ASSUMPTION OF RISK
Assumption of risk can be a partial or complete bar to recovery in strict liability, but not under negligence. Mont. Code Ann. §27-1-719(1) (temporary) and Mont. Code Ann. §27-1-719(1) (effective on occurrence of contingency) .
CAPS ON NONECONOMIC DAMAGES
There are no exclusive Products Liability statutes under this category.
COLLATERAL SOURCE RULE
In an action arising from bodily injury or death when the total award against all defendants is in excess of $50,000 and the plaintiff will be fully compensated for his damages, exclusive of court costs and attorney fees, a plaintiff's recovery must be reduced by any amount paid or payable from a collateral source that does not have a subrogation right. Mont. Code Ann. §§27-1-307 to 27-1-308 .
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. Mont. Code Ann. §27-1-719 (temporary) .
Contributory negligence shall not bar recovery, as long as such negligence is not greater than the combined negligence of all persons against whom recovery is sought. Instead, liability shall be proportionately diminished. Mont. Code Ann. §27-1-702 (temporary) .
Mont. Code Ann. §27-1-719 is Montana's Strict Liability statute. It has been amended by the state legislature and incorporates Mont. Code Ann. §27-1-702 (temporary) and Mont. Code Ann. §27-1-719(1) (effective on occurrence of contingency) .
The "temporary" statute remains in effect and does not alter the law as prescribed by the Strict Liability statute. The "contingent" version of the statute would permit contributory fault in strict liability cases, but would require it to be applied in accordance with principles of comparative fault set forth in the contingent companion statutes enacted for all tort cases.
Currently, the "temporary" statue does not permit the apportionment of fault to nonparties. Under the "contingent" law, the fault of all actors would be considered, but joint liability would be eliminated.
Strict liability actions can lie when the only damage suffered is to the defective product itself. Thompson v. Nebraska Mobile Homes Corp., 647 P.2d 334 (Mont.1982) .
JOINT & SEVERAL LIABILITY
Defendants are jointly and severally liable with a right to contribution, except where liability is fifty percent or less of the combined negligence of all the persons, in which case the defendant is severally liable only. The remaining parties are jointly and severally liable for the total less the percentage attributable to the claimant and to any person with whom the claimant has settled or who the plaintiff has released from liability. Mont. Code Ann. §27-1-703(2) (temporary) .
For purposes of determining the percentage of liability attributable to each party whose action contributed to the injury complained of, the trier of fact shall consider the negligence of the claimant, injured person, defendants, and third-party defendants. Mont. Code Ann. §27-1-703(4) (temporary) .
If for any reason all or part of the contribution from a party liable for contribution cannot be obtained, each of the other parties shall contribute a proportional part of the unpaid portion of the noncontributing party's share and may obtain judgment in a pending or subsequent action for contribution from the noncontributing party. A party found to be 50 percent or less negligent for the injury complained of is liable for contribution under this section only up to the percentage of negligence attributed to that party. Mont. Code Ann. §27-1-703(5) (temporary) .
Punitive damages can be recovered in actions for product liability, strict liability, negligence, and non-contract warranty actions. Mont. Code Ann. §27-1-220 .
The standard is "clear and convincing" evidence of actual fraud or actual malice. The financial condition of the defendant is only admissible in special proceeding after finding of liability. The judge shall review a jury award and issue an opinion on punitive damages. Mont. Code Ann. §27-1-221 .
Punitive damages are not reduced by percentage of plaintiff's negligence. Shahrokhfar v. State Farm Mut. Auto. Ins. Co., 634 P.2d 653 (Mont. 1981) .
Under the Montana Consumer Protection Act, plaintiffs who are injured by products are entitled to a potential award of treble damages. Such an award is discretionary and does not require intentional conduct on the part of the defendant. Since this treble award is intended to be compensatory and not punitive, findings required to award punitive damages are generally not necessary. Plath v. Schonrock, 64 P.3d 984 (2003) .
Punitive damages may not exceed $10,000,000, or three percent of a defendant's net worth, whichever is less. Mont. Code Ann. §27-1-220 (3).
RIGHT TO CONTRIBUTION
Subject to multiple exceptions, where jointly and severally liable, there exists a right to contribution from any other person whose negligence may have contributed as a proximate cause to the injury. Mont. Code Ann. §27-1-703(1) (temporary) .
Product liability defendants may bar recovery in whole or in part if it is determined that:
(1) the product user discovered the defect, or the defect was open and obvious, and he or she was subsequently injured after unreasonably using the product; or 2) the product was unreasonably misused by the user and such misuse caused or contributed to the injury. Rost v. C.F. & I. Steel Corp., 189 Mont. 485 (1980) .
STATUTES OF LIMITATION
Actions for personal injury or wrongful death must be brought within three years. Mont. Code Ann. §27-2-204 .
Actions for property damage must be brought within two years. Mont. Code Ann. §27-2-207 .
Actions for breach of warranty must be brought within four years. Mont. Code Ann. §30-2-725 .
STATUTES OF REPOSE
There is no statute of repose for product liability actions in Montana.
In actions for personal injury, property damage, or wrongful death in where $100,000 or more is awarded in future damages, a party may prior to the entry of judgment, request an order for periodic payment, and the court my enter the order if it is in the best interest of the claimant. Mont. Code Ann. §25-9-403 .