                                        No. 12349

         I N THE SUPREME COURT O THE STATE O M N A A
                                F           F OTN

                                             1973



KUBY BRANDENBURGER, A d m i n i s t r a t r i x
of t h e E s t a t e o f CLARENCE R.
BRANDENBURGER, d e c e a s e d ,

                                P l a i n t i f f and Respondent,



TOYOTA M T R SALES , U. S .A.
        OO
and TOYOTA MOTOR CO. , LTD.
                                            ,
                                            ,
                                                INC   .,
                                Defendants and A p p e l l a n t s ,

TAFFORD OLTZ,

                                Defendant.



Appeal from:            D i s t r i c t Court of t h e E i g h t e e n t h J u d i c i a l D i s t r i c t ,
                        Honorable W. W . L e s s l e y , Judge p r e s i d i n g .

Counsel o f Record:

      For Appellants :

              Berg, ~ ' C o n n e l l ,Angel and A n d r i o l o , Bozeman, Montana.
              C h a r l e s F. Angel a r g u e d , Bozeman, Montana

      For Tafford O l t z :

              B e n n e t t and B e n n e t t , Bozeman, Montana.
              Lyman H . B e n n e t t , Jr. , a r g u e d , Bozeman, Montana.

      F o r Respondent :

              Landoe, Gary and White, Bozeman, Montana.
              Hjalmar B. Landoe and Donald E. White a r g u e d , Bozeman,
               Montana.



                                                      S u b m i t t e d : J u n e 18, 1973

F i l e d : *tiJb '/   - T$3                            Decided :
                                                                     A1-G 7 - 7973

                                                        Clerk
Mr. J u s t i c e John C . Harrison delivered the Opinion of the Court.
              This is an appeal from a judgment and denial of a motion f o r judg-
ment in accordance with motion f o r directed verdict or f o r new t r i a l in an
action t r i e d i n the d i s t r i c t court of the eighteenth judicial d i s t r i c t ,
county of Gallatin.             The case was t r i e d t o a jury which returned a verdict
in favor of p l a i n t i f f Ruby Brandenburger, administratrix of the e s t a t e of
Clarence R . Brandenburger, deceased.               Defendants i n t h e action were Tafford
Oltz, Toyota Motor Sales, U.S.A., Inc., and Toyota Motor Co., Ltd.                        Tafford
Oltz did not appeal the judgment, but appeared on appeal as a cross-com-
plainant against the remaining defendants f o r any sums he might be required
t o pay p l a i n t i f f .   The jury verdict i n d i s t r i c t court was against a77 de-
fendants in the amount of $125,000.
              The accident i n question occurred in the l a t e afternoon of August
3 , 1970.       Tafford Oltz and his friend and fishing partner, Clarence R.
Brandenburger, were driving south from Bozeman, Montana on U.S. Highway 191
t o do some fishing.            Oltz was d r i v i n g his 7969 Toyota Land Cruiser which he
had purchased in February 1969 a t Rochester, Minnesota.                    The weather was c l e a r ,
v i s i b i l i t y good and the road was dry.       Approximately eight miles south of
Bozeman, according t o the testimony of Oltz, Brandenburger yelled a t him t o
look out f o r rocks on the road which Oltz described as about f i s t sized
and scattered over the road.              He swerved t o the r i g h t t o avoid h i t t i n g rocks,
his vehicle l e f t the highway, overturned, and the top of the vehicle came o f f .
Both men were thrown out of the car through the opening created by the top
coming o f f .       Brandenburger was crushed by the r o l l i n g c a r ; Oltz was injured.
              There was c o n f l i c t i n the testimony as t o what happened when t h e
vehicle l e f t the road and went onto the s o f t graveled shoulder.                 A t the time
of the accident Oltz estimated he was traveling between 50 and 60 miles per
hour.      The investigating highway patrolman's measurements indicated the 01 t z
vehicle traveled w i t h the l e f t wheels on the pavement and the r i g h t wheels
off the pavement some 129 f e e t , 8 inches, whereupon the l e f t wheels a1 so
dropped onto the shoulder and the vehicle traveled down the barrow p i t
parallel to the road another 83 f e e t , 7 inches.               A t t h i s point, the vehicle
made a sharp l e f t turn in an attempt to regain the road, skidded sidewards
and overturned.          The vehicle rolled on the passenger side f i r s t , and as i t
continued t o r o l l , assumed an upright position a t which time the roof "popped"
o f f , and the eyewitnesses observed the bodies of the passengers flying out.
The vehicle continued to roll and i t was apparently a t t h i s time t h a t i t
crushed Brandenburger.            The vehicle was equipped with seat be1 t s , b u t
neither man was wearing one a t the time of the accident.
               The roof panel of the Toyota Land Cruiser was constructed of
several layers of laminated fiber glass, riveted t o a steel r a i l , which in
turn was bolted t o the steel body of the cab.                 The r i v e t s were spaced approx-
imately 4 inches apart around the roof and were 1/8 inch in diameter.                           Oltz
t e s t i f i e d when he purchased the Land Cruiser he was aware of the f i b e r glass
top and that i t had no r o l l bars or supports of s t e e l .
               This ,is a products l i a b i l i t y case.   P l a i n t i f f maintained the f a c t
the roof "popped off" was a r e s u l t of defective design.                 The respondent
conceded the allegedly faulty design did not cause the accident b u t contended
such design greatly increased the chances of death in an accident.                          The issue
here i s the l i a b i l i t y of Toyota Motor Sales, U.S.A.,           Inc., and Toyota Motor
Co., L t d .
               Appellants present four issues f o r t h i s Court's consideration which
w summarize in t h i s manner:
 e
               1.   Mhether s t r i c t l i a b i l i t y in t o r t should have been submitted
to the jury?
               2.   Whether there was substantial evidence showing negl igence on
the part of the manufacturer, and i f so, was the defect resulting from such
negligence a proximate cause of Clarence R . Brandenburger's death?
               3.   Whether there was an irregularity in the proceedings which
prevented the manufacturer and distributor from having a f a i r t r i a l when
p l a i n t i f f and defendant Oltz s e t t l e d the matter between themselves during
the t r i a l ?
              Before discussing the issues, w r e i t e r a t e the rules stated in
                                             e
Strong v . Williams, 154 Mont. 65, 68, 460 P.2d 90:
             " I t i s well settled in t h i s jurisdiction t h a t wherever
             there i s a conflict in the evidence t h i s Court may only
             review the testimony f o r the purpose of determining
             whether there i s any substantial evidence in the record
             t o support the verdict of the jury, and w must accept
                                                              e
             the evidence there found as t r u e , unless t h a t evidence
             i s so inherently impossible or improbable as not t o be
             entitled t o be1 i ef. Where the evidence i s conf 1 icting ,
             b u t substantial evidence appears in the record to support
             the judgment, the judgment will not be disturbed on appeal,
             and t h i s i s especially true when the d i s t r i c t court, as
             here, has passed upon the sufficiency of the evidence
             on motion f o r a new t r i a l and upheld i t s sufficiency.
             Batchoff v . Craney, 119 Mont. 157, 172 P.2d 308; Wallace
             v . Wallace, 85 Mont. 492, 279 P . 374, 66 A.L.R. 587.
             The evidence must be viewed in the l i g h t most favorable
             to the prevailing party. If that evidence sustains the
             verdict then w must sustain the action of the t r i a l
                               e
             judge. "
See also:       State Highway Commission v. Vaughan, 155 Mont. 277, 470 P.2d
967; Knudson v . Edgewater Automotive Division, 157 Mont. 400, 486 P.2d 596.
              Issue 1.       Whether s t r i c t l i a b i l i t y in t o r t should have been sub-
mitted to the jury?
             Counsel f o r a l l parties recognize that t h i s Court has not previously
squarely faced the proposition as to whether or not s t r i c t l i a b i l i t y i s the
applicable law in Montana.                   I t was considered in Jangula v. United States
Rubber Company, 147 Mont. 98, 410 P.2d 462, 149 Mont. 241, 425 P.2d 319, b u t
under the f a c t s there i t was deemed not applicable.                 Appellants argue t h i s
Court has refused t o apply the doctrine of s t r i c t l i a b i l i t y in three recent
cases, therefore i t i s not the law of Montana and the t r i a l court erred in
i t s instructions to the jury.                W will consider each of the cases cited by
                                                e
appellants t o show that in each instance the case was decided on grounds
other than s t r i c t l i a b i l i t y .
             Knudson v . Edgewater Automotive Division, 157 Mont. 400, 486
P.2d 596:       There we held that the t r i a l court did not insert s t r i c t l i a b i l i t y
into the case, under the instructions given.                   As to the instructions given, we
noted an instruction that a manufacturer of "a product that i s reasonably
certain to be dangerous i f negligently made has a duty to exercise reasonable
care in the design, testing, inspection and manufacture of such product so
that the product may be safely used in a manner and f o r the purpose f o r which
i t was made", when considered with the other instructions, and the instruc-
tion to consider a l l the instructions as a whole, did not improperly imply
s t r i c t l i a b i l i t y on the manufacturer.
            Duchesneau v . Silver Bw County, 158 Mont. 369, 378, 492 P.2d 926:
                                   o
In t h i s case the Court said:
            "The g i s t of the claim by Wilson Motors and i t s property
            damage insurer against Roberts and Mack Trucks i s negligent
            design and instal lation of the powering steering u n i t , con-
            s t i t u t i n g the proximate cause of the accident."
B u t , t h i s case was argued on negligence and not s t r i c t l i a b i l i t y .   However,
Justice Haswell noted and i t i s of i n t e r e s t here, t h a t :
            "The foregoing testimony indicates the power steering
            unit was purchased in 1967 from Mack Trucks, and i f i t
            was in f a c t negligently designed, there i s a possible basis
            for s t r i c t l i a b i l i t y against Mack Trucks."
            Ford v . Rupple,           Mont   .      , 504 P.2d 686, 691, 29 St.Rep. 1081:
This case involved an action against General Motors and others f o r i n j u r i e s
sustained by a passenger riding in a 1968 Corvette involved in a sideswipe
          which
col 1ision ./went out of control and coll ided headon with another vehicle. Under
the f a c t s presented, the t r i a l court granted summary judgment in favor of
General Motors and p l a i n t i f f appealed.        This Court upheld the d i s t r i c t court Is
ruling.     Mr. Justice Daly, a f t e r thoroughly reviewing the cases cited and
t e x t writers , concl uded :
            "In Mang v. Eliasson, 153 Mont. 431, 458 P.2d 777, t h i s
          Court rejected any doctrine of abstract foreseeabil i t y
          and affirmed the doctrine of reasonable foreseeabi 1i ty ,
          b u t in that case found no necessity to reach the law of
          'causation ' absent a finding of duty. However, causation
          was most recently discussed in terms of proximate cause
          and the 'but f o r ' rule affirmed in DeVerniero v . Eby,
                Mont.    , 496 P.2d 290, 293, i n t h i s language:
          " 'Proximate cause i s a twofold legal concept which may
          limit l i a b i l i t y depending upon the existence of (1 ) an
          intervening a c t and ( 2 ) the unforeseeability of that
          intervening act. This Court stated in Sztaba v . Great
          Northern Ry., 147 Mont. 185, 195, 411 P.2d 379, 385:
          ""'Causation i s a f a c t . I t i s important t o determine causation
          f i r s t to avoid i t s confusion with the issues t o follow. This
          i s not a re1 atiorlship between negl igence and injury, b u t
          rather a causal relation between conduct and hurt, both of
          which are factual concepts. I t i s only a f t e r the causal
          relationship, duty, and i t s scope are found t h a t the negligence
          issue i s reached. 61 Co1.L.R. 1401.
          ""'The t e s t most generally employed in determining causation
          i s the 'but f o r y e s t . Montana has adopted t h i s t e s t in
          numerous cases.
          ""'Proximate cause i s one 'which in a natural and continuous
          sequence, unbroken by any new, independent cause, produces
          the injury, and without which the injury would n o t have
          occurred.' Stroud v . Chicago M . [&I S t . P . 8 P. Ry. Co.,
          75 Mont. 384, 393, 243 P. 1089, 1092." (Emphasis added.) '
          "The principle urged by plaintiff under the f a c t s of t h i s
          case f a l l s into the area of 'abstract foreseeability' con-
          demned in Mans and f a i 1 s t o meet the law in re1 ation t o
          causation as i t exists in Montana."
            This brings us t o the instant case and the question of whether
Montana should adopt the doctrine of s t r i c t l i a b i l i t y .    W note here t h a t
                                                                        e
both the federal d i s t r i c t court of Montana and the Ninth Circuit Court of
Appeals have considered Montana case law and have anticipated action by
t h i s Court, in cases heard in those courts recently.                Federal Judge Russell
E. Smith in Hornung v . Richardson-Merrill, Inc., 317 F.Supp., 183, 184,
held:
            "The t o r t limitation i s applied t o the warranty count
            for these reasons: In the absence of a control1 ing
            decision of the Supreme Court of the State of Montana,
            the federal courts in Montana s i t t i n g in diversity cases
            have looked t o and adopted as the applicable rule of law
            i n Montana the Restatement of the Law of Torts, Second,
            and the s t r i c t l i a b i l i t y rule announced therein. The
            s t r i c t l i a b i l i t y rule will be applied in t h i s case."
            The Ninth Circuit Court noted in the Sabin oral vaccine case,
Davis v . Wyeth Laboratories, Inc., 399 F.2d 121, 127:
            " e can find no Montana decision in point on the issue
             W
            of a drug manufacturer's duty t o warn of dangers inherent
            in i t s product. Privi t y of contract between buyer and
            s e l l e r as a prerequisite to recovery in an implied war-
            ranty action has long been abolished i n t h a t s t a t e in
            cases involving food, and s t r i c t l i a b i l i t y has been
            imposed on those who sold i t . I t would seem that the
            same approach would be adopted by the Montana Supreme
            Court i n cases involving drugs meant f o r internal use.
            Faced with the absence of controlling s t a t e precedent,
            w choose to assume t h a t Montana would follow the major-
              e
            i t y of other s t a t e s in finding t h a t l i a b i l i t y can attach
            to the sale of drugs, in either t o r t or warranty, despite
            lack of privity, and would adopt the views s e t forth
                below on t h e manufacturer's d u t y t o warn o f dangers i n
                ' n o n d e f e c t i v e ' b u t p o t e n t i a l l y harmful products. * * *

                "The c l e a r e s t statement o f t h e law as i t e x i s t s today
                i s i n our view t h a t s e t f o r t h i n t h e Restatement (Second)
                o f T o r t s (1965). Relevant t o our case a r e S e c t i o n 402A
                and comments j and k . * * *"

                The t r e n d seems t o be t o adopt t h e t h e o r y o f s t r i c t l i a b i l i t y

and i t has now been adopted by a m a j o r i t y o f t h e s t a t e s .

                 I n c o n s i d e r a t i o n o f t h e i n s t a n t case as t o t h e adoption o f 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 , we f i r s t l o o k t o t h e d e f i n i t i o n o f t h a t t h e o r y .

W adopt t h e d e f i n i t i o n , as o t h e r j u r i s d i c t i o n s have, s e t f o r t h i n 2 Restate-
 e

ment o f T o r t s 2d S402A:

                " ( 1 ) One who s e l l s any product i n a d e f e c t i v e c o n d i t i o n
                unreasonably dangerous t o t h e u s e r o r consumer o r t o h i s
                p r o p e r t y i s s u b j e c t t o l i a b i l i t y f o r p h y s i c a l harm thereby
                caused t o t h e u l t i m a t e user o r consumer, o r t o h i s p r o p e r t y ,
                if

                         " ( a ) The s e l l e r i s engaged i n t h e business o f s e l l i n g
                         such a product, and

                        " ( b ) i t i s expected t o and does reach t h e user 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 i t i s s o l d .

                "(2)      The r u l e s t a t e d i n Subsection (1) a p p l i e s although

                         " ( a ) t h e s e l l e r has exercised a l l p o s s i b l e care i n
                         t h e p r e p a r a t i o n and s a l e o f h i s product, and

                        " ( b ) t h e user o r consumer has n o t bought t h e product
                        from o r entered i n t o any c o n t r a c t u a l r e l a t i o n w i t h
                        the s e l l e r . "

                I n Lechuga, I n c . v. Montgomery, 12 A r i z . App. 32, 467 P.2d 256, 261,

Judge Jacobson i n a c o n c u r r i n g o p i n i o n discussed t h e reasons f o r 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 o f s t r i c t l i a b i l i t y t o t h a t case:

                "It i s apparent from a r e a d i n g o f t h e Restatement,
                and t h e l e a d i n g cases on t h i s s u b j e c t , t h a t 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 was evolved t o p l a c e l i a b i l i t y on t h e
                party p r i m a r i l y responsible f o r the i n j u r y occurring, t h a t
                i s , t h e manufacturer o f t h e d e f e c t i v e product. This, as
                J u s t i c e Traynor s t a t e d i n h i s c o n c u r r i n g o p i n i o n i n Escola
                v. Coca Cola B o t t l i n g Co. o f Fresno, 24 Cal.2d 453, 150
                P.2d 436 (1944), i s based on reasons o f p u b l i c p o l i c y :

                " ' I f p u b l i c p o l i c y demands t h a t a manufacturer o f goods
                be r e s p o n s i b l e f o r t h e i r q u a l i t y r e g a r d l e s s o f negligence
                t h e r e i s no reason n o t t o f i x t h a t r e s p o n s i b i l i t y openly. '
                150 P.2dY a t 441.
          "These pub1 i c pol icy considerations have been variously
          enumerated as follows:

           "(1 )   The manufacturer can anticipate some hazards and
                   guard against t h e i r recurrence, which the consum-
                   e r cannot do. Restatement, supra, comment c.

           " ( 2 ) The cost of injury may be overwhelming t o the person
                   injured while the risk of injury can be insured by
                   the manufacturer and be distributed among the public
                   as a cost of doing business. Greenman v . Yuba
                   Power Products, Inc. [59 Cal.2d 571 , 27 Cal Rptr
                   697, 377 P .2d 897 (1962).
                                                                      .     .
          '(3)     It i s in the public i n t e r e s t t o discourage the market-
                   ing of defective products. Escola v . Coca Cola
                   Bottling Co. of Fresno, supra.

          "(4)     I t i s in the public interest to place responsibility
                   for injury upon the manufacturer who was responsible
                   for i t s reaching the market. Greenman v . Yuba Power
                   Products, Inc., supra.
          "(5) That t h i s responsibility should also be placed upon
               the r e t a i l e r and wholesaler of the defective product
               in order that they may a c t as the conduit through
               which l i a b i l i t y may flow t o reach the manufacturer,
               where ultimate responsibility 1ies. Vandermark v.
               Ford Motor Co. [61 Cal.2d 2561, 37 Cal .Rptr. 896,
               391 P.2d 168 (1964).

          " (6) That because of the complexity of present day manu-
                   facturing processes and t h e i r secretiveness, the
                   a b i l i t y to prove negligent conduct by the injured
                   plaintiff i s almost impossible. Escola v . Coca
                   Cola Bottling Co. of Fresno, supra.
          "(7) That the consumer does not have the a b i l i t y t o in-
               vestigate f o r himself the soundness of the product.
               Santor v . A and M Karagheusian, Inc. 44 N.J. 52,
               207 A.2d 305 (1965).

          "(8) That t h i s consumer's vigilance has been lulled by
               advertising, marketing devices and trademarks.
               Concurring opinion, Lockwood, J . , Nalbandian v .
               Byron Jackson Pumps, Inc., 97 Ariz. 280, 399 P.2d
               681 (1965).
          "Inherent in these policy considerations i s not the nature
          of the transaction by which the consumer obtained posses-
          sion of the defective product, b u t the character of the
          defect i t s e l f , that i s , one occurring in the manufactur-
          ing process and the unavailability of an adequate remedy
          on behalf of the injured p l a i n t i f f . "
          W recognize t h i s Ss a major change i n Montana's t o r t law by way
           e
of judicial decision, b u t as'Chief Justice Vanderbilt of the Nw Jersey
                                                                e
Supreme Court said in State v . Culver, 23 N.J. 495, 129 A.2d 715, 721, c e r t .
denied 354 U.S. 925, 77 S.Ct. 1387, 1 L ed 2d 1441:
           "One of the great virtues of the common law i s i t s
           dynamic nature that makes i t adaptable t o the require-
           ments of society a t the time of i t s application in court."
           Issue 2.    Whether there was substantial evidence showing negli-
gence on the part of the manufacturer, and i f so, was the defect resulting
from such negligence a proximate cause of Clarence R . Brandenburger's death?
           The adoption of the doctrine of s t r i c t l i a b i l i t y does not relieve
the p l a i n t i f f from the burden of proving his case.   Vital to that proof i s
the necessity of proving the existence of a defect in the product and that
such defect caused the injury complained of.
           Inasmuch as t h i s i s a "second collision" case, w recognize that
                                                               e
the design defect in the vehicle did not cause the accident.             Generally
injury to car occupants results not from the immediate accident of one car
hitting another, commonly called " f i r s t collision" b u t from the ensuing
impact upon persons being tossed around the i n t e r i o r of the car, or as here,
being thrown through the roof, or "second collision".           While the construc-
tion of the vehicle i s not the cause of the accident, i t i s most often the
contributing factor in the case of "second collision" injuries.              In the
recent years courts have held t h a t where the manufacturer's negligence in
design causes an unreasonable r i s k to be imposed upon the user of i t s pro-
ducts, the manufacturer should be l i a b l e for the injury caused by i t s
f a i l u r e to use reasonable care in design.   These injuries are readily forsee-
able as an incident t o the normal and expected use of the car.            While auto-
mobiles are n o t made for the purpose of coll iding with each other, a frequent
and inevitable contingency of normal automobile use will result in collisions
and injury-producing impacts.       In Larsen v . General Motors Corporation, 391
F.2d 495, the court speaking concerning the "second collision" said:
           " * * * N rational basis exists for limiting recovery
                           o
           to situations where the defect in design or manufacture
           was a causative factor of the accident, as the accident and
           the resulting injury, usually caused by the so-called
           'second c o l l i s i o n ' of the passenger with the interior
           part of the automobile, a l l are forseeable. Where the
           injuries or enhanced injuries are due t o the manufacturer's
           f a i l u r e t o use reasonable care t o avoid subjecting the
           user of i t s products t o an unreasonable r i s k of injury,
             general negligence principles should be applicable * * *".
             See too: Ford Motor Company v. Zahn, 265 F.2d 729; Carpini
             v. Pittsburgh and Meirton Bus Company, 216 F.2d 404.
Accordingly the duty of Toyota t o provide a safe roof i s not eliminated
simply because the defective roof did not cause the accident.
             Accepting t h i s case as a "second collision" case, i t must be
determined whether there can be l i a b i l i t y f o r the alleged defective con-
struction of the vehicle.
            Appellants contend, relying on Ford, t h a t respondent Is position
i s t h a t appellants owed a duty t o manufacture a "crash proof" vehicle.
Not so! The law does not require such an obligation.                 Greco v . Bucciconi
Engineering Co., 407 F.2d 87.
             I t *i s of' import here t o s e t forth the evidence needed t o prove
the defect.     Although appellants do n o t d i r e c t l y make the claim t h a t res-
pondent had t o introduce d i r e c t evidence t h a t the design of the roof of
the Land Cruiser was faulty, i t i s clear that they would have us adopt t h i s
standard.     However, the better rule i s to permit proof of defect t o be
establ i shed by circumstantial evidence and inferences therefrom, as we1 1
a s by d i r e c t evidence.
            The essential rationale f o r imposing the doctrine of s t r i c t
l i a b i l i t y in t o r t i s that such imposition affords the consuming public the
maximum protection from dangerous defects in manufactured products by re-
quiring the manufacturer t o bear the burden of injuries and losses enhanced
by such defects in i t s products.        If t h i s be so, i t requires l i t t l e imag-
ination to see that i f a s t r i c t r u l e of d i r e c t evidence was required, the
supposed benefit of the theory of s t r i c t l i a b i l i t y would be l o s t t o the
consuming public.       The Eighth Circuit Court of Appeals said i n Lindsay v.
McDonnell Douglas Aircraft Corp., 460 F.2d 631, 639:
            "There would be l i t t l e gain t o the consuming public i f
            the courts would establish a form of recovery w i t h one hand
            and take i t away w i t h the other by establishing impossible
            standards of proof. The proof required i n a s t r i c t l i a -
            b i l i t y case must be r e a l i s t i c a l l y tailored t o the circum-
            stances which caused the form of action t o be created."
Lindsay v . McDonnell Douglas Aircraft Corp., 352 F.Supp. 633.
               W adopt the following standard of proof, as s e t forth by the
               e
Hawaii Supreme Court in Stewart v. Budget Rent-A-Car Corp., 52 Haw. 71,
470 P.2d 240, 243, as the acceptable type of evidence t o be used by a
p l a i n t i f f t o prove a defect in a manufacturer's or d i s t r i b u t o r ' s product,
i n a s t r i c t l i a b i l i t y case:
              "The .nature and qua1 i t y of evidence used in products
              l i a b i l i t y cases to show the defect and the nexus between
              the defect and accident naturally varies. The most con-
              vincing evidence i s an expert's pinpointing the defect
              and giving his opinion on the precise cause of the acci-
              dent a f t e r a thorough inspection. If an accident s u f f i -
              ciently destroys the product, or the crucial parts, then
              an expert's opinion on the probabilities that a defect
              caused the accident would be helpful. If no such opinion
              i s possible, as in the present case, the u s e r ' s testimony
              on what happened i s another method of proving that the
              product was defective. If the user i s unable to t e s t i f y ,
              as where the accident killed him or incapacitated him,
              no other witness was present a t the time of the accident,
              and the product was destroyed, the f a c t of the accident
              and the probabilities are a l l that remain f o r the party
              seeking recovery. A t t h i s point the p l a i n t i f f can
              attempt t o negate the user as the cause and further
              negate other causes not attributable to the defendant.
              These kinds of proof introduced a1 one or cumulatively
              a r e evidence which help establish the presence of a
              defect as the cause of the damage."
See also:         Franks v . National Dairy Products Corporation, 414 F.2d 682;
Reader v. General Motors Corp., 107 Ariz. 149, 483 P.2d 1388; Brownell
v. White Motor Corp. , 260 Ore. 251 , 490 P .2d 184- Prosser, Law of Torts,
                                                         @+
                                                              -3 ,'
                                                                  ;Y   mi&t.-*
4th E d , , g 103.       50 Minn.L.Rev. 791; 2 Frumer, Products Liability,
s   16A [41 [el   .
                        Turning now to the record, we find appellants f a i l e d t o intro-
duce expert testimony contradicting that oQ respondent instead of contenting
themselves with cross-examination of respondent's witnesses.                     Hence, there
was no expert testimony, indeed no testimony a t a l l , t o offset t h a t introduced
by respondent.
             Respondent's expert witness, Prof. Ralph Challender of the engineer-
ing school a t Montana State University, t e s t i f i e d a t length as to two defects
in the Land Cruiser manufactured by Toyota; (1) that the vehicle was unstable
and had a tendency to r o l l , (2) that the roof was n o t safe.                In giving his
testimony Prof. Challender compared the Toyota Land Cruiser with the Willys
Jeep, the International Scout, Ford Bronco and the British Land Rover.
Summarizing his testimony he noted that in comparison t o conventional auto-
mobiles, because of the short wheel base of such vehicles, a l l four wheel
drive vehicles are less stable in an exposure condition, such as s i t t i n g on
a s i d e h i l l , and rounding corners, where the centrifugal force e f f e c t be-
comes more pronounced making the tendency to t i p greater.            H noted that
                                                                        e
manufacturers of such vehicles should have anticipated t h i s f a c e t , due t o
the type of use contemplated, and advertised accordingly.
           In assessing the various vehicles compared as t o the structure
above waist 1ine, he noted only one other had a f i b e r glass top, the Chev
Blazer--but t h a t vehicle has in addition a f i b e r glass l i n e r inside, and
the structural parts were sandwiched in between the inner and outer faces.
All other vehicles compared had steel tops.
           Concerning the Toyota Land Cruiser top, Chall ender t e s t i f i e d that
because of the method of construction when a force, such as was appl ied
during the accident, h i t the roof panel the roof would not tend to crumple,
as in the case of a steel roof, b u t would simply blow u p and out, e i t h e r
shearing or pulling the r i v e t s through the roof.      H further t e s t i f i e d t h a t
                                                            e
a steel top can withstand greater force than f i b e r glass, particularly where
there a r e reinforcing members across the roof to absorb the impact energy.
The other vehicles compared, except the Chev Blazer, have steel tops with
reenforcing structural members in the roof, whereas the Toyota Land Cruiser
had no such reenforcement, only a mere f i b e r glass she1 1      .
           The testimony of Challender was corroborated by witness Donald
J , Thiesen, a mechanic hired t o repair the Land Cruiser.             H noted that the
                                                                        e
upper structures were damaged severely; that the top panel was completely
severed from the vehicle; that the sides were crushed from the roll ; and
t h a t the r i v e t s that attached the fiber glass top to the steel r a i l upon
which the roof s a t , were sheared and some pulled through and remained with
the top.    H further noted that the bolts used in the Land Cruiser, compared
             e
with American bolts, were softer and seemed to shear off easier.
             considering t h i s testimony in the l i g h t of the testimony of the
eyewitness Bruce Leeson t h a t " i t turned over and h i t the passenger side
f i r s t , made a complete turn, and upon approaching a position in which you
would refer to as upright the t o p came off of the vehicle as i t was coming
up to an upright position, and i t flew u p in the a i r .               Silhouetted between
the top and the vehicle were two bodies." and the deposition testimony of
Mrs. Bundy, another eyewitness, " y d i s t i n c t impression was that i t looked
                                M
so much l i k e a c h i l d ' s toy car t h a t was f a l l i n g apart in the a i r , t h a t the
roof was coming o f f . " , the jury could well have come t o the conclusion t h a t
the roof and superstructure of the Land Cruiser was unreasonably dangerous.
The top i t s e l f was submitted into evidence f o r the j u r y ' s inspection.
            W find there was substantial evidence submitted t o the jury f o r
             e
i t t o find that the Toyota Land Cruiser's defective design proximately con-
tributed to the death of Brandenburger.
             Issue 3.      Whether there was an irregularity in the proceedings
which prevented the manufacturer and d i s t r i b u t e r from having a f a i r t r i a l
when p l a i n t i f f and defendant Oltz s e t t l e d the matter between themselves.
            W find no merit to t h i s contention.
             e                                                 Appellants contend t h a t d u r -
ing the course of t r i a l a settlement was made between respondent and defend-
ant 01 t z , whereby there was an agreement t h a t the sum of $50,000 would be
paid to respondent on behalf of Oltz.                  Not so! An affidavit was f i l e d by
counsel f o r appellants t o t h i s e f f e c t in support of the motion f o r a new
trial.     Counsel for Oltz appeared and quite competently represented his
c l i e n t throughout the e n t i r e t r i a l .   In his brief and argument t o t h i s Court
he s e t forth the f a c t that no settlement was reached during t r i a l and t h a t
i t was not until a f t e r the jury verdict t h a t agreement was reached.
            Judgment i s a f f i
/     ~ h % fJ u s t i c e




    ........................................
      Justices
Mr. J u s t i c e Wesley Castles dissenting:
               I respectfully d i s s e n t .         I do not disagree with the s t r i c t
l i a b i l i t y rule.   What I disagree w i t h i s i t s application t o a "second
c o l l i s i o n " s i t u a t i o n such as here.   The defect here under discussion was
the defective top.            I t had nothing t o do with the cause of the accident.
I f the vehicle had no top, as in a convertible, nothing would have

changed as t o t h e causation.
                                                                         - .-,Mont
                                             I believe under Ford v . Rupple,/504 P.2d
686, 691, 29 St.Rep. 1081, t h i s Court rejected the a p p l i c a b i l i t y of s t r i c t
l i a b i l i t y i n "second c o l l i s i o n " cases; t h a t i s where the i n i t i a l accident
i s not caused by any breach of duty of a manufacturer; b u t i t i s contended,
as here, t h a t the damages a r e enhanced by some defect in construction o r
design.
               I would reverse and grant a new t r i a l .
