NO. 82-267 INTHE SUPREME COURT OF THE STATE OF MONTANA 1983

JEAN BROTHERS, KATHY BROTHERS, and STATE FARM MUTUAL AUTOMOBILE INC., COMPANY, Plaintiffsand Appellants,

VS. GENERAL MOTORS CORPORATION, and BILL ATKIN VOLKSWAGEN, INC., Defendants and Respondents.

Appeal from: DistrictCourtof the Second Judicial District, In and for the Countyof Silver Bow Honorable Arnold Olsen, Judge presiding. Counsel of Record: For Appellants: Wellcome & Frost, Bozeman, Montana AlbertFrost argued, Bozeman, Montana For Respondents: Poore LawFirm, Butte, Montana James Poore, I11 argued, Butte, Montana

Submitted: January 18, 1983 Decided: February 18, 1983 Filed: 

## FEB18 5983

----- --4 ClerkMr. JusticeL. 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 intothemedian 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 leftfront 

### tire was flatand that its deflation may have pulled the 

### car off of the road. Mrs. Brothers and her husband had purchased the car in November 1976, fromdefendantBillAtkinVolkswagen. The car

### was used, with an odometer reading of about 3,500miles. Atthe 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. Brothersqsonwho is 

### a mechanic. He found nothing wrong. A professorof 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 propermay be broken down into two subsidiary issues: 1. Whether appellants

### met theirburden 

### to show that

### a defect inthe car caused the injuryand thatthe 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, 

### aswell

### as the good condition of the 

### car, is sufficient evidence 

### tomake 

### 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

ormanufacture. Wedo not agree. Ina products liabilityaction, theplaintiff must show three things: 1) the plaintiff 

### was injured by the product; 2) the injury occurred because the product 

### was defective and unreasonablydangerous; and 3) the defect existed when it leftthe hands of the particular defendant. Duncan v. Rockwell Manufacturing Co. (1977)

## , 173 Mont. 382, 567 P.2d 936; Barich v. Ottenstror (1976) 170Mont. 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 ina 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 givinghisopinion on the precise cause of the accident af

### ter 

### a thorough inspection. If an accident sufficientlydestroys the product,

### orthecrucialparts, then anexpert's opinion on the probabilities that a defect caused the accidentwould be helpful. If no suchopinion 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 accidentkilledhim orincapacitated him, no otherwitness 

### was present atthe 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 attributabletothe defendant. These kindsof 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 occurren
### ces 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 appellantshere 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 plaintiffsfailed 

### to eliminate alternative causes of the accident. While the plaintiffs' own conduct may not have been a contributing factor, that

### isnot the onlyalternativecause thatshouldbe eliminated. Alternative causes include tire 

### failure, loss of hydraulicpowersteering, 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 doctrineof 

### -- res ipsaloquitur. Such an argument, on 

### its face, 

### seems incorrect. Generally, -- 

### res ipsa 

### is

### applied to human conduct, not defective products. It is 

### the driverof a vehicle or 

### a pilot of an airplanewho may be subject tothe
-. 

### res

--- - 

### ipsa ---

### presumption. SeeWhitney 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 thatharm suffered by the plaintiff is 

### caused by negligence of the defendantwhen "(a) the event is 

### of a kind which ordinarily does not occur inthe absenceof 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£erencemay reasonably be drawn by the jury, or whether it 

### must necessarilybe drawn. 

### "(3) It 

### is the functionof thejury to determine whether the inference 

### is 

### to be drawn in any case where different conclusions may reasonablybe 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 controlexercised 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.

L

### The summaryjudgment is 

### affirmed.

# Xrj 

# /2 [ i 

### , ".c 

### 'Lica*-wv?/ -, / JusticeWe concur: 

# s;&s,GgdLfLyFeRQ,

ChiefJust4ce