In 1978, Michael Rix was injured when the pickup he was driving was hit from behind by a 1978 General Motors Corporation (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.
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 evidence of subsequent design changes not admissible?
4. Is res ipsa loquitur applicable to products liability under a strict liability theory?
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 . . . accident, 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, manufactured in part, assembled, and sold the certain 1978 two ton chassiscab . . .
"4. [G]ENERAL MOTORS CORPORATION designed, manufactured 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 Corporation 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 because 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. Witnesses 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 accident 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 contended 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.
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 credible evidence. . . . It is reversible error to refuse to instruct on an important part of a party's theory of the case. . . . When the court undertakes to offer its own instruction on the issues raised, its statements must be complete. . . .
With regard to the GMC chassis-cab, plaintiff presented credible evidence to support his theories of defect in manufacture and defect in design. Plaintiff contends that the jury instructions taken as a whole failed to instruct the jury on design defect. The pertinent jury instructions are as follows:
"INSTRUCTION NO. 10
"I will now define the doctrine of strict liability to you. Keep in mind that this is only a general definition, and must be considered along with the specific instructions on the same topic which follow. The general principle of strict liability as it applies in the State of Montana is:
"(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if:
"(a) the seller is engaged in the business of selling such a product, and
"(b) it is expected and does reach the user or consumer without substantial change in the condition in which it is sold.
"(2) The rule stated in Subsection (1) applies although
"(a) the seller has exercised all possible care in the preparation and sale of his product, and
"(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.
"INSTRUCTION NO. 11
"The plaintiff must establish three essential elements in order to recover under his theory of strict liability. They are as follows:
"First, that the defendant General Motors Corporation manufactured and sold a product which at the time General Motors sold it was in a defective condition unreasonably dangerous to the consumer or user;
"Second, that the product was expected to and did reach the ultimate consumer without substantial 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 Section 402A Restatement (Second) of Torts (1965). Plaintiff did not make an objection 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."
We hold that the District Court committed reversible error in giving the 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 manufacturing defect theory. Under a manufacturing defect theory, the essential question is whether the product was flawed or defective because it was not construed correctly by the manufacturer:
"[M]anufacturing defects, by definition, are 'imperfections 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." . . . Stated differently, a defectively manufactured product is flawed because it is misconstrued without regard to whether the intended design of the manufacturer was safe or not. Such defects result from some mishap in the manufacturing process itself, improper workmanship, or because defective materials were used in construction." . . .
Restatement (Second) of Torts, Section 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 continued in Instruction #10, previously quoted in this opinion. In the context of strict liability under a manufacturing defect theory, we conclude that instructions #10 and #11, as given by the District Court, are adequate. On retrial if the plaintiff presents a manufacturing defect theory, Instructions #10 and #11 must be limited so that they apply only to the manufacturing defect aspect of the case.
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 measures is not admissible to prove negligence or culpable conduct in connection with the event. This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment."
The District Court concluded that Rule 407, M.R.Evid., 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. . . . 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. Consequently, 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 alternative 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 probative 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 technological feasibility and impeachment. As an example, evidence of subsequent design change may be admitted to show technological feasibility where the manufacturer has controverted technological feasibility of an alternative design. . . . 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.
Is res ipsa loquitur applicable to products liability under a strict liability theory?
Mr. Rix contends that his case was prejudiced when his jury instructions on res ipsa loquitur were refused and the District Court failed to substitute other res ipsa loquitur jury instructions. This Court has stated previously that, as a general rule, res ipsa loquitur is applicable to products liability under a negligence theory, but is not applicable to products liability under a strict liability theory. Brothers v. General Motors Corp. . . .
In Brothers, while we ruled against res ipsa loquitur under a strict liability theory, we reaffirmed our commitment to a flexible standard of circumstantial evidence, as follows:
"Circumstantial evidence, as well as direct evidence, may be used to show a defect. A plaintiff does not meet his burden of proof, however, by merely establishing an accident occurred . . . .
"[c]ircumstantial evidence can be met by proof of the circumstances of the accident, similar occurrences under similar circumstances, and elimination of alternative causes . . ."
. . . We conclude 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.
We reverse and remand for a new trial in conformity with this opinion.