BURKE, Justice.
[¶ 1] This case comes before us a second time. Previously, we reversed a grant of summary judgment in favor of Union Pacific after finding that the railroad had a duty to exercise ordinary and reasonable care in the operation of its railway.
[¶ 2] Mr. Glenn presents the following issues:
Union Pacific phrases the issues in a substantially similar manner.
[¶ 3] Mr. Glenn was employed as a blaster at the Black Butte coal mine in Sweetwater County. On June 30, 2000, he went to work expecting to weigh semi-trucks as they left the mine, but when he started his shift, the mine production superintendent asked him to attend to a problem with a Union Pacific train that was waiting to be loaded. The train consisted of 102 rail cars that unloaded through dump doors in the floors of the cars. When the train arrived at Black Butte, however, the dump doors on approximately 40 of the cars were either open or unlocked. As the train could not be loaded with open dump doors, and closed but unlocked doors created a risk of derailment, the dump doors needed to be closed and securely locked before the train was loaded.
[¶ 4] The production superintendent dropped Mr. Glenn off near the tracks, where a coworker was waiting with the conductor of the train. At this point, the train was parked on the balloon track, an oval-shaped section of track situated just ahead of the tipple, which is the structure used to load coal into the train cars. The production superintendent instructed Mr. Glenn and his coworker to check the train cars by walking the length of the balloon track, also referred to as the "loop." The conductor told Mr. Glenn and his coworker that he would cause the train to be pulled up, so that they could close the dump doors on the paved area near the tipple, which accommodated five or six train cars at a time. However, due to an incident that occurred less than two weeks earlier, Black Butte had changed its car-checking procedure to require its employees to check the cars while the train remained stationary.
[¶ 5] At the time of the previous incident, Black Butte's safety procedures required that all cars be inspected at the tipple. An employee in the tipple would be able to observe the interior of the cars for residue that might come out when the doors were opened, and the employees closing and locking the cars would do so on the paved area around the tipple. After the cars were checked, the train would move ahead so that additional cars could be inspected at the tipple. Cleav Porter was a mine employee engaged in this inspection process. For reasons that are unclear from the record, he was underneath a Union Pacific train in the tipple area when it unexpectedly moved forward. Fortunately, Mr. Porter was not injured, but he was very upset about the close call.
[¶ 6] As a result of this incident, the mine issued a letter on June 27, 2000 changing the inspection procedure. The letter, which was authored by the same production superintendent who had instructed Mr. Glenn to check the cars by walking the loop, provided as follows:
[¶ 7] In accordance with Black Butte's new car-checking procedure and the production superintendent's instructions, Mr. Glenn and his coworker informed the train conductor that they would be checking the cars by walking the loop. Mr. Glenn had never before closed dump doors. His coworker showed him what to do. Using a pry bar, the two first opened the doors and then swung them closed again to engage the locking mechanism. After opening and closing several dump doors, Mr. Glenn and his coworker discovered that some of the rail cars contained coking coal, which was subsequently determined to have been left in the train after it was unloaded at a facility owned by FMC Astaris in Don, Idaho. When Mr. Glenn opened the unlocked doors of one of the cars, a substantial amount of coking coal fell out and trapped his leg so that, as he fell backward, his right leg was broken.
[¶ 8] Mr. Glenn filed suit claiming that his injury was caused by Union Pacific's negligence. Union Pacific denied negligence and asserted that Mr. Glenn, Black Butte, and FMC Astaris were at fault for the accident. Prior to trial, Union Pacific filed a motion in limine seeking to prevent the jury from hearing any evidence regarding the Cleav Porter incident. Union Pacific asserted in its written motion that the evidence was irrelevant and that, even if the evidence was determined to be relevant, it should still be excluded because the probative value of the evidence was outweighed by the danger of unfair prejudice. Mr. Glenn resisted the motion and asserted in his written response that the evidence was relevant, in part, because the incident was "a primary reason that Steve Glenn came to be where he was, doing what he was doing, when he was injured."
[¶ 9] The district court considered Union Pacific's motion at a hearing held on June 23, 2009. At the hearing, Union Pacific argued that evidence of the prior incident was not "in any way relevant to the Glenn incident." Union Pacific contended that Mr. Glenn was offering the evidence "to show that the railroad is negligent, they don't pay any attention to their rules, for a number of different reasons." The district court agreed that the evidence could not be admitted to prove that Union Pacific was negligent, but stated that the evidence could be admitted if Union Pacific argued that Black Butte should not have allowed its employees to inspect incoming trains on the balloon track. In a written order memorializing the ruling made at the hearing, the court granted Union Pacific's motion in limine to exclude "Any argument, evidence, or reference to a purported `near miss' regarding Cleav Porter which occurred prior to Mr. Glenn's accident." In accordance with the district court's ruling, the letter changing Black Butte's car-checking procedure was redacted to eliminate the first sentence referring to the "recent incident in checking the train" before the letter was admitted into evidence.
[¶ 10] In their Joint Statement, the parties stipulated that the balloon track at Black Butte was not a safe workplace for Mr. Glenn to close, latch, and lock the coal car doors. At several junctures during trial, Mr. Glenn attempted to introduce evidence of the prior incident in response to argument and testimony that the balloon track was not a safe area in which to check the train cars. Each attempt to do so, however, was rebuffed by the district court, which held that the evidence was irrelevant and prejudicial to Union Pacific.
[¶ 11] A jury verdict was ultimately entered in Mr. Glenn's favor. However, in the ensuing judgment, the total damage award was significantly reduced by the percentage of fault attributed to other actors. The jury apportioned 70% of the fault to non-party Black Butte, 20% to Union Pacific, 5% to non-party FMC Astaris, and 5% to Mr. Glenn. Mr. Glenn appeals, claiming that the
[¶ 12] We review a trial court's evidentiary decisions for an abuse of discretion. Rulings on the admission of evidence are placed within the sound discretion of the trial court and, in order to challenge these rulings successfully on appeal, an appellant must show that the trial court committed a clear abuse of discretion. Schmid v. Schmid, 2007 WY 148, ¶ 10, 166 P.3d 1285, 1288 (Wyo. 2007).
Id. (citation omitted).
[¶ 13] Mr. Glenn argues that the district court abused its discretion in refusing to admit evidence of the prior incident at Black Butte. He challenges the court's initial ruling granting Union Pacific's motion in limine, and also contends that the court erred in refusing to admit the evidence after Union Pacific repeatedly "opened the door" by arguing that the balloon track was not a safe place to check the train cars. Mr. Glenn argues that, due to the fact that Black Butte was immune from suit, the district court's decision to exclude the evidence was prejudicial because it impeded his ability to defend Black Butte against Union Pacific's allegations of negligence. According to Mr. Glenn, he should have been allowed to introduce the prior incident in order to rebut evidence indicating that Black Butte was at fault for his injury.
[¶ 14] Union Pacific argues that the district court did not abuse its discretion because the prior incident was not relevant under W.R.E. 401. It argues that the relevant inquiry was whether Black Butte's car-checking procedure was reasonably safe or not reasonably safe, and that this determination is unrelated to the fact that Black Butte's policy was changed in response to the prior incident. Union Pacific also argues that it did not "open the door" to introduction of the prior incident. Finally, Union Pacific contends that, even if the evidence was relevant, the district court properly excluded the evidence under W.R.E. 403 because the probative value of the evidence was outweighed by the danger of unfair prejudice.
[¶ 15] Before we address the parties' main contentions, we must address a factual issue raised by Union Pacific. On appeal, Union Pacific contends that "the new Black Butte car checking procedure, in effect at the time of [] Glenn's accident, dictated that Black Butte employees should do the car checking job at the tipple, not on the balloon track." Further, Union Pacific argues that "The testimony at trial established that Glenn was working on the balloon track because [the production superintendent] ordered him to do so, in clear violation of the Black Butte car checking procedure." There was substantial testimony presented at trial, however, indicating that Black Butte intended for its employees to check the cars on the balloon track, although that testimony was not entirely consistent. The production superintendent, who had authored the new procedure and who had instructed Mr. Glenn to walk the loop, was less than perfectly clear about its intended execution in his testimony at trial. During direct examination by counsel for Union Pacific, he testified as follows:
Later on in his testimony, however, the production superintendent indicated that the new procedure did require cars to be checked at the tipple:
The testimony of other witnesses, however, was less ambiguous. Mr. Glenn, the coworker who helped him check the cars, the drill and blaster superintendent on duty at the time of the accident, and the head mine superintendent on duty at the time of the accident all testified, in unequivocal terms, that the new procedure required Black Butte personnel to close the dump doors on the balloon track rather than exclusively at the tipple. In light of the testimony of these witnesses, and the apparently contradictory testimony of the production superintendent, we find sufficient evidence to support Mr. Glenn's contention that checking the train cars on the balloon track was consistent with Black Butte's new car-checking procedure.
[¶ 16] In addressing Mr. Glenn's first claim of error, the issues we must resolve are (1) whether the reason for Black Butte's change in safety procedures is relevant, and (2) whether the district court abused its discretion in rejecting that evidence. Throughout the trial, Mr. Glenn sought to introduce evidence of the prior incident at Black Butte for several purposes, one of which was to counter Union Pacific's argument that Black Butte was negligent in requiring its employees to check incoming trains by walking the balloon track. Our review focuses on the admissibility of evidence of the prior incident for this purpose.
[¶ 17] We begin our analysis by addressing the issue of whether the evidence was relevant. For evidence to be admissible, it must be relevant. W.R.E. 402. Relevant evidence is "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." W.R.E. 401. This definition of relevance, which is identically expressed in Rule 401 of the Federal Rules of Evidence, "is generous and it distinctly favors broad admissibility." 1 Christopher B. Mueller & Laird C. Kirkpatrick, Federal Evidence § 4.1, at 541 (3d ed.2007) (footnote omitted). According to Professors Mueller and Kirkpatrick,
Id. (footnote omitted). Similarly, we have stated that "Generally speaking, `[t]he test of relevancy is one of reasonableness and common sense, liberally applied to favor admissibility rather than the exclusion of evidence.'" Foster v. State, 2010 WY 8, ¶ 20, 224 P.3d 1, 8 (Wyo.2010) (quoting Callen v. State, 2008 WY 107, ¶ 17, 192 P.3d 137, 144 (Wyo.2008)).
[¶ 18] Mr. Glenn contends the evidence of the prior incident was relevant because it tended to show "why Black Butte changed the car-checking procedure and why Glenn was out walking the loop." We agree that the incident is relevant because it provides a context for Black Butte's decision to change its car-checking procedure. As noted by Mueller and Kirkpatrick, "Circumstantial evidence that provides such background may be relevant if it throws other evidence into sharper relief, helps clarify or explain it, or makes it more vivid or real." Id. at 559. At the very least, the prior incident helps explain Black Butte's decision to change its car-checking procedure, which was made in direct response to the incident involving Mr. Porter. More fundamentally, however, the prior incident was relevant to the question of whether Black Butte's new car-checking procedure was more or less safe than its former procedure, or the procedure suggested by Union Pacific at trial. Black Butte's attempt to eliminate the risk of injury from a moving train by switching to a procedure that required the train to be stationary until all cars were checked tends to show that the procedure in place at the time of Mr. Glenn's accident was, in at least one respect, a safer alternative to the former procedure. The degree of safety of Black Butte's car-checking procedure had direct implications for the jury's determination as to Black Butte's degree of fault, one of the ultimate issues in this case. The evidence was relevant.
[¶ 19] The district court appears to have determined that, by stipulating to the fact that the balloon track was an unsafe place for Mr. Glenn to check the train cars, Mr. Glenn purged the prior incident of its potential relevance. During the hearing on Union Pacific's motion in limine, the court indicated that there was no need to explain why the cars were checked on the balloon track, as opposed to the tipple, in light of the stipulation:
The evidence of the prior incident, however, did not become irrelevant merely because Mr. Glenn admitted that the balloon track was not a safe place to check the train cars. First, as we have previously stated, "an evidentiary admission is not conclusive but is subject to contradiction or explanation." Jewell v. Chrysler Corp., 994 P.2d 330, 335 (Wyo.1999) (quoting 2 McCormick on Evidence § 254, at 137-38 (5th ed. 1999)). Second, even if the stipulation had removed from consideration the issue of whether the balloon track was "safe," Mr. Glenn's admission does not answer the question of whether Black Butte's new car-checking procedure was more or less safe than other possible car-checking procedures. At trial, Union Pacific argued that all train cars should be checked near the tipple, where the footing was sound. This procedure necessarily required the train to be moved periodically during the inspection process. Black Butte's new procedure, however, eliminated the risk of injury from a moving train. The prior incident was relevant to a determination as to the degree to which Black Butte's procedure was safe or unsafe, and it was ultimately the jury's responsibility to factor that determination into its apportionment of fault. The stipulation that the balloon track was not a safe place to check the train cars did not render the prior incident irrelevant.
[¶ 20] Next, we must answer the more difficult question of whether the district court abused its discretion in its application of W.R.E. 403. W.R.E. 403 provides that, "Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." As a general principle, we have stated that "This rule is to be used sparingly, because it excludes evidence which is concededly relevant and probative." Mintun v. State, 966 P.2d 954, 959 (Wyo. 1998) (citing Towner v. State, 685 P.2d 45, 49 (Wyo.1984)). Further, W.R.E. 403, by its terms, is "weighted in favor of admissibility, allowing evidence to come in unless prejudicial effect substantially outweighs probative worth." Proffit v. State, 2008 WY 114, ¶ 22, 193 P.3d 228, 237 (Wyo.2008) (quoting Christopher B. Mueller & Laird C. Kirkpatrick, 3 Federal Evidence § 6:42 (3d ed.2007)).
[¶ 21] Unfairly prejudicial evidence is evidence which will likely "stimulate an excessive emotion or . . . awaken a fixed prejudice. . . and thus dominate the mind of the [jury] and prevent a rational determination of the truth." Furman v. Rural Elec. Co., 869 P.2d 136, 146 (Wyo.1994) (quoting 22 Wright & Graham, Federal Practice and Procedure: Evidence § 5215, at 278 (1978)). We have previously noted the importance of characterizing potential prejudice as "unfair" under Rule 403: "Rule 403 does not allow the exclusion of evidence simply because it is prejudicial. All of the evidence against appellant [is] `prejudicial.' The evidence must be unfairly prejudicial before its prejudicial effect is weighed against its probative value." Robinson v. State, 716 P.2d 364, 367 n. 2 (Wyo. 1986) (emphasis in original); see also Pena v. State, 792 P.2d 1352, 1355 (Wyo.1990) ("For the prejudice factor to come into play the [trial] court must conclude that it is unfair."); Heinemann v. State, 12 P.3d 692, 702 (Wyo. 2000) ("Evidence that is not in some way prejudicial would be irrelevant, since the purpose of evidence is to persuade the trier of fact of the validity of the charge."). With these principles in mind, we turn to the district court's evaluation of probative value and unfair prejudice.
[¶ 22] As noted above, at the hearing on Union Pacific's motion in limine, the court determined that evidence of the prior incident should be excluded, but stated that its admissibility at trial would depend on whether Union Pacific "opened the door" to the evidence. The transcript from the hearing provides as follows:
During a colloquy in the judge's chambers just prior to trial, the court again indicated that admissibility of the prior incident would depend on Union Pacific's arguments at trial:
Based upon the district court's pretrial ruling, it was clear that evidence of the prior incident would not be allowed to prove that Union Pacific was negligent. It was also clear, however, that Union Pacific could open the door to admissibility of that evidence "if the issue comes up about it being unsafe or why was Mr. Glenn out there, that Black Butte was negligent in making him go out there and having that policy of walking the loop and checking these cars." Mr. Glenn contends that Union Pacific "opened the door" to receipt of the evidence and that the district court erred in excluding the evidence after Union Pacific had "opened the door." We agree.
[¶ 23] During opening statements, counsel for Union Pacific stated that Black Butte should not have allowed its employees to inspect train cars on the balloon track, and asserted that checking cars at the tipple was the safer alternative.
Further, during Union Pacific's direct examination of Black Butte's production superintendent, counsel for Union Pacific elicited testimony regarding the relative safety of checking cars on the balloon track as opposed to at the tipple:
And again, during direct examination of Black Butte's safety supervisor at the time of Mr. Glenn's accident, counsel for Union Pacific elicited testimony relating to the footing
[¶ 24] Despite the district court's earlier warnings that evidence of the prior incident may be admissible if Union Pacific argued that "Black Butte was negligent in making him go out there and having that policy of walking the loop and checking these cars," the court determined that Union Pacific had not "opened the door" to that evidence. When counsel for Mr. Glenn sought to introduce testimony regarding the prior incident to defend against the argument that Black Butte was negligent, the court responded as follows:
[¶ 25] The district court's refusal to admit evidence of the prior incident allowed Union Pacific to shift blame to Black Butte by producing testimony that its safety procedures were inadequate, but prevented Mr. Glenn from defending against those allegations by presenting the prior incident as the catalyst and justification for its change in procedure. Our precedent reflects a general reluctance to uphold evidentiary rulings which exclude evidence necessary to a party's defenses or theory of the case. For example, in Capshaw v. WERCS, 2001 WY 68, 28 P.3d 855 (Wyo.2001), a case involving an alleged breach of an employment contract, we addressed a challenge to the trial court's grant of a motion in limine, which prevented the plaintiff from arguing that his complaints relating to the defendant's mismanagement constituted the true motivation for his discharge. Id., ¶ 4, 28 P.3d at 856-57. We held that the trial court abused its discretion in excluding the evidence because the ruling effectively prevented Mr. Capshaw from presenting his theory of the case to the jury. Id., ¶ 10, 28 P.3d at 858. We noted that
Id. Further, we noted the patent unfairness in the one-sided effect of the trial court's ruling:
Id., ¶ 11, 28 P.3d at 858.
[¶ 26] Likewise in Schmid, 166 P.3d 1285, a case involving a dispute relating to the plaintiff's salary bonus, we addressed a challenge to the trial court's decision to exclude the defendant's proposed witness testimony indicating that the defendant's agreement with the plaintiff employee was similar to an agreement he had with two other employees. Id., ¶¶ 7-9, 166 P.3d at 1288. In holding that the decision to exclude the evidence was an abuse of discretion, and that the error was prejudicial, we noted that
Id., ¶ 21, 166 P.3d at 1291.
[¶ 27] As in Capshaw and Schmid, the district court's evidentiary rulings in this case prevented Mr. Glenn from presenting a vital part of his theory of the case, which was that the car-checking procedure in effect at the time of Mr. Glenn's accident arose as a direct result of the prior incident, and that the subsequent procedure was more safe than the former procedure in light of that incident. Further, as in Capshaw, the district court's rulings had the unfortunate effect
[¶ 28] In holding that the district court abused its discretion in excluding evidence of the prior incident, we repeat the qualification offered in Capshaw, where we stated that
Id., ¶ 12, 28 P.3d at 858. Likewise, in this case, the district court has discretion to tailor presentation of the evidence to prevent the jury from hearing unnecessary or inflammatory details of the prior incident. Additionally, the dangers of "unfair prejudice" can be addressed through an appropriate limiting instruction. Counsel for Mr. Glenn indicated his amenability to a limiting instruction on several occasions, stating at one point during trial that "We don't have any problems with the Court giving limiting instructions or crafting our presentation of that so as to avoid unnecessary drama, but we think the facts of the case are intimately related to this Cleav Porter incident and that we should be allowed to tell the jury about it." As we noted in Capshaw, managing evidence through proper jury instructions "accommodates the receipt by the trier of fact of all relevant evidence and, at the same time, permits the parties to fully litigate their case theories." Id., ¶ 13, 28 P.3d at 859.
[¶ 29] We must also conclude that exclusion of the prior incident evidence was prejudicial. Mr. Glenn was effectively prevented from defending against argument and inference that Black Butte was at fault for his injury. As Mr. Glenn's employer, Black Butte was immune from suit under Wyoming's Worker's Compensation Act. Wyo. Stat. Ann. § 27-14-104. However, under Wyoming's comparative fault statute, the jury was permitted to allocate fault to actors, including Black Butte, who were not made parties to the action. Wyo. Stat. Ann. § 1-1-109. As a result of this statutory scheme, Mr. Glenn was placed in the position of having to defend against allegations relating to Black Butte's negligence, for any percentage of fault allocated to Black Butte would necessarily diminish his recovery. Absent evidence of the prior incident, however, Mr. Glenn was unable to provide the jury with a clear justification for Black Butte's decision to require its employees to walk the balloon track when checking the train cars. Given that any increase in the allocation of fault to Black Butte had a direct effect on Mr. Glenn's recovery, there is at least a reasonable probability that the verdict would have been different if the error in excluding the evidence had not occurred. Accordingly, we find that the error was prejudicial, and so we reverse and remand for a new trial.
[¶ 30] Although we reverse based on our resolution of the first issue, we will also consider Mr. Glenn's second issue due to the fact that it is likely to arise again in the new trial. In his second issue, Mr. Glenn contends the district court erred in "permitting the jury to consider the fault of two nonparty actors," referring to Astaris and Black Butte.
[¶ 31] Mr. Glenn's first argument is that Astaris did not owe him a duty of care and that, as a result, the district court erred in denying his motion for a directed verdict
[¶ 32] The existence and scope of a duty is a question of law, which we review de novo. Rice v. Collins Commun., Inc., 2010 WY 109, ¶¶ 8, 10, 236 P.3d 1009, 1013-14 (Wyo.2010). Further, we review the decision to grant or deny a motion for judgment de novo. Sayer v. Williams, 962 P.2d 165, 167 (Wyo.1998). However, we view the facts in the light most favorable to the trial court's decision.
Schmid, ¶ 26, 166 P.3d at 1292.
[¶ 33] As noted above, under Wyoming's comparative fault statute, a non-party actor may be placed on the verdict form if the actor's fault is determined to be a proximate cause of injury. Wyo. Stat. Ann. § 1-1-109 (LexisNexis 2011). The relevant portions of the statute provide as follows:
Id. Because the definition of "fault" includes acts or omissions "that are in any measure negligent," one who seeks to include a non-party actor on the verdict form must prove that the actor was negligent by showing (1) the actor owed a duty of care to the plaintiff, (2) the actor breached the duty, (3) the actor's breach was the proximate cause of injury or loss to the plaintiff, and (4) the plaintiff suffered actual injury or loss. See Andersen v. Two Dot Ranch, Inc., 2002 WY 105, ¶ 11, 49 P.3d 1011, 1014 (Wyo.2002).
[¶ 34] A duty of care "may arise by contract, statute, common law, or when the relationship of the parties is such that the law imposes an obligation on the defendant to act reasonably for the protection of the plaintiff." Rice, ¶ 10, 236 P.3d at 1014. We have stated that a duty exists where, "upon the facts in evidence, such a relation exists between the parties that the community will impose a legal obligation upon one for the benefit of the other—or, more simply, whether the interest of the plaintiff which has suffered invasion was entitled to legal protection at the hands of the defendant." Daniels v. Carpenter, 2003 WY 11, ¶ 21, 62 P.3d 555, 563 (Wyo.2003). In considering whether a duty exists, we have balanced the following factors to aid in that determination:
Id. These factors were originally adopted in Gates v. Richardson, 719 P.2d 193, 196 (Wyo. 1986) from Tarasoff v. Regents of Univ. of Cal., 551 P.2d 334, 342 (1976). In Tarasoff, the Supreme Court of California recognized the "fundamental principle" that "`whenever one person is by circumstances placed in such a position with regard to another . . . that if he did not use ordinary care and skill in his own conduct . . . he would cause danger of injury to the person or property of the other, a duty arises to use ordinary care and skill to avoid such danger.'" Id. (quoting Rowland v. Christian, 69 Cal.2d 108, 70 Cal.Rptr. 97, 443 P.2d 561, 564 (1968)). With regard to the eight-factor test, the Tarasoff court held that "[t]he most important of these considerations in establishing duty is foreseeability." Id. The primacy of foreseeability in determining whether a duty exists has been echoed by numerous courts and commentators. For example, in Beugler v. Burlington Northern & Santa Fe Ry., 490 F.3d 1224 (10th Cir.2007), the Tenth Circuit Court of Appeals stated that
[¶ 35] On appeal, both parties have presented a brief analysis of each of the Gates factors. Given the relatively straightforward circumstances surrounding Mr. Glenn's injury, however, we find it unnecessary to examine each of the elements in the Gates test. Instead, we will focus exclusively on the foreseeability of injury in determining whether Astaris owed a duty to Mr. Glenn.
[¶ 36] The district court, determining that Mr. Glenn's injury was foreseeable, held as follows:
We agree with the district court that the injury to Mr. Glenn was foreseeable. Both the general nature of Mr. Glenn's accident and the evidence presented at trial support a finding that Mr. Glenn's injury was foreseeable. First, it is entirely reasonable to expect that leftover material in an improperly cleaned and closed train car will fall from that train car and cause injury to a person who is ultimately tasked with emptying the car. One needs only a basic familiarity with the law of gravity to anticipate that heavy material precariously perched on an unlocked door may come down with unfortunate consequences. Given the uncomplicated nature of the accident at issue here, we find that Mr. Glenn's injury was reasonably foreseeable.
[¶ 37] Second, the evidence in the record indicates that Mr. Glenn's injury was foreseeable based on the relationship between Astaris and Black Butte. An Astaris employee testified at trial that Astaris had a responsibility to clean all of the coal out of the train cars. The employee testified that "[a]ny person releasing a car [is] supposed to release it in a safe condition." He also testified that Astaris had received complaints from another company "from time to time" that coking coal was left over in the train cars after leaving Astaris' plant. After the employees of that company went on strike, Astaris requested that Black Butte provide coal for its operation in Don, Idaho. Given that Astaris was aware that leftover material created problems for its shippers, and that it had requested coal from the Black Butte mine, it was reasonably foreseeable that material left in an improperly unloaded car could cause injury to a Black Butte employee. In sum, we hold that the district court did not abuse its discretion in finding that Astaris owed a duty to Mr. Glenn and, accordingly, did not err in denying Mr. Glenn's motion for judgment as a matter of law.
[¶ 38] In Mr. Glenn's second argument relating to the fault of Astaris, he contends that "alternatively, the jury was not adequately instructed on the law of causation as it relates to Astaris." More precisely, he argues that the district court erred in refusing to give the jury an intervening cause instruction. He contends that Union Pacific's failure to provide cars that were reasonably safe for their intended purpose cuts off any negligence by Astaris. Mr. Glenn argues that "there is no evidence that Astaris could foresee that the Railroad would repeatedly fail to inspect the car as it was required to do."
[¶ 39] We review a district court's decision to give or refuse a particular jury instruction for an abuse of discretion. Pina v. Christensen, 2009 WY 64, ¶ 8, 206 P.3d 1298, 1300 (Wyo.2009).
Parrish v. Groathouse Constr., Inc., 2006 WY 33, ¶ 7, 130 P.3d 502, 505 (Wyo.2006).
[¶ 40] As Mr. Glenn's argument suggests, an intervening cause is one that comes into being after a negligent act has occurred, and if it is not a foreseeable event, it will insulate the original actor from liability. Buckley v. Bell, 703 P.2d 1089, 1092 (Wyo.1985). An unforeseeable intervening cause is also described as a "superseding cause." See id. at 1093; 65 C.J.S. Negligence, § 223 (2011). We have stated that the notion of intervening cause is an "alternative method" for explaining the concepts of legal or proximate cause and the "substantial factor" test. Buckley, 703 P.2d at 1092. In similar terms, other courts have determined that superseding cause is merely a subset of the inquiry into proximate cause. Convit v. Wilson, 980 A.2d 1104, 1125-26 (D.C.2009); Mobile Gas Service Corp. v. Robinson, 20 So.3d 770, 780-81 (Ala.2009). Moreover, at least one jurisdiction has concluded that the doctrine of superseding cause "has no place in our modern system of comparative fault and apportionment" because "it is inconsistent to conclude simultaneously that all negligent parties should pay in proportion to their fault . . . but that one negligent party does not have to pay its share because its negligence was somehow `superseded' by a subsequent negligent act." Barry v. Quality Steel Products, Inc., 263 Conn. 424, 441-42, 820 A.2d 258, 269 (2003). The commonality in the analysis of proximate cause and intervening cause, and the mandates of Wyoming's comparative fault statute, may have contributed to the 2009 Pattern Jury Instructions Committee's disapproval of a pattern intervening cause instruction. The committee note accompanying the instruction states that
Wyoming Civil Pattern Jury Instruction No. 3.12, Use Note (2009).
[¶ 41] The district court, after initially reserving judgment on the intervening cause instruction, in order to give the issue further study, subsequently determined that the instruction should not be given. The court cited the Committee's note as one among several reasons for its decision to deny the requested instruction:
Ultimately, the court gave the following instructions relating to comparative fault and causation:
We find that these instructions adequately address the issues of causation and comparative fault. In the final analysis, the same facts that supported Mr. Glenn's argument for an intervening cause instruction also allowed him to argue that Astaris' comparative fault was minimal in relation to the other actors in this case. In light of the rule that "[t]rial courts are afforded substantial latitude to tailor the instructions to the facts of the case," we hold that the district court did not abuse its discretion in refusing to give an intervening cause instruction. See, e.g., Budder v. State, 2010 WY 123, ¶ 7, 238 P.3d 575, 577 (Wyo.2010).
[¶ 42] Finally, because we reverse based on the district court's exclusion of the prior incident at the Black Butte facility, we do not address Mr. Glenn's contention that we should remand on the basis of cumulative error.
[¶ 43] Reversed and remanded for a new trial.
