dissenting.
Summary judgment should be cautiously entered, Northern Contracting Co. v. Allis-Chalmers Corp., 117 Ariz. 374, 573 P.2d 65 (1977). Extreme care should be used to determine whether a genuine issue of material fact exists, Mozes v. Daru, 4 Ariz.App. 385, 420 P.2d 957 (1967). Even where mate*281rial facts are not in dispute, but are uncertain, summary judgment is improper. Boozer v. Arizona Country Club, 102 Ariz. 544, 434 P.2d 630 (1967). Thus, review of the denial of a motion for summary judgment by special action should be sparingly exercised; review should not be exercised unless judicial error is plainly apparent. Warinner v. Superior Court of Maricopa County, 21 Ariz.App. 328, 519 P.2d 81 (1974); Southwest Cooperative Wholesale v. Superior Court, 13 Ariz.App. 453, 477 P.2d 572 (1971). I do not believe judicial error is plainly apparent.
I agree with the majority that McKee is precluded from relitigating the issue of whether its negligence was a proximate cause of the accident. I also agree that the prior judgment precludes relitigating the issue of whether the misrepresentation as to the capacity of the crane is the sole cause of the accident. The prior judgment, however, does not necessarily involve a finding that petitioner’s fraud was not also a proximate cause of the accident. McKee, therefore, is entitled to its day in court to show that despite its negligence, if the crane had been as represented, the accident would not have occurred.
McKee’s position is that petitioner “could have averted the harm at a time when the negligent tortfeasor [McKee] could not have done so,” Restatement of Restitution, Sec. 97, supra, by discontinuing the deception through a full and accurate disclosure of the crane’s specifications and by furnishing proper operating instructions for the allegedly falsified materials that were furnished to give the appearance that the equipment was a 70-ton crane. I do not accept the majority’s position that Sec. 97 requires petitioner to know of the specific peril at the time immediately preceding its effect as a proximate cause. It should be sufficient that it knew someone may ultimately become imperiled through its fraud.
In its response to the motions for summary judgment below, McKee cited Restatement Secs. 89, 93 and 95 as well as Sec. 97. The unstated premise of this action is that by specifically referring to Sec. 97 in denying the motion for summary judgment, the trial court impliedly rejected all other theories of indemnity. This assumption is unwarranted. To deny the motion, the trial court only had to find one of the possible Restatement sections applicable; its judgment that Sec. 97 applied implied nothing regarding the other sections. Because this court has neither received written briefs nor heard oral argument on the other sections, their applicability should not be determined.
I also believe the majority’s rejection of the products liability issue is incorrect. That McKee’s liability sounds in negligence should not preclude it from asserting a strict liability claim against petitioner.
For the above reasons, I believe the court has improvidently accepted special action jurisdiction and ill-advisedly ordered entry of summary judgment.