HILL, Justice.
[¶ 1] Five-year-old Taylor Lysager was attending a community basketball game at a former school building in Etna, Wyoming, when an unsecured lunchroom bench fell on him, causing a fatal head injury. Taylor Lysager's personal representative filed a wrongful death action against Lincoln County School District No. 2 (School District), the Town of Thayne, Wyoming, and the Lincoln County Board of County Commissioners (Lincoln County). The district court dismissed Lincoln County from the action without prejudice based on Lincoln County's affidavit of non-involvement. The court thereafter entered summary judgment for the School District after finding no genuine issues of material fact on the questions of breach of duty and proximate cause. Plaintiff appeals both orders.
[¶ 2] We conclude that the order dismissing the action against Lincoln County is not a final appealable order and dismiss Plaintiff's appeal from that order. As to the order
[¶ 3] The dispositive issues presented by this appeal are:
[¶ 4] In 2008, the School District completed construction of a new school in Etna, Wyoming. With the completion of this new school, the School District stopped using the Metcalf School in Etna, leaving that building vacant. The School District listed the Metcalf School building for sale and upon doing so was approached by area residents who expressed a desire to convert the school into a community center. Those residents formed a group, referred to herein as the "Community Group," that went by various names, including Etna Community Center Group, North Lincoln Community Center Group, and the Star Valley Community Center. After the Community Group presented its ideas for the Metcalf School building to the School District, the District decided to give the Community Group an opportunity to find a way to acquire the building.
[¶ 5] In April 2009, the Community Group approached the Lincoln County Board of County Commissioners with a proposal to have Lincoln County support the Community Group in an application for a Wyoming community facilities grant for the Metcalf School building. Lincoln County agreed to pay for a feasibility study and sponsor the Community Group's facilities grant and loan application. To that end, the Lincoln County Board of County Commissioners held a public meeting on August 11, 2009 and voted to approve the grant application, agreeing to the condition that if the grant were awarded, Lincoln County would assume ownership of the Metcalf School building. Because the grant application required documentation verifying that ownership of the Metcalf School building would transfer to Lincoln County, the School District executed a Purchase Agreement, which bore an August 2009 date and was signed by the chairman of the School District's Board of Trustees. That Purchase Agreement was submitted with the August 2009 grant application but was not yet approved by Lincoln County or signed by a representative of Lincoln County.
[¶ 6] On January 28, 2009, the State Loan and Investments Board approved the community facilities grant for the Metcalf School building. On March 3, 2010, Lincoln County and the School District, each acting through its respective board, agreed to terms of a purchase agreement for the sale of the building to Lincoln County. On April 2, 2010, a quitclaim deed dated March 31, 2010, was recorded with the Lincoln County Clerk transferring ownership of the Metcalf School building from the School District to Lincoln County.
[¶ 7] At the end of July 2009, while Lincoln County was still considering the community facilities grant application, the School District changed the locks on the Metcalf School building and gave the Community Group keys to the building. Shortly thereafter, before the grant was approved and ownership of the Metcalf School building had been transferred to Lincoln County, numerous groups, working through the Community Group, began using the building for their activities. One group that frequently used the building was the Town of Thayne's Recreation Program, which used the facility for activities such as volleyball and basketball. These activities took place in a part of the building that served the dual purpose of providing both a lunchroom and gymnasium. To accommodate both uses, the area was equipped with heavy tables and benches that
[¶ 8] On February 9, 2010, the Town of Thayne held one of its basketball games in the Metcalf School building. Taylor Lysager, who was five years old on that date, attended the game with his grandparents, and during the game was playing with other children on the stage. It is unknown who did it or when it was done, but a lunchroom bench had been removed from the gymnasium wall and placed in one of the storage rooms adjacent to the stage, propped against the wall. While playing, Taylor slid into that storage room and into the lunchroom bench propped against the wall. The bench tipped over and fell on top of Taylor, and he suffered a basal skull fracture, which the coroner reported likely caused death instantly.
[¶ 9] On April 12, 2011, Taylor Lysager's personal representative filed a wrongful death action against the School District, the Town of Thayne, and Lincoln County. On June 15, 2011, Lincoln County filed an affidavit of noninvolvement in lieu of an answer. On October 25, 2011, the district court entered an order dismissing Lincoln County from the action based on the affidavit of noninvolvement. The court specified that the dismissal was without prejudice and commented:
[¶ 10] The action against the Town of Thayne and the School District continued, and on April 19, 2013, the School District filed a motion for summary judgment. It argued that because the School District had turned over possession and maintenance of the Metcalf School building to the Community Group, the District owed no duty to Taylor Lysager and was thus entitled to judgment as a matter of law. On December 11, 2013, the district court issued a decision letter denying the School District's motion for summary judgment. The court explained:
[¶ 11] Although the district court denied the School District's motion on the question of duty, the court also expressed concerns that the facts may not establish a breach of that duty or that the District's actions were a proximate cause of the accident. Because those questions were not addressed in the School District's first summary judgment motion, the court allowed the School District twenty days to file a supplemental or second summary judgment motion.
[¶ 12] On December 31, 2013, the School District filed a renewed summary judgment motion, this time arguing that the School District did not breach its duty of care and that its actions were not the proximate cause of Plaintiff's injuries. On June 23, 2014, the district court held a hearing on the School District's renewed motion of summary judgment and ruled during that hearing:
[¶ 13] On September 22, 2014, the district court issued its order granting the School District's renewed motion for summary judgment. The order incorporated the transcript from the court's hearing on the motion and further provided:
[¶ 14] Plaintiff thereafter filed a notice of appeal, designating as the orders appealed both the order granting the School District's renewed motion for summary judgment and the order dismissing Lincoln County based on its affidavit of noninvolvement.
[¶ 15] We apply the following standard of review to a district court's grant of summary judgment in a negligence case:
Johnson v. Dale C., 2015 WY 42, ¶¶ 12-15, 345 P.3d 883, 886-87 (Wyo.2015).
[¶ 16] To establish a claim for negligence, a plaintiff must show: (1) the defendant owed the plaintiff a duty of reasonable care; (2) the defendant breached that duty; and (3) the defendant's breach was the proximate cause of injury or loss to the plaintiff. Halvorson v. Sweetwater County Sch. Dist. No. 1, 2015 WY 18, ¶ 9, 342 P.3d 395, 398 (Wyo.2015) (citing Collings v. Lords, 2009 WY 135, ¶ 6, 218 P.3d 654, 656 (Wyo.2009)); see also Johnson, ¶ 16, 345 P.3d at 887. Here, the district court found that the School District owed Plaintiff a duty of reasonable care, but it concluded based on the undisputed facts and as a matter of law that the School District had not breached that duty and that the School District's conduct was not a proximate cause of Plaintiff's injuries. The district court's decision was based on its conclusion that if there were negligence in this case it was in the leaning of the lunchroom bench unsecured against a wall and its finding that the undisputed facts established that no one from the School District placed the bench and the School District had no knowledge that the bench had been so placed.
[¶ 17] Plaintiff did not oppose the School District's summary judgment motion with evidence showing that a School District employee placed the lunchroom bench in the storage room or that it knew or should have known of the bench's placement. What Plaintiff argued below and what he argues on appeal is that regardless of who mishandled the bench, it remains a jury question whether the School District breached its duty of reasonable care by failing to warn the Community Group of the dangers of mishandling the lunchroom benches and tables and by failing to restrict access to the keys used to unlock the benches and tables. Plaintiff further argues that whether that failure to warn and restrict access was a proximate cause of the accident and Plaintiff's damages is also a jury question. We agree.
[¶ 18] As we noted in our standard of review above, summary judgments are not favored in negligence actions. We have explained:
Jackson Hole Mt. Resort Corp. v. Rohrman, 2006 WY 156, ¶ 8, 150 P.3d 167, 170 (Wyo. 2006) (quoting Templar v. Tongate, 71 Wyo. 148, 255 P.2d 223, 230 (Wyo.1953)) (footnote omitted).
[¶ 19] For the reasons we discuss hereinafter, we conclude that reasonable minds
[¶ 20] With regard to a property owner's duty of care, this Court has held that "a premises owner must use ordinary care to keep the premises in a safe condition and is charged with an affirmative duty to protect visitors against dangers known to him and dangers discoverable with the exercise of reasonable care." Hendricks v. Hurley, 2008 WY 57, ¶ 12, 184 P.3d 680, 683 (Wyo.2008) (citing Rhoades v. K-Mart Corp., 863 P.2d 626 (Wyo.1993)). Ordinary care means "that care which an ordinarily careful person would exercise under all the circumstances of the case." Wyrulec Co. v. Schutt, 866 P.2d 756, 762 (Wyo.1993) (quoting Pan Am. Petroleum Corp. v. Like, 381 P.2d 70, 72-74 (Wyo. 1963)). We have further explained:
Berry v. Tessman, 2007 WY 175, ¶ 9, 170 P.3d 1243, 1245 (Wyo.2007) (quoting Clarke v. Beckwith, 858 P.2d 293, 296 (Wyo.1993)).
[¶ 21] With the exception of the identity of the individual who placed the bench in the storage room, the material facts in this matter are not in dispute. We emphasize again, however, that even where the material facts are largely undisputed, the question of whether a defendant breached its duty is generally one left to the finder of fact. We have explained:
Foote v. Simek, 2006 WY 96, ¶ 16, 139 P.3d 455, 461-62 (Wyo.2006).
[¶ 22] It is undisputed that on the date of Taylor Lysager's accident, the School District owned the Metcalf School building and had turned the building over to the Community Group for its use. In opposition to the School District's summary judgment motion, Plaintiff submitted evidence that: there was no written agreement governing the Community Group's use of the building; no instructions or directives were given to the Community Group; the School District did not conduct a walk-through with the Community Group to identify potential safety issues or hazards; and no steps were taken to restrict access to the keys to the lunchroom benches and tables. The question then is whether the School District used ordinary care under the circumstances when it turned over possession of the building to the Community Group without taking steps to restrict access to the keys that unlocked the lunchroom benches and tables and without warning the Community Group of the dangers of mishandling those benches and tables.
[¶ 23] On this question, Plaintiff submitted the deposition testimony of: Steve Rich, the School District's facilities manager; Alan Linford, a former principal at Star Valley Middle School and former school board chairman; and Justin Pierantoni, the principal of the former Metcalf School. Steve Rich testified that the tables and benches were too heavy for him to lift on his own and that if precautions were not taken to secure them,
Alan Linford testified:
[¶ 24] Justin Pierantoni testified that the bench was dangerous leaned up against the wall and if children were going to be in the area, the bench should have been either locked back into place on the wall or placed on its side. He further testified:
[¶ 25] Based on this evidence, we conclude that reasonable minds might differ on the question of whether the School District knew or should have known that the lunchroom tables and benches were dangerous if not handled and stored properly. Reasonable minds might also differ on the question of whether ordinary care under these circumstances required that the School District take precautions when turning over possession of the building to the Community Group, such as restricting access to the keys to the lunchroom benches and tables or warning of the dangers of mishandling or improper storage of the benches and tables. In other words, reasonable minds could differ on the question of whether the School District breached its duty of care, and the question is one properly submitted to the jury.
[¶ 26] We turn next to the district court's conclusion that based on the undisputed evidence, the School District's conduct was not, as a matter of law, the proximate cause of the accident and Plaintiff's damages. In particular, the court found, as a matter of law, that the placement of the bench in the storage room by an unknown individual or individuals was an intervening cause:
[¶ 27] We have distinguished proximate cause, remote cause, and intervening cause as follows:
Lucero v. Holbrook, 2012 WY 152, ¶ 17, 288 P.3d 1228, 1234-35 (Wyo.2012) (quoting Collings v. Lords, 2009 WY 135, ¶ 6, 218 P.3d 654, 656-57 (Wyo.2009)) (emphasis in original).
[¶ 28] In Buckley v. Bell, 703 P.2d 1089, 1093 (Wyo.1985), this Court elaborated on the factors to be considered in determining whether an intervening cause will insulate a defendant from liability by citing to the Restatement (Second) of Torts.
Buckley, 703 P.2d at 1093.
[¶ 29] As with the question of breach of duty, the question of proximate cause is one "reserved for the trier of fact's determination unless the evidence is such that reasonable minds could not disagree." Glenn v. Union Pacific R.R. Co., 2008 WY 16, ¶ 15, 176 P.3d 640, 644 (Wyo.2008) (quoting Duncan v. Town of Jackson, 903 P.2d 548, 553 (Wyo.1995)). The question in this case is whether the mishandling or improper storage of the lunchroom bench was a natural or probable consequence, or a foreseeable consequence, of the School District's failure to instruct or warn the Community Group on the proper handling and storage of the tables and benches or its failure to restrict access to the keys to the tables and benches. In other words, if the gravity of the danger had been addressed with the Community Group, might that have changed the manner in which the tables and benches were handled and who was permitted access to the tables and benches?
[¶ 30] Considering these factors, we believe reasonable minds could differ in answering the questions of proximate and intervening cause. Certainly, reasonable minds might differ on the question of whether the placement of the bench in the storage room was an extraordinary act. Reasonable minds might also differ on the question of whether the placement of that bench was an intervening force that acted independently from any conduct on the part of the School District. For example, the record contains evidence that before the accident involving Taylor Lysager, another child was injured when a table or bench fell from the wall and struck the child. Reasonable minds might differ on whether that suggests that the Community Group already had notice of the need to properly secure the tables and benches and that any additional warning by the School District would have been of little or no consequence.
[¶ 31] Our intent here is not to outline each conceivable question related to proximate cause on which reasonable minds might differ but instead to illustrate that the question is truly one that belongs to the trier of fact. Because there is much on which reasonable minds might disagree with respect to proximate cause, summary judgment was not properly granted on that basis.
[¶ 32] Plaintiff next contends the district court erred in dismissing its action against Lincoln County based on Lincoln County's affidavit of noninvolvement. Because we find that the order dismissing Lincoln County without prejudice is not a final appealable order, we dismiss this portion of Plaintiff's appeal.
[¶ 33] In addressing the finality of an order under Rule 1.05 of the Rules of Appellate Procedure, this Court has said:
Stone v. Stone, 842 P.2d 545, 548 (Wyo.1992) (quoting In re Big Horn River System, 803 P.2d 61, 66 (Wyo.1990)).
[¶ 34] Rule 54(b) of the Wyoming Rules of Civil Procedure provides as follows concerning the finality of an order:
W.R.C.P. 54(b) (LexisNexis 2015).
[¶ 35] The district court's order granting the School District summary judgment included a Rule 54(b) certification, but expressly limited the certification to the judgment entered in favor of the School District:
[¶ 36] The action below is not concluded and will continue against the Town of Thayne and, now, against the School District. In the absence of a Rule 54(b) certification, the order dismissing Plaintiff's complaint against Lincoln County without prejudice is not a final appealable order. See W.R.A.P. 1.05; see also Mobley v. McCormick, 40 F.3d 337, 339 (10th Cir.1994) ("dismissal of the complaint is ordinarily a non-final, nonappealable order (since amendment would generally be available)").
[¶ 37] We find the district court erred in granting the School District's motion for summary judgment and reverse the entry of that order. With respect to the district court's order dismissing the complaint against Lincoln County, we conclude that the order is not a final appealable order and dismiss the appeal of that order.
