*1 er level of disability present ative proof disability in Rose’s to the which the case. however, felt, judge, pointed judge district district we conclude that there is the only nothing justify on which he evidence could which would this court in make a disability holding proper, determination as the that the was not award twenty percent body permanent whole district court is af- physical impairment pur- firmed. level established

suant Orthopedic to the Manual for Sur-

geons in Evaluating Physical Permanent'

Impairment referred to the letter from

the second orthopedic surgeon who

examined Rose. We previously held that a district have Joseph BUCKLEY, Appellant (Plaintiff), judge may consider other factors reflected in the beyond physician’s evidence rat Bryce BELL, H. Earl ing W. Bell and Bell disability in order to arrive at a Brothers, partnership consisting finding permanent partial disability. Bryce Bell, H. Bell and W. Earl McCarty v. Bear Uranium Creek d/b/a Johnie’s, (Defendants). Appellees Wyo., ex State rel. Wyoming Compensation Worker’s Divi No. 83-146. Colvin, P.2d 269 sion Supreme of Wyoming. Court also recently We held that a determi degree permanent partial nation of the July 30, 1985. disability is a question of fact to re by the trier fact. solved Abas v. State 16, 1985. Sept. Rehearing Denied Wyoming, Wyoming ex rel. Worker’s Compensation Division, Wyo., 701 P.2d Light Power and Pacific Parsons, Wyo., 692 P.2d 226 this instance other evi disability

dence was that related Rose respect

himself with to limitations of func

tion, and it is the task of trial court to

weigh along and evaluate that evidence other evidence the record. Fur

with

thermore, testimony Rose’s was consistent his diagnosis medical treatment not in conflict with the evaluation doctors.

We conclude that Rose was not in bringing himself within the

successful permanent doctrine of total

odd-lot disabili

ty accordance with our statute and any prejudicial find

precedents. We do not in the consideration his activities in

error horse-racing partnership by the district Finally, support the evidence does

judge. finding partial permanent of a disabili twenty percent.

ty of

While, indicated, as we have we are in with the sense of dissatisfaction rel-

accord *2 reasonably not have been

could probable consequence of the acts of a the In of the defendant. the context debate question parties the the will between perspective from the of our addressed cause, relating proximate precedents to perspective the Restatement well as the (Second) of shall affirm the Torts. We judgment of the district because we foreseeability that this instance conclude subject question of fact to resolution was fact, by the trier of and since there is finding that can be evidence which change appeal. it on inferred we will not parties propounded by the The issues operative light understood of the best dispute There is between the facts. respect parties wiht to these facts. Buck- ley regular gasoline ordered some from the driver Bells. When the Bells’ arrived Buckley fuel truck handed a hose Bells’ he fuel was connected to a diesel com- Buckley portable filled a partment, and Buckley fuel. tank in his truck diesel with gas- filled his drove to the field and the diesel oline-engine with fuel. baler run on the hay baler not diesel The would fuel, operate to attempted and when he that Buckley he had machine discovered Afton, Sanderson, appel- L. Dennis tank instead of diesel fuel the baler's lant. In Bells’ driver gasoline. the meantime Greenhalgh Greenhalgh, Bus- Gary M. storage tank at bulk-gasoline filled a had Rossetti, P.C., sart, Springs, Rock &West the diesel fuel. Buckley’s ranch with appellees. Buckley place drove Bells’ of business to THOMAS, ROSE, they had C.J., delivered and ROO- to inform Bells Before CARDINE, Buckley NEY, wrong fuel. he arrived and JJ. When BROWN employees advised that Bells’ knew was THOMAS, Chief Justice. wrong fuel, and they had delivered the they replace the diesel fuel they case said would precise question posed in this regular gasoline. At that time the negligent con- foreseeability of with whether the Buckley’s truck subsequent portable tank on plaintiff occurring to duct gasoline mixture ques- of the drained diesel acts of a defendant (In gasoline. regular filled fact. The of law or a tion court, court, days procedure occurred in a held next two the same trial to the district bulk-storage tank for respect to were a with that the acts of defendant portable gasoline.) tank regular After cause of the Buckley filled went back to his plaintiff had been finding that the actions He drained the plaintiff indepen- hay baler the field. amounted a new and ground onto damages. fuel from the tank dent force which caused those diesel regular gas- filled the tank with the district court found addition line the fuel particular plaintiff purge In order harm oline. sustained Buckley fuel disconnected at the THE diesel BETWEEN AC- DEFENDANT’S by jump- engine and turned the THE carburetor TION AND PLAINTIFF’S DAM- pump fuel ing the solenoid the diesel out AGE? Buckley line. hand over the “B. SHOULD THIS COURT ADOPT engine to choke carburetor THE OF RULES LEGAL CAUSATION gasoline began the time the flow SET IN THE FORTH RESTATEMENT *3 his

from the fuel line he removed hand (SECOND)TORTS? engine backfired from carburetor. The “C. DID THE TRIAL COURT ERRO- gasoline ignited. The fire and the was NEOUSLY CONCLUDE THAT THE spread ground fueled then and DID DEFENDANT NOT A DELIVER ultimately dry grass and the diesel fuel PRODUCT ‘DEFECTIVE’ UNDER RE- destroyed hay baler. (SECOND) TORTS, STATEMENT 402A HE WHEN DELIVERED DIE- brought by Buckley action This SEL TO THE FUEL PLAINTIFF IN- hay and addi- recover cost of his baler STEAD OF GASOLINE?” harvesting hay his tional costs incurred in destroyed. hay baler was because appellant The relating claims to error Buckley premised upon his action theories finding no causal connection between the products im- liability; of strict breach of plaintiff’s defendants’ conduct and the express warranties; negli- plied and damages desirability and the adopting gence. argument The in the trial court and the rules of causation set forth in Restate- upon this court focused the causa- before ment of Torts will be discussed Buckley’s tion element of claims. The dis- 1, together. Madden, In Wyo. Lemos v. 28 findings of following trict court entered the 200 P. 793 this court first de- fact: proximate which, fined cause as ain “[t]hat delivery of the “9. That Defendants’ sequence, natural and continuous unbroken wrong fuel cause of was not a cause, by any intervening pro- efficient fire; and that Plaintiff’s actions were injury, duces the without which the independent proxi- a new force which not have occurred.” This result would mately resulting caused the fire and same has been relied definition hay to Plaintiff’s baler. TWP, Inc., years. recent Robertson v. resulting “10. That the fire and dam- Wyo., Kopriva 656 547 P.2d Un- ages reasonably could not have been Wyo., R. ion Pacific consequence probable as a Madden, supra, P. In Lemos 200 any prior act of Defendants.” rejected also a “but for” causation, stating: rule of court then that the The district concluded “ * * * original wrong if on Buck- fur judgment Bells were entitled to But occasion, theory only there nished the condition or ley’s of strict because prod- proxi remote and not the proof failure of it is the was a of a defective cause, notwithstanding uct; judgment the fact Bells were entitled mate no loss or against Buckley breach of that there would been on his claim for such condition or warranty proxi- injury occasion. * * *" because of the but absence cause, were finally mate that the Bells Buckley judgment against on his entitled our court has identified In later cases evidence theory of “the because that conduct legal which is causation plaintiff’s the effi-

proved actions were bringing factor about substantial fire and cient cause of the complaint. in the injuries identified damages.” plaintiff’s P.2d McClellan v. Tottenhoff appellant’s The issues identified (1983); Chrysler Corporation v. Todo brief are: Phelps rovich, Wyo., 580 P.2d 1123 Co., Wyo., ERR IN DID THE TRIAL v. Woodward Construction “A. COURT 33, 33, 204 P.2d 179 Wyo. FINDING'NO CAUSAL CONNECTION Buckley approach of the fire and that actions of of that rationalization obvious in Lemos were a new and independent force which found propositions the two Madden, proximately if supra, is that caused the fire and the result- and continu- ing damages natural The evi- “that cause baler. in- a sufficient sequence, supports unbroken inferential ous dence the record injury, with- tervening produces court, finding by the trial and it is not a oc- result would not have which the out situation which is so clear that reasonable curred,” as a substan- it must be identified disagree. minds could not If, bringing the harm. about tial factor however, Buckley, urges rules of le- or oc- however, it created a condition gal causation set forth in it would harm to occur then casion for the Torts, contending that a differ- remote, proximate, not a regarded result would ent follow. our cause, not be a substantial and would (Sec- the result is the same. Restatement the harm. factor in ond) recognizes the re- *4 explain method for An alternative relationship. quirement of a causal Section concepts found in the discus ing these is 431, (Second) Restatement of Torts then in cases. intervening cause our sions of states: supra; Kopriva Tottenhoff, v. McClellan Legal 431. What Constitutes Cause “§ Co., supra; R. Gilliland v. Union Pacific negligent legal “The actor’s conduct is a Rhoads, Fa (1975); 1221 v. Wyo., 539 P.2d harm to another if cause of Summers, Wyo., P.2d 1227 gan v. 498 “(a) in his conduct is a substantial factor Jensen, Wyo. 249, Tyler v. (1972); 75 harm, bringing about the intervening An cause 295 P.2d 742 relieving “(b) rule of law there is no being comes into after a defend is one that liability because of the man- actor from occurred, if it is negligent act has ant’s in has resulted ner which event it will insulate the not a foreseeable in the harm.” liability. reasonably It defendant from court assumed the Apparently the district probable consequence if it is a foreseeable wrong fuel was a substan- delivery of the wrongful the defendant’s act or bringing Buckley’s factor in about tial response to the stimulus of normal case, because, disposing it in harm thereby. created situation upon Buckley’s conduct. focused Wyoming in is that The usual rule in Continuing text black-letter cause of harm is Torts, we find in Restatement persons the trier of fact unless reasonable following: 433 the disagree. Caterpillar Tractor could not in De- Important 433. Considerations “§ Donahue, P.2d Company v. Wyo., 674 termining Negligent Conduct is Whether Tottenhoff, (1983); su v. McClellan 1276 Producing in Harm Factor Substantial R. Kopriva v. Union Pacific pra; following considerations are “The Company v. Refining supra; Sinclair in combination with one themselves or Cailli (1968); Redding, Wyo., P.2d 20 439 determining important in wheth- another Newcastle, P.2d 653 City er v. Wyo., 423 actor’s conduct is a substantial er the Arguello, (1967); Ford Motor Co. another: harm to factor v. Buckmei (1963); Dallason 382 P.2d 886 “(a) the number of other factors er, 125, 386 Wyo. 74 284 P.2d harm and the producing contribute 233, O’Malley Eagan, Wyo. 43 they have of the effect which extent Wyo. 1063, 582, 77 A.L.R. reh. denied it; producing Sweeney, 350, Hines “(b) has cre- 165, the actor’s conduct Wyo. whether Wyo. 201 P. reh. denied force or series of forces which ated a 201 P. 1018 In this instance up operation and active delivery of continuous finder of fact decided that the harm, created a time of the or has proximate cause the diesel fuel was not a following unless “The situation harmless acted considerations are of im- forces for which the actor is not portance other determining in- whether an responsible; tervening force is a superseding “(c) lapse of time.” harm to another: Then “(a) The fact that its brings intervention provides follows: about harm different in kind from that Foreseeability 435. of Harm or Man- “§ which would otherwise have resulted ner Its Occurrence negligence; from actor’s “(1) If the actor’s conduct is a substan- (b) operation the fact that its or the con- in bringing tial factor about harm to sequences appear thereof after event another, the fact that the actor neither extraordinary be rather than normal in should foresaw nor existing view circumstances at the extent of the harm or manner operation; time of its him prevent which it occurred not does “(c) the fact that force is being liable. operating independently situation “(2) may The actor’s held be created negligence, or, the actor’s on legal another cause of harm to hand, the other is or is not a normal looking where after the event and back situation; result of such a from the harm to the actor’s “(d) the fact the operation conduct, appears highly it to the court intervening force is per- due a third extraordinary should have act; act son’s or to his failure brought about the harm.” *5 “(e) intervening the fact that the force is Against background this Restatement person due to an act of a third is which (Second) Torts, proceeds of then to discuss wrongful toward the other and as such concepts superseding begins of cause. It person subjects the third way: him; Superseding 440. Cause Defined “§ “(f) culpability wrong- superseding degree

“A of of a cause is of a an act third person by person or other force its ful of inter- act a third which sets the prevents being vention the actor from intervening force in motion.” liable for harm to another which his ante- succeeding the matters discussed in the Of negligence cedent is a substantial factor pertinent one is in this instance sections bringing in about.” (Second) found in Restatement of § Intervening 441. Force Defined “§ provided: It there is Torts. “(1) intervening An force is one which Negligence Intervening 447. of Acts “§ actively operates producing in harm to intervening fact “The that an act of a negligent another after the or actor’s act person negligent is in is third itself or omission has been committed. negligent done in a does manner “(2) operation an Whether the active of superseding make it a of harm to cause intervening prevents the actor’s force negligent another which the actor’s con- being legal antecedent a bringing a in duct is substantial factor in bringing harm to another about, if is in determined the rules stated “(a) negligent of the actor the time 442-453.” §§ conduct should have realized that a third 442 then Section lists those considerations act, person might so or important determining whether an inter- “(b) knowing vening superseding force is a a reasonable man the situa- cause. language is: existing text tion when the of the third act person regard it as was done would not Important 442. Considerations in De- “§ extraordinary termining Intervening highly per- the third an Whether Force acted, Superseding is a son so Cause or resulting and a normal con- “10. That the fire dam- “(c) act is ages reasonably have could not been a created sequence of situation probable consequence as a of the manner in which and conduct actor’s any prior of Defendants.” negli- act extraordinarily is is not it done gent.” Buckley of It held that the actions intervening cause of the were the efficient key in mind the With these rules appli- the correct fire and his harm. Under is disposition appeal of this found (Sec- cation of rules the Restatement (Second) Torts, of Restatement ond) Torts the trial court was entitled 453, Re thereunder. Section the comments foreseeability, and it decide the issue (Second) provides of Torts statement it a of fact. resolved follows: indicated, application has As been of Court 453. Function “§ concepts result as these leads to same court “It is the exclusive function application by the the result reached non-existence to declare the existence or Wyoming. precedents historic tort We respon- the actor’s of rules which restrict previously accepted have the rationale sibility making him liable for short rules found Restatement causation negligent is harm which his (Second) Torts, applied them. about, factor substantial Todorovich, Chrysler Corporation circumstances to which to determine the Wyo., 580 P.2d 1123 this court relied applicable.” rules are such upon some the rules of causation set Comment b: Then there follows forth in of Torts. the definition We there indicated undisputed, it “b. If the facts found in Restatement usually apply the court to duty (1965), expressed p. 428 the essence the ex- them rule which determines in Convoy Com- court’s conclusion this negligent actor’s istence or extent Dana, pany v. however, liability. If, char- findings As understand the of fact and we person’s intervening the third acter of by the conclusions of law entered trial foreseeability of act or the reasonable its case, using dual (see 448) being done §§ *6 accommodating approach prece- in the determining inter- whether the factor in court, this as as dents articulated well vening the actor from liabili- act relieves in the of causation set forth the Re- rules un- ty negligence, for his antecedent (Second) deciding of Torts in the statement undisputed there room der the facts is findings fact case. The court’s of follow opinion for reasonable difference of undisputed from the evidence and thus fore- whether such act was or appeal. Given those unassailable seeable, question left the should be fact, agree we the trial findings of with jury.” the of law. court’s conclusions Contracting Corp., 51 v. Felix Derdiarian 308, 166, appellant’s Finally, we N.Y.2d 434 N.Y.S.2d 414 N.E.2d address erroneously (1980), reargument that the trial court denied 52 N.Y.2d contention 666 1030, 829, the diesel fuel could not be 437 N.Y.S.2d 418 N.E.2d 694 concluded that 402(A), System Kinney Ventricelli v. Rent (1980); product under Re defective § Car, Inc., 950, (Second) This A 45 411 statement of Torts. N.Y.2d N.Y.S.2d Young v. Tide 555, rule adopted 383 1149 has not set forth N.E.2d Inc., 402(A), (Second) Craft, 453, of Torts. 270 242 S.E.2d 671 Restatement S.C. § (1978). jury question For are also A of several reasons we foreclosed considering adoption for in a to the case from fact the trial court trial this First, court, that principle. In this instance the district of that our conclusion court. disputed, accurately which are not the district court resolved based facts prevents any application causation factor found:

1095 concept of liability. Second, strict agree fully I dissenting with the remarks appellant’s even in view of argument case, of Justice Cardine that this involving product if an adulterated is to be con plaintiff, liability sidered defective and lead to when should be resolved accordance with our unreasonably dangerous wrong comparative negligence note, rules. I how- product is one ever, which should be considered concepts that even the of superseding totally for purposes (Second) adulterated of de cause set out in Restatement termining defective, whether it is appellee the au Torts do not relieve from thorities we have say provides: discovered seem to this case. Section 446 wrong product that a is a defective “If the intentionally actor negligently or product purposes liability. strict impedes rights the exercise of another’s Baptista Center, v. St. Barnabas Medical privileges, or the other’s normal efforts 217, 109 N.J.Super. 262 A.2d 902 impediment to remove the or to exercise 167, affirmed 57 N.J. 270 A.2d 409 right privilege notwithstanding or its Berkeley See Pump Co. v. Reed-Jo also existence a superseding are not cause of seph Land 384, 279 Ark. 653 S.W.2d harm resulting from such efforts.” 128 Montez v. Ford Compa Motor Applying this rule undisputed to the ny, Cal.App.3d 101 Cal.Rptr. 161 578 facts —a function of the court under (1980); and Dambacher by Dambacher v. b, (Second) and Comment Restatement — Mallis, Pa.Super. —, 485 A.2d 408 Torts,- quoted in majority opinion, (1984). Finally, it does not seem that a apparent appel P.2d at 1094 is products liability strict theory recognized lant’s normal efforts to rid his baler of as an appropriate vehicle recovery anof negligently supplied diesel fuel cannot loss, economic which is injury in appellee liability. relieve the Nor would light instance in of the resolution of appellant’s negligence removing the fuel the causation factor. Hart Engineering liability. appellee free Section Company Corporation, v. FMC Torts, quoted Restatement F.Supp. (D.R.I.1984). Singularly or opinion, majority 1093. collectively concepts these foreclose re Rather, comparative-negligence our rules liance upon the doctrine of strict liability as apply apportion liability among would articulated parties. County Board Commission 402(A), in this case. Campbell County v. Riden ers of the the facts and circumstances Under our, Wyo., 623 P.2d reh. denied 627 court committed the district this case P.2d 163 findings to its that there respect error I have reversed would the ac- connection no causal between the case and remanded district court and the of the defendants tions parties’ relative a determination *7 for resulting from plaintiff the claimed negligence. hay destroyed his baler. This fire which pursuant precedents flows from the result CARDINE, Justice, dissenting, with of have stat- rules causation been to which ROSE, Justice, whom joins. state, appli- from an and as well ed I dissent. concepts found the Restate- cation of Furthermore, this of Torts. ment With adoption of comparative negli- connection of the causal failure old, gence, doctrines, musty replicas of the of of the doctrine inapplicability general age dinasaur contributory when negli- circumstances fore- such strict gence how slight matter a com- —no —was of the decision adjustment close plete defense, longer have been held no liability. theory that court under trial appropriate. valid or We held that after is af- of the district court The adoption comparative negligence, as- firmed. sumption risk was no longer an abso- ROSE, Justice, action. Brit- negligence dissenting. lute defense in a special These defenses which still haunt Booth, Wyo., 601 P.2d tain merely confuse us serve to and make what Light, 671 Ruhs v. Power & Pacific difficult, (10th ought simple, extremely to be Cir.1982). We elimi- F.2d incomprehensible. I that I gross separate a con- even confess negligence nated circumstances, stating: proposition accept sideration in most unable a cast in am condition, no one who creates a stone ‘gross category negligence’ “The will dangerous likely how or matter longer pertinent except in a be few injury upon by person, when acted third isolated circumstances. The obso ‘gross negligence’ term is not liable because it was a condition. lescence of the gasoline great will be no loss toward the attain case a rancher ordered for use this baler; The char equity. negligently ment of term has been in his the dealer unhappy acterized as ‘an of ill-de term delivered diesel fuel to the and the baler Prosser, Ed., p. fined 4th content.’ Torts gasoline storage tank at the ranch. omitted.) (1971).” (Footnote Dancu delivering mistake diesel fuel was discov- Brown, Wyo., lovich immediately. Appellant ered almost called 192-193 misdelivery. the dealer who admitted the offer, however, not He did to correct the We also eliminated as doctrine entitled to negligently he Be- condition had created. consideration, separate chance, clear last not cause the baler would run on diesel when we said: fuel, appellant to drain fuel the diesel “Wyoming recognized has the doctrine of purge from the baler and disconnect and ‘last clear chance’ a defense to con- * * * during fire the fuel lines. The occurred tributory negligence. “ * * * appellant’s problem effort to correct the However, practical there is no I appellee. agree cannot that as created basis to the rationale to retain used appellee a matter of law or fact was not doctrine of last clear chance in face of a I any way at fault for occurrence. comparative negligence statute. Such prefer simplicity comparative much premised rationale is that doctrine is which the finder sim- under fact on the fact that defendant’s failure to negli- ply percentage determines the avail himself of the last clear chance to respective parties than gence of rather avoid the made accident such failure the incomprehensible old doc- the confusion of injury sole cause of the left from a era. trines over different plaintiff’s negligence was therefore * * * a remote cause. stated, I For the reasons would reverse “The apportionment under and remand. comparative negligence statute PETITION FOR DENYING ORDER unnecessary makes doctrine last REHEARING clear Brown, chance.” Danculovich before the Court came on This case supra at 194-195. Rehearing filed on behalf for Petition Thus, we said that the doctrines of Court, having care- Appellant, and gross assumption risk, negligence, Petition and the case fully considered last clear longer recognized chance are no the Petition Rehearing, finds unnecessary adop- and are because of the denied, it there- Rehearing should of comparative negligence. gross

tion If fore negligence, risk, assumption of and last that the Rehear- ORDERED Petition for outmoded, clear why chance are inter- appel- ing, filed this case on behalf of the *8 vening cause? In this case it is a defense be, hereby is, lant and the same denied. involving plaintiff’s own negligence. grant Petition J., CARDINE, would Sherman v. Platte County, case. Rehearing we said: * * * abrogat- “Comparative negligence J., ROSE, that he continues comments plain- involving the ed absolute defenses majority opinion strongly feel tiff’s own grounds grant but finds error injuries.” her rehearing. his or petition