Framework for Analysis of Products Liability in Montana,

The essential rationale for imposing the doctrine of strict liability in tort is that such imposition affords the consuming public the maximum protection from dangerous defects in manufactured products by requiring the manufacturer to bear the burden of injuries and losses enhanced by such defects in its products! In Brandenburger v. 2 the Montana Supreme Court adopted the doctrine of strict liability without fault to govern actions for injuries caused by defective products .3 While the court recognized that this was a "major change in Montana's tort law by way of judicial decision," 4 it found that the "trend seems to be to adopt the theory of strict liability and it has now been adopted by a majority of the states." 5 Indeed, adoption by the American Law Institute of the theory of strict liability, embodied in section 402A of the Restatement (Second), 8 and the simultaneous expression of the policies underlying section 402A by Justice Traynor in Greenman v. Yuba Power Products, Inc., 7 were instrumental in forging "the most rapid and 3. Products liability is the name given currently to the liability of a manufacturer, seller, or other supplier for harm caused by an unreasonably dangerous product. See generally 1977] PRODUCTS LIABILITY 223 altogether spectacular overturn of an established rule in the entire history of the law of torts." 8 By 1971, two years before Branden-burger, Dean Prosser was able to state that "the simple ground of 'strict liability in tort' is accepted and applied by some two-thirds of the courts." 9 The overwhelming number of courts adopting some form of strict liability in tort has made that doctrine now the paramount ground for recovery in product injury cases, but this rapid development has also produced considerable confusion and what one commentator has called a "crisis of confidence" 10 within the legal profession. That "crisis" results from conflicts between the relatively restrictive language of section 402A and judicial efforts to expand the scope of liability by returning to, and reasoning from, the core concepts expressed in Greenman. Lawyers can no longer predict with any certainty the range of results in cases requiring an appeal because , while courts have verbalized their decisions in the language of section 402A, they have relied most heavily on the sometimes conflicting philosophies underlying strict liability in reaching those decisions. 11 The professional confusion accompanying this crisis of confidence originates in three sources: …