dissenting.
I respectfully dissent. In my view, an affirmation is required. The question, drawn as fine as the majority has done, is particularized for the circumstances of the case and necessarily involves a number of factual determinations. So, in my view, the case is properly reviewed under the manifest error rule rather than a legal error analysis. In this light, I do not conclude that the circumstances involved here necessarily require a determination that the operator breached a duty owed. Absent this type of clear error, I do not find that a reversal of the trial court’s judgment is warranted.
For these reasons I dissent.