Montana Supreme Court Upholds Jury Award in Failure to Warn Case Involving Death of Teen – Patch v. Hillerich & Bradsby Co.

By August 4, 2011 July 23rd, 2019 Product Liability, Wrongful Death

As a Missouri products liability lawyer, I was pleased to see a recent case from the Montana Supreme Court upholding a jury verdict in favor of a family that lost their 18-year-old son in an American Legion Baseball game. In Patch v. Hillerich & Bradsby Co., Debbie and Duane Patch sued the maker of the aluminum bat that was used in the game that killed Brandon Patch in 2003. They alleged that it improved the speed of baseballs so much that it enhanced the risks of playing baseball, and Hillerich & Bradsby should have warned users of those risks. In pretrial motions, the court declined to grant summary judgment to H&B on that issue, and also granted a motion to exclude a defense by H&B that users of the bats assume risks. At trial, the jury awarded the Patches $850,000 on the failure to warn claim. H&B appealed, but the Montana high court upheld that verdict.
The Patches originally brought claims for defective design, defective manufacturing and failure to warn, but the trial court granted summary judgment on the manufacturing defect claim. It also granted an in limine motion to exclude H&B’s assumption of risk defense. On appeal, H&B argued that it should have been granted summary judgment on the failure to warn claim because Brandon Patch was a bystander not entitled to make a failure to warn claim about someone else’s bat. The Montana Supreme Court replied that this is contrary to both Montana caselaw and the Second Restatement of Torts. Furthermore, it noted that the risks created by using a bat go beyond the user and the purchaser; any player is a consumer placed at risk. And warnings need not only be physically printed on the bat; manufacturers can also distribute flyers, posters, press releases, ads and even oral warnings.
The Supreme Court also took up the issue of whether H&B should have been permitted to make an assumption of risk defense. An assumption of risk defense argues that the injured person had discovered the risk, or the risk is open and obvious, and the injured person thus voluntarily assumed the risk by using the product. The high court agreed with the trial court that the defense does not apply here, however, because no evidence showed that Brandon Patch knew these bats posed an enhanced risk. Without such a showing, the assumption of risk defense would be inappropriate. Finally, the Supreme Court discarded H&B’s challenge to the jury instructions, finding there was nothing wrong with the instructions actually submitted to the jury. Thus, it upheld the verdict and declined to call for a new trial.
Because I am an experienced St. Louis failure to warn attorney, I appreciate that this decision preserve the family’s victory in court. Manufacturers of all kinds of products, from toys to automobiles to prescription drugs, are required to warn their products’ users about risks from using those products. As this case shows, it’s not enough merely to show that any use of a baseball bat carries a risk; the Patches had to (and did) argue that the particular baseball bat carried an unreasonable risk above and beyond the risks of other bats. This allows victims and their families to recover financial damages from companies that unreasonably fail to warn about risks. Perhaps even more importantly, it gives companies an incentive to make sure their products are free of defects and as thoroughly explained as possible. As a southern Illinois wrongful death lawyer, I know injured people would far rather have avoided the injury in the first place than collect money afterward.


If you or someone you love was seriously hurt by a defect in a consumer product, don’t hesitate to call Carey, Danis & Lowe to discuss how we can help. For a free, confidential consultation, call us toll-free at 1-877-78-3400 or send us a message online.
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