*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.,
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.,
“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
Ҥ
provided:
It there is
Torts.
“(1)
intervening
An
force is one which
Negligence
Intervening
447.
of
Acts
Ҥ
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-
Ҥ
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
Ҥ
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.,
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.
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