NO. 82-267 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1983 

JEAN BROTHERS, KATHY BROTHERS, 

and STATE FARM MUTUAL AUTOMOBILE INC., 

COMPANY, 

Plaintiffs and Appellants, 

VS. 

GENERAL MOTORS CORPORATION, and 

BILL ATKIN VOLKSWAGEN, INC., 

Defendants and Respondents. 

Appeal from: District Court of the Second Judicial District, 

In and for the County of Silver Bow 

Honorable Arnold Olsen, Judge presiding. 

Counsel of Record: 

For Appellants: 

Wellcome & Frost, Bozeman, Montana 

Albert Frost argued, Bozeman, Montana 

For Respondents: 

Poore Law Firm, Butte, Montana 

James Poore, I11 argued, Butte, Montana 

Submitted: January 18, 1983 

Decided: February 18, 1983 

Filed: FEB 18 5983 

----- --4 Clerk 
Mr. Justice L. C. Gulbrandson delivered the Opinion of the Court. 

Plaintiffs brought this action in strict products liability 

and negligence for injuries resulting from a car accident. The 

District Court of the Second Judicial District, Silver Bow 

County, granted summary judgment for defendants and plaintiffs 

appeal. 

On June 22, 1977, plaintiff Jean Brothers was driving her 

1976 Pontiac LeMans station wagon on Interstate 90 toward 

Missoula, Montana, at about 50 miles per hour. The road was 

clear and dry. Her daughter and grandson were passengers in the 

car. 

As she was driving around a gradual bend, Jean Brothers felt 

a tremor in the steering wheel, then two short bumps, and was 

suddenly unable to turn the wheel. The car failed to go around 

the bend, moving from the right lane, into the left lane, and 

down into the median ditch. 

The investigating officer found no evidence of driver error 

and did not issue a ticket to Mrs. Brothers. He noted on the 

accident report that the car's left front tire was flat and that 

its deflation may have pulled the car off of the road. 

Mrs. Brothers and her husband had purchased the car in 

November 1976, from defendant Bill Atkin Volkswagen. The car was 

used, with an odometer reading of about 3,500 miles. At the time 

of the accident, the car had been driven about 7,600 miles. The 

car's warranty history revealed no significant mechanical 

problems or repairs. 

A mechanic at a front-end repair shop in Missoula looked at 

the front-end of the plaintiff's car, but could find nothing 

wrong. The steering column was removed and examined by Mrs. 

Brothersq son who is a mechanic. He found nothing wrong. A professor of mechanical engineering examined the steering column and 

also found nothing wrong. None of the other potential experts 

brought forward by appellants gave the opinion that the car was 

defective. 
The car was taken to a wrecking yard and has long since 

disappeared. 

The general issue of whether the summary judgment for defendants was proper may be broken down into two subsidiary issues: 

1. Whether appellants met their burden to show that a defect 

in the car caused the injury and that the defect was traceable to 

the respondents. 

2. Whether res - ipsa - - - - loquitur - -- - -- - - should be applied to this case. 

Appellants argue that the testimony of Mrs. Brothers and her 

daughter, as well as the good condition of the car, is sufficient 

evidence to make a prima - facie -- case in strict products liability. 

According to appellants, this evidence raises the inference that 

the vehicle's steering mechanism was defective in either design 

or manufacture. We do not agree. 

In a products liability action, the plaintiff must show three 

things: 1) the plaintiff was injured by the product; 2) the 

injury occurred because the product was defective and unreasonably dangerous; and 3) the defect existed when it left the hands 

of the particular defendant. Duncan v. Rockwell Manufacturing 

Co. (1977) , 173 Mont. 382, 567 P.2d 936; Barich v. Ottenstror 

(1976) 170 Mont. 38, 550 P.2d 395, citing Prosser on Torts (4th 

ed.) 103. 

Circumstantial evidence, as well as direct evidence, may be 

used to show a defect. Brandenburger v. Toyota Motor Sales, 

U.S.A. Inc. (1973), 162 Mont. 506, 513 P.2d 268. A plaintiff 

does not meet his burden of proof, however, by merely 

establishing that an accident occurred. Brown v. North American 

Manufacturing Co. (1978), 176 Mont. 98, 576 P.2d 711. In 

Brandenburger, .- - -- - - we adopted the following standard of proof to show 

a defect in a manufacturer's product: 

"The nature and quality of evidence used in 

products liability cases to show the defect 

and the nexus between the defect and the accident naturally varies. The most convincing 

evidence is an expert's pinpointing the defect 

and giving his opinion on the precise cause of 

the accident af ter 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 kinds of 

proof introduced alone or cumulatively are 

evidence which help establish the presence of 

a defect as the cause of the damage." 513 

P.2d at 275, quoting Stewart v. Budget 

Rent-A-Car (1970)r 52 Haw. 71, 470 P.2d 240, 

243. 

This flexible standard of circumstantial evidence can be met 

by proof of the circumstances of the accident, similar occurrences under similar circumstances, and elimination of alternative 

causes. Brown, supra; Brandenburger, supra. -- 

Under Rule 56, M.R.Civ.P., the party opposing a motion for 

summary judgment must present facts of a substantial nature. 

Speculative statements are insufficient to raise a genuine issue 

of material fact. Barich, supra; Duncan, supra. 

The appellants here have failed to meet the flexible standard 

set down in Brandenburger. There was no attempt to introduce 

evidence of similar occurrences under similar circumstances. 

Moreover, and perhaps more importantly, the plaintiffs failed to 

eliminate alternative causes of the accident. While the 

plaintiffs' own conduct may not have been a contributing factor, 

that is not the only alternative cause that should be eliminated. 

Alternative causes include tire failure, loss of hydraulic powersteering, improper maintenance, abuse by the prior owner, or 

foreign objects in the steering mechanism, among others. 

Because the allegations raised by plaintiffs are so speculative, they cannot be considered genuine issues of material fact. 

Appellants next claim that the evidence was sufficient for 

application of the doctrine of -- res ipsa loquitur. Such an argument, on its face, seems incorrect. Generally, -- res ipsa is 
applied to human conduct, not defective products. It is the 

driver of a vehicle or a pilot of an airplane who may be subject 

to the -. res - - - - ipsa - - - presumption. See Whitney v. Northwest Greyhound 

Lines, Inc. (1952), 125 Mont. 528, 242 P.2d 257; Knowlton v. 

Sandaker (1968) , 150 Mont. 438, 436 P.2d 98; and Tompkins v. 

Northwestern Union Trust Co. (1982), -- . Mont . - -- - , 645 P.2d 

In Tompkins, we quoted the Restatement (Second) of Torts, 5 

328D, as properly stating the doctrine of - res - ipsa loquitur: -- 

" (1) It may be inferred that harm suffered by 

the plaintiff is caused by negligence of the 

defendant when 

"(a) the event is of a kind which ordinarily 

does not occur in the absence of negligence; 

" (b) other responsible causes, including the 

conduct of the plaintiff and third persons, 

are sufficiently eliminated by the evidence; 

and 

"(c) the indicated negligence is within the 

scope of the defendant's duty to the 

plaintiff. 

"(2) It is the function of the court to 

determine whether the in£ erence may reasonably 

be drawn by the jury, or whether it must 

necessarily be drawn. 

" (3) It is the function of the jury to determine whether the inference is to be drawn in 

any case where different conclusions may 

reasonably be reached ." 645 P.2d at 406. 

While we have stated that exclusive control over the 

situation is not a necessary element of a -- res - ipsa case, we have 

nevertheless acknowledged that exclusive control helps to 

establish the probable cause of the accident. Tompkins, supra. 

Here, the control exercised by defendants, General Motors and 

Bill Atkin Volkswagen, is so remote that any causal connection 

between their duty and the plaintiffs' injuries has been broken. 

Moreover , as stated earlier, because appellants have failed to 

eliminate other reasonable causes, their allegations are purely 

speculative. In such a case, no reasonable inference- of negli- // 

gence may be made and - res -- ipsa - loquitur is not applicable. LThe summary judgment is af firmed. Xrj /2 

i , ".c 'Lica*-wv?/ [ -, / 

Justice 
We concur: 

s;& s, GgdLfLyFeRQ, Chief Just4ce