No. 85-97 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1985 

ELIZABETH M. NATKOVIC, individually, 

and as guardian of the persons and 

estates of WILLIAM RUSSELL SWEET 

and SCOTT JAMES SWEET, Deceased, 

et al., 

Plaintiffs and Petitioners, 

SHELL OIL COMPANY and BLACK HILLS 

TRUCKING, INC., 

Defendants and 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 Shell Oil, 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 

Judicial District, 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-owing questions. 

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 the harm? 

2. May the defense of assumption of risk be a complete 

bar to plaintiff's recovery under the circumstances of 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 

as under the comparative negligence 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 

recited by the Federal District Court as follows: 

"Elizabeth M. Matkovic is the mother of 

Russell William Sweet, Deceased, and the 
duly-appointed guardian of William Russell Sweet and Scott James Sweet, the 

minor children of Russell William Sweet, 

Deceased, and the personal representative 

of the estate of Russell William Sweet, 

Deceased. Vicky Jean Stacey is the 

mother and duly-appointed conservator of 

the estate of Lawrence Sweet, a protected 

person and the minor son of the decedent. 

William Sweet is the father of the 

decedent. 

"Defendant, Shell Oil, operated oil wells 

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 

with hydrogen sulfide. 

"On January 29, 1981, Black Hills Trucking brought a truck, which was used to 

haul this water, into a garage in Sidney, 

Montana, for servicing and repair. The 

decedent, an employee of the garage, was 

assigned the duty of servicing and repairing the truck. Plaintiffs claim 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 genera 1 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 subject to liability for harm to the person, land or chattels of another resulting from the 

activity, although he has exercised the 

utmost care to prevent the harm. 

"(2) This strict liability is 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), 151 Mont. 54, 438 
P.2d 674. In that case, this Court articulated a standard of 

strict liability for damage to crops and livestock caused by 

flouride being emitted from a phosphate plant. 

Shell Oil Company recognizes that this Court might apply 

strict liability principles in an abnormall-y dangerous 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 

activities are in fact involved. Our answer to that question 

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 submitting this issue to the jury. 

Shell Oil urges this Court to require the submission of 

Restatement (Second) - of Torts § 520 (1976), if $ 519 is to be 

given. We agree with this position. 

Restatement (Second) - of Torts 5 520 (1976), provides: 

"In determining whether an activity is 

abnormally dangerous, the following 

factors are to be considered: 

" (a) existence of a high degree of risk 

of some harm to the person, land or 

chattels of others; 

"(b) likelihood that the harm that 

results from it will be great; 

" (c) inability to eliminate the risk by 

the exercise of reasonable care; 

" (d) extent to which the activity is not 

a matter of common usage; 

" (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 conjunction with an in- 
struction setting forth the principle of liability enunciated 

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 to be compared with the conduct of the 

defendant. We see no reason to apply a different standard to 

strict liability which arises as the 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 the defense is 

not absolute. The finder of fact must determine what part of 

the total cause is attributable to plaintiff'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 to be equal to or less than 

defendant's conduct, then plaintiff's recovery must be reduced by the percentage attributable to plaintiff. 

IS THE DOCTRINE OF CONTRIBUTORY NEGLIGENCE AVAILABLE AS 

A DEFENSE UNDER THE CIRCUMSTANCES OF QUESTION NUMBER 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 in a 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 as a defense in a products liability case based 

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 

conduct of the defendant. 

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/*" / 

/'