2021 Montana Legislature
_____________ bill NO. _____________
INTRODUCED
BY _________________________________________________
By Request of the ****
A BILL FOR AN ACT ENTITLED: "AN ACT revising product liability laws; Modifying some sellers' liability for defective products in sealed containers; allowing Sellers to assert a state-of-the-art defense; and AMENDING SECTION 27-1-719, MCA."
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:
Section 1. Section 27-1-719, MCA, is amended to read:
"27-1-719. (Temporary) Liability of seller of product for physical harm to user or consumer. (1) As used in this section, "seller" means a manufacturer, wholesaler, or retailer.
(2) A person who sells a product in a defective condition unreasonably dangerous to a user or consumer or to the property of a user or consumer is liable for physical harm caused by the product to the ultimate user or consumer or to the user's or consumer's property if:
(a) the seller is engaged in the business of selling the product; and
(b) the product is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.
(3) The provisions of subsection (2) apply even if:
(a) the seller exercised all possible care in the preparation and sale of the product; and
(b) the user or consumer did not buy the product from or enter into any contractual relation with the seller.
(4) Unless it is demonstrated that the manufacturer is not subject to service of process in Montana, or that the seller contractually assumed one of the manufacturer's duties to manufacture, design, or provide warnings or instructions with respect to the product, subsection (2) does not apply to a seller other than a manufacturer who sells a product that was in a defective condition unreasonably dangerous to a user or consumer or to property of a user or consumer if:
(a) the defective condition existed at the time the product left the control of the manufacturer;
(b) the seller received the product in a sealed container and sold the product in the same sealed container; and
(c) the seller had no reason to believe a defective condition existed.
(5) (a) Subsection (2)(b) does not apply to a claim for relief based upon improper product design.
(b) A seller may assert as an affirmative defense to a claim for relief based upon improper product design or manufacture that the plans or designs for the product or the methods and techniques of manufacturing, inspecting, testing, and labeling the product could not have been made safer by the adoption of a reasonable alternative at the time the product was sold.
(5)(6) Except as provided in this subsection, contributory negligence is not a defense to the liability of a seller, based on strict liability in tort, for personal injury or property damage caused by a defectively manufactured or defectively designed product. A seller named as a defendant in an action based on strict liability in tort for damages to person or property caused by a defectively designed or defectively manufactured product may assert the following affirmative defenses against the user or consumer, the legal representative of the user or consumer, or any person claiming damages by reason of injury to the user or consumer:
(a) The user or consumer of the product discovered the defect or the defect was open and obvious and the user or consumer unreasonably made use of the product and was injured by it.
(b) The product was unreasonably misused by the user or consumer and the misuse caused or contributed to the injury.
(6)(7) The affirmative defenses referred to in subsection subsections (5) and (6) mitigate or bar recovery and must be applied in accordance with the principles of comparative negligence set forth in 27-1-702. (Terminates on occurrence of contingency--sec. 11(2), Ch. 429, L. 1997.)
27-1-719. (Effective on occurrence of contingency) Liability of seller of product for physical harm to user or consumer. (1) As used in this section, "seller" means a manufacturer, wholesaler, or retailer.
(2) A person who sells a product in a defective condition unreasonably dangerous to a user or consumer or to the property of a user or consumer is liable for physical harm caused by the product to the ultimate user or consumer or to the user's or consumer's property if:
(a) the seller is engaged in the business of selling the product; and
(b) the product is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.
(3) The provisions of subsection (2) apply even if:
(a) the seller exercised all possible care in the preparation and sale of the product; and
(b) the user or consumer did not buy the product from or enter into any contractual relation with the seller.
(4) Unless it is demonstrated that the manufacturer is not subject to service of process in Montana, or that the seller contractually assumed one of the manufacturer's duties to manufacture, design, or provide warnings or instructions with respect to the product, subsection (2) does not apply to a seller other than a manufacturer who sells a product that was in a defective condition unreasonably dangerous to a user or consumer or to property of a user or consumer if:
(a) the defective condition existed at the time the product left the control of the manufacturer;
(b) the seller received the product in a sealed container and sold the product in the same sealed container; and
(c) the seller had no reason to believe a defective condition existed.
(5) (a) Subsection (2)(b) does not apply to a claim for relief based upon improper product design.
(b) A seller may assert as an affirmative defense to a claim for relief based upon improper product design or manufacture that the plans or designs for the product or the methods and techniques of manufacturing, inspecting, testing, and labeling the product could not have been made safer by the adoption of a reasonable alternative at the time the product was sold.
(5)(6) Contributory fault is a defense to the liability of a seller, based on strict liability in tort, for personal injury or property damage caused by a defectively manufactured or defectively designed product. A seller named as a defendant in an action based on strict liability in tort for damages to a person or property caused by a defectively designed or defectively manufactured product may assert the following affirmative defenses against the user or consumer, the legal representative of the user or consumer, or any person claiming damages by reason of injury to the user or consumer:
(a) The user or consumer of the product discovered the defect or the defect was open and obvious and the user or consumer unreasonably made use of the product and was injured by it.
(b) The product was unreasonably misused by the user or consumer and the misuse caused or contributed to the injury.
(6)(7) The affirmative defenses referred to in subsection subsections (5) and (6) mitigate or bar recovery and must be applied in accordance with the principles of comparative fault set forth in 27-1-702 and 27-1-705."
NEW SECTION. Section 2. Severability. If a part of [this act] is invalid, all valid parts that are severable from the invalid part remain in effect. If a part of [this act] is invalid in one or more of its applications, the part remains in effect in all valid applications that are severable from the invalid applications.