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=== Opinion ===
No. 85-95
IN THE SUPREME COURT OF THE STATE OF MONTANA
1986
MICHAEL RIX,
Plaintiff and Appellant,
-vs-
GENERAL MOTORS CORPORATION,
Defendant and Respondent.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable Diane G. Barz, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Kelly & Halverson, P.C.; Billings, Montana
Patrick Prindle argued, San Diego, California
For Respondent:
Moulton, Bellingham, Longo & Mather; Randy H.
Bellingham argued, Billings, Montana
Submitted: April 8, 1986
Decided: July 21, 1986
JuL 2 1 1986
P
Filed:
Mr. Justice Fred J. Weber delivered the Opinion of the Court.
In 1978, Michael Rix was injured when the pickup he was
driving was hit from behind by a 1978 General Motors Corpora-
tion (GMC) two ton chassis-cab, which had been equipped with
a water tank after sale by the GMC dealer. Plaintiff sued
GMC on a theory of strict liability in the Yellowstone County
District Court. Following a jury verdict for GMC, plaintiff
appeals. We reverse and remand for new trial.
Issues
1. Did the trial court properly instruct the jury on
strict liability?
2. Is Rule 407, M.R.Evid., applicable to products
liability under a strict liability theory, thus making evi-
dence of subsequent design changes not admissible?
3. Did the District Court abuse its discretion by
excluding disputed conversations between two insurance
adjusters?
4. Is - ipsa loquitur applicable to products liabili-
res
ty under a strict liability theory?
5. Did the District Court abuse its discretion by
admitting GMC's cross-examination of Dan Williams?
6. Did the District Court abuse its discretion by
refusing to compel GMC to further supplement its discovery
responses?
The pertinent portion of the revised pretrial order
contained the following stipulated facts:
1. That on the 4th day of August, 1978, on the
Shepherd Road, near mile post number 1, in the
County of Yellowstone, State of Montana, JOHN
STANLEY FISHER was driving a 1978 GMC, two ton
chassis-cab equipped with a water tank when it
collided with the rear of the 1968 GMC pickup truck
being operated by MICHAEL RIX and in which Michael
Eaton was a passenger.
2. That at the time and date of the ... acci-
dent, the 1978 GMC two ton chassis-cab equipped
with a water tank was 4-6 weeks old, having been
purchased and delivery taken on or about June 28,
1978.
3. GENERAL MOTORS CORPORATION designed, manufac-
tured in part, assembled, and sold the certain 1978
two ton chassis-cab ...
4. [GIENERAL MOTORS CORPORATION designed, manufac-
tured in part, and assembled the ... vehicle at
its plant in Pontiac, Michigan.
5. That on or about May 25, 1978, Town and Country
GMC, an authorized dealer of General Motors Corpo-
ration took delivery of the aforesaid chassis-cab
at the Silverdome in Pontiac, Michigan, and brought
it to Billings.
6. The failure of a brake line carrying hydraulic
fluid was a cause of the brake failure occurring on
the aforesaid vehicle on August 4, 1978.
7. The 1978 two ton chassis-cab. .. was equipped
with a single brake system offered as the standard
system and not a split (dual) system.
8. At the time the ... 1978 two ton chassis-cab
... was designed, manufactured in part, and
assembled, ... GENERAL MOTORS CORPORATION had the
knowledge, capacity, and capability to incorporate
a split (dual) brake system, and in fact did so as
optional equipment, if ordered by purchaser. . .
Plaintiff contends he was injured by an unreasonably
dangerous 1978 two ton chassis-cab, which had been placed in
the stream of commerce by GMC. Premised on a theory of
strict liability, he maintains the product was unreasonably
dangerous because of both manufacturing and design defects.
The parties stipulated that the accident occurred be-
cause of brake failure. Expert testimony from both parties
established that the fluids necessary to the braking system
had escaped when a brake tube came out of a nut where it
fastened to the top of the Hydrovac, a booster unit. Wit-
nesses also testified that the brake tube came out of the nut
either because the tube broke or was improperly flared.
Plaintiff contends that the tube broke because there was
a manufacturing defect in the tube, basically a bad flare,
when the truck came off the assembly line. Plaintiff also
contends that the brake system on the truck, a single system,
was defectively designed, and argues that GMC's knowledge of
available technology coupled with the foreseeable use of the
vehicle should have mandated a dual braking system, which
provides extra braking power. Plaintiff maintains the acci-
dent would have been less severe or would not have happened
had the truck been equipped with a dual system.
GMC agreed that the brake tube was defective, but con-
tended that the tube had been altered after it left the GMC
assembly line, so that the defective tube was not GMC's
responsibility. GMC also contended that the single system
was neither a design defect nor unreasonably dangerous, and
that the accident would have occurred even if the truck had
been equipped with a dual brake system.
I
Did the trial court properly instruct the jury on strict
liability?
A party has a right to jury instructions adaptable to
his theory of the case when the theory is supported by credi-
ble evidence. Cremer v. Cremer Rodeo Land and Livestock Co.
(Mont. 1981), 627 P.2d 1199, 1200, 38 St.Rep. 574, 576. It
is reversible error to refuse to instruct on an important
part of a party's theory of the case. Northwestern Union
Trust Co. v. Worm (Mont. 1983), 663 P.2d 325, 327, 40 St.Rep.
758, 761. When the court undertakes to offer its own in-
struction on the issues raised, its statements must be com-
plete. Tacke v. Vermeer Mfg. Co. (Mont. 1986), 713 P.2d 527,
534, 43 St.Rep. 123, 131.
With r e g a r d t o t h e GMC c h a s s i s - c a b , p l a i n t i f f presented
c r e d i b l e e v i d e n c e t o s u p p o r t h i s t h e o r i e s o f d e f e c t i n manu-
f a c t u r e and d e f e c t i n d e s i g n . P l a i n t i f f contends t h a t t h e
jury instructions t a k e n a s a whole f a i l e d t o i n s t r u c t t h e
j u r y on d e s i g n d e f e c t . The p e r t i n e n t j u r y i n s t r u c t i o n s a r e
a s follows:
INSTRUCTION NO. 10
I w i l l now d e f i n e t h e d o c t r i n e o f s t r i c t l i a b i l i t y
t o you. Keep i n mind t h a t t h i s i s o n l y a g e n e r a l
d e f i n i t i o n , and must b e c o n s i d e r e d a l o n g w i t h t h e
s p e c i f i c i n s t r u c t i o n s on t h e same t o p i c which
follow. The g e n e r a l p r i n c i p l e o f s t r i c t l i a b i l i t y
a s it a p p l i e s i n t h e S t a t e o f Montana i s :
(1) One who s e l l s any product i n a d e f e c t i v e
condition unreasonably dangerous t o t h e u s e r
o r consumer o r t o h i s property i s subject t o
l i a b i l i t y f o r physical harm t h e r e b y c a u s e d t o
the ultimate user or consumer, o r t o h i s
property, i f :
( a ) t h e s e l l e r i s engaged i n
t h e b u s i n e s s o f s e l l i n g such a
p r o d u c t , and
( b ) it i s e x p e c t e d and does
r e a c h t h e u s e r o r consumer
w i t h o u t s u b s t a n t i a l change i n
t h e c o n d i t i o n i n which it i s
sold.
( 2 ) The r u l e s t a t e d i n S u b s e c t i o n (1) a p p l i e s
although
(a) t h e seller has exercised
a l l possible c a r e i n t h e prepar-
a t i o n and s a l e o f h i s p r o d u c t ,
and
( b ) t h e u s e r o r consumer h a s
n o t bought t h e p r o d u c t from o r
e n t e r e d i n t o any c o n t r a c t u a l
r e l a t i o n with t h e s e l l e r .
I N S T R U C T I O N NO. 11
The p l a i n t i f f must e s t a b l i s h t h r e e e s s e n t i a l e l e -
ments i n o r d e r t o r e c o v e r under h i s t h e o r y of
s t r i c t l i a b i l i t y . They a r e a s f o l l o w s :
First, t h a t t h e d e f e n d a n t G e n e r a l Motors
C o r p o r a t i o n manufactured and s o l d a p r o d u c t
which a t t h e t i m e G e n e r a l Motors s o l d it was
in a defective condition unreasonably danger-
ous to the consumer or user;
Second, that the product was expected to and
did reach the ultimate consumer without sub-
stantial change in the condition it was in at
the time it was sold; and
Third, that the defective condition in the
product proximately caused injury to the
plaintiff.
Jury instruction #10 is the same as § 402A Restatement
(Second) of Torts (1965). Plaintiff did not make an objec-
tion at the time the instruction was offered. Plaintiff
objected to jury instruction #11 "on the grounds that the
second standard improperly states Montana law regarding
tracing requirement back to the manufacturer."
Both instructions expressly require that the plaintiff
establish the chassis-cab reached the consumer without sub-
stantial change from the time of sale. With regard to plain-
tiff's design defect theory, the instruction required him to
prove that the brake system had not been altered after leav-
ing the factory. While the instructions are adequate for a
manufacturing defect theory, they misstate design defect law.
The plaintiff is not required to prove that there has been no
change in condition after sale of a product. So far as
plaintiff's design defect issue is concerned, the instruction
should have focused on whether GMC improperly designed the
product which it placed in the stream of commerce.
The same issue of whether a product must reach the
consumer without substantial change in condition was dis-
cussed in Kuiper v. Goodyear Tire & Rubber co. (Mont. 1983) ,
673 P.2d 1208, 40 St.Rep. 1861. In Kuiper, with regard to
design defect cases, this Court adopted the trial court's
holding that plaintiff prove the product was placed in the
stream of commerce by defendant, and not that the product
reached the consumer in substantially the same condition in
which it left the manufacturer:
The correct law governing plaintiff's proof in a
design case is found in Brown, 176 Mont. at 105,
106, 576 P.2d at 716, we stated:
"[I] In order to establish a prima facie case
in strict liability based upon the above
definition, a plaintiff must prove the follow-
ing elements:
(1) The product was in a defective condition
'unreasonably' dangerous to the user or
consumer;
(2) The defect caused the accident and the
injuries complained of; and
(3) The defect is traceable to the
defendant. "
"There is no requirement that a design remain
in substantially the same condition since
obviously the design of the product does not
change from the date of its original manufac-
ture, absent some modification in design which
was not an issue in this case.
This issue was considered at length during the
instruction conference between the court of
counsel and it is the court's concerted opin-
ion that in a [product liability] design case,
the changes in the product through wear, tear,
or even abuse do not affect the question of
whether the original design was defective and
unreasonably dangerous. Design is judged not
by the condition of the product, but the state
of scientific and technical knowledge avail-
able to the designer at the time the product
was placed on the market."
Kuiper, 673 P.2d at 1221.
We hold that the District Court committed reversible
error in giving jury instructions #10 and #11 because they do
not contain the law applicable to plaintiff's design defect
theory.
We will now discuss strict liability under a manufactur-
ing defect theory. Under a manufacturing defect theory, the
essential question is whether the product was flawed or
defective because it was not constructed correctly by the
manufacturer:
[MIanufacturing defects, by definition, are "imper-
fections that inevitably occur in a typically small
percentage of products of a given design as a
result of the fallibility of the manufacturing
process. A [defectively manufactured] product does
not conform in some significant aspect to the
intended design, nor does it conform to the great
majority of products manufactured in accordance
with that design. I (Henderson, Judicial Review of
'
Manufacturers' Conscious Design Choices: The
Limits of Adjudication, 73 Col.L.Rev. 1531, 1543).
Stated differently, a defectively manufactured
product is flawed because it is misconstructed
without regard to whether the intended design of
the manufacturer was safe or not. Such defects
result from some mishap in the manufacturing pro-
cess itself, improper workmanship, or because
defective materials were used in construction.
Caprara v. Chrysler Corp. (N.Y. 1981), 436 N.Y.S.2d 251, 258.
Restatement (Second) of Torts, § 402A (1965) has been
adopted by this Court as the applicable law with regard to
strict liability under a manufacturing defect theory. The
Restatement view is contained in Instruction # l o , previously
quoted in this opinion. In the context of strict liability
under a manufacturing defect theory, we conclude that In-
structions #10 and #11, as given by the District Court, are
adequate. On retrial if the plaintiff presents a manufactur-
ing defect theory, Instructions #10 and #11 must be limited
so that they apply only to the manufacturing defect aspect of
the case.
We now discuss strict liability under a design defect
theory. The focus is not whether the product was made ac-
cording to specifications, but whether the specifications of
the manufacturer were in some way defective. We adopt the
following statement from Caprara, 436 N.Y.S.2d at 258-59:
In contrast, a design defect is one which "presents
an unreasonable risk of harm, notwithstanding that
it was meticulously made according to [the] de-
tailed plans and specifications" of the manufactur-
er (Robinson v. Reed-Prentice Div. of Package Mach.
Co., 49 N.Y.Td 471, 479, d~2.
.-
~2
.4 717, 403
m . 2 d 440 supra.) Thus, unlike manufacturing
defects, design defects involve products which are
made in precise conformity with the manufacturer's
design but nevertheless result in injury to the
user because the design itself was improper.
We have attempted to review the design defect cases of
other states as well as law review articles and other discus-
sions of design defect theory. At the present time there are
significant contradictions between the approaches of various
states, with no single theory being widely adopted. We
conclude that it would not be helpful to compare and contrast
these theories at length, but instead refer the reader to
1
various works.
We do not attempt to set forth an analysis which ad-
dresses all facets of strict liability under a design defect
1 Lee v. Butcher Boy (Cal.Ct.App. 1985), 215 Ca1.Rptr.
195; Ford Motor Co. v. Pool (Tex.Civ.App. 1985), 688
S.W.2d 879; Dart v. Wiebe Mfg., Inc. (Ariz. 1985), 709
P.2d 876; Prentis v. Yale Mfg. Co. (~ich. 1984), 365
N.F7.2d 176; 0'Brien v. Muskin Corp. (N.J. 1983), 463
A.2d 298; Nerud v. Haybuster Mfg., Inc. (Neb. 1983), 340
N.W.2d 369; Lester v. Magic Chef, Inc. (Kan. 1982), 641
P.2d 353; Caprara v. Chrysler Corp. (N.Y. 1981), 436
N.Y.S.2d 251; Boatland of Houston, Inc. v. Bailey (Tex.
1980), 609 S.W.2d 743; W. Prosser & W. Keeton, THE LAW
OF TORTS, S 99 (5th ed. 1984) ; W. Kimble & R. Lesher,
Products Liability, §$$ 131-38 (1979); Birnbaum & Wrubel,
"State - - -
of the Art" - Strict Products Liability, 21
and
Tort & Insurance L. J. 30 (1985); Note, The Design
Defect - -in Washington: The Requisite Balance, 8 U.
Test
Puget Sound L. Rev. 679 ( 1 9 8 5 r ~ o t e ,
Practicable Alter-
natives and Design Defects: - Plaintiff's Burden?--
A
Nerud v. Haybuster Mfg., Inc., 18 Creighton L. Rev. 477
(1985);~ote~ Strict Products Liability - - - And The Risk
Utility - - Design Defect: An Economic ~nalysis,
Test For
84 Colum L. Rev. 2045 (1984); ~werski,From Risk-Utility
- Consumer Expectations: Enhancing - e ~ o l eof Judi-
to th---
cia1 Screening in Product Liability Litigation, 11
Hofstra L. Rev. 8 1 (1983). - - the Uniform Prod-
See Also
uct Liability Act (1979) and the proposed interstate
commerce "Product Liability Act" (1983), which was never
ratified by the U.S. Congress.
theory. We render an opinion only with regard to the follow-
ing facet of design defect: Was the GMC single brake system
defective and unreasonably dangerous in view of the fact that
a dual brake system was technologically feasible at the time
of manufacture and was offered by GMC for sale? We do not
rule upon the fact situation where a claim of design defect
is made and where no alternative design is technologically
feasible. See O'Brien v. Muskin Corp. (N.J. 1983), 463 A.2d
298.
While many courts have attempted to define design defect
by the terminology of unreasonably dangerous design or defec-
tive design, we do not find these tests to be helpful and
choose not to adopt them. However, we do find that S104B of
the Uniform Product Liability Act (1979) contains an excel-
lent analysis of the factors which may be significant in an
alternative design product liability case. 2
We concur with the Uniform Act that a balancing of
various factors is required on the part of a jury. A jury
should be instructed to weigh various factors according to
2 104(B) The Product Was Defective - Design.
in
The harm was caused because the product was defective in
design. In determining whether the product was defective,
the trier of fact shall consider whether an alternative
design should have been utilized, in light of:
(1) The likelihood at the time of manufacture that the prod-
uct would cause the harm suffered by the claimant;
(2) The seriousness of that harm;
(3) The technological feasibility of manufacturing a product
designed so as to have prevented claimant's harm;
(4) The relative costs of producing, distributing, and sell-
ing such an alternative design; and
(5) The new or additional harms that may result from such an
alternative design.
the facts of each case and their own judgment. We conclude
that the following elements should be considered for instruc-
tional purposes in an alternative design products liability
case, recognizing that not all factors may be appropriate in
every case, and also recognizing that additional factors
should be considered where appropriate:
(1) A manufacturer who sells a product in a defec-
tive condition unreasonably dangerous because of a
design defect is subject to liability for harm
thereby caused to the ultimate user.
(2) A product may be in a defective condition
unreasonably dangerous if the manufacturer should
have used an alternative design.
(3) In determining whether an alternative design
should have been used, the jury should balance so
many of the following factors as it finds to be
pertinent at the time of manufacture:
(a) The reasonable probability that the prod-
uct as originally designed would cause serious
harm to the claimant.
(b) Consideration of the reasonable probabil-
ity of harm from the use of the original
product as compared to the reasonable proba-
bility of harm from the use of the product
with the alternative design.
(c) The technological feasibility of an alter-
native design that would have prevented claim-
ant's harm.
(d) The relative costs both to the manufactur-
er and the consumer of producing, distributing
and selling the original product as compared
to the product with the alternative design.
(e) The time reasonably required to implement
the alternative design.
We emphasize that it would be appropriate for the District
Court to supplement the foregoing factors based upon the
proof submitted in the course of trial. We reemphasize that
the foregoing factors should be applied where a manufactured
product is claimed to be unreasonably dangerous because a
safer alternative design was available to the manufacturer.
We do not rule upon other facets of this complex area of the
law.
Is Rule 407, M.R.Evid., applicable to products liability
under a strict liability theory, thus making evidence of
subsequent design changes not admissible?
According to Rule 407, M.R.Evid., subsequent remedial
changes cannot be admitted into evidence to prove negligence
or culpable conduct:
Rule 407. Subsequent remedial measures.
--
When, after an event, measures are taken which, if
taken previously, would have made the event less
likely to occur, evidence of the subsequent mea-
sures is not admissible to prove negligence or
culpable conduct in connection with the event.
This rule does not require the exclusion of evi-
dence of subsequent measures when offered for
another purpose, such as proving ownership, con-
trol, or feasibility of precautionary measures, if
controverted, or impeachment.
The District Court concluded that Rule 407, M.R.~vid., was
applicable to strict liability actions and that evidence of
subsequent design modification could only be introduced for
"other purposes."
Plaintiff maintains that Rule 407 is inapplicable in the
context of strict liability, because neither negligence nor
culpable conduct is at issue. Plaintiff argues that he
should be allowed to prove that GMC has dropped the single
brake system, and installs only the dual brake system on its
trucks. GMC contends the fact that it no longer offers
single brake systems is irrelevant and inadmissible under
Rule 407, M.R.Evid.
In a strict liability action under a manufacturing
defect theory, the issue is whether the manufactured product
left the factory in a flawed condition because it did not
conform to original design specifications. See Caprara, 436
N.Y.S.2d 251, 258. Under a manufacturing defect theory one
assumes that the design is safe and had the product been
manufactured in accordance with the design, it would have
been safe for consumer use. Here, plaintiff sought to prove
a manufacturing defect by showing that the brake line was not
manufactured according to specifications because it contained
a bad flare, which allowed the brake line to come out of the
nut where it was fastened to the top of the Hydrovac. Conse-
quently, under a manufacturing defect theory, evidence of
design modification is without probative value and irrelevant
because the safeness of the original design is not an issue.
In the context of strict liability under a manufacturing
defect theory, we conclude that evidence of subsequent design
change is not admissible unless it is to be admitted for some
other purpose.
In a strict liability action under a design defect
theory, the question is whether the design specifications
were partly or totally defective. As stated previously, a
design is defective if at the time of manufacture an alterna-
tive designed product would have been safer than the original
designed product and was both technologically feasible and a
marketable reality. Again the time frame under scrutiny is
the time of manufacture and not any other time. We conclude
that evidence of subsequent design modification is not proba-
tive of whether a product was defectively designed at the
time of manufacture. We do recognize that evidence of design
change may be probative for other purposes such as techno-
logical feasibility and impeachment. As an example, evidence
of subsequent design change may be admitted to show techno-
logical feasibility where the manufacturer has controverted
technological feasibility of an alternative design. See
Cohen v. General Motors Corporation (N.Y. 1984), 473 N.Y.2d
378, 382. None of these exceptions were present here.
We hold that Rule 407, M.R.Evid., is applicable to
strict liability actions under both manufacturing and design
defect theories, making evidence of subsequent design changes
generally not admissible.
Did the District Court abuse its discretion by excluding
disputed conversations between two insurance adjusters?
After the accident, John Fisher, driver of the GMC
truck, filed a claim for damages with Farmers Insurance Group
[Farmers]. It was estimated that the GMC chassis-cab sus-
tained $2,300 worth of damages. On August 15, eleven days
after the accident, Royal Globe Insurance Company of Ameri-
car which insures GMC, hired General Adjustment Bureau (GAB)
in Billings to investigate the accident. Tom Ramboldt inves-
tigated and adjusted the accident for GAB.
Ray Olson investigated the accident for Farmers. On
September 22, 1978, approximately 48 days after the accident,
Farmers paid Mr. Fisher for property damages to the 1978 GMC
two ton chassis-cab.
Whether Mr. Olson [Farmers] talked to Mr. Ramboldt [GAB]
prior to settlement with Mr. Fisher [driver of truck] cannot
be gleaned from the record. However, after settlement with
Mr. Fisher, Farmers subrogated its claim against GMC, and Mr.
Olson talked with Mr. Ramboldt on a number of occasions. Mr.
Olson was prepared to testify that on at least two occasions
Mr. Ramboldt advised him that GMC would accept liability. On
both occasions that the alleged admissions were made, Mr.
Olson recorded his reflections on a speed memo.
Mr. Rix contends that Mr. Ramboldt's statements are
admissible pursuant to Rule 801 (d) (2)(D), M.R.Evid., which
states:
(d) Statements which are not hearsay. A statement
is not hearsay if:
(2) Admission by party-opponent. The statement is
offered against a party and is . . .(D) a state-
ment by his agent or servant concerning a matter
within the scope of his agency or employment, made
during the existence of that relationship . . .
Mr. Rix maintains Mr. Ramboldt's statements, as an agent of
GMC, are admissions by a party-opponent and properly admissi-
ble. GMC denies that Mr. Ramboldt ever accepted liability.
GMC also maintains that even if the statements were admis-
sions by a party opponent, they are inadmissible under Rule
408, M.R.Evid., which protects statements made in the course
of compromise negotiations:
Evidence of (1) furnishing or offering or promising
to furnish, or (2) accepting or offering or promis-
ing to accept, a valuable consideration in compro-
mising or attempting to compromise a claim which
was disputed as to either validity or amount is not
admissible to prove liability for or invalidity of
claim or its amount. Evidence of conduct or state-
ments made in compromise negotiations is likewise
not admissible. ..
A real problem exists because the facts are not shown in
a complete manner in the record. We conclude that the incom-
plete record eliminates our ability to determine this issue.
Should the question be raised at retrial, the District Court
should consider all of the facts before ruling on admissibil-
ity, including whether Mr. Ramboldt was an agent of GMC and
whether he was acting in the course and scope of that agency,
and whether compromise negotiations had taken place between
Mr. Olson and Mr. Ramboldt.
Is - ipsa loquitur applicable to products liability
res
under a strict liability theory?
Mr. Rix contends that his case was prejudiced when his
jury instructions on - ipsa loquitur were refused and the
res
District Court failed to substitute other - ipsa loquitur
res
jury instructions. This Court has stated previously that, as
a general rule, - ipsa loquitur is applicable to products
res
liability under a negligence theory, but is not applicable to
products liability under a strict liability theory. Brothers
v. General Motors Corp. (Mont. 1983), 658 ~ . 2 d .1108, 1110,
In Brothers, while we ruled against - ipsa loquitur
res
under a strict liability theory, we reaffirmed our
comrnittment to a flexible standard of circumstantial evi-
dence, as follows:
Circumstantial evidence, as well as direct evi-
dence, may be used to show a defect. A plaintiff
does not meet his burden of proof, however, by
merely establishing an accident occurred. . . .
[clircumstantial evidence can be met by proof of
the circumstances of the accident, similar occur-
rences under similar circumstances, and elimination
of alternative causes. ..
Brothers, 658 P.2d at 1109-10 (citations omitted). We con-
clude this case presents no unique circumstances that would
warrant deviation from the general rule. We affirm the
District Court's exclusion of -
res ipsa loquitur jury
instructions.
Did the District Court abuse its discretion by admitting
GMC's cross-examination of Dan Williams?
Dan Williams was the owner of Berkley Machine & Equip-
ment, which shortened the frame of the 1978 GMC two ton
chassis-cab so that the truck could be equipped with a water
tank. The employee who did the actual shortening of the
frame did not testify because he could not be located. On
cross-examination, Dan Williams was asked if in the past he
had "actually drilled through frames and drilled into a brake
line." He answered, "Yes. I think anybody that has done this
work very long has done it one time or another." The next
question, which logically followed, was objected to on the
grounds it called for speculation. The question was "could
that have happened when you were working on Mr. Fisher's
[I978 GMC]." With continuing objections to this whole line
of questions, Mr. Williams essentially answered that it was
possible but not probable.
Mr. Rix contends that the opinion advanced by Williams
was not rationally based or helpful to the determination of
the facts in issue. According to Rule 701 M.R.Evid., a lay
witness may give an opinion when two criteria are estab-
lished: the opinion is "rationally based on the perception
of the witness and helpful to .. . the determination of a
fact in issue."
Both parties agreed that the brake line was defective,
but disagreed as to.whether it left the factory in a defec-
tive condition or was later altered. GMC maintained the
brakeline could have been altered at Berkley Machine and
Equipment when the truck frame was shortened.
Undoubtedly, the question of whether Dan William's shop
could have altered the line was helpful to determining a
major fact issue. Also, because the employee who did the
actual shortening of the frame was not available as a
witness, the owner of the shop was an appropriate witness to
respond to questioning with regard to shortening truck frames
and altering brake lines. We conclude the District Court did
not abuse its discretion in admitting the cross-examination
of Dan Williams.
Did the District Court abuse its discretion by refusing
to compel GMC to further supplement its discovery responses?
The standard of review is as follows:
The District Court has the inherent discretionary
power to control discovery. That power is based on
the District Court's authority to control trial
administration. In controlling discovery the
District Court must regulate traffic to insure a
fair trial to all concerned, neither according one
party an unfair advantage nor placing the other
party at a disadvantage ...
We will reverse the District Court only when its
judgment may materially affect the substantial
rights of the appellant and allow the possibility
of a miscarriage of justice.
Massaro v. Dunham (1979), 184 Mont. 400, 404-05, 603 ~ . 2 d
249, 251-52 (citations omitted) .
Rix contends that GMC's failure to answer certain inter-
rogatories denied him the opportunity to utilize significant
information. GMC contends it adequately and fully answered
the interrogatories.
The issue was discussed and ruled upon by the District
Court. The District Court denied the motion on the basis
that the requested interrogatories had been previously
answered.
We have reviewed the interrogatories, depositions and
supplemental memoranda. We conclude that the information
sought by the plaintiff was made available with the exception
of the request for the names of particular persons involved
in testing and inspecting during manufacturing in 1978. GMC
indicated there were thousands of inspections and tests
performed by a great number of people. The interrogatories
were overly broad and burdensome under the facts of the case.
We conclude that the District Court did not abuse its
discretion.
We reverse and remand for a new trial in conformity with
this opinion.
We Concur:
/
'-
, - --
* Chief Justice
- I /
Hon~able rank~1.
~ '
.
Haswell, retired Chief J u s t i sitting for Mr.
Additional Information
- source
- CourtListener
- subject
- Torts
- cluster id
- 879144
- match confidence
- exact