No. 83-457 IN THE SUPREPlE COURT OF THE STATEOF MONTANA 1984

ORRIN STREICHI C EDPIIN FIILLIAMSONI and CLIFFORDBOORMAN, Plaintiffsand Respondents,

HILTON-DAVIS, a Division of Sterling Drug, Inc., a corp., Defendantand Appellant.

APPEAL FROM: District Court of the Eleventh JudicialDistrict, Inand for the County of Flathead, The HonorableMichael Keedy,Judgepresiding.

COUNSELOF RECORD: ForAppellant: 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



### - ClerkMr. 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 judgmentand damage award. Fusarex is manufactured and sold by Hilton-Davis as a potato sprout suppressant. Thedirections for use of Fusarex require dusting seed potatoes just before storage. The Fusarex is expected to keep the treated seed pota-toesfrom 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 conditionsand 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.1of 1977, he purchased Fusarex froma Hilton-Davis distributorand 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 theirpotato 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 complaintwas filed alleging strict liability in tort, negligence and breach of the implied warranties ofmercha-ntabilityand fitness. The jury returned a verdict finding Hil-ton-Davisliable on all three theories and granting damages to all threeplaintiffs. Hilton-Davisraises 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 theDistrict Court improperly apply thedoctrine of strict liability in tort to a commercial case, not involving personal injury, but involving harm to a potato crop?4. Did the DistrictCourt err in allowing the question of whether the product Fusarex is "unreasonablydanqerous" to go to the jury? 5. Did the DistrictCourt 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 theDistrict Court improperly submit the case to the jury on the theory of impliedwarranty? 7. Did the District Court improperlv submitplaintiffs'

case to the jury on the theory of negligence? 8. Did the District Court commit prejudicial error by refusing instructionswhich 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.eranceof 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.twithout such professional opinion testimony that the product was defective and that adequate warnings

were not given,plaintiffsdid not present aprima 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 plaintiffshad.notproduced expert testimony that thepackage 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 involvedmatters to which a layman could have no knowledge at all and the court and jury mu.stbe dependent on such expert evidence. (181 Mont. at 207, 592P.2d at 1388.) ThisCourtdid 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 nexusbetween thedefect and the accidentnatura-llyvaries. 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 theproduct, or the crucialparts, then an expert's opinion on theprobabilities that a defect caused the accident would be helpful. If no such 

### --- opinion is possible, 

### --- as in the present case, the 

### - 

## - user's testimony

## -- onwhat happened is anothermethod of proving that theproduct 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 factof the accidentand the probabilities are all that remain for theparty seeking recovery. At this point the plaintiff can attempt - to negate the user as the causeand further ---- negate other causes not attributable to the defendant. These kindsof 

### roof intrcduceralone

L or cumulatively are evidence which help establish the presence of a defect as the cause of the damage.

### " (Emphasisadded.) The la-nguage in Brandenburqer applies to possible methods of proving defects in products, but it applies with equal force to the duty of amanufacturer to warn of adverse side-effects which may occur from the use of its product. Here the onlywarning on the Fusarex bagswas 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.tsmal.1potatoes 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-eda decided risk of multiple sprouting, delayed emergence, heavy tuber set, and reduced yield. Thewarning on the Fusarex bag that

a slight delay in emergence might result hardly matched the possible adverse side-effects from itsuse. Any layman couldunderstand the insufficiency of the warning. Expert testimonywasnot necessary. We are presented here with a unique products-liability

case. Fusarex was touted by its manufacturer as a sprout suppressant forpotatoes. It seems fairly estahl-ishedin the testimonyhere that Fusarexdid what itsmanufacturer 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 givewarning. 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-utyor 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 questionwas 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 expertwho 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' experthad testified as to the literature on side-effectsand his observation of the

occurrence of those side-effects. The court was correct in determining that the question propounded to him oncross-examination by Hilton-Davis' counsel was outside his expertise. We find nomerit in this claimof error. StrictLiability in Tort 

### -- Hilton-Pa-viscontends that itwas 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 torthas no application in cases of lost profits in apurely 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. Itprovides: 

### "(1) One who sells any product in a defective cond-itionunreasonably 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 hisproperty. 

# .." --- Hi-lton-Daviscontends that the policy reasons for the adoption of strict liability in tort by the courts do not apply in a casewhere 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.heproduct (see Brandenburger, supra),the superior bargaining position of the seller of the product, and the possible inadequacy of recoveries for damages under thecontractual 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 InternalRevenue Code. Streich, Williamson and Boorman respond on this issue that the damages were in factphysical 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 inThompsonv. 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 aproduct for thepurpose forwhich itwas intendedhas the foreseeablepotential 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 theywere in storage. Itwas the side-effectsof the Fusarex,after ithad performed its intended function,which resulted in damage to the consumers. No warning had been given by HiltonDavis 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. (8thcir. 1974)

## , 490 F.2d 1015; and Shieldsv. 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-fungicideto 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 considerationof strict liabilitywas 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 Erownv. Western FarmersAssociation (1974),268 Or. 470, 521 P.2d 537. In that case, inwhich it appeared that chicken feed caused lost profits to an egg producer, the Oregon court determined that such chicken feedcould not be considered unreasonabl-yda-ngerous. The Court stated itwou1.dnot "waterdown" the "unreasonably"dafigerous requirement of S 402(a) of the Restatement so a.sto extend the doctrine of strict 1ia.bilityto any defectwhich 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. BeatriceFood Company (1978),1-76Mont. 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 augerwhich 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 tortwas 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 asmarketed 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 orhow 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 hisproperty. The next contention of Hilton-Davis is that the instructions of the court on strict liability as given to the jury so oversta.tethe burden of the defenda.ntas to taint all claims of the plaintiffs under all theories of recovery. There are four instructionstowhich Hilton-Davis directs our attention,andwewill examine them in detail. Court's instructionno. 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 inwhich it is sold. "This rule applies although the manufacturer or seller has exercised all possible care in the preparation and sale of itsproduct and theuser or consumerhas notbought theproduct fromor entered into any contractualrelationwith themanufacturer or seller." Cl-early, court's instruction no. 9 is based on Restatement (Second)of Torts, 5 402(a) and our decision in Brandenburger. Itparaphrases the Restatement except for theinsertionof thewords "manufactures" and "manufacturer." It therefore clearly, properly states the law with respect to strictliability intort. Court

### 's instruction no. stated: "The plaintiffs must establish three essential elements torecover, asfolJ.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 totheconsumer oruser, orhisproperty; "Second, that the product was expected toand did reach the ultimate consumer or user without substantial change in the condition in which the defendant sold it; and "Third, thatthedefectivecondition intheproduct caused loss tothe plaintiffs, or damage to their property. "If you find that the pl-aintiffshave established 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. 10isthat it isbased 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 taintallclaimsunder alltheorie; of recovery. Court's instruction no. 10clearly stated the elements that the plaintiffs had toprove toestablish their case ofstrict 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 apersonal injury case. It is a salutarypractice for lawyers to utilize tested i-nstructionsadapted 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 instructiontainted 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 instructionno. 11 stated: "Aproduct 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), 1-76Mont. 123, 131, 576 P.2d 725, 730, we approved a like instruction in situationswhere the conditions complained of were latent. Moreover, court's instructionno. 11properly states the law. Court's instructionno. 12 stated: "Aproduct 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-ilyrecognized by the ordinary user of the product and 

### the manufacturer fai.1.sto give adequatewarning 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 riskherewas toprofits. As we have indicated, it is the element of inadequacy of warning about the latent side-effects toplaintiffs'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 profitswere involved in this case ignores the contentionsof 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 ofWarranty 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-Davisnow 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 particularpurpose for which the Fusarexwas required or that Streich was relying on Hilton-Davis' judgment or skill in selectingor furnishing the Fusarex. The District Court refused at the close of plaintiffs'

case to dismiss the claims founded upon the theory of breachof implied warranties of merchantability and fitness. Hilton-Davis claims error in submittins the theory of breach ofwarranty 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 shallbe merchantable implied in a contract for their sale if the seller is amerchant with respect to goods of that kind. The impliedwarranty of fitness for aparticular purpose is found in section 30-2-315,MCA. Where the seller at the time of contracting has reason to knowany 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 impliedwarranty that the goods shall be fit for suchpurpose. Streich talked with Hilton-Davis' sales representatives concerning the use of Fusarex. They were aware of the particularpurpose for which the product was tobe 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 Fusarexmust have been "fitfor 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 strictureto thewarranty of fitnessof aproduct 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 tothe person using them. For example in Eichenberger v. Wilhelm (N.D. 1976), 244 N.W.2d 691,where the farmerused a chemical to controlwild oats,which incidentally damaged his wheatyield,theNorth Dakota court concluded theproductwas nonmerchantable as to the merchant selling the chemical, though the chemical controlledwild 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-yput," citing 3 Anderson, Uniform Commercial Code, 5 2-315:37. Hilton-Davis contends that here the only use forwhich the goodswere requiredwas

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 particularpurpose 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 manufacturermay be liable forbreach ofimplied warranties. Whitaker (1.977),173Mont. 345, 567 P.2d 916. Accord: Plant Food Co-op v. Wolfkill Feed and Fertilizer (9thcir. 1980), 633F.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-lowstandards of reasonableness in marketing its product. It contends that the burden of proving negligence as set out in Jackson v. William DigwallCompany (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 thatRoorman 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 thep1a.intiffStreich. The plaintiffs respond.that the fact that Boorma-nand Williamson had no contact with Hilton-Davis does not defeat their negligence cause of action. Negligence does notdepend 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 forpromotion 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 offersgoods on the market to remoteusersmust 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-esignor product. Guffiev. 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. (8thcir. 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.lsoobjected, however, to court's instruction no. 27 which purported to define 'Y-egalcause" 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), 145Mont. 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 casebecause thereis reference to more than one cause of damage or the acts or omissions of two ormore personsworking 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 notbe consideredby us on appeal. Instructions Hilton-Davis objected to court's instruction no. 21 which in effect told the jury that amanufacturer had a duty to use rea-sonable care to give warning of dangerous conditions of aproduct to thosewhom 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 toproperty. 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.lanv. 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)

## , a11 were refused. Without theseinstructions, 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. Thiswasprejudicial 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-etrimentaleffect 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 iiblr 

## .)

## JU*.-/LL/ Justice 

# S

We Concur:

Chief JusticeJustices

i4r. Chief JusticeFrank I. Haswell, speciallyconcurring. I would affirmthejudgment of theDistrictCourtbased

on thenegligence count. I findno reason ornecessity to reach and decidewhether thejudgment can alsobe affirmed

on theother two counts, viz. strictliability intortand breach of warranty. 

# %&&pq~, Chief JUS! iceMr. 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 themajority opinion. InstructionNo. 27 statesas follows: "A 'cause' of damage, for our purposes, is that cause which in an actual and continuous sequence, unbrokenby any new and independentcause,produces the damage, and without which it would not have occurred. "This does not mean that the law recognizes only one cause ofdamage,consistingof only one factor, one act, one element or circumstance,or the conduct of only oneperson. To the contrary, the acts and omissions of two or more persons may work concurrently as the cause ofdamage, 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.useinstruction. 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 damagewould not have ensued. This is the old "but for" rule.The second paragraph 

### of InstructionNo. 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 causebeing examined.It certainly was not reversible error to give a proximate cause instruction combined with a concurrent negligence instruction. Unfortunately, that has been done foryears in Montana. However, it should notbe 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 orharm is a cause which is a substantial factor in bringing about the injury, damage, loss orharm." Thenote below the BAJI instructionstates: "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 onproximate cause. (emphasis supplied)" BAJI instruction 3.76 is taken fromRestatement of Torts, 2d Section 431,p. 428,wherein it is stated: "The actor's negligent cond.uctis a legal cause of harm to another if "(a) his conduct is a substantial factor inbringing about theharm, and 

### "(b) there is no rule of law relieving the actor from liability because of the manner in which his negligence has resulted in.theharm." 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.dthat 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 ismore than onepotential cause. Here, the district court gave the old "but for" rule combined with an instruction on concurrent cause. Suchpractice should, inthe future, be discouraged but does not constitutereversibleerror.

Mr. JusticeDaniel J. Shea: I join inthe specialconcurring opinionof Xr. Justice 14orrison.