dissenting.
This is another case which upholds a summary judgment entered against an injured employee who sued a co-employee for culpable negligence. The majority approves the procedural disposition without jury trial and I do not. I dissent because the majority confuses the “most beneficial inference standard” with the burden of proof which this plaintiff must bear at trial. The majority sets up a standard of review for summary judgment and then, by result, does not follow the established standard.
The question of culpable negligence being decided by summary judgment has been a recent source of considerable review by this court commencing with Barnette v. Doyle, 622 P.2d 1349 (Wyo.1981) and followed by Bryant v. Hombuckle, 728 P.2d 1132 (Wyo.1986); Stundon v. Sterling, 736 P.2d 317 (Wyo.1987); Bettencourt v. Pride Well Service, Inc., 735 P.2d 722 (Wyo. 1987); Pace v. Hadley, 742 P.2d 1283 (Wyo. 1987); Wessel v. Mapco, Inc., 752 P.2d 1363 (Wyo.1988); Johnston v. Conoco, Inc., 758 P.2d 566 (Wyo.1988); Poulos v. HPC, Inc., 765 P.2d 364 (Wyo.1988); and Stephenson v. Pacific Power & Light Co., 779 P.2d 1169 (Wyo.1989). Comparable cases considering culpable negligence as a defense to the payment of worker’s compensation benefits to the employee are Matter of Meredith, 743 P.2d 874 (Wyo.1987); Smith v. Brannan Motor Co., 72 Wyo. 1, 260 P.2d 757 (1953); Hamilton v. Swigart Coal Mine, 59 Wyo. 485, 143 P.2d 203 (1943); and Fuhs v. Swenson, 58 Wyo. 293, 131 P.2d 333 (1942).1 Here we must find a place to sandwich this case between our affirmed summary judgment cases, Johnston, 758 P.2d 566; Stundon, 736 P.2d 317; and Bryant, 728 P.2d 1132, and our reversed summary judgment cases, Stephenson, 779 P.2d 1169; Poulos, 765 P.2d 364; and Wessel, 752 P.2d 1363.
In analysis of intrinsic facts of each of these cases, it is my conclusion that the majority cognitively weighs the evidence to justify summary judgment and fails to confine the review to considering whether an issue of culpable negligence is presented by the evidence and any fair inferences to be derived from that evidence. Baldwin v. Dube, 751 P.2d 388 (Wyo.1988); Davenport v. Epperly, 744 P.2d 1110 (Wyo.1987); Greenwood v. Wierdsma, 741 P.2d 1079 (Wyo.1987); Bryant, 728 P.2d 1132. By way of quick example, the record shows the superintendent had a beer before being called out on the job. The majority misses the point when they say “this evidence simply fails to structure a factual issue of willful misconduct.” The inference most favorable to the plaintiff is the jury could infer the superintendent “intentionally committed an act of unreasonable character in disregard of a known or obvious risk that is so great as to make it highly probable that harm will follow” by going onto a potentially dangerous job site after drinking. Bryant, 728 P.2d at 1136. The weight to be given should be a jury decision and it could be nominal, modest, or *347major. The one issue of summary judgment review is simply whether there is viable evidence sufficient to permit a jury to consider the existence of culpable negligence of the co-employee. Cordova v. Gosar, 719 P.2d 625 (Wyo.1986).
This majority accepts as true that the superintendent, under the disclosed circumstances, operated a backhoe which he knew was malfunctioning and ordered a worker into a hole being cleared by that malfunctioning backhoe. That backhoe severely injured the employee. The majority upholds the summary judgment against the injured worker after reportedly giving him “the benefit of all favorable inferences which may fairly be drawn from the record.” See Doud v. First Interstate Bank of Gillette, 769 P.2d 927 (Wyo.1989). The effect of that holding is to say a jury could not possibly infer the superintendent “intentionally committed an act of unreasonable character in disregard of a known or obvious risk that is so great as to make it highly probable that harm will follow.” Bryant, 728 P.2d at 1136. The record is unchallenged of known danger, high probability in accident from unjustified risk, knowing direction, and what was written by the stars did then occur. Damage injury followed danger, direction and disregard.
The evidence upon which a jury could find more than casual negligence include the superintendent’s knowing operation of a malfunctioning backhoe after ordering a fellow employee into the excavation hole when doing so was a violation of the safety standard for such sewer work. Also in evidence was that both participants were tired. The jury might have reasonably inferred the superintendent hurried his work while abandoning acknowledged safety precautions.
Clearly, the known history of the unre-paired backhoe to “jump” and the “jump” that severely injured the employee may have some relation to the superintendent’s state of mind or his disregard to an obvious danger. The testimony of the supervisor explained:
Q. Did you do anything — what did you do to cause the injury?
A. What did I do to cause the injury?
Q. Yes.
A. I made a mistake by letting him stay in the hole.
Q. What else?
A. That’s it.
Q. Why did the backhoe hit him?
A. It malfunctioned.
Q. How did it malfunction?
A. It malfunctioned hydraulically to where there was no pressure against one cylinder, and the backhoe had started to drift, and when I corrected it, it jumped due to the fact there was no back pressure against one cylinder that was leaking.
There was an obvious conflict in the supervisor’s comment that the jump was unexpected and the accident committee’s investigation report:
It is generally agreed that there was a mechanical problem with the backhoe, and that all of the operators were aware of it and used it accordingly. In this case, the operator overcompensated in trying to correct the “drift” of the bucket, causing it to strike the man in the hole. Although the mechanical problem with the backho[e] did not actually cause the accident, it was a contributing factor as to why the accident occured [sic]. Therefore, in addition to a mechanical problem, there was a physical error made, which can be explained.
As explained by the employee in the ditch with regard to his directions and as to what occurred at the time of his injury:
Q. When you are told you [sic] to do something — what did [your supervisor] say?
A. He said, “I wouldn’t be running up and down this dam [sic] pile of dirt. Just get off to one side. I won’t hurt you.” I didn’t say yes or no or nothing, just went up to that little corner and stayed there with my shovel, and I just sat there and watched him operating it because there *348was a lot of dirt that had caved in, and he was shoveling all that dirt out.
The employee also indicated:
A. Well, I learned that when we was digging that hole out, it had caved in about three to four more feet south of our regular main ditch, so, actually, it ' left us a wide area to work on, so when it did it covered our pipe that had already just discovered. With a shovel he came back down there, and he was cleaning. I would say he made about five or six passes through there, and he stopped. So I went back down there, down in the thing, and he told me, he says, “Ray, Hell, I wouldn’t be coming in and out of there.” He said, “Just stand off to one side.” And he says, “Hell, I won’t hit you anyway.” So I said okay, and I started digging, and dug, and I went off the one bank. There was a little bank on the corner of that. For example, this is the hole. There was a little bank right here, and this is where I stood up.
Q. Now, what were you doing when you got hit with the backhoe?
A. I couldn’t tell you if I was standing up or laying down or what. All I can remember is I didn’t have no — I didn’t even know if I was breathing. All I know is I felt a hand here like the good Lord had grabbed ahold of me.
Q. Indicating your right arm. You felt a hand?
A. Yes.
Q. Was that [your supervisor’s] hand?
A. Yes, because he was out on top, and I was catching myJ wind.
Q. That was after you got hit?
A. Right.
Q. What were you doing when you got hit?
A. I was standing there on that corner like I stated before, and I was watching him take the dirt out.
Q. Taking the dirt out?
A. Right.
Q. And you saw the backhoe come at you?
A. No, I didn’t. I was looking at him. When he brought the bucket like this, I was watching him.
Thereafter, the employee explained in some detail that he was looking up at the operator and equipment and never saw the bucket swinging before it hit him.
Before he injured the worker, the superintendent violated his own safety policy:
A. It is standard operating practices that if you don’t have room enough to get away from a backhoe in a hole, stand away at the end of the bucket or whatever, you get out of the hole.
Q. Is that standard operating practice for whom?
A. For the city, my crew.
Q. Where does that policy originate?
A. From me.
Q. You are responsible for that policy?
A. Yes. It is unwritten, but everybody knows about it.
I would conclude a case is appropriate for a jury to decide when this court begins factfinding during culpable negligence review if our frequently stated criteria of summary judgment, Davenport, 744 P.2d 1110, is going to be said to have precedence.
Accordingly, I dissent.
. See generally Annotation, Willful, Wanton, or Reckless Conduct of Coemployee As Ground of Liability Despite Bar of Workers’ Compensation Law, 57 A.L.R.4th 888 (1987) and Annotation, Right to Maintain Direct Action Against Fellow Employee For Injury or Death Covered by Workmen's Compensation, 21 A.L.R.3d 845 (1968).