dissenting.
I respectfully dissent.
I would reverse and remand for further proceedings before the district court. I am-well aware litigation should be brought to an end and we should be reluctant to remand the same case a second time.1 Nonetheless, if the parties aré to receive a fair trial and if Nebraska law is to be correctly applied, further remand is necessary.
The majority opinion not only misapplies settled principles of Nebraska law, it also fails to analyze why the district court found the government’s negligence was not a proximate cause of the helicopter crash.
*1452The majority initially fails to discuss the reasoning of the district court in finding that the government’s negligence could not be a proximate cause of the crash. The district court held that the government’s negligence in failing to warn the pilot of the low ceiling was not a proximate cause because there was no evidence that the pilot would have heeded the warning had the government provided one. The majority points out the error of this reasoning but then by misapplying Nebraska law finds the district court’s mistake not to be a crucial determination.
Proximate cause is defined under Nebraska law as “that cause which, in a natural and continuous sequence, unaccompanied by any efficient intervening cause, produces the injury, and without which the result would not have occurred.” Belgum v. Mitsuo Kawam-oto & Assoc., Inc., 236 Neb. 127, 459 N.W.2d 226, 229 (1990). The majority correctly observes that in order to establish proximate cause under Nebraska law, a plaintiff must show three elements: (1) the negligence is such that the injury would not have occurred without it (but-for causation or cause-in-fact); (2) the injury was a natural and probable result of the negligence (foreseeability); and (3) there was no efficient intervening cause. Worth v. Schillereff, 233 Neb. 628, 447 N.W.2d 480, 483 (1989). In determining that the government’s inadequate weather forecast was not a proximate cause of the crash, the district court stated that there was insufficient evidence to prove whether or not the pilot would have taken off even if the warning had been given.2 From this lack of evidence, the district court concluded that it “[did] not find that Budden would not have taken off ...,” and, therefore, that the government’s negligence was not proven to be a proximate cause of the crash. The district court then concluded that Budden’s negligence was the sole proximate cause of the accident. The majority explicitly holds that, absent contrary evidence, the failure to presume that the pilot would not have taken off given an accurate report was erroneous. The majority’s opinion states:
Geranis’ breach of duty meets the first two prongs of the proximate cause test.... First, we should assume that if Budden had received a complete weather briefing, he would not have attempted the flight. This result derives from the presumption that the negligence of a deceased person must be proved, and absent such proof, the deceased is assumed to have exercised due care. Neff v. United States, 420 F.2d 115, 117 n. 3 (D.C.Cir.1969); Stauffer v. School Dist. of Tecumseh, [238 Neb. 594] 473 N.W.2d 392, 395 (1991). Second, although not probable in a statistical sense, a deadly crash is a foreseeable result of providing an inaccurate weather forecast.3
Ante at 1449-50 (emphasis added).
The majority further states: “As noted above, the pilot should be presumed to have exercised due care in making his initial decision to fly, and thus we must assume that with full advice of weather information a flight cancellation would have followed. See Norwest, 828 F.2d at 1333.” Ante at 1450 n. 9 (emphasis added).
Further, it is worth noting that had the government properly warned Budden that the ceiling was less than 1,000 feet, Budden would have violated FAA regulations by taking off. At common law there is a continuing presumption that a party will be presumed to obey the law. See 29 Am.Jur.2d Evidence § 168 (1967 & Supp.1993). The result of this is that, under the majority’s opinion, the government’s negligence is presumed to be a cause in fact of the pilot’s decision to fly, and an accident resulting from the government’s inadequate weather forecast was foreseeable. Thus, I respectfully submit that by the majority’s own analysis, absent a finding of intervening cause, the district court’s finding that the government’s negligence could not *1453be a proximate cause of the accident was clearly erroneous.
In addressing the third prong of the proximate cause test, the majority holds that:
The district court could find on this record, however, that Budden’s subsequent negligent conduct constituted an intervening cause which rendered the negligent briefing a remote rather than proximate cause of the accident. While Geranis knew or should have known that the pilot would rely on the weather information in taking off on the flight, the briefer was not duty bound to anticipate that Budden would continue the mission despite weather conditions which mandated aborting the flight. Thus, the district court’s proximate cause determination rests on the proposition that Budden’s conduct broke the causal connection between Geranis’ breach of duty and the crash.
Ante at 1450.
In finding that Budden’s negligence was an intervening cause of the accident that broke the causal connection between the government’s breach of duty and the crash, the district court clearly misapplies Nebraska law.
An efficient intervening cause under Nebraska law is “ ‘a new and independent act, itself a proximate cause of an injury, which breaks the causal connection between the original wrong and injury.’” Worth, 447 N.W.2d at 482 (citations omitted) (emphasis added). The very fact that the crash was the foreseeable result of the inadequate weather forecast, as the majority finds, and that the inadequate weather forecast induced the pilot to take off and encounter the bad weather, precludes a finding that the pilot’s negligence was “new and independent.” It is the very possibility that a pilot will respond inadequately, or even negligently, that makes a crash the foreseeable result of an inadequate weather forecast. As the Nebraska Supreme Court has stated:
If the likelihood of the intervening act was one of the hazards that made defendant’s conduct negligent — that is, if it was sufficiently foreseeable to have this effect— then defendant will generally be liable for the consequences; otherwise he will generally not be, provided, of course, that the intervening force is a cause of the injury.
Union Pac. R.R. v. Kaiser Agricultural Chem. Co., 229 Neb. 160, 425 N.W.2d 872, 882 (1988) (quoting 4 Fowler V. Harper, et al., The Law of Torts, § 20.5 at 152 (2d ed. 1986)).
Moreover, the Nebraska Supreme Court has indicated that:
“If the original negligence is of a character which, according to the usual experience of mankind, is liable to invite or induce the intervention of some subsequent cause, the intervening cause mil not excuse it, and the subsequent mischief will be held to be the result of the original negligence....”
Colvin v. John Powell & Co., 163 Neb. 112, 77 N.W.2d 900, 906 (1956) (emphasis added) (quoting Driekosen v. Black, Sivalls & Bryson, Inc., 158 Neb. 531, 64 N.W.2d 88, 89 (1954)).
In the same general vein, the Nebraska Supreme Court has stated:
“[T]he doer of an original wrongful act that should reasonably cause one to anticipate an injury therefrom is not relieved from liability for an injury immediately brought about by an intervening cause, wrongful or otherwise, that is set into operation by such original wrongful act, and that alone would not have caused the injury, but which with the aid of the original wrong does cause such injury.”
Stodola v. Grunwald Mechanical Contractors, Inc., 228 Neb. 301, 422 N.W.2d 341, 344 (1988) (quoting Johnson v. Metropolitan Utilities Dist., 176 Neb. 276, 125 N.W.2d 708, 711 (1964)). The Stodola court continued:
“Generally, the effect of an intervening negligent act is tested by determining whether it was such as might reasonably have been foreseen as a consequence of the claimed negligence of the original ac-tor_ The law does not require precision in foreseeing the exact hazard or consequence which happens. It is sufficient if what occurs is one of the kind of consequences which might reasonably be foreseen.”
*1454Id. (quoting Brown v. Nebraska P.P. Dist., 209 Neb. 61, 306 N.W.2d 167, 171 (1981)) (emphasis added).
The test for an intervening cause under Nebraska law is thus clearly one of foreseeability. “The doctrine that an intervening act cuts off the liability of a tort-feasor comes into play only when the intervening cause is not foreseeable.” Lincoln Grain, Inc. v. Coopers & Lybrand, 216 Neb. 433, 345 N.W.2d 300, 308 (1984) (citations omitted) (emphasis added). In this case, not only was the crash the foreseeable result of the government’s negligent forecast, it' was arguably the most likely result. Indeed, the majority itself holds that “a deadly crash is a foreseeable result of providing an inaccurate weather forecast.” Ante at 1450. To hold that the accident was foreseeable and then that Bud-den’s negligence was an intervening cause is logically inconsistent and at variance with Nebraska law, and a factual finding to the contrary is clearly erroneous.
Nebraska law recognizes that an accident can have more than one proximate cause:
If the effects of the actor’s negligent conduct actively and continuously operate to bring about harm to another, the fact that the active and substantially simultaneous operation of the effects of a third person’s innocent, tortious, or criminal act is also a substantial factor in bringing about the harm does not protect the actor from liability.
London v. Stewart, 221 Neb. 265, 376 N.W.2d 553, 556 (1985) (emphasis in original) (quoting Restatement (Second) of Torts § 439 at 464 (1965) and stating that when the negligence of the defendant is continuing in nature, actions of both parties constitute concurring negligence).
In this case, the government was negligent in providing Budden with incomplete weather information, and that negligence proximately contributed to the crash. The Second Circuit’s reasoning in Ingham v. Eastern Air Lines, Inc., 373 F.2d 227 (2d Cir.1967), a ease with facts almost identical to those involved in the present case, is applicable here as well:
We are unable to conclude that the accident was not reasonably foreseeable as a result of the government’s negligent failure to provide up-to-date weather information. Indeed, the government was the original wrongdoer whose negligence set in motion the entire chain of events which finally culminated in the tragic crash. The government’s negligence was ever present.4
Id. at 237 n. 11.
That Budden may have negligently misjudged the deteriorating weather situation in which the government’s conduct placed him does not absolve the government from its liability for its original negligent act.5
The result reached by the district court and now approved by this court is unrealistic. Assuming the pilot was negligent it is indeed speculative to determine what went through the pilot’s mind and what decisions he faced in flying the helicopter at the time he encountered the unexpected low ceiling. However, assuming that the pilot was negligent, there is no question that the government was guilty of gross negligence as well. See Budden I, 963 F.2d at 194.
The majority fails to consider that Nebraska has a comparative negligence statute. *1455The conduct of both the government and the pilot are concurring causes, and under the Nebraska Comparative Negligence Statute6 before the pilot can be barred from recovery, the trier of fact must compare the negligent conduct and make appropriate finding under the statute. The trial judge has not done this.
Furthermore, even assuming the trial judge would find that the negligence of the phot, when compared with the gross negligence of the government, was such that the pilot would be barred from recovery, there would still be a question of the government having to make contribution in this indemnity action for the loss that the carrier has incurred in payment of the wrongful death claims of the passengers.
Because this case requires further remánd and further finding, I respectfully dissent from the majority’s opinion.
. In its first opinion, the district court did not address the government’s negligence in failing to warn the pilot. It was this significant omission which resulted in the remand of the initial appeal. See Budden v. United States, 963 F.2d 188 (8th Cir.1992) (Budden I).
. If the district court's finding can be interpreted as a finding of fact, then it is clearly erroneous. As will be discussed, the majority's opinion explicitly holds that such a finding is in error. I would treat the district court’s holding that the government's negligence under such circumstances could not be a proximate cause of the crash as an error of law. However, whether one treats this as an error of law or as a clearly erroneous finding of fact, it requires reversal.
. As will be discussed under Nebraska law, this second observation alone defeats a finding of an intervening, superseding cause.
. The two Fifth Circuit cases, In re Air Crash at Dallas/Fort Worth Airport, 919 F.2d 1079, 1088 (5th Cir.), cert. denied, - U.S. -, 112 S.Ct. 276, 116 L.Ed.2d 228 (1991) and Black v. United States, 441 F.2d 741 (5th Cir.), cert. denied, 404 U.S. 913, 92 S.Ct. 233, 30 L.Ed.2d 186 (1971), cited in the majority’s opinion, are easily distinguishable on the facts. In neither case did the government fail to provide specific information to the pilot that would make it unlawful to take off.
. There is an old principle of common law addressing legal cause set forth in Fowler V. Harper, et al., The Law of Torts, § 20.2 at 97 n. 17 (2d ed. 1986), quoting a Louisiana court in 1885 which reads as follows:
See Reynolds v. Texas & P. Ry. Co., 37 La.Ann. 694, 698 (1885) ("where the negligence of the defendant greatly multiplies the chances of accident to the plaintiff, and is of a character naturally leading to its occurrence, the mere possibility that it might have happened without the negligence is not sufficient to break the chain of cause and effect between the negligence and the injury”);
Nebraska law would clearly endorse such a principle.
. The Nebraska Comparative Negligence Statute reads as follows:
In all actions accruing before February 8, 1992, brought to recover damages for injuries to a person or to property caused by the negligence or act or omission giving rise to strict liability in tort of another, the fact that the plaintiff may have been guilty of contributory negligence shall not bar a recovery when the contributory negligence of the plaintiff was slight and the negligence or act or omission giving rise to strict liability in tort of the defendant was gross in comparison, but the contributory negligence of the plaintiff shall be considered by the jury in the mitigation of damages in proportion to the amount of contributory negligence attributable to the plaintiff, and all questions of negligence or act or omission giving rise to strict liability in tort and contributory negligence shall be for the jury.
Neb.Rev.Stat. § 25-21,185 (1992).,