warranties because they had no dealings or contact with 

Hilton-Davis. The privity requirement was abolished in 

Montana and a remote manufacturer may be liable for breach of 
implied warranties. Whitaker (1.977), 173 Mont. 345, 567 P.2d 

916. Accord : Plant Food Co-op v. Wolfkill Feed and 

Fertilizer (9th cir. 1980), 633 F.2d 155. 

Negligence 

Hilton-Davis contends that the jury should not have 

received instructions in this case concerning negligence on 

its part. It contends that there was no proof that its 

product was negligently manufactured or that it failed to 

fol-low standards of reasonableness in marketing its product. 

It contends that the burden of proving negligence as set out 

in Jackson v. William Digwall Company (1965) , 145 Mont. 127, 

399 P.2d 236, was not sustained by the plaintiffs. It 

objects to the instructions given by the court because the 

instructions do not distinguish between the plaintiffs' 

rights to recover. Specifically that Roorman and Williamson, 

who had no contact with Hilton-Davis, had purchased none of 

its product, and should not have been treated exactly the 

same as the p1a.intiff Streich. 

The plaintiffs respond. that the fact that Boorma-n and 

Williamson had no contact with Hilton-Davis does not defeat 

their negligence cause of action. Negligence does not depend 

upon privity of contract in Montana. In support they cite 

Larson 17. United States Rubber Company (Mont. 1958), 3.63 

F.Supp. 327. Plaintiffs' contend that Hilton-Davis did not 

use reasonable care in the design, testing, inspection or 

marketing of Fusarex. The evidence showed that all relevant 

scientific literature was not utilized by Hilton-Davis; and 

it conducted no internal testing of Fusarex, but relied on 

outside studies largely for promotion and sales. 

The general duty of a manufacturer placing a product on 

the market is stated in Golden Gate Hop Ranch, Inc. v. 
Velsicol Chemical Corporation (l965), 66 Wash.2d 469, 403 

P.2d 351, cert.den. 382 U.S. 1025, 86 S.Ct. 644, 15 L.Ed.2d 

539: 

"In the recent case (citation omitted) we laid down 

the rule that a manufacturer or processor who 

offers goods on the market to remote users must use 

reasonable care where there is a foreseeable risk 

or harm if reasonable care is not used." 

Although a manufacturer is not an insurer of a prod.uct 

which he designs or manufacturers, nevertheless, he must use 

reasonable care to avoid creating an undue risk of harm to 

those who might be reasonably expected to use his d-esign or 

product. Guffie v. Erie Strayer Company (3rd. cir. l965), 350 

F.2d 378. 

The duty to warn of a potential danger unknown to users 

or consumers is inherent in the manufacture of goods placed 

on the market. Such duty extends to the purchaser of the 

product and all foreseeable users. Hopkins v. Chip-In-Saw, 

Inc. (8th cir. 1980), 630 F.2d 616. 

Hilton-Da.vis objected to the giving of court ' s 

instruction no. 21 which raised questions of the "dangerous 

cha.racter of Fusarex" but we will discuss that infra in 

connection with Hilton-Davis' further contentions on the 

refused. instructions. Hilton-Davis a.lso objected, however, 

to court's instruction no. 27 which purported to define 

'Y-egal cause" of injury instead of "proximate cause." In 

brief, Hilton-Davis contends that instruction no. 27 ignores 

the requirement of proof of proximate cause mandated by 

Montana law under Jackson v. William Digwall Company (1965), 

145 Mont. 127, 399 P.2d 236. 

The transcript reveals that the objection made by 

Hilton-Davis to court's instruction no. 27 was "that the 

second. paragraph is inappropriate in this case because there 
is reference to more than one cause of damage or the acts or 

omissions of two or more persons working concurrently. There 

is no claim in this case of any concurrent action and 

therefore it is strictly inappropriate and would be highly 

confused within a jury and. highly prejudicial to the 

defendant." 

The argument now raised. in briefs as to the use of 

"legal cause" instead of "proximate" cause in the instruction 

was not raised before the District Court and so the objection 

will not be considered by us on appeal. 

Instructions 

Hilton-Davis objected to court's instruction no. 21 

which in effect told the jury that a manufacturer had a duty 

to use rea-sonable care to give warning of dangerous 

conditions of a product to those whom he should expect to use 

the product or be endangered by its probable use. The 

objection made t.o the instruction was that there was a 

connotation of physical harm to persons in the instruction 

and that the instruction was inappropriate in a property 

damage case. We find no merit in that objection to court's 

instruction no. 21, for the reason, as we have stated, that 

strict liability also applies to damages to property. 

Hilton-Davis further c0ntend.s severa.1 of its 

instructions were refused by the court and with the effect 

that its theory of defense was not presented to the jury, 

citing Wol.lan v. Lord (1.963), 142 Mont. 498, 504, 385 P.26. 

102, 106. Hilton-Davis' brief then recites: 

"Specifically, the defendant's instructions on 

foreseeability of risk (2) defining unreasonably 

dangerous (6) defining what would constitute a 

defect (7) and (8), limiting the scope of strict 

liability to products which are unreasonabl-y 

unsafe, not merely ineffective, (11) and defining 

"dangerous" (12) , a1 1 were refused. Without these 
instructions, which were critical to the 

defendant's case, the jury substantively was not 

instructed on defendant's theories. Defendant's 

right to instructions adaptable to his theories 

were not qiven. This was prejudicial error." 

The court labors under difficulty with respect to 

whether instructional error occurred because Hilton-Davis 

does not specify in its arguments on appeal the reasons for 

the d-etrimental effect of the refusal of those instructions. 

Plaintiffs have responded in their brief that the 

Milton-Davis proposed. instructions were either inadequate, 

improperly stated the law, or were covered by other 

instructions. Our examination of the refused instructions, 

in the light of the instructions given, shows no apparent 

error. 

ACCORDINGLY, the iudgment is affirmed. 

2. 

*/J i i blr .) JU*.-/LL/ 

Justice S 

We Concur: 

Chief Justice 
Justices 

i4r. Chief Justice Frank I. Haswell, specially concurring. 

I would affirm the judgment of the District Court based 

on the negligence count. I find no reason or necessity to 

reach and decide whether the judgment can also be affirmed 

on the other two counts, viz. strict liability in tort and 

breach of warranty. 

%&&pq~, Chief JUS! ice 
Mr. Justice Frank R. Morrison, Jr., concurring. 

I concur in the result. The purpose of this concurring 

opinion is to comment on the "legal cause" discussion found 

in the majority opinion. 

Instruction No. 27 states as follows: 

"A 'cause' of damage, for our purposes, is that 

cause which in an actual and continuous sequence, 

unbroken by any new and independent cause, produces 

the damage, and without which it would not have 

occurred. 

"This does not mean that the law recognizes only 

one cause of damage, consisting of only one factor, 

one act, one element or circumstance, or the conduct of only one person. To the contrary, the acts 

and omissions of two or more persons may work 

concurrently as the cause of damage, and in such a 

case, each of the participating acts or omissions 

is regarded in law as the cause of the damage." 

The above-quoted instruction is not a "legal cause" 

instruction. The first paragraph of the instruction is a 

proximate cause instruction. The second paragraph is a 

concurrent ca.use instruction. 

There is no reversible error in giving Instruction No. 

27. However, it is not advisable to give a proximate cause 

instruction where there are concurrent causes. Instruction 

NO. 27 is internally inconsistent and confusing. The first 

paragraph instructs the jury that the cause with which they 

are concerned must have been such that, without the cause, 

the damage would not have ensued. This is the old "but for" 

rule. 

The second paragraph of Instruction No. 27 is a standard 

concurrent cause instruction which permits the finding of 

causation if two causes work concurrently to produce damage. 

Clearly, the instruction confuses the jury because this 

paragraph of the instruction does not require a finding by 

the jury that the accident would not have occurred, but for 

the cause being examined. 
It certainly was not reversible error to give a proximate cause instruction combined with a concurrent negligence 

instruction. Unfortunately, that has been done for years in 

Montana. However, it should not be done in the future. 

All legal authorities now recognize that, where there 

are concurrent causes, a legal cause instruction should be 

given. BAJI 3.76 sets forth that instruction as follows: 

"A legal cause of injury, damage, loss or harm is a 

cause which is a substantial factor in bringing 

about the injury, damage, loss or harm." 

The note below the BAJI instruction states: 

"Where injury may have resulted from either of two 

causes operating alone, this Instruction 3.76 on 

legal cause should be given and - not Instruction 

3.75 on proximate cause. (emphasis supplied)" 

BAJI instruction 3.76 is taken from Restatement of Torts, 2d 

Section 431, p. 428, wherein it is stated: 

"The actor's negligent cond.uct is a legal cause of 

harm to another if 

"(a) his conduct is a substantial factor in bringing about the harm, and 

" (b) there is no rule of law relieving the actor 

from liability because of the manner in which his 

negligence has resulted in. the harm." 

Prosser, Torts, 4th Ed., Section 11-, p. 240, states: 

". . . It has been considered that 'substantial 

factor' is a phrase sufficiently intelligible to 

the layman to furnish an adequate guide in instructions to the jury, an.d that it is neither possible 

nor desirable to reduce it to any lower terms. As 

applied to the fact of causation alone, no better 

test has been devised. 

"Such a formula, for it can scarcely be called a 

test, is clearly an improvement over the 'but for' 

rule. . . ." 

The substantial factor test found in the legal cause 

rule is preferable and less confusing. It should be given 

where there is more than one potential cause. 

Here, the district court gave the old "but for" rule 

combined with an instruction on concurrent cause. Such 
practice should, in the future, be discouraged but does not 

constitute reversible error. 

Mr. Justice Daniel J. Shea: 

I join in the special concurring opinion of Xr. Justice 

14orrison.