### No. 85-97 INTHE SUPREME COURTOF THE STATEOF MONTANA 1985



### ELIZABETH M. 

### NATKOVIC, individually, and as guardian of the persons and estates of WILLIAM RUSSELL SWEET and SCOTTJAMES SWEET, Deceased, et al., Plaintiffsand Petitioners,

SHELL OIL COMPANY and BLACK HILLS TRUCKING, INC., Defendantsand Respondents.

ORIGINAL PROCEEDING:

COUNSEL OF RECORD: For Petitioners: Butte Legal Center;D.L. Holland argued, Butte, Montana For Respondents: Moulton, Bellingham, Longo & 

### Mather; William 

### H. Bellingham argued for ShellOil,Billings,Montana Alexander & 

### Baucus; John D. 

### Alexander argued for Black Hills Trucking,Great Falls,Montana

Filed: Submitted: June 27, 

### 1985 Decided: September 30, 1985



### Clerk

### Mr. Justice Frank B. Morrison, Jr., delivered the Opinion of the Court. This is an action filed for declaratory relief under Uniform Rule No. 1 of the Montana Rules of Appellate Civil Procedure in response to Federal District Judge Battin's certification of certain questions to this Court. This action was commenced in the District Court of the Second JudicialDistrict,in and for the County of Butte-Silver Bow, by the plaintiffs on March 28, 1983. The defendants removed the case to the United States District Court, for the District of Montana, Billings Division. By an order entered on December 12, 1984, the Federal District Court certified the foll-owingquestions. 1. Under Montana law, is a person who carries on an abnormally dangerous activity strictly liable for harm to persons resulting from said activity, although the person engaged in the said activity has exercised the utmost care to prevent theharm? 2. May the defense of assumption of risk be a complete bar to plaintiff's recovery under the circumstancesof question number l? 3. If a defense of assumption of risk may not be a complete bar to plaintiff's recovery as posed in question number 2, then is the defense of assumption 

### of risk treated like the defense of contributory negligence under Montana Code Annotated, 27-1-101 et seq., 1983, and apportioned

asunder the comparativenegligence statute? 

### 4. Is the doctrine of

### contributory negligence available

as a defense under the circumstances of question number l? The facts of this case for certification purposes were recitedby the Federal District Court as follows: "Elizabeth M. Matkovic is the mother of Russell William Sweet,Deceased, and theduly-appointed guardian of William Russell Sweet and Scott James Sweet, the minor children of Russell William Sweet, Deceased, and thepersonal representative of the estate of Russell William Sweet, Deceased. Vicky Jean Stacey is the mother and duly-appointed conservator of theestateof Lawrence Sweet, a protected person and theminor son of thedecedent. William Sweet 

### is the father of the decedent. "Defendant, Shell Oil, operated oilwells in North Dakota. Oil we11 production water was produced from the 

### wells as a by-product. Shell Oil hired defendant Black Hills Trucking to haul this water to a disposal area in Montana. The production water was highly contaminated withhydrogen sulfide. "On January 29, 1981, Black HillsTrucking brought a truck, which was used to haul thiswater, intoa garage in Sidney, Montana, for servicing and repair. The decedent, an employee of the garage, was assigned the duty of servicing and 

### repairing thetruck. Plaintiffsclaim that while the decedent was working on the truck, he was overcome by hydrogen sulfide gas emissions and died as a result of such exposure."

UNDER MONTANA LAW, IS A PERSON WHO CARRIES ON AN ABNORMALLY DANGEROUS ACTIVITY STRICTLY LIABLE FOR HARM TO PERSONS RESULTING FROM SAID ACTIVITY, ALTHOUGH THE PERSON ENGAGED IN THE SAID ACTIVITY HAS EXERCISED THE UTMOST CARE TO PREVENT THE HAm? The genera1 rule describing liability for abnormally dangerous activity is found in Restatement (Second) 

### - of Torts § 519 (1976),which states: 

## "(1) One who carries on an abnormally dangerous activity

### is subjecttoliability for harm totheperson, land orchattels of another resulting from the activity, although he has exercised the utmost caretoprevent theharm. "(2) This strict liabilityis limited to the kind of harm, the possibility of which makes the activity abnormally dangerous." This Court has previously adopted a similar theory 

### in Dutton 

### v. Rocky Mountain Phosphate (1968), 151Mont. 54, 438

### P.2d 674. In that case,this Court articulated a standard of strict liability for damage to crops and livestock caused by flouridebeing emitted from a 

### phosphateplant. ShellOil Company recognizes that thisCourt might apply strict liability principles in an abnormall-ydangerous situation, but argues that the facts of this case do not warrant submission of the theory. However, that issue is for the Federal District Court. We are only asked whether we would adopt strict liability standards where abnormally dangerous activitiesare in fact involved. Our answer to thatquestion is in the affirmative. The standard set forth in Restatement (Second)

### - of Torts $ 

### 519 (1976),set forth above, is the one that should be followed in submittingthis issue to the jury. Shell Oil urges this Court to require the submissionof Restatement (Second)

### - ofTorts § 

### 520 (1976), if $ 

### 519 is tobe given. We agreewith thisposition. Restatement (Second) 

### - of Torts 

### 5 520 (1976), provides: "In determining whether an activity is abnormally dangerous, the following factorsare tobe considered: 

### "(a) existence of a high degree of risk of some harm to the person, land or chattelsof others; "(b) likelihood that the harm that results from itwill be great; 

### "(c) inability to eliminate the risk by the exerciseof reasonable care; 

### "(d) extent towhich the activity isnot a

### matter of commonusage; 

### "(el inappropriateness of the activity to the place where it is carried on; and "(f) extent to which its value to the community is outweighed by its dangerous attributes." The definition of abnormally dangerous activity contained in 5 

### 520 should be given in conjunctionwith an in-struction settingforththe principleof liabilityenunciated

I1 AND I11 MAY THE DEFENSE OF ASSUMPTION OF RISK RE A COMPLETE BAR TO PLAINTIFF'S RECOVERY UNDER THE CIRCUMSTANCES OF QUESTION NUMBER 1; AND, IF NOT, THEN IS THE DEFENSE OF ASSUMPTION OF RISK TREATED LIKE THE DEFENSE OF CONTRIBUTORY NEGLIGENCE UNDER MONTANA CODE ANNOTATED, §§ 27-1-101, ET SEQ., 1983, AND APPORTIONED AS UNDER THE COMPARATIVE NEGLIGENCE STATUTE? In Zahrte 

### v. Sturm, Ruger & Co. (Mont. 19831, 661 P.2d 17, 40 St.Rep. 316, this Court held that assumption of risk

was available as a defense in a products liability case but that the defense was tobe compared with the conduct of the defendant. We see no reason toapply a different standard to strict liability which arises asthe result of conducting an abnormally dangerous activity. Therefore, we hold that assumption of risk is an available defense where defendant conducts an abnormally dangerous activity, but thedefense is 

### notabsolute. The finder of factmust determinewhat partof the total cause 

### is attributable toplaintiff's assumption of risk. If 

### it 

### is determined that plaintiff's conduct is

### more responsible than defendant, then plaintiff cannot recover. If plaintiff's conduct is found tobe equal 

### to or less than defendant's conduct, then plaintiff's recovery must be reduced by thepercentage attributabletoplaintiff.

IS THE DOCTRINE OF CONTRIBUTORY NEGLIGENCE AVAILABLE AS A DEFENSE UNDER THE CIRCUMSTANCES OF QUESTIONNUMBER 13 In Brown 

### v. North American Manufacturing Co. (1978), 176 Mont. 98, 576 P.2d 711, this Court held that contributory negligence is not an available defense ina strict liability

case for defective products. Matkovic contends that this Court should likewise hold that contributory negligence is not a defense to abnormally dangerous activity. F7e agree. In Zahrte 

### v. Sturm, Ruger & Co., supra, 

### we affirmed our position in Brown, holding that contributory negligence is not available asa defense ina products liabilitycasebased upon 

### strict liability principles. The same rationale

5

### forecloses contributory negligence as a 

### defense to strict liability arising out of abnormally dangerous activity. We, 

### therefore,hold that assumption of risk is the only available defense and, as previously stated,must 

### he compared with the conductof thedefendant. 

### A copy of this opinion shall be mailed to the 

### Clerk of the United States District Court of Montana, Billings Division. A



### We 

### concur: 

## / // ---



### Jdstice 1 

# L/*" / /'