Brandenburger v. Toyota Motor Sales, U.S.A., Inc.

Decision Date07 August 1973
Docket NumberNo. 12349,12349
Citation162 Mont. 506,513 P.2d 268
PartiesRuby BRANDENBURGER, Administratrix of the Estate of Clarence R. Brandenburger, Deceased, Plaintiff and Respondent, v. TOYOTA MOTOR SALES, U. S. A., INC., and Toyota Motor Co., Ltd., Defendants and Appellants, Tafford Oltz, Defendant.
CourtMontana Supreme Court

Berg, O'Connell, Angel & Andriolo, Bozeman, Charles F. Angel argued, Bozeman, for defendants and appellants.

Bennett & Bennett, Bozeman, Lyman H. Bennett, Jr., argued, Bozeman, for Tafford Oltz.

Landoe, Gray & White, Bozeman, Hjalmar B. Landoe and Donald E. White argued, Bozeman, for plaintiff and respondent.

JOHN C. HARRISON, Justice.

This is an appeal from a judgment and denial of a motion for judgment in accordance with motion for directed verdict or for new trial in an action tried in the district court of the eighteenth judicial district, county of Gallatin. The case was tried to a jury which returned a verdict in favor of plaintiff Ruby Brandenburger, administratrix of the estate of Clarence R. Brandenburger, deceased. Defendants in the 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-complainant against the remaining defendants for any sums he might be required to pay plaintiff. The jury verdict in district court was against all defendants in the amount of $125,000.

The accident in question occurred in the late 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 to do some fishing. Oltz was driving his 1969 Toyota Land Cruiser which he had purchased in February 1969 at Rochester, Minnesota. The weather was clear, visibility good and the road was dry. Approximately eight miles south of Bozeman, according to the testimony of Oltz, Brandenburger yelled at him to look out for rocks on the road which Oltz described as about fist sized and scattered over the road. He swerved to the right to avoid hitting rocks, his vehicle left the highway, overturned, and the top of the vehicle came off. Both men were thrown out of the car through the opening created by the top coming off. Brandenburger was crushed by the rolling car; Oltz was injured.

There was conflict in the testimony as to what happened when the vehicle left the road and went onto the soft graveled shoulder. At 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 Oltz vehicle traveled with he left wheels on the pavement and the right wheels off the pavement some 129 feet, 8 inches, whereupon the left wheels also dropped onto the shoulder and the vehicle traveled down the barrow pit parallel to the road another 83 feet, 7 inches. At this point, the vehicle made a sharp left turn in an attempt to regain the road, skidded sidewards and overturned. The vehicle rolled on the passenger side first, and as it continued to roll, assumed an rpright position at which time the roof 'popped' off, and the eyewitnesses observed the bodies of the passengers flying out. The vehicle continued to roll and it was apparently at this time that it crushed Brandenburger. The vehicle was equipped with seat belts, but neither man was wearing one at the time of the accident.

The roof panel of the Toyota Land Cruiser was constructed of several layers of laminated fiber glass, riveted to a steel rail, which in turn was bolted to the steel body of the cab. The rivets were spaced approximately 4 inches apart around the roof and were 1/8 inch in diameter. Oltz testified when he purchased the Land Cruiser he was aware of the fiber glass top and that it had no roll bars or supports of steel.

This is a products liability case. Plaintiff maintained the fact the roof 'popped off' was a result of defective design. The respondent conceded the allegedly faulty design did not cause the accident but contended such design greatly increased the chances of death in an accident. The issue here is the liability of Toyota Motor Sales, U.S.A., Inc., and Toyota Motor Co., Ltd.

Appellants present four issues for this Court's consideration which we summarize in this manner:

1. Whether strict liability in tort should have been submitted to the jury?

2. Whether there was substantial evidence showing negligence on the part of the manufacturer, and if 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 fair trial when plaintiff and defendant Oltz settled the matter between themselves during the trial?

Before discussing the issues, we reiterate the rules stated in Strong v. Williams, 154 Mont. 65, 68, 460 P.2d 90, 92:

'It is well settled in this jurisdiction that wherever there is a conflict in the evidence this Court may only review the testimony for the purpose of determining whether there is any substantial evidence in the record to support the verdict of the jury, and we must accept the evidence there found as true, unless that evidence is so inherently impossible or improbable as not to be entitled to belief. Where the evidence is conflicting, but substantial evidence appears in the record to support the judgment, the judgment will not be disturbed on appeal, and this is especially true when the district court, as here, has passed upon the sufficiency of the evidence on motion for a new trial and upheld its 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 light most favorable to the prevailing party. If that evidence sustains the verdict then we must sustain the action of the trial 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 strict liability in tort should have been submitted to the jury?

Counsel for all parties recognize that this Court has not previously squarely faced the proposition as to whether or not strict liability is the applicable law in Montana. It was considered in Jangula v. United States Rubber Company, 147 Mont. 98, 410 P.2d 462; 149 Mont. 241, 425 P.2d 319, but under the facts there it was deemed not applicable. Appellants argue this Court has refused to apply the doctrine of strict liability in three recent cases, therefore it is not the law of Montana and the trial court erred in its instructions to the jury. We will consider each of the cases cited by appellants to show that in each instance the case was decided on grounds other than strict liability.

Knudson v. Edgewater Automotive Division, 157 Mont. 400, 486 P.2d 596: There we held that the trial court did not insert strict liability into the case, under the instructions given. As to the instructions given, we noted an instruction that a manufacturer of 'a product that is reasonably certain to be dangerous if 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 for the purpose for which it was made', when considered with the other instructions, and the instruction to consider all the instructions as a whole, did not improperly imply strict liability on the manufacturer.

Duchesneau v. Silver Bow County, 158 Mont. 369, 378, 492 P.2d 926, 931: In this case the Court said:

'The gist of the claim by Wilson Motors and its property damage insurer against Roberts and Mack Trucks is negligent design and installation of the power steering unit, constituting the proximate cause of the accident.'

But, this case was argued on negligence and not strict liability. However, Justice Haswell noted and it is of interest here, that:

'The foregoing testimony indicates the power steering unit was purchased in 1967 from Mack Trucks and if it was in fact negligently designed, there is a possible basis for strict liability against Mack Trucks.'

Ford v. Rupple, Mont., 504 P.2d 689, 691: This case involved an action against General Motors and others for injuries sustained by a passenger riding in a 1968 Corvette involved in a sideswipe collision which went out of control and collided headon with another vehicle. Under the facts presented, the trial court granted summary judgment in favor of General Motors and plaintiff appealed. This Court upheld the district court's ruling. Mr. Justice Daly, after thoroughly reviewing the cases cited and text writers, concluded:

'In Mang v. Eliasson, 153 Mont. 431, 458 P.2d 777, this Court rejected any doctrine of abstract foreseeability and affirmed the doctrine of reasonable foreseeability, but 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 for' rule affirmed in DeVerniero v. Eby, Mont., 496 P.2d 290, 293, in this language:

"Proximate cause is a twofold legal concept which may limit liability depending upon the existence of (1) an intervening act 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 is a fact. It is important to determine causation first to avoid its confusion with the issues to follow. This is not a relationship between negligence and injury, but rather a causal relation between conduct and hurt, both of which are factual concepts. It is only after the causal relationship, duty, and its scope are found that the negligence issue is reached. 61 Col.L.R. 1401.

"'The test most generally employed in determining causation is the 'but for' test....

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