Alaska
Montana
Statutes of Limitations (MONTANA)
Personal Injury - 3 yrs. [MCA 27-2-204]
Wrongful Death -3 yrs. (from death) [MCA 27-2-204]
Property Damage (inconsistent law*) - 2 yrs. [MCA 27-2-207] or 3 yrs. [MCA 27-2-204]
Written Contracts - 8 yrs. [MCA 27-2-202]
Oral Contracts - 5 yrs. [MCA 27-2-202]
Contracts for Sale (goods) and Breach of Warranty - 4 yrs. (from tender of delivery) [MCA 30-2-725]
Implied Breach of Warranty - Breach of warranty claims by an injured employee sounded in tort, rather than contract, for purposes of limitations period [Bennett v. Dow Chemical Co., 713 P.2d 992 (Mont. 1986)]
*According to Montana Supreme Court: Section 27-2-204(1) is a specific statute of limitations (“SOL”) which is based on the type of obligation which gives rise to plaintiffs’ claim. Section 27-2-207 is a specific SOL based upon the nature of damage incurred by plaintiffs. Court should apply the general rule that any doubt should be resolved in favor of the SOL containing the longer limitation [Ritland v. Rowe, 861 P.2d 175 (Mont. 1993)].
A claim or cause of action accrues when all elements of the claim or cause exist or have occurred [MCA 27-2-102].
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Statute of Repose (Products) (MONTANA)
None.
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Admissibility of Expert Testimony (MONTANA)
The Daubert test applies only to the admission of novel scientific evidence; novelty is assessed from a very narrow perspective [State v. Damon, 119 P.3d 1194 (Mont. 2005)].
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Causes of Action (MONTANA)
Strict Liability – Codified by a statute. A person who sells a product in a defective condition unreasonably dangerous to a user or to the property of a user is liable for physical harm caused by the product to the ultimate user or to the user’s property if: (1) the seller is engaged in the business of selling the product; and (2) the product is expected to and does reach the user without substantial change in the condition in which it is sold [MCA 27-1-719].
Negligence – A manufacturer who offers goods on the market must use reasonable care where there is a foreseeable risk or harm if reasonable care is not used. He must use reasonable care to avoid creating an undue risk of harm to those who might be reasonably expected to use his design or product [Streich v. Hilton-Davis, Div. of Sterling Drug, 692 P.2d 440 (Mont. 1984)].
Breach of Warranty – Montana has adopted the standard UCC express warranty [MCA 30-2-313]; implied warranty of merchantability [MCA 30-2-314]; implied warranty of fitness for particular purpose [MCA 30-2-315]. A seller’s warranty (express or implied) extends to any natural person who is in the family or household of the buyer or who is a guest in the buyer’s home if it is reasonable to expect that the person may use, consume or be affected by the goods and who is injured in person by breach of the warranty [MCA 30-2-318].
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Definition of “Defect” (MONTANA)
In order for a product to be “defective” within the meaning of a manufacturing defect theory, the defect must be significant. Strict liability is not intended to replace a breach of contract action for minor defects. The proper test of a defective product is whether the product was unreasonably unsuitable for its intended or foreseeable purpose. If a product fails this test, it will be deemed defective [McJunkin v. Kaufman & Broad Home Sys., 748 P.2d 910 (Mont. 1987)].
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Liability of Sellers (MONTANA)
Seller are strictly liable (“seller” means a manufacturer, wholesaler, or retailer) [MCA 27-1-719]. The seller must be engaged in the business of selling such products.
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Defenses (MONTANA)
Comparative Negligence – Montana follows modified comparative negligence (damages are diminished in proportion to Plaintiff’s fault, but Plaintiff cannot recover if he is 51% at fault) [MCA 27-1-702]. Not a defense in strict liability cases [Hulstine v. Lennox Indus., 237 P.3d 1277 (Mont. 2010)].
Assumption of Risk – It is an affirmative defense when the user of the product discovered the defect (or the defect was open and obvious) and the user unreasonably made use of the product and was injured by it. This defense mitigates or bars recovery and must be applied in accordance with the principles of comparative negligence [MCA 27-1-719].
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Product Misuse – An affirmation defense if the misuse was unreasonable and caused or contributed to the injury. This defense mitigates or bars recovery and must be applied in accordance with the principles of comparative negligence [MCA 27-1-719].
Product Alteration/Modification – One of the elements of Plaintiffs prima facie case is to prove that the product reached the user without substantial change in the condition in which it is sold.
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Economic Loss Doctrine (ELD) (Product Destroys Only Itself) (MONTANA)
No case law available.
Recovery for lost profits was allowed under the doctrine of strict liability where a product, when used for purpose for which it was intended, had foreseeable potential of damaging user’s property [Streich v. Hilton-Davis, a Div. of Sterling Drug, Inc., 692 P.2d 440 (Mont. 1984)].
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Malfunction Theory (Using Circumstantial Evidence to Prove Defect) (MONTANA)
Circumstantial evidence, as well as direct evidence, may be used to show a defect. Circumstantial evidence can be met by proof of the circumstances of the accident, similar occurrences under similar circumstances, and elimination of alternative causes [Rix v. General Motors Corp., 723 P.2d 195 (Mont. 1986)].
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Design Defects (MONTANA)
In a design case, in order to establish a prima facie case in strict liability, a plaintiff must prove: (1) the product was in a defective condition "unreasonably" dangerous to the user or consumer; (2) the defect caused the accident and the injuries complained of; and (3) the defect is traceable to the defendant [Rix v. General Motors Corp., 723 P.2d 195 (Mont. 1986)].
A person who sells a product in a defective condition unreasonably dangerous to a user or consumer is liable for the physical harm caused by the defective product. A product is in a defective condition when it is capable of causing injury to the user beyond that which would be expected by the ordinary user [Wise v. Ford Motor Co., 943 P.2d 1310 (Mont. 1997)]. Therefore, Montana appears to be using the consumer expectation test when analyzing design defect cases.
The foregoing factors should be analyzed where a manufactured product is claimed to be unreasonably dangerous because a safer alternative design was available to the manufacturer: (1) the reasonable probability that the product as originally designed would cause serious harm to the claimant; (2) consideration of the reasonable probability of harm from the use of the original product as compared to the reasonable probability of harm from the use of the product with the alternative design; (3) the technological feasibility of an alternative design that would have prevented claimant’s harm; (4) the relative costs both to the manufacturer and the consumer of producing, distributing and selling the original product as compared to the product with the alternative design; (e) the time reasonably required to implement the alternative design [Rix v. General Motors Corp., 723 P.2d 195 (Mont. 1986)].
A design is defective if at the time of manufacture an alternative-designed product would have been safer than the original-designed product and was both technologically feasible and a marketable reality [Krueger v. General Motors Corp., 783 P.2d 1340 (Mont. 1989)].
State-of-the-art evidence is used to establish whether the manufacturer knew or through the exercise of reasonable human foresight should have known of the dangers inherent in his product. That is, the state-of-the-art defense raises issues of reasonableness and foreseeability, concepts fundamental to negligence law, to determine a manufacturer’s liability [Sternhagen v. Dow Co., 935 P.2d 1139 (Mont. 1997)].
Evidence of alternative designs is only admissible where the alternative design existed prior to, or concurrent with, the manufacture of the product in question [Preston v. Montana Eighteenth Judicial Dist. Court, 936 P.2d 814 (Mont. 1997)].
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Failure to Warn (MONTANA)
The rule on duty to warn of dangers in potentially harmful but otherwise “nondefective” products is that if the product is unreasonably dangerous and a warning should be given but is not given, then the product is automatically “defective” [Tacke v. Vermeer Mfg. Co., 713 P.2d 527 (Mont. 1986)]. A manufacturer may be required to provide a warning in relation to its product if it is to avoid a determination that the product is unreasonably dangerous [Rost v. C. F. & I. Steel Corp., 616 P.2d 383 (Mont. 1980)].
Montana law recognizes a failure to warn claim as a distinct cause of action under the theory of strict products liability. A failure to warn of an injury causing risk associated with the use of a technically pure and fit product can render such product unreasonably dangerous. The elements of a failure to warn claim are the same as any other strict products liability claim: (1) the product was in a defective condition, unreasonably dangerous to the user or consumer; (2) the defect caused the accident and injuries complained of; and (3) the defect is traceable to the defendant. The causation element in a failure to warn claim can be satisfied by evidence indicating that a warning would have altered plaintiff’s use of the product or prompted plaintiff to take precautions to avoid the injury [Riley v. American Honda Motor Co., 856 P.2d 196 (Mont. 1993)].
Where warning is given, the seller may reasonably assume that it will be read and heeded; and a product bearing such a warning, which is safe for use if it is followed, is not in defective condition, nor is it unreasonably dangerous [Riley v. American Honda Motor Co., 856 P.2d 196 (Mont. 1993)].
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Independent Cause of Action for Evidence Spoliation (MONTANA)
Tort of negligent or intentional spoliation has been recognized against third parties only [Oliver v. Stimson Lumber Co., 993 P.2d 11 (Mont. 1999)]