MATKOVIC v SHELL OIL COMPANY

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No. 85-97 IN THE SUPREME COURT OF THE STATE OF MONTANA 1985 ELIZABETH M. NATKOVIC, individually, and as guardian of the persons and estates of WILLIAM RUSSELL SWEET and SCOTT JAMES SWEET, Deceased, et al., Plaintiffs and Petitioners, SHELL OIL COMPANY and BLACK HILLS TRUCKING, INC., Defendants and Respondents. ORIGINAL PROCEEDING: COUNSEL OF RECORD: For Petitioners: Butte Legal Center; D.L. Holland argued, Butte, Montana For Respondents: Moulton, Bellingham, Longo & Mather; William H. Bellingham argued for Shell Oil, Billings, Montana Alexander & Baucus; John D. Alexander argued for Black Hills Trucking, Great Falls, Montana Submitted: Decided: Filed: Clerk June 27, 1985 September 30, 1985 Mr. Justice Frank B. Morrison, Jr., delivered the Opinion of the Court. This is an action filed for declaratory relief under Uniform Rule No. 1 of the Montana Rules of Appellate Civil Procedure in response to Federal District Judge Battin's certification of certain questions to this Court. This action was commenced in the District Court of the Second Judicial District, in and for the County of Butte-Silver Bow, by the plaintiffs on March 28, 1983. The defendants removed the case to the United States District Court, for the District of Montana, Billings Division. By an order entered on December 12, 1984, the Federal District Court certified the foll-owing questions. 1. Under Montana law, is a person who carries on an abnormally dangerous activity strictly liable for harm to persons resulting from said activity, although the person engaged in the said activity has exercised the utmost care to prevent the harm? 2. May the defense of assumption of risk be a complete bar to plaintiff's recovery under the circumstances of question number l? 3. If a defense of assumption of risk may not be a complete bar to plaintiff's recovery as posed in question number 2, then is the defense of assumption of risk treated like the defense of contributory negligence under Montana Code Annotated, 27-1-101 et seq., 1983, and apportioned as under the comparative negligence statute? 4. Is the doctrine of contributory negligence available as a defense under the circumstances of question number l? The facts of this case for certification purposes were recited by the Federal District Court as follows: "Elizabeth M. Matkovic is the mother of Russell William Sweet, Deceased, and the d u l y - a p p o i n t e d g u a r d i a n o f W i l l i a m Russ e l l Sweet and S c o t t James S w e e t , t h e minor c h i l d r e n o f R u s s e l l William Sweet, D e c e a s e d , and t h e p e r s o n a l r e p r e s e n t a t i v e o f t h e e s t a t e o f R u s s e l l W i l l i a m Sweet, Deceased. Vicky J e a n S t a c e y i s t h e mother and duly-appointed c o n s e r v a t o r o f t h e e s t a t e o f Lawrence S w e e t , a p r o t e c t e d p e r s o n and t h e m i n o r son o f t h e d e c e d e n t . William Sweet i s t h e father of the decedent. "Defendant, S h e l l O i l , o p e r a t e d o i l w e l l s i n North D a k o t a . O i l we11 production w a t e r was p r o d u c e d from t h e w e l l s a s a by-product. Shell O i l hired defendant Black H i l l s Trucking t o h a u l t h i s w a t e r t o a d i s p o s a l a r e a i n Montana. The p r o d u c t i o n w a t e r was h i g h l y c o n t a m i n a t e d w i t h hydrogen s u l f i d e . "On J a n u a r y 2 9 , 1 9 8 1 , B l a c k H i l l s Trucki n g b r o u g h t a t r u c k , w h i c h was u s e d t o haul t h i s water, i n t o a garage i n Sidney, Montana, f o r s e r v i c i n g a n d r e p a i r . The d e c e d e n t , a n employee o f t h e g a r a g e , was a s s i g n e d t h e d u t y o f s e r v i c i n g and repairing t h e truck. P l a i n t i f f s claim t h a t w h i l e t h e d e c e d e n t was w o r k i n g o n t h e t r u c k , h e was overcome by h y d r o g e n s u l f i d e g a s e m i s s i o n s and d i e d a s a r e s u l t o f such exposure." UNDER MONTANA LAW, I S A PERSON WHO CARRIES ON AN ABNORMALLY DANGEROUS ACTIVITY STRICTLY LIABLE FOR HARM TO PERSONS RESULTING F O R M SAID ACTIVITY, ALTHOUGH THE PERSON ENGAGED I N THE SAID ACTIVITY HAS EXERCISED THE UTMOST CARE T PREVENT O THE HAm? The genera 1 r u l e describing liability d a n g e r o u s a c t i v i t y i s found i n R e s t a t e m e n t § for abnormally (Second) - T o r t s of 519 ( 1 9 7 6 ) , which s t a t e s : " (1) One who c a r r i e s on a n a b n o r m a l l y dangerous a c t i v i t y i s s u b j e c t t o l i a b i l i t y f o r harm t o t h e p e r s o n , l a n d o r c h a t tels of another resulting from the a c t i v i t y , a l t h o u g h he h a s e x e r c i s e d t h e u t m o s t c a r e t o p r e v e n t t h e harm. " ( 2 ) This strict l i a b i l i t y is limited t o t h e k i n d o f harm, t h e p o s s i b i l i t y o f which makes the activity abnormally dangerous." This Court has previously adopted a D u t t o n v. Rocky Mountain P h o s p h a t e similar theory i n ( 1 9 6 8 ) , 1 5 1 Mont. 54, 438 P.2d 674. In that case, this Court articulated a standard of strict liability for damage to crops and livestock caused by flouride being emitted from a phosphate plant. Shell Oil Company recognizes that this Court might apply strict liability principles in an abnormall-y dangerous situation, but argues that the facts of this case do not warrant submission of the theory. Federal District Court. However, that issue is for the We are only asked whether we would adopt strict liability standards where abnormally dangerous activities are in fact involved. is in the affirmative. of (Second) - Torts $ Our answer to that question The standard set forth in Restatement 519 (1976), set forth above, is the one that should be followed in submitting this issue to the jury. Shell Oil urges this Court to require the submission of Restatement (Second) - Torts of given. § 520 (1976), if $ 519 is to be We agree with this position. Restatement of (Second) - Torts 5 520 (1976), provides: "In determining whether an activity is abnormally dangerous, the following factors are to be considered: " (a) existence of a high degree of risk of some harm to the person, land or chattels of others; "(b) likelihood that the harm results from it will be great; that " (c) inability to eliminate the risk by the exercise of reasonable care; " (d) extent to which the activity is not a matter of common usage; " (el inappropriateness of the activity to the place where it is carried on; and "(f) extent to which its value to the community is outweighed by its dangerous attributes." The definition of abnormally dangerous activity contained in 5 520 should be given in conjunction with an in- s t r u c t i o n s e t t i n g f o r t h t h e p r i n c i p l e of l i a b i l i t y enunciated I1 AND I11 MAY THE DEFENSE OF ASSUMPTION OF RISK RE A COMPLETE BAR TO PLAINTIFF'S RECOVERY UNDER THE CIRCUMSTANCES OF QUESTION NUMBER 1; AND, I F NOT, THEN I S THE DEFENSE OF ASSUMPTION OF RISK TREATED LIKE THE DEFENSE OF CONTRIBUTORY NEGLIGENCE UNDER MONTANA CODE ANNOTATED, §§ 27-1-101, ET SEQ., 1 9 8 3 , AND APPORTIONED AS UNDER THE COMPARATIVE NEGLIGENCE STATUTE? Z a h r t e v. In 17, 40 St.Rep. Sturm, 316, R u g e r & Co. (Mont. 19831, 6 6 1 P.2d t h i s Court h e l d t h a t assumption o f r i s k was a v a i l a b l e a s a d e f e n s e i n a p r o d u c t s l i a b i l i t y c a s e b u t t h a t t h e d e f e n s e was t o b e compared w i t h t h e c o n d u c t o f t h e W e see n o r e a s o n t o a p p l y a d i f f e r e n t s t a n d a r d t o defendant. s t r i c t l i a b i l i t y which a r i s e s a s t h e r e s u l t o f c o n d u c t i n g an abnormally dangerous assumption of risk activity. Therefore, we hold that i s an a v a i l a b l e d e f e n s e w h e r e d e f e n d a n t c o n d u c t s an a b n o rm a l l y d a n g e r o u s a c t i v i t y , b u t t h e d e f e n s e i s n o t absolute. The f i n d e r o f f a c t m u s t d e t e r m i n e w h a t p a r t of t h e t o t a l cause is a t t r i b u t a b l e t o p l a i n t i f f ' s assumption of risk. it i s d e t e r m i n e d t h a t p l a i n t i f f ' s c o n d u c t i s more If responsible than If plaintiff's defendant's defendant, then plaintiff cannot recover. c o n d u c t i s found t o b e e q u a l t o o r less t h a n conduct, then p l a i n t i f f ' s recovery must re- be duced by t h e p e r c e n t a g e a t t r i b u t a b l e t o p l a i n t i f f . I S THE DOCTRINE OF CONTRIBUTORY NEGLIGENCE AVAILABLE AS A DEFENSE UNDER THE CIRCUMSTANCES OF QUESTION NUMBER 1 3 I n Brown v. N o r t h A m e r i c a n M a n u f a c t u r i n g Co. Mont. 98, 576 P.2d 711, this Court held that ( 1 9 7 8 ) , 176 contributory negligence i s n o t an a v a i l a b l e defense i n a strict l i a b i l i t y case for defective Court should not defense a likewise hold Matkovic that S t u r m , Ruger & Co., i n Brown, holding that contends that this contributory negligence t o abnormally dangerous I n Z a h r t e v. position products. activity. F7e is agree. supra, we affirmed our contributory negligence is not a v a i l a b l e a s a defense i n a products l i a b i l i t y case based upon strict liability principles. 5 The same rationale forecloses contributory negligence as a defense to strict liability arising out of abnormally dangerous activity. We, therefore, hold that assumption of risk is the only available defense and, as previously stated, must he compared with the conduct of the defendant. A copy of this opinion shall be mailed to the Clerk of the United States District Court Division. of Montana, A / // Jdstice --- L/*" /" 1 We concur: Billings /'

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