KOPISCHKE v FIRST CONTINENTAL CORP
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No. 14810 IN THE SUPREME COURT OF THE STATE OF MONTANA 1979 ROSE KOPISCHKE , Plaintiff and Respondent, VS . FIRST CONTINENTAL CORPORATION, Defendant and Appellant. Appeal from: District Court of the Eighth Judicial District, Honorable H. William Coder, Judge presiding. Counsel of Record: For Appellant: Robert Ernrnons argued, Great Falls, Montana For Respondent: Hoyt, Triewiler, Lewis and Regnier, Great Falls, Montana John Hoyt argued, Great Falls, Montana A , / '-, 1 ,4- -I , , / - - ,, .' ,' , / , ,- I Submitted: Filed: 3 - :\:,rT -6 Clerk December 13, 1979 Mr. Justice Gene B. Daly delivered the Opinion of the Court. his is an appeal from judgment after a jury verdict in the ~istrictCourt of the Eighth Judicial District, County of Cascade, in a negligence action. The complaint herein consisted of three counts. Count I11 of the complaint, a claim predicated upon strict liability of the defendant, was dismissed by defense motion prior to trial. The remaining counts were submitted to the jury on special verdict, and the jury returned a verdict involving comparative negligence. Defendant was found to be 65 percent negligent and plaintiff was found to be 35 percent negligent. Total damages were assessed by the jury at $650,000, and the court entered judgment for plaintiff in the sum of $422,500. Defendant moved for a new trial after judgment was rendered, but the motion was denied. From the final judg- ment and denial of the motion for a new trial, defendant appeals. Plaintiff cross-appeals. Defendant, a used car dealer, sold a used car to plaintiff and her husband in late December, 1976. The car in question, a 1971 Datsun station wagon, was purchased through one of defendant's salesmen after a short test drive, during which the car pulled slightly to the left. Additionally, plaintiff informed the salesman of several minor things she had noticed that were wrong with the car. Some of these were that the horn did not work, poor tires, a wire hanging out of a rear taillight assembly, and that the car pulled to the left. The sales invoice listed that a number of these corrections were to be made. The salesman also advised plaintiff that they would take the tires off another 1971 Datsun and put them on plaintiff's car. The sales invoice indicated an odometer reading of 83,615 miles and a disclaimer in fine print that read: "All used cars are sold on an as is basis with no guarantee either express or implied except as noted above." Above this disclaimer was set forth the aim of defendant: serve you courteously, completely and honestly. "To To profit, not only in money, but in the good will and friendship of our customers. To improve whenever possible and correct our errors when we learn of them. To do our best every day, in every way, to build an establishment which will be known as the finest in our field." No explanation was given to plaintiff pertaining to the "as is1'clause. The 1971 Datsun had a somewhat checkered history. The car was purchased new in 1971 by a couple who lived in San Diego, California. Inc., in 1975. They traded the car in to Melody Toyota, At the time of the trade-in, the car's odometer registered 85,106.4 miles. However, the car was described to be "in very good mechanical condition." Through an unknown series of events, the car was acquired by Swanson Sales in California and resold in California to Pierotti Motors. At the time the car was purchased from Swanson by Pierotti, the odometer had been turned back to 41,194 miles. Pierotti sold the car to a Robert Graff in July 1975. Graff owned the car until it was repossessed in 1976 by Credit Associates. Graff testified that the car was not involved in any accidents and that there was nothing wrong with the car, except for the tires being in fair condition. However, he also testified that at times he noticed vibration in the steering. A representative of Credit Associates testified that the Datsun was dirty, junky and dented, that the engine needed a tuneup, and the springs and shocks were shot. The car was put out for bids and sold to defendant. Neither plaintiff, nor defendant's salesman, knew that the car was repossessed or that the odometer reading was incorrect. Plaintiff testified that had she known the car had over 120,000 miles on it, she would not have bought it. Plaintiff took delivery of the car on December 27, 1976, had a C.B. radio installed, and drove it to Missoula a few days later. She experienced vibration in the car and a pulling to the left, but had no real trouble on this trip. She did, however, consult a mechanic about the car, and on two occasions repair work was done. This work involved a tuneup, fixing the speedometer, installing a heater, fixing the brakes, aligning the front-end, etc. On the last occa- sion, the mechanic recommended on a repair order, "Take the car back, needs lots of work, not safe on the road." Plain- tiff testified that she thought this meant she was to bring the car back for repairs and that she did not think she would be in any danger if she drove the car, except maybe she could be stranded if the car broke down. Plaintiff drove the car around Missoula until January 21, 1977, when she drove it back to Great Falls. She again experienced shaking and vibration in the car during this trip. On arrival in Great Falls, plaintiff called Dave Fender, one of defendant's salesman, about the problem and was advised that the car was merely "dieseling" and that premium gas would correct the problem. The following day, January 22, 1977, plaintiff drove to Chester for an appointment with her doctor. Her husband told her she should probably take the couple's other car, but she thought she could use her C.B. and get assistance if she had any problems. Plaintiff testified it was a good day for driving, the roads were excellent, and the car handled fine on the way to Chester and all the way back to the point of the accident. The accident occurred a few miles west of Carter on a good stretch of highway. The car suddenly started to vi- brate, and the steering wheel and motor began shaking. The car went out of control, veered into the left lane, swung back to the right, went off the road and rolled over. Plaintiff was thrown out of the car and sustained severe back injuries, which have left her paraplegic. A driver in the car following plaintiff's testified she was driving prudently and at about 50 m.p.h. just before the accident. There is no question that plaintiff was not using the safety belt in her car at the time of the accident. Raymond McHenry, a consulting engineer, was retained by plaintiff to determine the cause of the accident. McHenry examined the car, viewed the accident scene and discussed the accident with plaintiff. In addition, he removed the wheels, MacPherson struts, and carefully examined the vehicle to determine what caused it to go out of control. McHenry examined the transverse link (lower control arm) on the right front suspension and found that it was cracked extensively, bent and had four compression marks on it, indicating that the bend had been caused by a tool. He also found that there were four white sidewall tires on the car. All of the white sidewalls turned outward in the normal manner except the right front white sidewall, which was reversed with the white sidewall turned inward. On the white side of that tire there was a tread separation several inches in length, and this tire was out of balance. In addition, McHenry found that the left side motor mount was completely separated and sitting in an unusual position, the stabilizer bar was disconnected, and the left rear brake lining showed lubricant on it which had been leaking since before plaintiff purchased the car. McHenry performed various tests on a Datsun similar to plaintiff's, using bent transverse links, disconnected stabilizer bar and disconnected left rear brake to determine the effect on the car's handling. He also consulted with Dr. James Magor, a metallurgic engineer at North Carolina State University, who ran various tests on the transverse link. He concluded the transverse link had been deliber- ately bent to an angle of 30° and then straightened to an angle of 20° and, in straightening this link, cracks were formed. These cracks extended under the alternating loading conditions of plaintiff's car in a process called metal fatigue. McHenry reconstructed the cause of the accident as follows: Prior to the accident the transverse link had deliberately been bent to an angle considerably greater than lo0 and then reverse bent to an angle of approximately lo0. (Dr. Magor established with certainty that this had been done a long time prior to the acquisition of the car by plaintiff.) Through the process of metal fatigue, the transverse link had progressively weakened as the cracks propagated through the upper section and down the sides of the link. The smaller bend in the link or arm had already created a mild pull to the left, Due t o t h e p r o c e s s of m e t a l f a t i g u e , j u s t p r i o r t o t h e a c c i d e n t t h e t r a n s v e r s e l i n k b e n t more, c a u s i n g t h e wheel t o toe-in. The v i b r a t i o n which p l a i n t i f f d e s c r i b e d s e r v e d t o a c c e l e r a t e t h e f a t i g u e p r o c e s s c a u s i n g t h e c r a c k s t o propag a t e i n a n a c c e l e r a t e d manner which, superimposed upon t h e a l r e a d y weakened l i n k , a b r u p t l y i n c r e a s e d t h e a n g l e o f bend from 10' o r l e s s t o a p p r o x i m a t e l y 20°. This occurred i n a p p r o x i m a t e l y one second and r e s u l t e d i n a heavy p u l l t o t h e l e f t c a u s i n g t h e v e h i c l e t o go i n t o t h e l a n e f o r oncoming traffic. The v i b r a t i o n o r shimmy was c a u s e d by t h e unbalanced r e t r e a d tires. With t h e t r e a d s e p a r a t i o n on t h e r i g h t f r o n t and two i n c h e s o f f r e e p l a y a t t h e r i m o f t h e s t e e r i n g wheel and t h e MacPherson s t r u t s low on dampening f l u i d , t h e v i b r a t i o n occurred. I n a d d i t i o n , t h e d i s c o n n e c t e d motor mount would a l l o w t h e e n g i n e v i b r a t i o n t o r e a c h a l a r g e r a m p l i t u d e t h e r e f o r e s h a k i n g t h e e n g i n e more. McHenry com- pletely ruled out driver error. The r e a s o n t h e c a r v e e r e d t o t h e r i g h t was b e c a u s e o f s t e e r i n g i n p u t by p l a i n t i f f . With t h e r i g h t f r o n t s t a b i l i z e r b a r d i s c o n n e c t e d , t h e c a r veered f a r t h e r t o t h e r i g h t , causing it t o f a c e t h e d i r e c t i o n i t w a s t r a v e l i n g a t t h e t i m e it came t o t h e s h o u l d e r of t h e r o a d and t h e n t o r o l l o v e r . I n t e s t r u n s w i t h a s i m i l a r t e s t c a r of t h e same make, i t took 1 . 4 w i t h a 20' s e c o n d s f o r t h e t e s t c a r t r a v e l i n g 50 m.p.h. bend i n t h e t r a n s v e r s e l i n k t o go e n t i r e l y i n t o t h e opposite lane. The bend now s e e n i n t h e p l a i n t i f f ' s t r a n s v e r s e l i n k i s 20". I n a d d i t i o n t o t h e e f f o r t t o hold t h e s t e e r i n g wheel s t r a i g h t on t h e t e s t c a r a t 50 m.p.h. w i t h a 20' bend i n t h e t r a n s v e r s e l i n k , t h e s t e e r i n g wheel had to be turned 60' to the right just to hold the car in a straight line. Testimony indicated that defendant did not inspect plaintiff's car for defects after it was acquired at the repossession sale. Testimony of defendant's employees indicated that a bend in the transverse link would have 5 O been obvious if the car were placed on a hoist or if a front-end alignment check were made. (Defendant did not require safety inspections on used cars.) However, one employee testified that it was normal for every used car to receive an inspection by being lifted on a hoist where a mechanic would inspect the undercarriage for defects. Defendant's owner, John Greytak, testified that at one time there was a multi-point inspection which included an undercarriage inspection but that this was discontinued in 1974. When Greytak was questioned by plaintiff concerning whether defendant offered used cars for sale to a customer with the representation that they had been checked from end to end, he testified that they would not advertise in that manner or use those words. After much objection, an adver- tisement published by Great Falls radio station KEIN after the accident was admitted which stated: "You really can't tell a heck of a lot about a used car by kicking the front tires. So at Continental Datsun-Volvo before a used car is offered for sale, we check the compression, front end alignment, inspect the brake lining, test the brakes, check the front end and shocks, test the automatic transmission, safety test the lights, horn, turn signals and wipers. Plus they change the oil and filter, they give it a grease job and a full reconditioning. So when you kick the tires on a used car at Continental, you're kicking the tires of a darn good car, one that's been checked and corrected from end to end. Continental Datsun-Volvo." I t i s u n d i s p u t e d t h a t no s a f e t y i n s p e c t i o n was done on p l a i n t i f f ' s c a r by d e f e n d a n t . The t e s t i m o n y i n d i c a t e d t h a t d e f e n d a n t ' s manager and s a l e s m e n i n t e n d e d t h e i r c u s t o m e r s t o assume t h a t t h e y w e r e buying a r e l i a b l e c a r , o n e t h a t w a s s a f e f o r highway u s e . Over t h i r t y i s s u e s were p r e s e n t e d f o r r e v i e w on t h i s appeal. A number o f t h e s e i s s u e s w e r e c o n s o l i d a t e d by counsel i n general headings. W e w i l l therefore discuss the i s s u e s i n a c o n s o l i d a t e d form. T h e r e a r e f i v e m a j o r i s s u e s , t h e r e s o l u t i o n o f which d e t e r m i n e s t h e outcome o f t h i s a p p e a l . 1. They a r e : Did t h e D i s t r i c t C o u r t err i n i n s t r u c t i n g t h e j u r y t h a t a u s e d c a r d e a l e r h a s a l e g a l d u t y t o i n s p e c t and d i s c o v e r any d e f e c t s i n a u s e d c a r which would have been d i s c o v e r a b l e i n t h e e x e r c i s e o f o r d i n a r y c a r e and t h e n t o e i t h e r r e p a i r s u c h d e f e c t s o r a t l e a s t warn a b u y e r o f t h e i r existence? ( a ) What e f f e c t d o e s t h e " a s i s " c l a u s e have on s u c h a duty? ( b ) Did t h e D i s t r i c t C o u r t err i n r e f u s i n g t o p e r m i t t e s t i m o n y , argument, o r i n s t r u c t i o n s on t h e " a s i s " c l a u s e c o n t a i n e d i n t h e purchase agreement? 2. Did t h e D i s t r i c t C o u r t e r r i n r e f u s i n g t o p r e s e n t t o t h e j u r y t h e q u e s t i o n whether p l a i n t i f f ' s f a i l u r e t o u s e s e a t b e l t s contributed t o her injuries? 3. Did t h e D i s t r i c t C o u r t err i n r e f u s i n g t o g i v e i n s t r u c t i o n s on p l a i n t i f f ' s a l l e g e d c o n t r a c t u a l and nonc o n t r a c t u a l assumptions of r i s k ? 4. Did t h e D i s t r i c t C o u r t err i n d e n y i n g d e f e n d a n t ' s m o t i o n f o r summary judgment on p l a i n t i f f ' s Count 11, 5. Was it error to refuse to allow the reading of plaintiff's deposition? The key issue in this case is whether defendant had a legal duty to inspect and discover any defects in the used car which were obvious or discoverable upon reasonable inspection, and then to repair such defects or at least warn a buyer of their existence. Tied in closely with this issue is what effect the "as is" provision in the purchase agreement had on this duty. Defendant contends that its duty was defined by the contract--"it was to sell the car in question, nothing more." It further submits that the term "as is" has a definite meaning in the law. It implies that the buyer is taking delivery of goods in some way defective and upon express condition that he must trust to his own examination. Black's Law Dictionary (4th ed. rev. 1968) at 146; 6A C.J.S. As - at 299. - Is From this premise defendant concludes that if a vehicle is sold by a used car dealer "as is", the dealer is not liable to the buyer in negligence for injuries traceable to defects in the vehicle. Thrash v. U-Drive-It Co. (1953), 158 Ohio St. 465, 110 N.E.2d 419, 423; Pokrajac v. Wade Motors (1954), 266 Wisc. 398, 63 N.W.2d 720. Defendant argues it was error for the District Court to expressly direct the jury not to consider the "as is" provision. Defendant states that this, in effect, constitutes a rewriting of the agreement--something the ~istrict Court is not permitted to do. Section 1-4-101, MCA; ~anielsonv. Danielson (1977), 172 Mont. 55, 560 P.2d 893. Plaintiff contends that defendant was negligent as a matter of law. This contention is based on defendant's failure to inspect and on defendant's knowingly placing a damaged front tire on plaintiff's car. Plaintiff argues that a person cannot contract away liability because to do so would contravene public policy. Haynes v. County of is sou la (1973), 163 Mont. 270, 517 P.2d 370. Therefore, the "as is" provision is ineffective to protect defendant from liability for its negligent acts. Plaintiff also cites Turner v. International Harvester Company (1975), 133 N.J.Super. 277, 336 A.2d 62, for the proposition that an "as is" disclaimer in the sale of a used vehicle does not bar a negligence action. Defendant, in its reply brief, distinguishes Haynes and argues that Haynes dealt only with contracting away possible future negligence while this case, of necessity, involves past negligence. The general rule in Montana is that a used car dealer has a duty to discover and repair any defects which are patent or discoverable in the exercise of ordinary care. Rogers v. Hilger Chevrolet Company (1970), 155 Mont. 1, 465 P.2d 834. In Hilger, however, the defendant was not held liable because the evidence indicated that "[dlefendant did not warn plaintiff of any defects because it is obvious from the record defendant did not have any knowledge of a defect. ~efendant'semployees checked the automobile over and this check included the right front door. Defendant's duty does not extend to completely dismantling an automobile and then reassembling it before its resale." 838. Hilger, 465 P.2d at The evidence here shows that the defect was an obvious one and a reasonable inspection would have revealed it. In the instant case, however, defendant concedes that no inspection took place. duty to inspect. In fact, defendant contends there was no There i s a l s o t h e added f a c t o r i n t h i s c a s e o f d e f e n d a n t ' s " a c t i v e n e g l i g e n c e " i n r e p l a c i n g worn t i r e s w i t h t h r e e good t i r e s and a d e f e c t i v e one. The a c t of p l a c i n g t h e w h i t e s i d e w a l l on t h e i n s i d e w a s a p p a r e n t l y a means of p u r p o s e f u l l y h i d i n g from p l a i n t i f f a d e f e c t which i n e v i t a b l y a c c e l e r a t e d t h e breakdown of t h e t r a n s v e r s e l i n k . I n deciding Hilger t h i s Court c i t e d t h e Eighth C i r c u i t c a s e o f Egan C h e v r o l e t Co. v . Bruner ( 8 t h C i r . F.2d 373. 1 9 3 9 ) , 102 I n Egan C h e v r o l e t t h e c o u r t w a s p r e s e n t e d w i t h a s i m i l a r f a c t s i t u a t i o n i n t h a t t h e s t e e r i n g mechanism o f t h e t r u c k b r o k e down, c a u s i n g a c o l l i s i o n . The c o u r t h e l d f o r t h e p l a i n t i f f and s t a t e d : "A r e t a i l d e a l e r who t a k e s a used t r u c k i n t r a d e and u n d e r t a k e s t o r e p a i r and r e c o n d i t i o n i t f o r r e s a l e f o r u s e upon t h e p u b l i c highways owes a duty t o the public t o use reasonable care i n the making of t e s t s f o r t h e purpose of d e t e c t i n g def e c t s which would make t h e t r u c k a menace t o t h o s e who might u s e i t o r come i n c o n t a c t w i t h i t and i n making t h e r e p a i r s n e c e s s a r y t o r e n d e r t h e t r u c k r e a s o n a b l y s a f e f o r u s e upon t h e p u b l i c highways, and i s c h a r g e d w i t h knowledge o f d e f e c t s which a r e p a t e n t o r d i s c o v e r a b l e i n t h e e x e r c i s e of o r d i n a r y care. The r u l e d o e s n o t mean--as t h e a p p e l l a n t seems t o f e a r - - t h a t a d e a l e r i n used motor v e h i c l e s , who u n d e r t a k e s t o r e c o n d i t i o n a t r u c k f o r resale, becomes v i r t u a l l y an i n s u r e r of t h e s a f e t y of t h e t r u c k he s e l l s , n o r d o e s i t mean t h a t he i s r e q u i r e d t o d i s a s s e m b l e a n e n t i r e t r u c k t o examine e a c h o f i t s p a r t s . I t d o e s mean t h a t he must u s e r e a s o n a b l e c a r e t o a s c e r t a i n whether t h e t r u c k i s e q u i p p e d w i t h t h e minimum e s s e n t i a l s f o r s a f e o p e r a t i o n , o n e o f which u n q u e s t i o n a b l y i s a s t e e r i n g mechanism which w i l l work and which w i l l n o t s h o r t l y s h a k e a p a r t under normal u s e . One who p e r m i t s a t r u c k w i t h a d a n g e r o u s l y d e f e c t i v e s t e e r i n g mechanism t o be used upon t h e p u b l i c highways, n o t o n l y h a s r e a s o n t o a n t i c i p a t e t h a t it w i l l c a u s e a n a c c i d e n t , b u t may be a l m o s t c e r t a i n t h a t i t w i l l do s o . ' I n s u c h c i r c u m s t a n c e s , t h e p r e s e n c e of a known d a n g e r , a t t e n d a n t upon a known u s e , makes v i g i l a n c e a d u t y . ' 102 F.2d a t 375-76. ( C i t a t i o n s omitted.) .. . . ." I n a c c o r d w i t h t h e above a r e G a i d r y Motors v . Brannon (Ky. 1 9 5 3 ) , 268 S.W.2d 627 and Turner v . I n t e r n a t i o n a l Harvester Company (1975), 133 N.J.Super. 277, 336 A.2d at "It is common knowledge that old cars are more likely to be subject to mechanical defects than are new ones. The turnover in ownership of used cars is fairly rapid, and the majority of these cars are sold through used car dealers. The used car dealer is in a better position, by reason of his opportunity, than his average customer to discover what defects might exist in any particular car to make it a menace to the public. We are of the opinion it is not too harsh a rule to require these dealers to use reasonable care in inspecting used cars before resale to discover these defects, which the customer often cannot discover until too late." Gaidry Motors v. Brannon, 268 S.W.2d at 628-629. Further , ". . . expectations of quality and durability will be lower for used goods, commensurate with their age, appearance and price. However, safety of the general public demands that when a used motor vehicle, for example, is sold for use as a - serviceable motor vehicle (and not as junkparts), absent special circumstances, the seller be responsible for safety defects whether known or unknown at time of sale, present while the machine was under his control. Otherwise, the buyer and the general public are bearing the enterprise liability stemming from introduction of the dangerously defective used vehicle onto the public highways. Public policy demands that the buyer receive a used chattel safe for the purpose intended (where no substantial change will occur prior to reaching the buyer or forseeable consumer). Turner v. International Harvester Company, 336 A.2d at 69. (Citations omitted. ) . ." See also Ikerd v. Lapworth (7th Cir. 1970), 435 F.2d 197; Thrash v. U-Drive-It Co., supra; 60 C.J.S. Motor Vehicles Defendant cites Thrash for the proposition that use of an "as is" clause protects a used car dealer from liability for negligence for injuries traceable to defects in the vehicle. A careful reading of Thrash shows that defendant has misread the case. It in fact points the finger of liability at defendant. Thrash involved the sale of a used truck "as is" from the U-Drive-It Company to the Spot Motor Company and then a subsequent sale from Spot to Thrash. Shortly after the sale a lock ring on the left front wheel of the truck blew off, causing an accident in which the plaintiff was crushed. The plaintiff sued both car dealers. The court ruled that the U-Drive-It Company was not liable for the plaintiff's injuries because the sale to Spot Motor was an intervening factor relieving it from liability and transferring its duty to Spot. The court stated: "We conclude that where the owner of a used motor vehicle sells the same 'as is' to a dealer in those articles -- disposition - - dealer for such as the may- - - it, -owner may not ordinarily be such - make of held liable for injuries occasioned - - to one whopurchased the vehicle - - from the dealer or for injuries to another, because of faults or imperfections in the vehicle which existed or occurred during the time it was in the possession of such owner." Thrash, 110 N.E.2d at 423. The court, however, ruled in effect that Spot Motor's negligence was still at issue and stated: "Although a dealer in used motor vehicles is not an insurer of the safety of the vehicles he sells, he is generally under a duty to exercise reasonable care in making an examination thereof to discover defects therein which would make them dangerous to users or to those who might come in contact with them, and upon discovery to correct those defects or at least give warning to the purchaser . Thrash, 110 N.E.2d at 423. (Citations omitted. ) . ." It is the second ruling by the court, and not the first, which is applicable here as this case does not involve a sale between dealers but between a dealer and a consumer. Once it has been determined that a used car dealer has a duty to reasonably inspect and discover defects which are patent or discoverable in the exercise of ordinary care and then to repair those defects, Rogers v. Hilger Chevrolet Company, supra, it becomes necessary to determine what effect the "as is" clause has on such a duty. The phrase "as is" is a statutorily approved method of excluding warranties. The controlling statute is section 30-2-316 (3)(a), MCA, which provides: " (3) Notwithstanding subsection (2): "(a) unless the circumstances indicate otherwise, all implied warranties are excluded by expressions like 'as is', 'with all faults' or other language which in common understanding calls the buyer's attention to the exclusion of warranties and makes plain that there is no implied warranty;" The code comment on this section is of little help here. It states: "Paragraph (a) of subsection (3) deals with general terms such as 'as is,' bs they stand,' 'with all faults,' and the like. Such terms in ordinary commercial usage are understood to mean that the buyer takes the entire risk as to quality of the goods involved . ." U.C.C. (U.L.A.) 52-316. . The area of the code in which this section is located deals with exclusion or modification of warranties, express or implied, in sales of goods. These warranties for the most part deal with quality, merchantability, and fitness of the goods sold. There is nothing enumerated in these sections which deals with exclusion of tort liability. It would indeed be inconsistent if the disclaimer had that effect. This is especially the case in light of the legislature's passage of section 30-2-719(3), MCA, which provides: " (3) Consequential damages may be limited or excluded unless the limitation or exclusion is unconscionable. Limitation of consequential damages for injury to the person in the case of consumer goods is prima facie unconscionable but limitation of damages where the loss is commercial is not." Montana subscribes to the general rule: . . . that persons may not contract against the effect of their own negligence and that agreements which attempt to do so are invalid. However, 'I I i t i s n o t t r u e t h a t any agreement o f t h i s k i n d i s void as a g a i n s t p u b l i c p o l i c y . Whether a p e r s o n c a n r e l i e v e h i m s e l f by agreement from t h e d u t i e s a t t a c h i n g a s a matter o f law t o a l e g a l r e l a t i o n s h i p c r e a t e d by c o n t r a c t between h i m s e l f and anThe o t h e r p e r s o n , i s a m a t t e r o f some d i f f i c u l t y . c o n c l u s i o n h a s been r e a c h e d t h a t even under t h e view t h a t a p e r s o n may, under some c i r c u m s t a n c e s , c o n t r a c t a g a i n s t t h e performance of s u c h d u t i e s , h e c a n n o t do s o where e i t h e r (1) t h e i n t e r e s t o f t h e p u b l i c r e q u i r e s t h e performance o f s u c h dut i e s , o r ( 2 ) b e c a u s e t h e p a r t i e s do n o t s t a n d upon a f o o t i n g o f e q u a l i t y , t h e weaker p a r t y i s compelled t o s u b m i t t o t h e s t i p u l a t i o n .' " Haynes v . County of M i s s o u l a ( 1 9 7 3 ) , 163 Mont. 270, 517 P.2d 370, 376. One o f t h e i s s u e s p r e s e n t e d f o r r e v i e w i n Haynes w a s t h e p r o p r i e t y o f t h e D i s t r i c t C o u r t ' s p r e t r i a l o r d e r supp r e s s i n g t h e p l a i n t i f f ' s g e n e r a l r e l e a s e i n t h e Western Montana F a i r E n t r y Blank. The d e f e n d a n t s a r g u e d t h e r e l e a s e was a v a l i d and e n f o r c e a b l e c o n t r a c t a b s o l v i n g t h e d e f e n d a n t s from l i a b i l i t y . The release p r o v i d e d : " I hereby r e l e a s e t h e M i s s o u l a County F a i r Board from any l i a b i l i t y by l o s s , damage o r i n j u r y t o l i v e s t o c k o r o t h e r p r o p e r t y , w h i l e s a i d p r o p e r t y i s on t h e F a i r g r o u n d s . " 517 P.2d a t 376. This Court held t h e D i s t r i c t Court w a s c o r r e c t i n suppressing t h e release stating, ". . . [ i ] n o u r view t h e r e l e a s e i s i l l e g a l and u n e n f o r c e a b l e b e c a u s e it i s c o n t r a r y t o t h e p u b l i c p o l i c y of t h i s s t a t e and a g a i n s t t h e p u b l i c i n t e r e s t . " W e f u r t h e r s t a t e d i n Haynes: " D i r e c t i n g o u r a t t e n t i o n t o Montana l a w , w e n o t e a n e x p r e s s p u b l i c p o l i c y of t h i s s t a t e t o f i x res p o n s i b i l i t y f o r damage t o p e r s o n o r p r o p e r t y upon t h o s e who f a i l t o e x e r c i s e o r d i n a r y c a r e o r skill. S e c t i o n 58-607, R.C.M. 1947 [now s e c t i o n 27-1-701, M A , p r o v i d e s : C ] " ' E v e r y one i s r e s p o n s i b l e , n o t o n l y f o r t h e res u l t of h i s w i l l f u l a c t s , b u t a l s o f o r a n i n j u r y o c c a s i o n e d t o a n o t h e r by h i s want of o r d i n a r y care o r s k i l l i n t h e management of h i s p r o p e r t y o r person, except s o f a r as t h e l a t t e r has, w i l l f u l l y o r by want o f o r d i n a r y c a r e , b r o u g h t t h e 517 i n j u r y upon h i m s e l f . The e x t e n t o f l i a b i l i t y i n s u c h c a s e s i s d e f i n e d by t h e t i t l e on compensatory relief.' "The p u r p o s e o f t h i s s t a t u t e i s t w o f o l d : (1) To f i x p r i m a r y r e s p o n s i b i l i t y and l i a b i l i t y on t h e t o r t f e a s o r whose c o n d u c t o c c a s i o n e d t h e l o s s o r i n j u r y , and ( 2 ) t o make t h e v i c t i m whole. " S e c t i o n 13-6801 ( 2 ) , R.C.M. 1947 [now s e c t i o n 28-2-701, MCA], d e f i n e s i l l e g a l c o n t r a c t s a s those: " ' C o n t r a r y t o t h e p o l i c y of e x p r e s s law, though not expressly prohibited.' " S e c t i o n 49-105, R.C.M. 1947 [now s e c t i o n 1-3204, MCA], p r o v i d e s : 'Any one may waive t h e adv a n t a g e of a l a w i n t e n d e d s o l e l y f o r h i s benef i t . But a law e s t a b l i s h e d f o r a p u b l i c r e a s o n c a n n o t be c o n t r a v e n e d by a p r i v a t e a g r e e m e n t . ' "We h o l d t h e County i s p r e c l u d e d from d i s c l a i m i n g l i a b i l i t y by v i r t u e o f t h e r e l e a s e when performi n g an a c t i n t h e p u b l i c i n t e r e s t . This p r i n c i p l e i s r e c o g n i z e d i n R e s t a t e m e n t , C o n t r a c t s , § 575, providing i n p e r t i n e n t p a r t : " ' ( 1 ) A b a r g a i n f o r exemption from l i a b i l i t y f o r t h e consequences * * * of n e g l i g e n c e i s i l l e g a l i f " ' ( b ) one of t h e p a r t i e s i s c h a r g e d w i t h a d u t y o f p u b l i c s e r v i c e , and t h e b a r g a i n r e l a t e s t o n e g l i g e n c e i n t h e performance of any p a r t of i t s d u t y t o t h e p u b l i c , f o r which i t h a s r e c e i v e d o r been promised c o m p e n s a t i o n . ' " Haynes, 517 P.2d a t 376-78. While Haynes d e a l t w i t h a r e l e a s e of l i a b i l i t y f o r f u t u r e n e g l i g e n c e , t h e r e i s no r e a s o n t h e r u l e s enumerated i n Haynes s h o u l d n o t a p p l y h e r e . t o reasonably i n s p e c t f o r defects. Defendant w a s under a d u t y I t f a i l e d t o do s o . To a l l o w i t t o d i s c l a i m l i a b i l i t y by a s i m p l e " a s i s " p h r a s e would be a v i o l a t i o n o f t h e p u b l i c p o l i c y espoused i n Haynes. Montana h a s n e v e r d e t e r m i n e d what e f f e c t t h e " a s i s " p h r a s e h a s on t o r t l i a b i l i t y . O t h e r j u r i s d i c t i o n s have i n t e r p r e t e d t h e phrase, with varying r e s u l t s . Defendant urges this Court to follow the holding in Pokrajac v. Wade Motors, supra. The court in Pokrajac held that the seller was not liable for defects due to the existence of a disclaimer clause. The disclaimer in Pokrajac, however, is different from the one used in the instant case. It provided: " ' * * * In case the car covered by this order is a used car, the undersigned purchaser states that he has examined it, is familiar with its condition, is buying it as a used car, as-is, and with no guaranty as to condition, model or mileage, unless otherwise specified herein in writing. No oral representations have been made to the Purchaser and all terms of the agreement are printed or written herein * * * ' " 63 N.W.2d at 721. The court specifically found no duty to inspect or repair because of the "as-is" clause. Further, it could find no reason in public policy to prevent such a disclaimer. Pokrajac, however, is distinguishable because of the extensive disclaimer provision, including a statement by the buyer that he inspected the car--a factor not present here. Further, in Montana, unlike Wisconsin, there is a duty to inspect independent of the "as is" clause. Hilger, 465 P.2d Knipp v. Weinbaum (Fla.App. 1977), 351 So.2d 1081, held that the effect of an "as is" disclaimer on tort liability depended on the interpretation the parties gave to the disclaimer and was thus a question for the jury to decide. In reaching its decision, the court stated: "The plaintiff in this case alleged that his injuries resulted from a defect in the goods sold. To foreclose consideration of his claim by permitting an 'as is' disclaimer to operate as an automatic absolution from responsibility through the mechanism of summary judgment would belie the policy behind Section 672.2-719(3), which states that 'limitation of consequential damages for injury to the person in the case of consumer goods is prima facie unconscionable. "Moreover, Section 672.2-316(3) provides: " ' (a) Unless the circumstances indicate otherwise, all implied warrantites are excluded by expressions like 'as is', 'with all faults' or other language which in common understanding calls the buyer's attention to the exclusion of warranties and makes plain that there '[Emphasis supplied.] is no implied warranty . .. "It is the clause 'unless the circumstances indicate otherwise' which precludes a finding that automatic absolution can be achieved in the sale of used consumer goods merely by the inclusion in a bill of sale of the magic words 'as is.' "This is not to say that a seller of used goods may not absolve himself from responsibility for defects in the goods sold when both he and the buyer understand this to be the intended meaning of the phrase 'as is.' See Comment 3 to Section 672.2-719. The Uniform Commercial Code contemplates that a seller may disclaim warranties as long as the buyer reasonably understands this is being done . . But a disclaimer, to be effective, must be a part of the basis of the bargain between the parties." 351 So.2d at 1084-85. (Citations omitted. ) . The court further stated: "Even if the 'as is' term were to be found to negate liability under the causes of action in warranty, an issue by no means settled, the absence of warranties in the sale of chattel does not necessarily preclude liability for negligence . On the contrary, in the instant situation, the 'as is' disclaimer serves to add another dimension to the negligence claim, for its effect on the evidence presented may be substantial, especially on the question of whether or to what degree the defendant owed a duty to the plaintiff. The understanding of the parties as to the extent of the disclaimer is particularly relevant to a jury's determination of what was reasonable under the circumstances . There remain disputed facts as to the degree of care exercised by defendants and the degree of care required of them. Summary judgment on the negligence count is singularly inapt on the facts before us." 351 So.2d at 1085-86. .. .. Turner v. International Harvester Company, supra, involved the "as is" sale of an International tractor-truck. The court applied a strict liability standard to the seller of defective used products. The court held that when selling to the ordinary consumer a simple "as is" disclaimer does not effectively insulate the dealer from a claim of strict liability in tort following an accident which resulted from a safety defect present in the vehicle when it was in the control of the dealer. It stated: .. ". Bargaining power and ability to protect one's interests are generally disproportionate as between the buyer of used goods and one in the business of selling them. While freedom to contract need not be impaired if a buyer wishes to contract away his right to protection, an unequivocal waiver of safety defects must be shown. Otherwise, when the additional indirect costs will be borne by the public through insurance costs, a decent regard for the public safety requires the thumb of the State to be on the buyer's side of the scale . 336 A.2d at 70-71. (Citations omitted.) .. . ." The court ultimately held that the issue of the effect of the "as is" clause was a jury question: "The 'as is' notation, however, adds an additional element to the negligence aspects of this case . But, does a disclaimer of statutory warranties also act as a waiver of both tort claims in strict liability and negligence? Without any language of waiver, and without any evidence before this court that the 'as is' language was meant to serve as an intentional relinquishment of a known right, such effect will not be implied . . . . . "This determination, however, does not fully answer the question of the effect of the 'as is' statement, for it will have a very real evidentiary effect at the trial. What conditions did the 'as is' designation disclaim? A jury must eventually determine what was reasonable with respect to any proven danger present in a product sold 'as is.' Did the parties understand that the 'as is' designation applied only to body damage, gas mileage, worn tires or other such problems that could be discerned by a reasonable inspection or test drive? Was it limited to performance rather than safety defects? Was the designation intended to cover all defects?" 336 A.2d at 72-73. (Citations omitted.) In Fleming v. Stoddard Wendle Motor Co. (1967), 70 Wash.2d 465, 423 P.2d 926, a former owner of a pickup had modified its automatic transmission so that the motor would start even though the transmission was "in gear." When the former owner traded in the pickup, he did not disclose the modification to the automobile dealer. The court held the former owner subject to liability for the plaintiff's injuries, even though the trade-in was made "as is." The facts of Fleming are easily distinguishable here. However, the court's discussion of the "as is" disclaimer is relevant: . ". . . in certain circumstances . . parties may bargain for exemption from liability for the consequences of negligence . However, in order to effectuate such a result, a provision for such an exemption must clearly express an intention to exclude liability for any and all harms however caused . . .. . "The significance of an 'as is' sale is that the goods are sold in the condition in which they are . . Such a sale, unless otherwise provided in the contract, excludes and negatives warranties . . In other words, the term 'as is' by itself amounts solely to a disclaimer of warranty . . "The absence of warranties in the sale of chattels does not preclude liability for negligence . 423 P.2d at 928. . ." In its discussion the court specifically distinguished Pokrajac and the "as is" holding in Thrash on much the same grounds as stated above. In Kothe v. Tysdale (1951), 233 Minn. 163, 46 N.W.2d 233, the defendant asserted that his status was that of a seller of secondhand goods "as is" and that no liability attached to him as a vendor because of any defects therein. The court disagreed and stated: "The authorities seem to clearly establish that either a vendor in a sale or a lessor in a lease of a vehicle intended to be used upon the public highways owes a d u t y t o t h e p u b l i c u s i n g such highways t o e x e r c i s e r e a s o n a b l e c a r e i n s u p p l y i n g t h e purchaser o r t h e l e s s e e with a vehicle t h a t w i l l n o t c o n s t i t u t e a menace o r s o u r c e o f d a n g e r t h e r e o n ; t h a t l i a b i l i t y a t t a c h e s t o s u c h vendor o r l e s s o r f o r i n j u r i e s which are t h e r e s u l t of p a t e n t d e f e c t s i n t h e v e h i c l e thus provided, o r i f d e f e c t s t h e r e i n which c o u l d have been d i s c o v e r e d by t h e e x e r c i s e of o r d i n a r y c a r e ; and t h a t such l i a b i l i t y e x i s t s i r r e s p e c t i v e o f any c o n t r a c t u a l o b l i g a t i o n s between t h e p a r t i e s t o 46 N.W.2d a t the original transaction 236. ( C i t a t i o n s omitted. ) . . ." I t i s c l e a r t h a t i n Montana a used car d e a l e r h a s a d u t y t o d i s c o v e r and r e p a i r any d e f e c t s which are p a t e n t o r d i s c o v e r a b l e i n t h e e x e r c i s e of o r d i n a r y c a r e . supra. Hilger, I t i s e q u a l l y clear t h a t it i s a g a i n s t t h e p u b l i c p o l i c y of t h i s S t a t e t o d i s c l a i m l i a b i l i t y when p e r f o r m i n g an a c t i n t h e p u b l i c i n t e r e s t . I t c a n n o t be d e n i e d t h a t i n s p e c t i n g used c a r s t o i n s u r e t h e i r s a f e o p e r a t i o n i s an a c t i n the public i n t e r e s t . I n l i g h t o f t h e above-enumerated p u b l i c p o l i c i e s , we f i n d t h e b e t t e r r u l e t o be t h a t t h e " a s i s " language d o e s n o t a b s o l v e used car d e a l e r s from t o r t l i a b i l i t y f o r a c c i d e n t s c a u s e d by d e f e c t s i n t h e c a r s o l d . This i s e s p e c i a l l y t r u e i n c a s e s where, a s h e r e , t h e r e was a b r e a c h of a d u t y t o d i s c o v e r and r e p a i r t h e d e f e c t s . " T o r t l i a b i l i t y i s n o t based upon r e p r e s e n t a tions o r warranties. I t i s based on a d u t y imposed by t h e law upon one who may f o r e s e e t h a t h i s a c t i o n s o r f a i l u r e t o a c t may r e s u l t i n a n i n j u r y t o o t h e r s . " Gaidry Motors, s u p r a , 268 S.W.2d a t 629. Here d e f e n d a n t f a i l e d t o i n s p e c t t h e car f o r d e f e c t s b e f o r e t h e sale t o p l a i n t i f f . The d e f e c t would have been discovered i n a reasonable s a f e t y inspection. The d e f e c t was t h e p r o x i m a t e c a u s e o f p l a i n t i f f ' s a c c i d e n t and subsequent i n j u r i e s . Defendant s h o u l d n o t be a l l o w e d t o h i d e behind t h e c l o a k of a s i m p l e " a s i s " d i s c l a i m e r . When t h e o r d i n a r y p e r s o n p u r c h a s e s a c a r " a s i s , " he e x p e c t s t o have t o perform c e r t a i n r e p a i r s t o keep t h e c a r i n good c o n d i tion. H e does n o t e x p e c t t o p u r c h a s e a d e a t h t r a p . Public p o l i c y r e q u i r e s a used c a r d e a l e r t o i n s p e c t t h e c a r s he s e l l s and t o make s u r e t h e y a r e i n s a f e , working c o n d i t i o n . T h i s d u t y c a n n o t be waived by t h e u s e of a magic t a l i s m a n i n t h e form of an " a s i s " p r o v i s i o n . The t r i a l c o u r t d i d n o t err i n i n s t r u c t i n g t h e j u r y o f d e f e n d a n t ' s d u t y t o i n s p e c t and i n s u p p r e s s i n g e v i d e n c e on t h e " a s i s " c l a u s e . The second i s s u e i s whether t h e t r i a l c o u r t e r r e d i n r e f u s i n g t o i n s t r u c t on t h e d e f e n s e of p l a i n t i f f ' s f a i l u r e t o use a seat b e l t . The Montana s t a t u t e s r e g a r d i n g s e a t b e l t s are s e c t i o n s 61-9-409 and -410, MCA. S e c t i o n 61-4-409 provides: " S e a t b e l t s r e q u i r e d i n new v e h i c l e s . I t i s unl a w f u l f o r any p e r s o n t o buy, s e l l , lease, t r a d e o r t r a n s f e r from o r t o Montana r e s i d e n t s a t ret a i l a n a u t o m o b i l e which i s manufactured o r assembled commencing w i t h t h e 1966 models u n l e s s s u c h v e h i c l e i s equipped w i t h s a f e t y b e l t s i n s t a l l e d f o r u s e i n t h e l e f t f r o n t and r i g h t f r o n t s e a t s t h e r e o f , and no such v e h i c l e s h a l l be o p e r a t e d i n t h i s s t a t e u n l e s s s u c h b e l t s remain i n s t a l l e d . " S e c t i o n 61-9-4H d e a l s with s e a t b e l t specifications. T h e r e i s no s t a t u t o r y r e q u i r e m e n t i n Montana t h a t a p e r s o n must wear a s e a t b e l t w h i l e o p e r a t i n g o r r i d i n g i n a n a u t o m o b i l e , n o r a r e t h e r e any Montana c a s e s on t h e s u b j e c t . The s e a t b e l t d e f e n s e h a s , however, been r a i s e d r e p e a t e d l y i n o t h e r j u r i s d i c t i o n s with varying r e s u l t s . P l a i n t i f f c o n t e n d s t h a t t h e overwhelming m a j o r i t y o f j u r i s d i c t i o n s a r e i n a c c o r d t h a t t h e r e i s no common law d u t y t o wear a seat b e l t , and a b s e n t a s t a t u t e r e q u i r i n g t h e w e a r i n g of a seat b e l t , n e g l i g e n c e c a n n o t be p r e d i c a t e d upon failure to do so. She then lists numerous cases in juris- dictions rejecting the defense. Defendant, on the other hand, contends that when a state has a comparative negligence rule, use of seat belts to mitigate the injury is always a proper question. It cites a few cases to support its viewpoint, and in its reply brief attempts to distinguish most of the cases plaintiff cites on the ground that they were decided in noncomparative negligence jurisdictions. The overwhelming majority of the cases, be they from contributory negligence states or comparative negligence states, refuse to penalize a plaintiff for not using seat belts and have rejected the defense. 89 Wash.2d 124, 570 P.2d 138. Co. (1967), 99 N.J.Super. Amend v. Bell (1977), See also: Barry v. Coca Cola 270, 239 A.2d 273; Birdsong v. ITT Continental Baking Company (1974), 160 Ind. 411, 312 N.E.2d 104; Britton v. Doehring (1970), 286 Ala. 498, 242 So.2d 666; Brown v. Case (1974), 31 Conn.Sup. 207, 327 A.2d 267; Brown v. Kendrick (Fla.App. 1966), 192 So.2d 49; Cierpisz v. Singleton (1967), 247 Md. 215, 230 A.2d 629; D.W. Boutwell Butane Company v. Smith (Miss. 1971), 244 So.2d 11; Fields v. Volkswagen of America, Inc. (Okl. 1976), 555 P.2d 48; King Son Wong v. Carnation Company (Tex.Civ.App. 1974), 509 S.W.2d 385; Lawrence v. Westchester Fire Insurance Company r . (La. 1968), 213 So.2d 784; Lipscomb v. Diamiani (Dela. ' I 1967), 226 A.2d 914; McCord v. Green (D.C. 1976), 362 A.2d 720; Miller v. Haynes (Mo. 1970), 454 S.W.2d 293; Miller v. Miller (1968), 273 N.C. 228, 160 S.E.2d 65; Fischer v. Moore (1973), 183 Colo. 392, 517 P.2d 458; Nash v. Kamrath (1974), 21 Ariz-App. 530, 521 P.2d 161; Placek v. City of Sterling Heights (1974), 52 Mich.App. 619, 217 N.W.2d 900; Robinson v. Lewis (1969), 254 Or. 52, 457 P.2d 483; Selgado v. Commercial Warehouse Company (1975), 88 N.M. 579, 544 P.2d 719; Stallcup v. Taylor (1970), 62 Tenn.App. 407, 463 S.W.2d 416. In Amend, supra, the defendants argued that under the doctrine of comparative negligence, evidence was admissible to prove that plaintiff's wife was not wearing an available harness seat belt. They further alleged that such failure either caused all her injuries, contributed to, enhanced or aggravated those injuries. Before the passage of comparative negligence statutes, Washington held that failure to wear a seat belt was not contributory negligence. In Amend the defendants contended, as does defendant here, that the comparative negligence statute abrogated prior case law on the seat belt defense and therefore evidence on the defense was admissible. The court disagreed and stated: . ". . While the result of contributory negligence and comparative negligence is much different, both are premised upon negligence. In the one case we bar recovery, in the other we compare negligence and potentially reduce damages. However, in either case, we look to the negligence of the plaintiff. "The premise upon which negligence rests is that an actor has a legally imposed duty, i.e., a standard of conduct to which he must adhere. That duty may spring from a legislative enactment of the standard of conduct or from a judicially imposed standard. Deviation from that standard of conduct must occur to have negligence. [Citation omitted.] "Our legislature has not mandated the use of seat belts as a standard of conduct. RCW 46.37.510 only requires installation of front seat belts on automobiles manufactured after 1964 [similar to Montana]. We have held, along with the vast majority of other states, that such a statute does not make mandatory the use of the seat belts. [Citation omitted.1 "The question then is whether the court should impose a standard of conduct upon all persons riding in vehicles equipped with seat belts. We think we should not. "The defendant should not diminish the consequences of his negligence by the failure of the plaintiff to anticipate the defendant's negligence in causing the accident itself. Only if plaintiff should have so anticipated the accident can it be said that plaintiff had a duty to fasten the seat belt prior to the accident. "There are a number of reasons why we reach this conclusion. We have noted that the plaintiff need not predict the negligence of the defendant. Second, seat belts are not required in all vehicles. Defendant should not be entitled to take advantage of the fortuitous circumstance that plaintiff was riding in a car so equipped. "Third, while not controlling as to the standard of conduct, it is a fact and persuasive that the majority of motorists do not habitually use their seat belts. Studies show that as many as twothirds of observed drivers did not use seat belts. 'Belt Use '76,' Insurance Institute for Highway Safety, 1976. Belt use by passengers and children is even lower, one research paper revealing that 93 percent of observed children under 10 were not restrained by belts and 89 percent of passengers 10 years or older were not using available belts. Alan F. Williams, 'Observed Child Restraint Use in Automobiles,' The American Journal of Diseases of Children, vol. 130, December 1976. "Fourth, allowing the seat belt defense would lead to a veritable battle of experts as to what injuries would have or have not been avoided had the plaintiff been wearing a belt. At best it would cause substantial speculation by the trier of the facts." Amend v. Bell, supra, 570 P.2d at 143. In Fischer v. Moore, supra, the court stated: "We conclude, as the Court of Appeals has, that the failure of the driver or passenger in a motor vehicle to use a seat belt does not constitute contributory negligence and may not be pleaded as a bar to recovery of damages in an action against a tort-feasor whose negligence provides the initiating force and is a proximate cause of an injury to a driver or passenger. [Citation omitted.] If we were to hold otherwise, the person who was driving a Volkswagen, and not a Mack Truck, could be said to be more vulnerable to injury and, therefore, guilty of contributing to his own injury as a matter of law. Such a result would be contrary to the entire 'fault' philosophy which is found throughout the law of tort. "Moreover, t o u s , i t would be improper f o r a n i n j u r e d d r i v e r o r p a s s e n g e r t o be p e n a l i z e d i n t h e e y e s o f t h e j u r y by p e r m i t t i n g e v i d e n c e t o be p r e s e n t e d t h a t a s e a t b e l t w a s a v a i l a b l e which had n o t been p u t i n u s e . The s e a t b e l t d e f e n s e would soon become a f o r t u i t o u s w i n d f a l l t o t o r t - f e a s o r s and would t e n d t o c a u s e rampant s p e c u l a t i o n as t o t h e r e d u c t i o n ( o r i n c r e a s e ) i n t h e amount o f r e c o v e r a b l e damages a t t r i b u t a b l e [Cit o t h e f a i l u r e t o use a v a i l a b l e seat b e l t s . t a t i o n s omitted.] I n comparing t h e c a s e s which w e have c i t e d , i t i s a p p a r e n t t h a t t h e accept a n c e o f t h e s e a t b e l t d e f e n s e c a n o n l y be j u s t i f i e d a s a d e v i a t i o n from common-law n e g l i g e n c e on a p u b l i c p o l i c y t h e o r y . [Citation omitted.] The l e g i s l a t u r e , and n o t t h e j u d i c i a r y , s e r v e s a s t h e barometer o f p u b l i c p o l i c y i n Colorado. P r i o r t o t h e a d o p t i o n of o u r c o m p a r a t i v e n e g l i gence s t a t u t e , t h e l e g i s l a t u r e d i d n o t e n a c t , although it considered, s e a t b e l t l e g i s l a t i o n . T h e r e f o r e , we a r e n o t i n c l i n e d t o a l t e r t h e common law i n t h e f a c e of t h e l e g i s l a t u r e ' s f a i l u r e t o a c t i n order t o c r e a t e a negligence defense which i s wholly grounded on p u b l i c p o l i c y considerations. " I n s h o r t , t h e s e a t b e l t d e f e n s e , under t h e law t h a t e x i s t e d p r i o r t o t h e a d o p t i o n o f o u r comp a r a t i v e negligence s t a t u t e , i s n o t an affirmat i v e d e f e n s e t o a n a c t i o n f o r n e g l i g e n c e , and evidence t h a t t h e i n j u r e d p a r t y f a i l e d t o w e a r a s e a t b e l t may n o t be b r o u g h t b e f o r e t h e j u r y i n any form t o e s t a b l i s h c o n t r i b u t o r y n e g l i g e n c e o r t o r e d u c e t h e amount of t h e i n j u r e d p a r t y ' s damages." 517 P.2d a t 459-60. O t h e r c a s e s which l e a v e such a d e c i s i o n up t o t h e l e g i s l a t u r e o r r e f u s e t o e n f o r c e a s e a t b e l t d e f e n s e on t h e b a s i s of s t a t u t e s s i m i l a r t o Montana's a r e : Doehring, s u p r a , 242 So.2d a t 675; D. W. B r i t t o n v. Boutwell Butane Company v . Smith, s u p r a , 244 So.2d a t 1 2 ; Miller v . Haynes, s u p r a , 454 S.W.2d a t 301; M i l l e r v . Miller, s u p r a , 160 S.E.2d a t 73; F i e l d s v. Volkswagen of America, I n c . , 555 P.2d a t 62. supra, Two of t h e above c a s e s g i v e comprehensive d i s c u s s i o n s c o n c e r n i n g t h e u s e and p r a c t i c a l i t y of s e a t belts. Both r e j e c t t h e s e a t b e l t d e f e n s e and c i t e numerous c a s e s i n s u p p o r t of t h i s r e j e c t i o n . Based on a l e n g t h y d i s c u s s i o n and a r e v i e w of t h e c a s e law, t h e c o u r t i n M i l l e r v. M i l l e r , s u p r a , s t a t e d : " I t would b e a h a r s h and unsound r u l e which would deny a l l r e c o v e r y t o t h e p l a i n t i f f , whose mere f a i l u r e t o b u c k l e h i s b e l t i n no way c o n t r i b u t e d t o t h e a c c i d e n t , and exonerate t h e a c t i v e t o r t f e a s o r b u t f o r whose n e g l i g e n c e t h e p l a i n t i f f ' s o m i s s i o n would have been h a r m l e s s . [ C i t a t i o n omitted.] Furthermore, i t i s doubtful t h a t such a r u l e would i n c r e a s e t h e u s e o f s e a t b e l t s . In t h e case comment o n Brown v . K e n d r i c k , s u p r a , 39 Colo.L.Rev. 605, 608, it i s s a i d , ' [ I l m p o s i n g an a f f i r m a t i v e l e g a l duty of wearing s e a t b e l t s w i l l have v i r t u a l l y no e f f e c t on t h e a c t u a l s e a t - b e l t w e a r i n g h a b i t s of a u t o m o b i l e o c c u p a n t s . I t s o n l y e f f e c t would b e t o g i v e a n a d m i t t e d wrongdoer a c h a n c e t o dodge a s u b s t a n t i a l p o r t i o n of h i s l i a b i l i t y . ' I t could never, of course, d e f e a t a p l a i n t i f f ' s c l a i m f o r p r o p e r t y damage. " N e e d l e s s t o s a y , t h e s e a t - b e l t d e f e n s e , which would b a r a n o t h e r w i s e w h o l l y i n n o c e n t v i c t i m , would n o t b e p o p u l a r w i t h t h e j u r y o r t r i e r o f facts. [Citations omitted.] "Due c a r e i s measured by t h e c u s t o m a r y c o n d u c t o f t h e r e a s o n a b l y p r u d e n t man. The s c a n t u s e which t h e a v e r a g e m o t o r i s t makes o f h i s s e a t b e l t , p l u s t h e f a c t t h a t t h e r e i s no s t a n d a r d f o r d e c i d i n g when i t i s n e g l i g e n c e n o t t o u s e a n available seat belt, indicates that the court s h o u l d n o t impose a d u t y upon m o t o r i s t s t o u s e them r o u t i n e l y whenever he t r a v e l s upon t h e highway. I f t h i s i s t o be done, it should be done by t h e l e g i s l a t u r e . [ C i t a t i o n o m i t t e d . ] " 160 S.E.2d a t 73. I n McCord v. Green, s u p r a , t h e c o u r t c i t e d M i l l e r e x t e n s i v e l y and c o n c l u d e d : "'Unfortunately, t h e use of occupant r e s t r a i n t s h a s t r a d i t i o n a l l y been low i n t h i s c o u n t r y . Even now, t h e a v e r a g e u s e r a t e f o r cars o f a l l model y e a r s i s a b o u t 5 p e r c e n t f o r l a p and s h o u l d e r b e l t s a n d 25 p e r c e n t f o r l a p b e l t s a l o n e . ' "To c h a r a c t e r i z e p l a i n t i f f ' s b e h a v i o r i n t h i s case a s l a c k i n g i n o r d i n a r y p r u d e n c e would b e p a r a d o x i c a l , a s i t d i d n o t d i f f e r from t h a t o f 75% o f t h e motorists i n t h i s country with respect t o the use of s e a t belts." 362 A.2d a t 725. ( C i t a t i o n o m i t ted.) See a l s o , Romankewiz v . B l a c k ( 1 9 6 9 ) , 16 Mich.App. 1 1 9 , 167 N.W.2d 606, 609, and N a s h v . Kamrath, s u p r a , 521 P.2d a t 163-64. A l t h o u g h t h e s t u d y q u o t e d i n McCord v . Green, s u p r a , was c o n d u c t e d o v e r a d e c a d e a g o , i t i s a p p a r e n t l y s t i l l a p p l i c a b l e today. W i t n e s s t h i s d i s c u s s i o n from F i e l d s v . Volkswagen o f America, I n c . , supra: "This is a question of first impression in this court. There is no common law or statutory duty requiring the use of seat belts. Imposition of new and recent technological advances are not usually inducted into doctrines of law, until such time as they have been sufficiently tried, proven and accepted for the purpose they were intended. Historically, the seat belt phenomenon is in its infancy. It is in a state of influx. "Both industry and government are now aware that while seat belts are beneficial, their use and acceptance cannot be arbitrarily thrust upon the traveling public. Consequentially, on October 28, 1974, the controversial mandatory seat belt interlock system was withdrawn and industry has intensified its research to determine other possible alternatives. "If the appellants in this case are guilty of the acts of negligence as alleged, which caused the accident and resulting injuries, then they should be held accountable as constitutionally and statutorily required. If the allegations of negligence are true, appellee did nothing to cause the accident. Should he be required to anticipate the negligence of the appellants? We think not. One's duty to mitigate damages cannot arise before he is damaged. The failure to minimize must occur after the injury. At most the failure of the appellee to use the seat belt merely furnished a condition by which the injury was possible. It did not contribute to or cause the accident. It is well established in our court that if the negligence merely furnishes a condition by which the injury was possible, and a subsequent act caused the injury, the existence of such a condition is not the proximate cause of the injury. "Although there is a conflict in other jurisdictions who have been confronted with this issue, the majority of the cases hold that the failure to use seat belts is not a defense to establish contributory negligence or to reduce the amount of damages to the injured party. "In view of the lack of unanimity on a proper seat belt system, the lack of public acceptance, and in the absence of any common law or statutory duty, we find that evidence of the failure to use seat belts is not admissible to establish a defense of contributory negligence or to be considered in mitigation of damages. For the present time we await the direction of the legislature." 555 P.2d at 61-62. On the other side of the coin is Bentzler v. Braun (1967), 34 Wisc.2d 362, 149 N.W.2d 626. The court in Bentzler stated: "While we agree with those courts that have concluded that it is not negligence per- to fail - se to use seat belts where the only statutory standard is one that requires the installation of the seat belts in the vehicle, we nevertheless conclude that there is a duty, based on the common law standard of ordinary care, to use available seat belts independent of any statutory mandate. "We therefore conclude that, in those cases where seat belts are available and there is evidence before the jury indicating causal relationship between the injuries sustained and the failure to use seat belts, it is proper and necessary to instruct the jury in that regard. A jury in such case could conclude that an occupant of an automobile is negligent in failing to use seat belts. 149 N.W.2d at 639, 640. . ." However, the court held that the trial judge had properly refused - requested instruction a on the seat belt defense: "There was proof that seat belts were available and were not used, but that fact alone does not prove causation, for the driver of the vehicle also failed to use the available seat belts, but his injuries were minimal." 149 N.W.2d at 640. See also Sams v. Sams (1966), 247 S.C. 471, 148 S.E.2d 154. Illustrative of the cases which state that upon one or both of these aspects, the defense must be submitted to the jury are: Dudanas v. Plate (1976), 44 Ill.App.3d 901, 3 I11.Dec. 486, 358 N.E.2d 1171; Spier v. Barker (1974), 35 In light of the history and the numerous legislative problems that must be considered to effectively extend the seat belt rule of law, we have concluded that the wellreasoned position of the Washington court in Amend v. Bell, supra, produces the better rule and reach the conclusion t h a t t o a d o p t a s e a t b e l t d e f e n s e when t h e l e g i s l a t u r e h a s f a i l e d t o do s o would b e i l l - a d v i s e d . The t r i a l c o u r t properly refused t o allow defendant t o introduce a s e a t b e l t defense i n t o t h i s case. The t h i r d i s s u e i s w h e t h e r t h e t r i a l c o u r t e r r e d i n r e f u s i n g t o p r e s e n t t o t h e jury t h e q u e s t i o n of assumption o f r i s k , b o t h c o n t r a c t u a l and n o n c o n t r a c t u a l . Defendant contends t h a t t h e t r i a l c o u r t mistakenly a c t e d on t h e a s s u m p t i o n t h a t t h e c o m p a r a t i v e n e g l i g e n c e s t a t u t e merged t h e d e f e n s e and e r r e d i n r e f u s i n g t o i n s t r u c t s e p a r a t e l y on t h e i s s u e of t h e defense. P l a i n t i f f i n i t i a l l y contends t h a t "assumption of r i s k " i s n o t involved h e r e because t h e t r a d i t i o n a l elements of a s s u m p t i o n o f r i s k are n o t i n v o l v e d . Plaintiff further a s s e r t s t h a t e v e n i f t h e d o c t r i n e a p p l i e s h e r e , i t i s no l o n g e r a s e p a r a t e a f f i r m a t i v e d e f e n s e b u t m e r e l y o n e form o f c o n t r i b u t o r y f a u l t t o b e compared, which t h e j u r y d i d . W e a g r e e w i t h p l a i n t i f f t h a t t h e d o c t r i n e of assumption of r i s k does n o t apply i n t h e i n s t a n t case. H i s t o r i c a l l y i n Montana, t h e d e f e n s e o f a s s u m p t i o n o f r i s k required: " ( 1 ) knowledge, a c t u a l o r i m p l i e d , o f t h e particular condition creating the r i s k , t h i s c o n d i t i o n a s dangerous, (2) appreciation of ( 3 ) a v o l u n t a r y remaining o r c o n t i n u i n g i n t h e f a c e o f t h e known d a n g e r o u s c o n d i t i o n , and ( 4 ) i n j u r y r e s u l t i n g a s t h e u s u a l and p r o b a b l e c o n s e q u e n c e o f t h e dangerous condition." Mont. 1 6 1 , 447 P.2d 486, 488. Hanson v . C o l g r o v e ( 1 9 6 8 ) , 152 (Emphasis a d d e d . ) See a l s o Dean v . F i r s t N a t i o n a l Bank o f G r e a t F a l l s ( 1 9 6 9 ) , 152 Mont. 474, 452 P.2d 402, 405. Here, t h e r e i s no e v i d e n c e t h a t p l a i n t i f f knew o f t h e p a r t i c u l a r c o n d i t i o n which c a u s e d t h e accident. ". . . Assumption o f r i s k i s governed by t h e subjective standard of the plaintiff rather than the objective standard of the reasonable man . . ." Deeds v. United States (D. Mont. 1969), 306 F.Supp. 348, 363. In Brown v. North Am. Mfg. Co. (1978), - Mont. I 576 P.2d 711, 35 St.Rep, 194, this Court quoted from Dorsey v. Yoder Company (E.D. Pa. 1971), 331 F.Supp. 753, and stated: "Quoting 2 Restatement of Torts 2d, §496D, Comment (c), the court in Dorsey continued: " ' "The standard to be applied is a subjective one, of what the particular plaintiff - - - sees, in fact knows, understands and appreciates. In this it differs from the objective standard which is applied to contributory negligence. * * * If by reason ofage, or lack of information, experience, intelligence, or judgment, the plaintiff does not understand the risk involved in a known situation, he will not be taken to assume the risk, although it may be found that his conduct is contributory negligence because it does not conform to the community standard of the reasonable man."'" 576 P. 2d at 719. (Emphasis supplied.) Our discussion above on the "as is" defense indicates that plaintiff did not contractually assume the risk of the defective condition, nor did she impliedly assume it. To assume the risk, one must have knowledge of the particular condition that creates such risk. ing on the part of plaintiff. Such knowledge was lack- Defendant here has failed to prove the requisite elements of the defense of assumption of risk. The trial court properly refused to instruct the jury on assumption of risk. Although we do not apply the doctrine in this case, it would be helpful to discuss its application since the recent passage of the comparative negligence statute. Defendant contends that because Montana recognized that the defenses of assumption of risk and contributory negligence were separate defenses requiring separate instructions before the Passage of comparative negligence, the same result should accrue after adoption of comparative negligence. Plaintiff contends that assumption of risk should be merged into the general scheme of assessment of liability in proportion to fault and should not be a separate defense, and that if a state, like Montana, recognized that assumption of risk and contributory negligence were separate defenses, they have consistently retained "assumption of risk" as a separate defense under comparative negligence rules. Arkansas Kraft Corporation v. Johnson (1975), 257 Ark. 629, 519 S.W.2d 74; Blum v. Brichacek (1974), 191 Neb. 457, 215 N.W.2d 888; O'Brien v. Smith Brothers 1973), 494 S.W.2d 787. Engine Rebuilders, Inc. (Tenn.App. Defendant argues that Montana should follow the above jurisdictions and retain the distinction. To do otherwise, it contends, would be to change the statute itself as to comparative negligence. Defendant also distinguishes the cases cited by plaintiff arguing that the decisions made in those states before comparative negligence were different from Montana's. Defendant is correct in its conclusion that prior to the adoption of comparative negligence, Montana distinguished between contributory negligence and assumption of risk, Deeds v. United States, supra, 306 F.Supp. at 362-363, and allowed the giving of separate instructions on the two issues. Hoffman v. Herzog (1971), 158 Mont- 296, 491 P.2d 713. The cases it cites, however, do not discuss the effect of a comparative negligence statute on separability of the defenses of assumption of risk and comparative negligence and are not good authority for defendant's argument since the precise issue presented here was not before the respective courts. Plaintiff contends that under comparative negligence, the issue of assumption of risk is just one of the factors to be considered in determining plaintiff's contributory negligence. In Li v. Yellow Cab Company of California (1975), 119 Cal.Rptr. 858, 532 P.2d 1226, the California Supreme Court judicially adopted the doctrine of comparative negligence. The court discussed the question of the effect of comparative negligence on thedoctrinesof assumption of risk and last clear chance and concluded that neither of these two doctrines were actually necessary under comparative negligence. The court stated: "The third area of concern, the status of the doctrines of last clear chance and assumption of risk, involves less the practical problems of administering a particular form of comparative negligence than it does a definition of the theoretical outline of the specific form to be adopted. Although several states which apply comparative negligence concepts retain the last clear chance doctrine [citation omitted], the better reasoned position seems to be that when true comparative negligence is adopted, the need for last clear chance as a palliative of the hardships of the 'all-or-nothing' rule disappears and its retention results only in a windfall to the plaintiff in direct contravention of the principle of liability in proportion to fault. [Citations omitted. 1 As for assumption of risk, we have recognized in this state that this defense overlaps that of contributory negligence to some extent and in fact is made up of at least two distinct defenses. 'To simplify greatly, it has been observed that in one kind of situation, to wit, where a plaintiff unreasonably undertakes to encounter a specific known risk imposed by a defendant's negligence, plaintiff's conduct, although he may encounter that risk in a prudent manner, is in reality a form of contributory Other kinds of situations withnegligence . . in the doctrine of assumption of risk are those, for example, where plaintiff is held to agree to relieve defendant of an obligation of reasonable conduct toward him. Such a situation would ... . not involve contributory negligence, but rather a reduction of defendant's duty of care.' [Citations omitted.] We think it clear that the adoption of a system of comparative negligence should entail the merger of the defense of assumption of risk into the general scheme of assessment of liability in proportion to fault in those particular cases in which the form of assumption of risk involved is no more than a variant of contributory negligence. [Citations omitted.]" 532 P.2d at 1240-41. Minnesota has held that implied assumption of risk as an affirmative defense in tort actions is to be limited to those situations in which the voluntary encounter with a known and appreciated risk is unreasonable. As such, it is to be considered merely as a phase of contributory negligence, to be submitted with and apportioned under, the comparative negligence doctrine. (1971), 292 Minn. 23, 192 N.W.2d Springrose v. Willmore 826. ". . . The doctrine of implied assumption of risk must, in our view, be recast as an aspect of contributory negligence, meaning that the plaintiff's assumption of risk must be not only voluntary but, under all the circumstances, unreasonable The practical and most important impact of this decision is to mandate that, like any other form of contributory negligence, assumption of risk must be apportioned under our comparative negligence statute . 192 N.W.2d at 827. [Citations omitted. I ... . ." In Lyons v. Redding Construction Company (1973), 83 Wash.2d 86, 515 P.2d 821, the court stated: ". . . Adoption of the standard of comparative negligence is necessarily accompanied by a more flexible weighing of the relative fault attributable to each party. A concomitant effect of this more delicate apportionment of damages will be the elimination of the need for the assumption of the risk doctrine. Thus, the calculus of balancing the relative measurements of fault inevitably incorporates the degree to which the plaintiff assumed the risk. Accordingly, it has been held the effect of the comparative negligence standard shall be to completely abrogate the assumption of risk doctrine as known and applied heretofore." 515 P.2d at 826. See also Colson v. Rule (1962), 15 Wisc.2d 387, 113 N.W.2d In Wilson v. Gordon (Me. 1976), 354 A.2d 398, the ~ a i n e court presents an excellent discussion on this issue. states: "Contractual assumption of the risk is not inconsistent with the Maine comparative negligence statute. On the other hand, voluntary assumption of the risk is but a form of contributory fault. That being so, our comparative negligence statute is clearly intended to abolish the doctrine of so-called voluntary assumption of the risk. ... "While it is true that 14 M.R.S.A. 5156 does not specifically abolish the defense of assumption of the risk, in most cases the apportionment of fault which the statute is designed to effectuate obviates the need for and alleviates much of the harshness of that common law doctrine. In those cases where assumption of the risk is based upon the plaintiff's lack of due care in encountering a known risk created by the negligence of the defendant--so-called 'voluntary' assumption of the risk--the concept overlaps contributory fault. In such circumstances the plaintiff's conduct should be judged in terms of contributory fault and weighed against the causal negligence of the defendant. This approach avoids the harsh 'all or nothing' effect of assumption of the risk while at the same time permitting a defendant to reduce his liability for damages when he can demonstrate that the plaintiff's fault contributed to the injuries. "The treatment of assumption of the risk which we today adopt has long been advocated by Dean Prosser and seems to represent the approach adhered to by most of the courts which have recently dealt with the question. "Some jurisdictions have abolished the defense of assumption of the risk, except where the risk was contractually assumed, without any reference to whether or not a comparative negligence statute had been adopted. Alaska, Leavitt v. Gillaspie, Alaska, 443 P.2d 61 (1968); Hawaii, Bulatao v. Kauai Motors, Ltd., 49 Hawaii 1, 406 P.2d 887 (1965); Iowa, Rosenau v. City of Estherville, Iowa, 199 N.W.2d 125 (1972); Kentucky, Parker v. Redden, Ky., 421 S.W. 2d 586 (1967); Michigan, Felgner v. Anderson, 375 Mich. 23, 133 N.W.2d 136 (1965); New Hampshire, Bolduc v. Crain, 104 N.H. 163, 181 A.2d 641 (1962); New Jersey, Meistrich v. Casino Arena Attractions, Inc., 31 N.J. 44, 155 A.2d 90 (1959), and McGrath v. American Cyanamid 41 N.J. 272, 196 A.2d 238 (1963); New Mexico, Williamson v. Smith, 83 N.M. 336, 491 P.2d 1147 (1972); Oregon, Ritter v. Beals, 225 Or. 504, 358 P.2d 1080 (1961); Wisconsin, Gilson v. Drees Bros., 19 Wis.2d 252, 120 N.W.2d 63 (1963). It "In Meistrich, supra, Chief Justice Weintraub expounded upon the confusion which has been wrought by the indiscriminate use of the term 'assumption of the risk.' He emphasized the distinction between 'primary' assumption of the risk (i.e., contractual) and 'secondary' assumption of the risk (i.e., implied or voluntary) and concluded: "'We - satisfied there - - reason to charge is no - are assumption - - - - - its secondarysense as of the risk in -something distinct from contributory negligence, is and hence .that where the thought - projected in that aspect, the terminology of assumption of the risk not be used. . . the-- should - - subject should be subsumed under the charge of contributory nesiqence.' 155 A.2dat 96. at her . "Other courts have interpreted their comparative negligence statutes as eliminating the need for assumption of the risk where the defense can be said to overlap with contributory negligence. California, Li v. Yellow Cab Co. of Calif., 13 Cal.3d 804, 119 Cal.Rptr. 858, 532 P.2d 1226 (1975); Minnesota, Springrose v. Willmore, 292 Minn. 23, 192 N.W.2d 826 (1971); Mississippi, Braswell v. Economy Supply Co., Miss., 281 So.2d 669 (1973); and Washington, Lyons v. Redding Construction Co., 83 Wash.2d 86, 515 P.2d 821 (1973). "A statement of the California court in the Li case is representative of the reasoning whichpervades all of the above opinions: "'We think - clear - - adoption of - system it that the -a of comparative negligence should entail - the merG r- of the defense of assumption of - - - into the risk of of in the general scheme - assessment - liability proportion to fault in those particular cases which - - - of assumption - the form of risk involved is . no more than a variant of contributory negligence.' ---119 Gal-Rptr. at 873, 532 P.2d at 1241. - . . . . "There appear to be few jurisdictions which adhere to the position that comparative negligence and voluntary assumption of the risk can be harmonized. See Bugh v. Webb, 231 Ark. 27, 328 S.W.2d 379 (1959); Harris v. Hercules, Inc., 328 F.Supp. 360 (E.D. Ark. 1971). "Appellant directs us to a Florida case, Dorta v. Blackburn, Fla-App., 302 So.2d 450 (1973), in which a Florida District Court of Appeals held that the Florida State Supreme Court "'appears to have recognized the continued existence of the common law defense of assumption of the risk notwithstanding its adoption of the doctrine of comparative negligence.' 302 So.2d at 451. "More recently, however, another Florida District Court of Appeals took a contrary approach, holding that "'[tlhe defense of assumption of the risk is no less "a primitive device of achieving justice between parties who are both at fault" than was contributory negligence. It should meet the same fate as contributory negligence and not constitute a complete bar to recovery where comparative negligence is the measuring standard for recovery.' Rea v. Leadership Housing, Inc., Fla.App., 312 So.2d 818, 822 (1975)." 354 A.2d at 401-403. The Wilson court concluded with a statement which is applicable to our decision here. "Since, in the case now before us, it cannot be seriously contended that the appellee contractually assumed the risk of his injury and since we now decide that the doctrine of voluntary assumption of the risk is no longer viable, it is evident that appellant's request for an instruction on assumption of the risk was properly denied." 354 A.2d at 403. As stated earlier, the elements of the doctrine of assumption of the risk are not present in this case. How- ever, when this situation does arise, we will follow the modern trend and treat assumption of the risk like any other form of contributory negligence and apportion it under the comparative negligence statute. The fourth issue is whether the District Court erred in not granting summary judgment on plaintiff's Count No. 11. Count I1 of the complaint is identical to Count I except for an addition which, in effect, claims misrepresentation as to the odometer reading. pertinent part: Count I1 states in "If said vehicle had not been driven an additional forty thousand miles than was represented to plaintiff, plaintiff alleges on information and belief that the accident which is the subject of this action would not have occurred." Defendant c o n t e n d s t h a t p l a i n t i f f " h a s m i s u n d e r s t o o d " t h e Montana U n f a i r Trade P r a c t i c e s and Consumer P r o t e c t i o n A c t and s p e c i f i c a l l y s e c t i o n s 30-14-103 and 30-14-104, MCA. Defendant s t a t e s t h a t under t h e A c t , t h e Department o f B u s i n e s s R e g u l a t i o n s may o n l y a d o p t r u l e s n o t i n c o n s i s t e n t w i t h t h e f e d e r a l Act and d e c i s i o n s t h e r e u n d e r . I t contends a r e a d i n g of t h e c a s e s a n n o t a t e d under 1 5 U.S.C.A. 545 (1973) shows t h a t t h e p u r p o s e of t h e f e d e r a l s t a t u t e s i s t o p r e v e n t u n l a w f u l r e s t r a i n t o f t r a d e and s u b m i t s t h a t s i n c e t h e Montana Department o f B u s i n e s s R e g u l a t i o n s may n o t a d o p t r u l e s i n c o n s i s t e n t w i t h t h e f e d e r a l law, i t i s improper t o have a r e g u l a t i o n which d e a l s w i t h s a l e s . Such r e g u l a t i o n i s , a c c o r d i n g t o d e f e n d a n t , o u t s i d e t h e s c o p e of t h e enabling legislation. D e f e n d a n t ' s arguments a r e m i s p l a c e d . S e c t i o n 30-14-103, MCA, states: " U n f a i r methods o f c o m p e t i t i o n and u n f a i r o r dec e p t i v e a c t s o r p r a c t i c e s i n t h e c o n d u c t of any t r a d e o r commerce a r e u n l a w f u l . " S e c t i o n 30-14-104, MCA, p r o v i d e s : "1. I t i s t h e i n t e n t o f t h e l e g i s l a t u r e t h a t i n c o n s t r u i n g S e c t i o n 30-14-103 due c o n s i d e r a t i o n and w e i g h t s h a l l be g i v e n t o t h e i n t e r p r e t a t i o n s of t h e f e d e r a l t r a d e commission and t h e f e d e r a l c o u r t s r e l a t i n g t o s e c t i o n 5 ( a ) (1) of t h e F e d e r a l Trade Commission Act (15 U.S.C., 4 5 ( a ) ( l ) ) , as amended. "2. The Department may make r u l e s i n t e r p r e t i n g t h e p r o v i s i o n s of 30-14-103. Such r u l e s s h a l l n o t be i n c o n s i s t e n t w i t h t h e r u l e s , r e g u l a t i o n s , and d e c i s i o n s o f t h e f e d e r a l t r a d e commission and t h e f e d e r a l c o u r t s i n i n t e r p r e t i n g t h e prov i s i o n s of s e c t i o n 5 ( a ) ( l ) of t h e F e d e r a l Trade Commission Act ( 1 5 U.S.C., 4 5 ( a ) ( I ) ) , a s amended." A.R.M. 58-2.4(2)-S440 provides i n p a r t : " I t s h a l l be a n u n f a i r o r d e c e p t i v e a c t o r p r a c t i c e f o r a motor v e h i c l e d e a l e r t o : " ( 3 ) r e p r e s e n t t h e previous usage o r s t a t u s of a motor v e h i c l e t o be something t h a t , i n f a c t , i t was n o t ; o r make s u c h r e p r e s e n t a t i o n s u n l e s s t h e d e a l e r has s u f f i c i e n t information t o support t h e representations. " S e c t i o n 30-14-133, MCA, p r o v i d e s i n p a r t : " ( 1 ) Any p e r s o n who p u r c h a s e s o r l e a s e s goods o r s e r v i c e s p r i m a r i l y f o r p e r s o n a l , f a m i l y , o r househ o l d p u r p o s e s and t h e r e b y s u f f e r s any a s c e r t a i n a b l e l o s s of money o r p r o p e r t y , r e a l o r p e r s o n a l , a s a r e s u l t of t h e u s e o r employment by a n o t h e r p e r s o n o f a method, a c t , o r p r a c t i c e d e c l a r e d u n l a w f u l by 30-14-103 may b r i n g an i n d i v i d u a l b u t n o t a c l a s s a c t i o n under t h e r u l e s o f c i v i l p r o c e d u r e i n t h e d i s t r i c t c o u r t o f t h e c o u n t y i n which t h e seller o r l e s s o r r e s i d e s o r has h i s p r i n c i p a l p l a c e of b u s i n e s s o r i s d o i n g b u s i n e s s t o r e c o v e r The a c t u a l damages o r $200, whichever i s g r e a t e r . c o u r t may, i n i t s d i s c r e t i o n , award up t o t h r e e t i m e s t h e a c t u a l damages s u s t a i n e d and may p r o v i d e such e q u i t a b l e r e l i e f a s it c o n s i d e r s necessary o r proper." While t h e main p u r p o s e of t h e f e d e r a l s t a t u t e i s t o prevent unlawful r e s t r a i n t of t r a d e , t h e r e i s nothing i n t h e c a s e s t o i n d i c a t e t h a t t h e above r u l e of t h e Department of Business Regulations i s i n c o n s i s t e n t with t h e f e d e r a l c a s e s o r t h e enabling l e g i s l a t i o n . The D i s t r i c t C o u r t was t h e r e f o r e c o r r e c t i n d e n y i n g summary judgment on t h i s m a t t e r . A d e t e r m i n a t i o n o f whether t h e a l l e g e d v i o l a t i o n w a s a c a u s e of p l a i n t i f f ' s damages i s a question of f a c t f o r t h e jury t o determine. A s such, it was n o t r i p e f o r summary judgment. A s p a r t of d e f e n d a n t ' s c a s e - i n - c h i e f , counsel f o r d e f e n d a n t a t t e m p t e d t o impeach p l a i n t i f f by i n t r o d u c i n g i n e v i d e n c e a d e p o s i t i o n t a k e n of p l a i n t i f f by d e f e n d a n t p r i o r to trial. O b j e c t i o n w a s made upon t h e grounds of r e p e t i - t i o n , i n a d m i s s i b i l i t y of t h e d e p o s i t i o n and improper impeachment e v i d e n c e . The c o u r t a d j o u r n e d t o chambers t o h e a r t h e e v i d e n c e and argument, and a f t e r o f f e r o f p r o o f , d e n i e d t h e u s e of t h e d e p o s i t i o n a s proposed. The District Court was correct in so ruling under the circumstances in this case. Plaintiff had been extensively cross-examined by defendant during plaintiff's case-inchief. She had gone to her home because of her physical condition and was not present at the time the deposition was offered, nor at the time of the offer of proof (though defendant asked that she be returned to court for the purpose of using the deposition). The issue presents a question of interpreting what the rules allow regarding depositions used for impeachment purposes. It is to be noted that Rule 32(b), M.R.Civ.P., provides : ". . . objection may be made at the trial or hearing to receiving in evidence any deposition or part thereof for any reason which would require the exclusion of the evidence if the witness were then present and testifying." The matter is governed by the provisions of Montana Rules of Evidence, Rule 613. That rule provides: "(a) Examining Witness Concerning Prior Statement. In examining a witness concerning a prior statement made by him, whether written or not, the statement need not be shown or its contents disclosed to him at that time, but on request the same shall be shown or disclosed to opposing counsel. "(b) Extrinsic Evidence of Prior Inconsistent evidence of a Statement of Witness. ~ Z r i n s i c prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate him thereon, or the interests of justice otherwise require. This provision does not apply to admissions of a partyopponent as defined in Rule 801 (d)(2)." This rule is fairly new, and practitioners would be well-advised to study its provisions. If the witness is on the stand and testifying, a cross-examiner may ask the witness about prior statements made by the witness, without first showing the witness the written deposition or writing in which the prior statement is contained. This is a per- mitted departure from the former practice, where, in impeachment, it was required that the writing containing the prior inconsistent statement be first shown to the witness. The method chosen by the cross-examiner in this case, however, violated the provisions of subdivision (b) of Rule 613. The witness was not on the stand. The cross-examiner proposed to offer in evidence, in the absence of the witness, a deposition taken of the witness pretrial for the purpose of impeachment. Thus the deposition itself was extrinsic evidence of a prior inconsistent statement. It was not admissible unless the witness had an opportunity to explain or deny the same, and the opposite party was a£forded an opportunity to interrogate her on the deposition. This foundational requirement not having been met by the cross-examiner, the District Court was correct in denying the admission into evidence of the deposition or any part of it under Rule 613(b), Mont.R.Evid., and the provisions of Rule 32(b), M.R.Civ.P., foregoing. It is, of course, not necessary under the new rules of evidence that impeachment evidence of prior inconsistent statements be offered during the cross-examination of the witness. Under Rule 613(b) it can be done at any time during the trial (see Advisory Committee's Note under section 613, Federal Rules of Evidence). Thus in a proper case, a party may demand a return to the stand of any witness not excused for the purposes of impeachment through prior inconsistent statements. Here that demand was prop- erly denied by the District Court on the grounds of repetition of the proposed testimony. Its discretion on that point governs us, and we agree the proposed evidence would have been repetitious. In any event, however, the deposi- tion itself, as extrinsic evidence, is admissible only under the conditions of Rule 613(b), Mont.R.Evid. Therefore, no error occurred in this trial respecting the proferred impeachment evidence. Plaintiff raises as an issue on cross-appeal whether the jury's reduction of damages from $650,000 to $422,500 should be sustained. It appears that plaintiff made no objection at the trial on this issue. Generally, we will not consider issues raised for the first time on appeal. Hash v. Montana Power Co. (1974), 164 Mont. 493, 524 P.2d 1092. Even if this question were to be considered by this Court under a comparative negligence scheme, the question of plaintiff's negligence is a question of fact for the jury to decide. Our function is to determine whether there is substantial credible evidence to support the jury verdict. To this end we must review the evidence in the light most favorable to the prevailing party in the District Court. No11 v. City of Bozeman (1977), 172 Mont. 447, 564 P.2d 1296. The jury was entitled under the facts presented to find as it did. We find sufficient credible evidence to support the verdict of the jury on all questions. The remaining issues raised by both parties present alleged elements of error, which even if true, would not be reversible error. unnecessary. Discussion of those issues is therefore In conclusion, the case under consideration was deemed submitted at the close of oral arguments, and no permission to plead further being granted, the supplemental briefs of the parties were neither accepted nor considered in this cause. The judgment of the District Court is affirmed. We concur: 2 4 d gp@, LdLQ Chief Justice J u s t i c e John Conway H a r r i s o n c o n c u r r i n g i n p a r t and d i s senting i n part: Mr. I c o n c u r w i t h a l l i s s u e s w i t h t h e e x c e p t i o n of t h e s e a t b e l t i s s u e w i t h which I r e s p e c t f u l l y d i s s e n t . I would return the case t o the court for r e t r i a l f o r f a i l u r e t o give t h e r e q u e s t e d i n s t r u c t i o n s on t h e u s e of s e a t b e l t s . If e v e r t h e r e w a s a case p r e s e n t e d t o t h i s C o u r t i n d i - c a t i n g t h e n e c e s s i t y o f u s i n g seat b e l t s , t h i s i s t h e c a s e . The v e r y f a c t t h a t r e s p o n d e n t and h e r husband, from t h e v e r y t i m e of p u r c h a s e , had d i f f i c u l t i e s w i t h t h e c a r and s o u g h t t h e a d v i c e of a f r i e n d who w a s a mechanic, i n d i c a t e s t h a t r e s p o n d e n t knew t h e c a r ' s c o n d i t i o n and s h o u l d have worn s e a t b e l t s d u r i n g any d r i v e t h a t s h e t o o k i n t h e c a r . B e f o r e p u r c h a s i n g t h e c a r s h e and h e r husband took t h e c a r o u t f o r a t e s t d r i v e and t h e y n o t e d i t had a tendency t o pull t o the l e f t . When t h e y t o o k t h e car back, s h e d i d n o t have t h e same r e p a i r e d b e f o r e p u r c h a s i n g i t from t h e d e a l e r . Immediately t h e r e a f t e r r e s p o n d e n t d r o v e t h e c a r t o M i s s o u l a , where s h e took i t t o a f r i e n d ' s g a r a g e . He i n d i c a t e d a f t e r working on t h e c a r t h a t s h e s h o u l d t a k e t h e c a r back; t h a t i t needed l o t s of work and was " n o t s a f e on t h e road." D e s p i t e t h a t a d v i c e , s h e d r o v e back from M i s - s o u l a t o G r e a t F a l l s and n o t i c e d t h a t t h e c a r l o s t power due t o e x t r e m e v i b r a t i o n , t h a t i t " d i e s e l e d " , and t h a t t h e motor c o n t i n u e d t o r u n some t i m e a f t e r t h e i g n i t i o n had been turned o f f . When s h e g o t home h e r husband t e s t e d t h e c a r and n o t e d some d i f f i c u l t y w i t h t h e s t e e r i n g . In addition, t h e day s h e d r o v e t h e car t o C h e s t e r t o see D r . Buker, s h e d i d s o a g a i n s t t h e a d v i c e of h e r husband who f e l t t h a t t h e c a r s h o u l d n o t be on t h e r o a d and t h a t s h e s h o u l d t a k e t h e o t h e r family car. Under these circumstances, and considering the accident where she drove off the road and was thrown out of the car, there is no question that her failure to "belt up" contributed to the seriousness of her injuries. There is no dispute that the Datsun had seat belts, and respondent's testimony was that it was her custom or habit to wear a seat belt when driving. The very condition of the car itself warranted the conclusion that respondent's injuries would have been minimal had she worn the seat belt and thus remained inside the car. The Court, obviously, holds as a matter of law that under no circumstances could the defense of the failure to wear a seat belt be considered. In my opinion, that is error. Recognizing that my view is a minority view, I find it is the better view and should be stated. The support for my view comes initially from Sams v. Sams (1966), 247 S.C. H I , 148 S.E.2d 154, in which the matter was considered. The court there held: "Simply stated, the question before us is whether the pleading should have been stricken, or, on the other hand, should the defendant be allowed to prove, if he can, that the failure of the plaintiff to use a seat belt, under the facts and circumstances of this case, amounted to a failure to exercise such due care as a person of ordinary reason and prudence would have exercised under the same circumstances, and that such failure constituted a contributing proximate cause of plaintiff's injuries. We think that the pleading should not have been stricken and that the ultimate questions raised by the alleged defense should be decided in the light of all of the facts and circumstances adduced upon the trial, rather than being decided simply upon pleadings." 148 S.E.2d at 155. The Sams case was followed very shortly by the Wisconsin case of Bentzler Braun 626, in which the court made the following rulings: (1) the failure to use seat belts is not negligence per se under statutes like Montana's section 61-9-409, MCA, but, ". . . we nevertheless conclude there is a duty, based on the common law standard of ordinary care, to use available seat belts independent of any statutory mandate"; (2) the occupant of a car is charged with knowledge of the additional safety factor produced by the use of a seat belt; and ( 3 ) the test is: did the failure to use the seat belts contribute to the injury? "We therefore conclude that, in those cases where seat belts are available and there is evidence before the jury indicating causal relationship between the injuries sustained and the failure to use seat belts, it is proper and necessary to instruct the jury in that regard. A jury in such case could conclude that an occupant of an automobile is negligent in failing to use the seat belts. . 149 N.W.2d at 640. .I1 Here the evidence shows that respondent, from her own experience, had trouble with the car and had been warned, at least by the mechanic Marquart and I think also by her husband, that the vehicle was unsafe. Inasmuch as we are at the threshold of the opinion stage of comparative negligence in Montana, under the circumstances here, I think that because the alleged negligence of appellant had been discovered before the accident a jury question exists on the use of seat belts. I believe first, that where a state has a comparative negligence rule, the matter of the use of seat belts to mitigate an injury is always a proper question, and second, if the plaintiff's failure to use a seat belt occurred, there is a jury question as to avoidable consequences. See King Son Wong v. Carnation Company (Tex.Civ.App. 1974), 509
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