                                                      NO.        82-185

                           I N THE     S U P R E M E C O U R T O F T H E S T A T E O F MONTANA

                                                               1983




TIM A.         ZAHRTE,

                                                           P e t i t i o n e r ,

        VS.


STURM,         RUGER & CO.,              INC.,

                                                           Respondent.




ORIGINAL PROCEEDING:

Counsel          of    Record:

              For P e t i t i o n e r :

                      ~ i l o d r a g o v i c h ,D a l e    & Dye, M i s s o u l a , Montana
                      M.    J.    M i l o d r a g o v i c h argued, M i s s o u l a , M o n t a n a

              For R e s p o n d e n t :

                      Poore, Roth, Robischon & Robinson, Butte, Montana
                      Wildeman, Harrold, A l l e n & Dixon, Chicago, Illinois
                      J a m e s D o r r argued, C h i c a g o , I l l i n o i s

              For A m i c u s C u r i a e :

                      C h a r l e s A.    Smith,      Helena,           Montana




                                                               Submitted:          J a n u a r y 11, 1 9 8 3

                                                                  Decided:         M a r c h 3,   1983

F i l e d :      March       3,    1983
     Mr. Justice Frank B. Morrison, Jr. delivered the Opinion
of the Court.
       Petitioner here is the appellant in a federal appeal
from a judgment entered by the United States District Court
(D. Montana) and reported in Zahrte v. Sturm, Ruger       &   Company
(1980), 498 F.Supp. 389.       The appeal was briefed and argued

before the United States Court of Appeals, Ninth Circuit, and
petitioner was then ordered to submit certified questions
from the Court of Appeals to this Court for determination.
       Petitioner presents multiple questions for resolution
but we find the first question to be dispositive.
       The following excerpt is taken from the certification:
       "Because of uncertainty concerning the proper
       interpretation of Montana law, pursuant to Montana
       Supreme Court Rule I we certify the following
       questions:
       " (1) Does the defense of assumption of risk still
       exist as a complete bar to plaintiff's recovery in
       a products liability action in the State of
       Montana?
       "There is room for substantial difference of
       opinion as to the correct answer to this question.
       See, Brown v. North American Mfg. Co., 576 P.2d 711
       (Mont. 1978); Kopischke v. First Continental Corp.,
       610 P.2d 668 (Mont. 1980); Zahrte v. Sturm, Ruger &
       Co., 498 F.Supp. 389 (D. Mont. 1980); Trust Corp.
       of Montana v. Piper Aircraft Corp., 506 F.Supp.
       1093 (D. Mont. 1981); Ingram v. Dick-Char, Inc.,
       No. 80-107-M (D. Mont. January 7, 1982), 39 St.Rep.
       96. "
        The answer is "No".   This opinion discusses and analyzes
Brown v. North American Mfg. Co.        (1978), 176 Mont. 98, 576
P.2d 711, and Kopischke v. First Continental Corp., (1980),
       Mont   .   , 610 P.2d 668, 37 St.Rep. 437, as cited by the
Circuit Court of Appeals in the certification.            The last
three cases referred to are federal cases and need not be
discussed.        Since the certification this Court has modified
Montana law regarding assumption of the risk in ~bernathyv.
Eline Oil Field Services, Inc.,        (1982),    Mont.        ,   650
P.2d    772, 39 St.Rep. 1688.     Therefore, our decision in that
case   must    be    integrated with           an    analysis of        Brown    and
Kopischke.
       Brown v. North American Nfg. Co., supra, predated the
enactment of comparative negligence in Montana.                     At the time
Brown was tried both contributory negligence and assumption
of   risk    were,    in    negligence         actions,      absolute    bars    to
recovery.       Plaintiff contended in Brown that contributory
negligence could not be considered as a defense in a case
premised      upon   strict        liability.          Brown     conceded       that
assumption of the risk would operate as a complete bar.                         The
jury was instructed that plaintiff could be defeated if he
were   found    to   have    assumed       the      risk   but   the     jury was
instructed that any lack of due care on the part of the
plaintiff was not to be considered.                    The majority of the
court disapproved of the                instruction because        it injected
elements of contributory negligence into a strict liability
case but did not find the giving of the instruction to be
prejudicial error.          The court clearly pointed out in Brown
that plaintiff was to be judged on the basis of plaintiff's
subjective knowledge of the danger and not upon a "reasonable
man" standard.       The issue of whether assumption of risk was a
complete bar was not litigated.                 Following Brown the law in
Montana was that assumption of risk was the only affirmative
defense in a strict liability case.
       In    Kopischke      v.     First       Continental       Corp.     (1980),
     Mont.       , 610 P.2d 668, 37 St.Rep. 437, this Court first
had an opportunity to address the defense of assumption of
risk after the legislature adopted comparative negligence.
Although      this   Court       held   that    none    of    the elements of
assumption of risk were present in Kopischke, we held that in
the future, in Montana, assumption of risk conduct would be
compared just as contributory negligence was compared under
the new statute.
      Since certification of                  the   issue       in   this   case, we
decided Abernathy v. Eline Oil Field Services, Inc., (1982),

--   Mont   .     ,    650 P.2d 772, 39 St.Rep. 1688.                  In Abernathy
we abolished implied assumption of risk as a defense to
negligence actions but reserved decision on the applicability
of assumption of risk where the defense was interposed in a
strict      liability        action.          Had   we    completely        abolished
assumption of risk as a defense in Abernathy                            there would
have been no defenses remaining for strict liability cases.
We therefore reserved judgment to a later date.
     Assumption         of    the      risk     involves        application    of    a
subjective standard to the plaintiff's conduct.                        Contributory
negligence, on the other hand, involves the application of a
"reasonable man"         standard which necessarily is objective.
Although there is language in Kopischke v. First Continental
Corp., supra, quoting from other jurisdictions, which would
indicate        that    assumption       of     the      risk    is    subsumed     in
contributory negligence, we feel that, by virtue of the two
different standards involved, the concepts are distinct.                          The
thrust of Kopischke is to allow assumption of risk to he
compared rather than have it operate as an absolute bar.                            We
did not intend in Kopischke to merge the two defenses.
      In Abernathy v. Eline Oil Field Services, Inc. , supra,
we maintained a distinction between assumption of risk as a
defense in negligence actions and assumption of risk as a
defense in a strict liability case.                      The common law defense
of assumption of risk involved the defeat of a plaintiff who
voluntarily exposed himself to a known danger.                        Plaintiff was
defeated even if such exposure was done reasonably.                                 In
Abernathy we resolved to discard this outmoded doctrine but
reserved judgment with respect to strict liability actions
for two reasons.       First, the defense of assumption of risk in
a   strict   liability       action      is different       from common      law
assumption     of     risk    as       applied   to    negligence       actions.
Secondly, we        felt that a defense should be retained for
strict liability actions and that assumption of risk may be
the appropriate defense.
     Unlike the common law defense of assumption of risk, the
defense   as   applied       in    a    strict   liability case         involves
unreasonable exposure to a known danger.                Plaintiff must have
a subjective knowledge of the danger and then voluntarily and
unreasonably expose himself to that danger before assumption
of risk will become operative in a strict liabilty case.                      If
those   elements      are    found      to   exist    the     defense   becomes
operative and must be compared with the conduct of defendant.
The mechanics of comparison are the same as                    comparison for
contributory negligence.
     In summary, assumption of risk is an available defense
in a strict liability case.              The defense must establish that
plaintiff voluntarily and unreasonably exposed himself to a
known   danger.        If    the   defense       is   found    to   exist   then
plaintiff's conduct must be compared with that of defendant.
The same Montana law which governs comparison of contributory
negligence controls comparison of assumption of risk.



We concur:


Chief Justice
Mr.    J u s t i c e L . C. G u l b r a n d s o n r e s p e c t f u l l y d i s s e n t i n g :


        I respectfully dissent.

       The U n i t e d S t a t e s C o u r t of A p p e a l s f o r t h e N i n t h C i r c u i t h a s

r e q u e s t e d t h i s C o u r t ' s answers t o c e r t i f i e d q u e s t i o n s f o r a p p l i -
cation       in the        i n s t a n t case, t r i e d         d u r i n g May 1 9 8 0 ,        and   i n the

case o f       Shekel1 v.           Sturm,      Ruger       &   Company,        Inc.,      i n t h e United
S t a t e s District Court (D.                 M o n t a n a ) case n o . D.C.              CV-80-70-PGH,

judgment e n t e r e d J u n e 10 , 1981.

       I n my v i e w ,      t h e m a j o r i t y h a s used t h e c e r t i f i c a t i o n p r o c e s s
t o announce a change i n t h e law, w i t h o u t guidance t o t h e f e d e r a l
c o u r t as t o when t h a t c h a n g e o c c u r r e d .

       I n Brown v. N o r t h A m e r i c a n Mfg. Co. ( 1 9 7 8 ) , 1 7 6 Mont. 9 8 , 5 7 6
P.2d     7 1 1 , a s t r i c t l i a b i l i t y case, t h i s C o u r t r e i t e r a t e d assump-

t i o n o f r i s k as a b a r t o r e c o v e r y b y s e t t i n g o u t 2 R e s t a t e m e n t of

T o r t s 2d,      §402A,       Comment        ( n ) and        stating:         "We f i n d        t h e above
standard of           conduct of           the plaintiff              as r e l a t e d     to t h e i n j u r y
m u s t b e c o n s i d e r e d u n d e r t h e Montana case l a w on t h e a s s u m p t i o n

of     r i s k when a p p l i e d       t o strict l i a b i l i t y cases."                  576 P.2d        at
719.       Under Brown, t h e a n s w e r t o t h e f i r s t c e r t i f i e d q u e s t i o n is

"yes".

       I n Kopischke v.             F i r s t C o n t i n e n t a l Corp.       ( 1 9 8 0 ) , --         Mont   .
- , 610 P.2d 6 6 8 , 37 S t . R e p . 4 3 7 , n o t a s t r i c t l i a b i l i t y c a s e ,
 -
t h i s Court s t a t e d :

               "As s t a t e d e a r l i e r , t h e e l e m e n t s of               the
               d o c t r i n e o f a s s u m p t i o n o f t h e r i s k are n o t
               p r e s e n t i n t h i s case.            However, when t h i s
               s i t u a t i o n does arise, we w i l l follow the
               modern t r e n d and t r e a t a s s u m p t i o n o f t h e r i s k
               l i k e a n y o t h e r form o f c o n t r i b u t o r y n e g l i g e n c e
               and a p p o r t i o n it under t h e c o m p a r a t i v e n e g l i -
               gence s t a t u t e . "     610 P.2d a t 687.
       I n Abernathy v.             Eline O i l Field Services,                     Inc.      (1982)      --

Mont.            , 6 5 0 P.2d 7 7 2 , 39 S t . R e p . 1 6 8 8 , n o t             a strict l i a b i l i t y

case, t h i s C o u r t h e l d t h a t t h e d o c t r i n e of i m p l i e d a s s u m p t i o n of

r i s k is no l o n g e r a p p l i c a b l e i n Montana and f u r t h e r s t a t e d :                    "In
t h i s case, w e are n o t r u l i n g upon t h e a p p l i c a t i o n o f t h e d o c t r i n e
of    assumption of r i s k i n p r o d u c t l i a b i l i t y c a s e s . "                     650 P.2d    at
776.
       A s of       t h a t d a t e , t h e answer t o t h e f i r s t c e r t i f i e d q u e s t i o n
would a p p e a r to remain "yes "               .
       I n Abernathy,             t h i s Court,       i n e s s e n c e , merged t h e d e f e n s e of
a s s u m p t i o n o f r i s k i n n e g l i g e n c e cases i n t o t h e g e n e r a l scheme of
comparative negligence,                    following the reasoning                   t h a t assumption

of    risk      is a v a r i a n t o f       contributory negligence,                   c i t i n g L i v.
Y e l l o w Cab C o . o f C a l i f o r n i a ( 1 9 7 5 ) , 1 3 C a l . 3 d 8 0 4 , 1 1 9 C a l . R p t r .

858,      5 3 2 P.2d       1226,      a    case previously cited                 with     approval       in

----i s c h k e .
Kop
       The C a l i f o r n i a Supreme C o u r t i n D a l y v . G e n e r a l Motors C o r p .
(1978)         144 Cal.Rptr.              380,    5 7 5 P.2d     1162,        used   t h e - case t o
                                                                                           Li

e xtend       the      principles          of     comparative          negligence         to     act ions
founded         in      strict       products          liability,         thereby        joining       the
m a j o r i t y o f s t a t e s which h a v e c o n s i d e r e d t h e i s s u e .      Those s t a t e s

have recognized              t h e s e m a n t i c i n c o n g r u i t y of    applying negligence
c o n c e p t s to c a s e s i n s t r i c t l i a b i l i t y , b u t h a v e n o t e d t h a t s t r i c t
l i a b i l i t y d o e s n o t mean a b s o l u t e l i a b i l i t y , and t h a t by a p p l y i n g

comparative negligence o r f a u l t principles,                              t h e bar to r e c o v e r y
u n d e r t h e a s s u m p t i o n o f r i s k d e f e n s e is removed.            S e e cases c i t e d
i n T r u s t C o r p . o f Montana v . P i p e r A i r c r a f t C o r p . ( 1 9 8 1 D.Mont.)            ,
506 F.Supp.           1093, f o o t n o t e 3 .

       The     s i g n e r s of     the majority opinion,                 by r e f u s i n g   to a p p l y
general        comparative           principles          in    strict     liability        cases,      and

t a k i n g a u n i q u e p o s i t i o n w i l l s u r p r i s e t h o s e f e d e r a l j u d g e s who
h a v e had o c c a s i o n t o i n t e r p r e t Montana l a w t o t h i s d a t e .
       Here,        the majority,           in effect,          has    refused       to extend       com-

p a r a t i v e p r i n c i p l e s e x c e p t i n t h e l i m i t e d area where a p l a i n t i f f
has     voluntarily           and     unreasonably             exposed        himself     to   a   known
danger,        a     departure        from       the    rule    enunciated           i n Brown.        The
r e s u l t is t h a t c o m p a r a t i v e p r i n c i p l e s w i l l n o t be a p p l i e d w h e r e
the     plaintiff         v o l u n t a r i l y and    - s- a b l y
                                                       r e -o n
                                                           a             exposes        himself     to    a
known d a n g e r o r w h e r e t h e p l a i n t i f f h a s e n g a g e d i n n e g l i g e n t con-

duct.
      I would r e t a i n t h e d e f e n s e of a s s u m p t i o n of r i s k as s e t f o r t h

i n 2 R e s t a t e m e n t o f T o r t s 2d S402A, Comment ( n ) u n t i l p u r e com-

p a r a t i v e p r i n c i p l e s are a p p l i e d i n strict l i a b i l   cases by t h i s
C o u r t or t h e Montana l e g i s l a t u r e .
