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No. 83-457
IN THE SUPREPlE COURT OF THE STATE OF MONTANA
1984

ORRIN STREICH I C

EDPIIN FIILLIAMSON I and CLIFFORD BOORMAN,
Plaintiffs and Respondents,

HILTON-DAVIS, a Division of
Sterling Drug, Inc., a corp.,

Defendant and Appellant.

APPEAL FROM: District Court of the Eleventh Judicial District,
In and for the County of Flathead,
The Honorable Michael Keedy, Judge presiding.

COUNSEL OF RECORD: For Appellant: Boone, Karlberg & Haddon; Sam Haddon argued, Missoula, Montana
For Respondents :
Garlington, Lohn & Robinson; Gary Graham argued, Missoula, Montana
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Submitted: April 19, 1984
~ecided: December 13, 1984

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Clerk

Mr. Justice John C. Sheehy delivered the Opinion of the
Court.

Hilton-Davis appeals from a judgment entered in the
District Court for the Eleventh Judicial District, Flathead
County after a jury awarded Streich, Boorman, and Williamson
a total of $781,119 in damages. Hilton-Davis, as
manufacturer of a chemical product called Fusarex, was found
liable for damages based on theories of strict liability in
tort, negligence, and breach of warranties. We affirm the
judgment and damage award.

Fusarex is manufactured and sold by Hilton-Davis as a
potato sprout suppressant. The directions for use of Fusarex
require dusting seed potatoes just before storage. The
Fusarex is expected to keep the treated seed pota-toes from
sprouting until after they are taken from storaqe, aerated,
and planted. The Fusarex hag lebel contained the following
statement: "After planting there may be a slight delay in
emergence depending on weather conditions and variety."

Streich is a commercial seed potato grower who used
Fusarex prior to 1977 in his potato operations in North
Dakota and then Montana. In the fal.1 of 1977, he purchased
Fusarex from a Hilton-Davis distributor and dusted a quantity
of his newly-harvested seed potatoes with it. The seed
potatoes were then stored for the winter. In the spring,
after inspecting the potatoes and keeping some for himself,
Streich sold substantial amounts of the certified seed to
Williamson and Boorman.

In June 1978, Streich, Williamson and Roorman began
noticing problems with their potato crops. The seed potatoes
treated with Fusarex showed delayed and erratic emergence,

multiple sprouting, a heavy tuber set resulting in small

potatoes, and reduced yield.. A complaint was filed alleging
strict liability in tort, negligence and breach of the
implied warranties of mercha-ntability and fitness. The jury
returned a verdict finding Hil-ton-Davis liable on all three
theories and granting damages to all three plaintiffs.

Hilton-Davis raises the following issues:

1.
Was expert testimony necessary to establish the
standard of care owed. by Hilton-Davis to Streich, Wil-liamson,
and Boorman and to show that Hilton-Davis had breached that
standard?


2.
Was Hilton-Davis improperly denied adequate
opportunity to cross-examine plaintiffs' expert witness?


3.
Did the District Court improperly apply the doctrine
of strict liability in tort to a commercial case, not
involving personal injury, but involving harm to a potato
crop?


4.
Did the District Court err in allowing the question
of whether the product Fusarex is "unreasonably danqerous" to
go to the jury?


5.
Did the District Court improperly instruct the jury
on the theory of strict liability in tort and thus prejudice
Hilton-Davis' right to a fair trial on all of plaintiffs'
theories of recovery?


6.
Did the District Court improperly submit the case to
the jury on the theory of implied warranty?


7.
Did the District Court improperlv submit plaintiffs'
case to the jury on the theory of negligence?


8.
Did the District Court commit prejudicial error by
refusing instructions which encompassed Hilton-Davis' theory
of the case?



Expert Testimony

Hilton-Davis contends that, under the plaintiffs' theory of product liability, the plaintiffs must establish by a prepond.erance of the evidence the failure of Hilton-Davis to warn of adverse side-effects of Fusarex. Hilton-Davis points out that the single expert called by the plaintiffs to establish their case made no declaration as to failure to warn in his testimony nor did that expert testify that the Fusarex was defective. Relying on Hill v. Squibb & Sons,
E.R. (1979), 181 Mont. 199, 592 P.2d 1383, Hilton-Davis
contends tha.t without such professional opinion testimony
that the product was defective and that adequate warnings
were not given, plaintiffs did not present a prima facie case
and the court should have granted Hilton-Davis' motion to
dismiss at the close of the plaintiffs' case.

In Hill, this Court upheld a directed verdict at the
close of plaintiffs' case, in favor of Squibb, where the
plaintiffs had. not produced expert testimony that the package
insert included with the product inadequately warned of the
product's side-effects. This Court held that expert opinion.
was necessary in the Hill case because it involved matters to
which a layman could have no knowledge at all and the court
and jury mu.st be dependent on such expert evidence. (181
Mont. at 207, 592 P.2d at 1388.)

This Court did not intend, through its decision in Hill,
to narrow or back away from its statements in Brandenburger

v. Toyota Motor Sales (1973), 162 Mont. 506, 518, 513 P.2d
268, 275, respecting the quantum and method of proof in
product liability cases:

"The nature and quality of evidence used in
products liability cases to show the defect and the
nexus between the defect and the accident natura-lly

varies. The most convincing evidence is an expert's pinpointing the defect and giving his opinion on the precise cause of the accident after a thorough inspection. If an accident sufficiently 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 is possible, ---
as in the present case, the user's testimony --
on what happened is another method of proving that the product was defective. If the user is unable to testify, as where the accident killed him or incapacitated him, no other witness was present at the time of the accident, and the product was destroyed, the fact of the accident and the probabilities are all that remain for the party seeking recovery. At this point the plaintiff can attempt -to negate the user as the cause and further negate other causes not attributable to the defendant. These kindsof roof intrcducer alone
L
or cumulatively are evidence which help establish

the presence of a defect as the cause of the

damage." (Emphasis added. )
The la-nguage in Brandenburqer applies to possible

methods of proving defects in products, but it applies with

equal force to the duty of a manufacturer to warn of adverse

side-effects which may occur from the use of its product.

Here the only warning on the Fusarex bags was that after

planting Fusarex might cause a slight delay in emergence,

depending on weather conditions and variety. The warning

itself was not sufficient to advise users that the emergence

might be delayed and erratic, that multiple sprouting could

result, tha.t smal.1 potatoes could result from a heavy tuber

set after the use of Fusarex, and that yield could be

materially reduced.

The plaintiff's expert in this case produced scientific

literature which gave results of field tests of the chemical

in Fusarex on potatoes. The literature reveal-ed a decided

risk of multiple sprouting, delayed emergence, heavy tuber

set, and reduced yield. The warning on the Fusarex bag that

a slight delay in emergence might result hardly matched the

possible adverse side-effects from its use. Any layman could

understand the insufficiency of the warning. Expert

testimony was not necessary.

We are presented here with a unique products-liability
case. Fusarex was touted by its manufacturer as a sprout
suppressant for potatoes. It seems fairly estahl-ished in the
testimony here that Fusarex did what its manufacturer said it
would, that is, suppress potato sprouting. The trouble here
is, when the time came for the seed potatoes to be aired and
planted, after their Fusarex treatment, side-effects occurred
of which Fusarex failed to give warning. Under the evidence
in this case the plaintiffs established a standard of duty,
that is the duty to warn of adverse side-effects, and that
the manufacturer of Fusarex breached that d-uty or standard.

The second issue raised by Hilton-Davis relates to the
cross-examination of plaintiffs' expert by Hilton-Davis'
counsel.

On cross-examination, plaintiffs' expert testified that
the Fusarex product was manufactured according to the
company's designs and specifications. The question was then
propounded to him that "therefore it was not in a defective
condition at that time in that sense?" The court sustained
objection upon the ground that the question was outside the
field of expertise of the expert who had not "been qualified
as an expert in determining what's in a bag of Fusarex."

As we have stated, this case involved a product which
performed its primary function, that is suppressing sprouting
of potatoes, but had adverse side-effects for which no
warning had been given. Plaintiffs' expert had testified as
to the literature on side-effects and his observation of the
occurrence of those side-effects. The court was correct in
determining that the question propounded to him on

cross-examination by Hilton-Davis' counsel was outside his

expertise. We find no merit in this claim of error.
Strict Liability in Tort

Hilton-Pa-vis contends that it was error for the District Court to submit the issue of strict liability in tort to the jury. It is the position of Hilton-Davis that strict liability in tort has no application in cases of lost profits in a purely commercial setting.
Montana adopted the theory of strict liability in tort contained in Restatement (Second) of Torts, S 402A. Brandenburger v. Toyota Motor Sales (1973), 162 Mont. 506, 513 P.2d 268. In Brown v. North AmericanMfg. Co. (1978), 176 Mont. 98, 1-05, 106, 576 P.2d 711, 716, we set forth the elements of proof necessary to establish a prima facie case in strict liability of tort.
Brandenburqer and Brown both i.nvo1ved. personal injury claims. However, the Restatement (Second) of Torts, S 402A does not limit the theory of strict liability to personal injury cases. It also includes cases involving damage to property. It provides:
"(1) One who sells any product in a defective
cond-ition 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. . ."
Hi-lton-Davis contends that the policy reasons for the
adoption of strict liability in tort by the courts do not
apply in a case where the only damages are loss of commercial
profits. Those policy reasons include spreading the cost of
personal injury resulting from a defective product to all
users of t.he product (see Brandenburger, supra), the superior
bargaining position of the seller of the product, and the
possible inadequacy of recoveries for damages under the

contractual concepts of express or implied warranty.
Hilton-Davis points to cases, such as Moorman Manufacturing
Company v. National Tank Company (1982), 91 I11.2d 69, 435
N.E.2d 443, which disallow the application of strict
liability in commercial loss cases, leaving the partjes to
their remedies under the Uniform Commercial Cod-e.
Hilton-Davis also suggests that in addition to the remedies
under the UCC, commercial users who suffer losses from a
product obtained in the stream of commerce are better left,
to a reduction of their losses through deductions and
provisions of the Internal Revenue Code for income tax or
even the bankruptcy courts. Thus, says Hilton-Davis,
Brandenburqer can be justified because the physical injuries
suffered there and the resulting costs therefrom, including
damages for pain and suffering and loss of earning capacity,
are not reducible under the Internal Revenue Code.

Streich, Williamson and Boorman respond on this issue
that the damages were in fact physical injuries to property,
in that the seed potatoes were damaged through the use of
Fusarex. Therefore, say these respondents, their damages are
within the mantle of protection assured by Restatement

(Second) of Torts, 5 402.
We held in Thompson v. Nebraska Mobile Homes Corporation
(Mont. 1982), 647 P.2d 334, 39 St.Rep. 1094, that strict
liability is not governed by the Uniform Commercial Code.

When, as here, the use of a product for the purpose for which
it was intended has the foreseeable potential of damaging the
users property, the doctrine of strict liability applies.
Here the Fusarex apparently performed. its intended function,
the suppression of sprouting in the potatoes while they were
in storage. It was the side-effects of the Fusarex, after it

had performed its intended function, which resulted in damage
to the consumers. No warning had been given by Hilton Davis
of those possible side-effects. The failure of Hilton Davis
to warn was a species of unsafe conduct on the part of the
manufacturer. It is this kind of unsafe conduct that fits
well within the concepts of the doctrine of strict liability.

Other courts agree. See Cloud v. Kit Mfg. Co. (Alaska 1977), 563 P.2d 248; Hales v. Green Colonial, Inc. (8th cir. 1974), 490 F. 2d 1015; and Shields v. Morton Chemical Company
(Idaho 1974) , 518 P. 2d 857, where the plaintiff was allcwed recovery for damage to its seed beans and additional damages for loss of good will and anticipated profits when the seed beans failed to germinate properly after the plaintiff applied a pesticide-fungicide to the seed beans.
Our decision in Whitaker v. Farmhand, Jnc. (1977), 173
Mont. 345, 567 P.2d 91.6, is not in point, although
Hilton-Davis contends it is. In Whitaker, we found that
consideration of strict liability was not reversible error in
the light of the facts of that case but that more precise
bases of liability were found in negligence and the law of
warranty.

We find no error in the application of the District
Court of the theory of strict liability to this case.

Hilton-Davis next claims that Fusarex cannot be
considered "unreasonably dangerous," under the Restatement
concept of strict liability because Fusarex presented no
danger to human life or safety. In support, it relies on a
line of cases, including Erown v. Western Farmers Association

(1974), 268 Or. 470, 521 P.2d 537. In that case, in which it appeared that chicken feed caused lost profits to an egg producer, the Oregon court determined that such chicken feed could not be considered unreasonabl-y da-ngerous. The Court stated it wou1.d not "water down" the "unreasonably" dafigerous requirement of S 402(a) of the Restatement so a.s to extend the doctrine of strict 1ia.bility to any defect which in any way might decrease the value of property. 521 P.2d at 542.
The other end of the spectrum with respect to the
Restatement clause "unreasonably dangerous" is found in
Cronin v. 2. B. E. Olson Corporation (Cal. l972), 501 P.2d
11-53. Cronin expressly eliminated the requirement that a
plaintiff prove that the product was "unreasonably
dangerous." The Montana court refused to follow the lead of
Cronin in Stenberg v. Beatrice Food Company (1978), 1-76Mont.
123, 129, 130, 576 P.2d 725, 729.

Stenberg involved a worker who was unloading his truck
at a grain auger. He accidentally fell into the intake end
of the auger which was not equipped with shield. His left
arm was severed. We determined in Stenberg that even though
the intake end of the auger was unshielded, and the lack of
shield was obvious to anyone looking at it, the doctrine of
strict liability in tort was not confined to products having
latent conditions of d.anger. In his specially concurring
opinion, Justice Shea pointed to authority which stated that
a product may be defective as marketed for one or more of at
least three reasons: (1) it may have been fabricated or
constructed defectively in the sense that the specific
product was not in the condition that the maker intended it
to be at the time of sale by the maker or other seller; (2)
it may have been improperly designed; and (3) purchasers and
those who are likely to use the product may have been
misinformed or inadequately informed, either about the risks
or about the dangers involved in the use of the product or

how to avoid or minimize the harmful consequences from such

risk. 576 P.2d at 731.
In this case, the defect involved relates to the
purchaser and user being misinformed or inadequately informed
about the risk of danger to the user's property from the
product.

We hold that where the "defect" involves an inadequate warning, so that the unguided user exposes himself or his property to risk or danger in using the product, the test of Restatement (Second) of Torts, S 402(a) is met--the product is "in a defective condition unreasonably dangerous" to the user or to his property.
The next contention of Hilton-Davis is that the
instructions of the court on strict liability as given to the
jury so oversta.te the burden of the defenda.nt as to taint all
claims of the plaintiffs under all theories of recovery.
There are four instructions to which Hilton-Davis directs our
attention, and we will examine them in detail.

Court's instruction no. 9 stated:
"One who manufacturers or sells any product in a
defective condition unreasonably dangerous to the
user or consumer or his property is subject to
liability for physical harm caused thereby to the
ultimate user or consumer or his property if (1)
the seller is engaged in the business of selling a
product, and (2) it is expected to and does reach

the user or consumer without substantial change in
the condition in which it is sold.
"This rule applies although the manufacturer or

seller has exercised all possible care in the
preparation and sale of its product and the user or
consumer has not bought the product from or entered
into any contractual relation with the manufacturer
or seller."

Cl-early, court's instruction no. 9 is based on Restatement (Second) of Torts, 5 402 (a) and our decision in Brandenburger. It paraphrases the Restatement except for the
insertion of the words "manufactures" and "manufacturer." It
therefore clearly, properly states the law with respect to
strict liability in tort.
Court's instruction no. stated:
"The plaintiffs must establish three essential elements to recover, as folJ.ows:
"First, that the defendant manufactured and. sold a product to a dealer which at the time defendant sold it was in a defective condition unreasonably dangerous to the consumer or user, or his property;
"Second, that the product was expected to and did reach the ultimate consumer or user without substantial change in the condition in which the defendant sold it; and
"Third, that the defective condition in the product caused loss to the plaintiffs, or damage to their property.
"If you find that the pl-aintiffs have establi shed
each  of  these  elements  by  a  preponderance  of  the  
evidence, your plaintiffs. "  verdict  should  be  for  the  
The  objection  made  by  Hilton  Davis  to  court's  

instruction no. 10 is that it is based on a form instruction contained in Devitt and Blackmar, Federal Jury Practice and Instructions 82.02. The original form of the instruction contained in Devitt and. Blackmar is intended for use in strict liability actions which have resulted in personal injuries. In submitting this instruction to the District Court in this case, the pl.aintiffs removed references to personal FnSuries or physical harm a.nd inserted language including "loss" and "damage."
Thus Hilton-Davis argues the District Court gave the iury a personal injury action standard in a property damage case and so overstated the burden of the defendant as to taint all claims under all theorie; of recovery.
Court's instruction no. 10 clearly stated the elements
that the plaintiffs had to prove to establish their case of
strict liability. We are here asked by Hilton-Davis to

penalize plaintiffs for utilizing an accepted form
instruction and modifying it to fit a property damage ca.se
instead of a personal injury case. It is a salutary practice
for lawyers to utilize tested i-nstructions adapted to meet
their case when offering instructions for acceptamce by the
court. Such a practice makes it less likely that the court
will fall into error. Moreover, beyond the statement that
the instruction tainted the other theories of recovery in the
case, no explanation is put forward by Hilton-Davis in its
briefs as to how this occurs.

Court's instruction no. 11 stated:
"A product is in a defective condition unreasonably
dangerous to the user when it has a propensity for
causing damage to the user or his property, beyond
that which would be contemplated by the ordinary
user or consumer who purchases it, with the
ordinary knowledge common to the foreseeable class
of users as to its characteristics. A product is
not defective or unreasonably dangerous merely

because it is possible to sustain property damage while using it." The instruction is obviously based upon comment i, 5
402 (a) , Restatement (Second) of Torts. That comment states: ". . . The article sold must be dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the
ordinary knowledge common to the community as to
its characteristics . . ."
In Stenburg (1978), 1-76 Mont. 123, 131, 576 P.2d 725,

730, we approved a like instruction in situations where the
conditions complained of were latent. Moreover, court's
instruction no. 11 properly states the law.

Court's instruction no. 12 stated:
"A product is defective if the use of the product
in a manner that is reasonably foreseeable by the
manufacturer involves an unreasonable danger that
would not be read-ily recognized by the ordinary
user of the product and the manufacturer fai.1.s to
give adequate warning of such danger."

As to this instruction, Hilton-Davis contends that jt

misleads the jury into thinking that a product may be
defective if it does not perform to 100% of expectations,
that it may be defective without any risk to person or
property, and that the only risk here was to profits.

As we have indicated, it is the element of inadequacy of
warning about the latent side-effects to plaintiffs' property
that could arise from the use of Fusarex which brings this
case within the strict liability doctrine. Court's
instruction no. 12 is an expression of that phase of the
strict liability theory. Hilton-Davis' theory that only
profits were involved in this case ignores the contentions of
plaintiffs that their property, the potato crop itself, was
subjected to danger and loss through the lack of warning of
Hilton-Davis.

We find no merit in Hilton-Davis' objections to the
instructions given in this case relating to strict liability.
Breach of Warranty

The jury in this case was instructed regarding the
implied warranties of merchantability and fitness for a
particular purpose. The jury found that Hilton-Davis
breached an implied warranty. Hilton-Davis now contends that
the Fusarex used by Streich was merchantable, because it
worked as a sprout suppressant. It also claims that the
implied warranty of fitness for a particular purpose did not
arise in this case because Hilton-Davis did not know of any
particular purpose for which the Fusarex was required or that
Streich was relying on Hilton-Davis' judgment or skill in
selecting or furnishing the Fusarex.

The District Court refused at the close of plaintiffs'

case to dismiss the claims founded upon the theory of breach

of implied warranties of merchantability and fitness.

Hilton-Davis claims error in submittins the theory of breach
of warranty to the jury.

The implied warranty of merchantability is defined in
sectjon 30-2-314, MCA. Unless the implied warranty is
excluded or modified, there is a wsrranty that the goods
shall be merchantable implied in a contract for their sale if
the seller is a merchant with respect to goods of that kind.

The implied warranty of fitness for a particular purpose
is found in section 30-2-315, MCA. Where the seller at the
time of contracting has reason to know any particular purpose

for which  the  goods  are  required  and  that the buyer  is  
relying  on  the  seller's  skill  or  judgment  to  select  or  
furnish  suitable  goods,  there  is,  unless  excluded  or  

modified, an implied warranty that the goods shall be fit for
such purpose.

Streich talked with Hilton-Davis' sales representatives
concerning the use of Fusarex. They were aware of the
particular purpose for which the product was to be used--fall
application to seed potatoes. Streich discussed proper use
of the product and observed the application and storage
techniques of the sales representatives. To be merchantable
the Fusarex must have been "fit for the ordinary purposes for
which such goods are used." Section 30-2-314(2)(c), MCA.
Hil.ton-Davis would consider that the Fusarex was fit to
suppress sprouting, without considering the side-effects
which resulted from its use. We find that position an
unnecessary stricture to the warranty of fitness of a product
for its ordinary purposes. Surely goods are not
merchantable, if in their ordinary use, the goods cause
damage to the property to which they are applied or harm to

the person using them. For example in Eichenberger v.

Wilhelm (N.D. 1976), 244 N.W.2d 691, where the farmer used a chemical to control wild oats, which incidentally damaged his wheat yield, the North Dakota court concluded the product was nonmerchantable as to the merchant selling the chemical, though the chemical controlled wild oats.
Hilton-Davis also contends that there could be no warranty for a. particular purpose in this case, contending that the particular purpose warranty contemplates "a use to which the goods are not crdinaril-y put," citing 3 Anderson, Uniform Commercial Code, 5 2-315:37. Hilton-Davis contends that here the only use for which the goods were required was as a sprout suppressant. It further contends that the plaintiffs Boorman and Williamson had no dealings with Fusarex, since they bought their seed potatoes after treatment with Fusarex from Streich.
Here Hilton-Davis' representatives knew the use for
which Streich was purchasing the Fusarex, that is, for fall-
application on his seed potatoes. The ordinary use of
Fusarex as a seed suppressant meant a particular use by
Streich, the fall application of the suppressant for storage
of seed potatoes. Streich has brought himself within the
statutory language with respect to implied warranty of
fitness for a particular purpose in showing that the "seller
at the time of contracting [hadl reason to know any
particular purpose for which the goods are required."

There is no merit in Hilton-Davis' contention that
Williamson and Boorman cannot recover for breach of implied
warranties because they had no dealings or contact with
Hilton-Davis. The privity requirement was abolished in
Montana and a remote manufacturer may be liable for breach of

implied warranties. Whitaker (1.977), 173 Mont. 345, 567 P.2d

916. Accord: Plant Food Co-op v. Wolfkill Feed and Fertilizer (9th cir. 1980), 633 F.2d 155. Negligence
Hilton-Davis contends that the jury should not have received instructions in this case concerning negligence on its part. It contends that there was no proof that its product was negligently manufactured or that it failed to fol-low standards of reasonableness in marketing its product. It contends that the burden of proving negligence as set out in Jackson v. William Digwall Company (1965) , 145 Mont. 127, 399 P.2d 236, was not sustained by the plaintiffs. It objects to the instructions given by the court because the instructions do not distinguish between the plaintiffs' rights to recover. Specifically that Roorman and Williamson, who had no contact with Hilton-Davis, had purchased none of its product, and should not have been treated exactly the same as the p1a.intiff Streich.
The plaintiffs respond. that the fact that Boorma-n and Williamson had no contact with Hilton-Davis does not defeat their negligence cause of action. Negligence does not depend upon privity of contract in Montana. In support they cite Larson 17. United States Rubber Company (Mont. 1958), 3.63 F.Supp. 327. Plaintiffs' contend that Hilton-Davis did not use reasonable care in the design, testing, inspection or marketing of Fusarex. The evidence showed that all relevant scientific literature was not utilized by Hilton-Davis; and it conducted no internal testing of Fusarex, but relied on outside studies largely for promotion and sales.
The general duty of a manufacturer placing a product on
the market is stated in Golden Gate Hop Ranch, Inc. v.

Velsicol Chemical Corporation (l965), 66 Wash.2d 469, 403
P.2d 351, cert.den. 382 U.S. 1025, 86 S.Ct. 644, 15 L.Ed.2d

539:
"In the recent case (citation omitted) we laid down
the rule that a manufacturer or processor who
offers goods on the market to remote users must use

reasonable care where there is a foreseeable risk
or harm if reasonable care is not used."
Although a manufacturer is not an insurer of a prod.uct

which he designs or manufacturers, nevertheless, he must use
reasonable care to avoid creating an undue risk of harm to
those who might be reasonably expected to use his d-esign or
product. Guffie v. Erie Strayer Company (3rd. cir. l965), 350
F.2d 378.

The duty to warn of a potential danger unknown to users or consumers is inherent in the manufacture of goods placed on the market. Such duty extends to the purchaser of the product and all foreseeable users. Hopkins v. Chip-In-Saw, Inc. (8th cir. 1980), 630 F.2d 616.
Hilton-Da.vis objected to the giving of court' s instruction no. 21 which raised questions of the "dangerous cha.racter of Fusarex" but we will discuss that infra in connection with Hilton-Davis' further contentions on the refused. instructions. Hilton-Davis a.lso objected, however, to court's instruction no. 27 which purported to define 'Y-egal cause" of injury instead of "proximate cause." In brief, Hilton-Davis contends that instruction no. 27 ignores the requirement of proof of proximate cause mandated by Montana law under Jackson v. William Digwall Company (1965), 145 Mont. 127, 399 P.2d 236.
The transcript reveals that the objection made by
Hilton-Davis to court's instruction no. 27 was "that the
second. paragraph is inappropriate in this case because there

is reference to more than one cause of damage or the acts or
omissions of two or more persons working concurrently. There
is no claim in this case of any concurrent action and
therefore it is strictly inappropriate and would be highly
confused within a jury and. highly prejudicial to the
defendant."

The argument now raised. in briefs as to the use of
"legal cause" instead of "proximate" cause in the instruction
was not raised before the District Court and so the objection
will not be considered by us on appeal.
Instructions

Hilton-Davis objected to court's instruction no. 21
which in effect told the jury that a manufacturer had a duty
to use rea-sonable care to give warning of dangerous
conditions of a product to those whom he should expect to use
the product or be endangered by its probable use. The
objection made t.o the instruction was that there was a
connotation of physical harm to persons in the instruction
and that the instruction was inappropriate in a property
damage case. We find no merit in that objection to court's
instruction no. 21, for the reason, as we have stated, that
strict liability also applies to damages to property.

Hilton-Davis further c0ntend.s severa.1 of its instructions were refused by the court and with the effect that its theory of defense was not presented to the jury, citing Wol.lan v. Lord (1.963), 142 Mont. 498, 504, 385 P.26. 102, 106. Hilton-Davis' brief then recites:
"Specifically, the defendant's instructions on foreseeability of risk (2) defining unreasonably dangerous (6) defining what would constitute a defect (7) and (8), limiting the scope of strict liability to products which are unreasonabl-y unsafe, not merely ineffective, (11) and defining "dangerous" (12) , a1 1 were refused. Without these
instructions, which were critical to the
defendant's case, the jury substantively was not
instructed on defendant's theories. Defendant's
right to instructions adaptable to his theories
were not qiven. This was prejudicial error."

The court labors under difficulty with respect to
whether instructional error occurred because Hilton-Davis
does not specify in its arguments on appeal the reasons for
the d-etrimental effect of the refusal of those instructions.
Plaintiffs have responded in their brief that the
Milton-Davis proposed. instructions were either inadequate,
improperly stated the law, or were covered by other
instructions. Our examination of the refused instructions,
in the light of the instructions given, shows no apparent
error.

ACCORDINGLY, the iudgment is affirmed.

2 .
*/J
i i blr .) JU*.-/LL/
Justice

S

We Concur:

Chief Justice

Justices
i4r. Chief Justice Frank I. Haswell, specially concurring.
I would affirm the judgment of the District Court based on the negligence count. I find no reason or necessity to reach and decide whether the judgment can also be affirmed on the other two counts, viz. strict liability in tort and breach of warranty.

%&&pq~,
Chief JUS! ice
Mr. Justice Frank R. Morrison, Jr., concurring.
I concur in the result. The purpose of this concurring

opinion is to comment on the "legal cause" discussion found

in the majority opinion.

Instruction No. 27 states as follows:

"A 'cause' of damage, for our purposes, is that
cause which in an actual and continuous sequence,
unbroken by any new and independent cause, produces
the damage, and without which it would not have
occurred.

"This does not mean that the law recognizes only
one cause of damage, consisting of only one factor,
one act, one element or circumstance, or the con-
duct of only one person. To the contrary, the acts
and omissions of two or more persons may work
concurrently as the cause of damage, and in such a
case, each of the participating acts or omissions
is regarded in law as the cause of the damage."

The above-quoted instruction is not a "legal cause"

instruction. The first paragraph of the instruction is a

proximate cause instruction. The second paragraph is a

concurrent ca.use instruction.

There is no reversible error in giving Instruction No.

27. However, it is not advisable to give a proximate cause
instruction where there are concurrent causes. Instruction
NO. 27 is internally inconsistent and confusing. The first
paragraph instructs the jury that the cause with which they
are concerned must have been such that, without the cause,
the damage would not have ensued. This is the old "but for"
rule.

The second paragraph of Instruction No. 27 is a standard
concurrent cause instruction which permits the finding of
causation if two causes work concurrently to produce damage.
Clearly, the instruction confuses the jury because this
paragraph of the instruction does not require a finding by
the jury that the accident would not have occurred, but for
the cause being examined.

It certainly was not reversible error to give a proxi-

mate cause instruction combined with a concurrent negligence
instruction. Unfortunately, that has been done for years in
Montana. However, it should not be done in the future.

All legal authorities now recognize that, where there
are concurrent causes, a legal cause instruction should be
given. BAJI 3.76 sets forth that instruction as follows:

"A legal cause of injury, damage, loss or harm is a
cause which is a substantial factor in bringing
about the injury, damage, loss or harm."

The note below the BAJI instruction states: "Where injury may have resulted from either of two causes operating alone, this Instruction 3.76 on legal cause should be given and -not Instruction
3.75 on proximate cause. (emphasis supplied)"

BAJI instruction 3.76 is taken from Restatement of Torts, 2d

Section 431, p. 428, wherein it is stated:

"The actor's negligent cond.uct is a legal cause of
harm to another if

"(a) his conduct is a substantial factor in bring-
ing about the harm, and

" (b) there is no rule of law relieving the actor from liability because of the manner in which his negligence has resulted in.the harm."
Prosser, Torts, 4th Ed., Section 11-, p. 240, states:
". . . It has been considered that 'substantial factor' is a phrase sufficiently intelligible to the layman to furnish an adequate guide in instruc- tions to the jury, an.d that it is neither possible nor desirable to reduce it to any lower terms. As applied to the fact of causation alone, no better test has been devised.
"Such a formula, for it can scarcely be called a
test, is clearly an improvement over the 'but for'

rule. . . ."
The substantial factor test found in the legal cause
rule is preferable and less confusing. It should be given
where there is more than one potential cause.

Here, the district court gave the old "but for" rule
combined with an instruction on concurrent cause. Such

practice should, in the future, be discouraged but does not constitute reversible error.
Mr. Justice Daniel J. Shea:
I join in the special concurring opinion of Xr. Justice 14orrison.

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