concurring in part and dissenting in part.
As to the majority’s characterization of crop damage as economic damages, my vote is to concur but not with conviction or enthusiasm — but rather by way of giving some forewarning that future cases involving that philosophy will find me urging the Court to back away from denying damage awards in cases such as this — where recoverable economic losses are very often the major items of a plaintiff’s total loss. As to the summary judgment issue, I concur in the result but am somewhat troubled by some of what has been written.
In his specially concurring opinion, specifically the second paragraph, Chief Justice Bakes today advances his view relative to summary judgment proceedings that “[i]f at trial plaintiff must prove its ease by clear and convincing evidence, as it must in this case, then the trial court in ruling on a motion for summary judgment should evaluate the evidence by the same standard.” (Emphasis added.) To that statement, add on this statement made just a few months earlier:
‘There is no issue for trial unless there is sufficient evidence favoring the non-moving party for a jury to return a verdict for that party.’ Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202, 209 (1986).
R. G. Nelson, A.I.A. v. Steer, 118 Idaho 409, 410, 797 P.2d 117, 118 (1990) (Bakes, C.J. writing for the majority). Question: Put those two statements together and what do you have? Answer: Most plaintiffs turned out of court in summary judgment proceedings because of a failure to display clear and convincing evidence. *529Accordingly, now is the time to suggest that it is far better that the day does not arrive when the two statements become inexorably intertwined with each other.
Note was taken in Nelson v. Steer that “Justice Bakes may be seen as inadvertently inflicting great injustice on Hebener [a defendant in the suit along with Steer] by his misuse of Anderson v. Liberty Lobby, Inc., for the proposition that: ‘[T]here is no issue for trial unless there is sufficient evidence favoring the non-moving party for a jury to return a verdict for that party.’ ” Nelson, 118 Idaho at 420, 797 P.2d at 128 (Bistline, J. dissenting) (citation omitted). To establish that misuse of Anderson it was only necessary to set out part of Justice Johnson’s opinion in Wiemer v. Rankin, 117 Idaho 566, 790 P.2d 347 (1990), which was done. Wiemer pointed out clearly and concisely that the standard of proof made applicable to a summary judgment proceeding in a defamation case is clear and convincing evidence, but, only as to the single issue, namely the element of actual malice.
Concerned that Chief Justice Bakes might one day convert his views into a holding, the caveat was ventured that “[u]nless Justice Bakes reconsiders, he will be setting as precedent a new standard which trial courts will be obliged to apply in all summary judgment proceedings, assuming that he garners a majority, which he does almost invariably.” Nelson, 118 Idaho at 421, 797 P.2d at 129. This particular occasion presents the opportunity of stating that at one time this Court was perilously close to issuing an opinion making the same mistake which Judge Winmill here made, namely that of applying to the summary judgment proceedings the Anderson standard for ruling on any motion for summary judgment, even though there be no issue whatsoever involving the element of actual malice.
In an attempt to avoid further confusion regarding the applicability of Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986), a short discussion of that opinion is in order. Anderson was described by one unconvinced justice as an “opinion [which] sounds much like a treatise about cooking by someone who has never cooked before and has no intention of starting now.” Anderson, 477 U.S. at 269, 106 S.Ct. at 2521 (Rehnquist, J. dissenting). Indeed, Anderson’s validity was questioned at the time of its issuance by two dissenting opinions, one authored by Justice Rehnquist and the other by Justice Brennan.2 Both dissents reached the same conclusion, but by different routes. Justice Rehnquist writing for himself and the Chief Justice, declared that “[t]he Court’s decision to engraft the standard of proof applicable to a fact finder onto the law governing the procedural motion for summary judgment (a motion that has always been regarded as raising a question of law rather than a question of fact), [citation omitted], will do great mischief with little corresponding benefit.” Anderson, 477 U.S. at 272, 106 S.Ct. at 2522 (Rehnquist, J. dissenting) (emphasis added).
On cursory examination of Anderson’s “new rule” designed by Justice Byron White for summary judgment proceedings it is seen at a glance, to Justice White’s credit, that it was clearly limited to one category of controversy — defamation cases which involve public figures or public officials. The second paragraph of Justice White’s majority opinion could not be more explicit:
This case presents the question whether the clear-and-convincing-evidence requirement must be considered by a court ruling on a motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure in a case to which New York Times applies.
*530Anderson, 477 U.S. at 244, 106 S.Ct. at 2508. As all should be aware, the case of New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), required that all public figure or public official plaintiffs pursuing defamation suits show at trial by clear and convincing evidence proof of actual malice.
In two successive paragraphs the Court’s opinion states the rule as applied and the rule in general. The rule as applied states that:
When determining if a genuine factual issue as to actual malice exists in a libel suit brought by a public figure, a trial judge must bear in mind the actual quantum and quality of proof necessary to support liability under New York Times____
The rule in general is similar but much broader in scope, and is followed immediately by another statement of the rule as narrowly applied to the case:
Thus, in ruling on a motion for summary judgment, the judge must view the evidence presented through the prism of the substantive evidentiary burden. This conclusion is mandated by the nature of this determination. The question here is whether a jury could reasonably find either that the plaintiff proved his case by the quality and quantity of evidence required by the governing law or that he did not. Whether a jury could reasonably find for either party, however, cannot be defined except by the criteria governing what evidence would enable the jury to find for either the plaintiff or the defendant: It makes no sense to say that a jury could reasonably find for either party without some benchmark as to what standards govern its deliberations and within what boundaries its ultimate decision must fall, and these standards and boundaries are in fact provided by the applicable evidentiary standards.
Our holding that the clear-and-convincing standard of proof should be taken into account in ruling on summary judgment motions does not denigrate the role of the jury. It by no means authorizes trial on affidavits. Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge, whether he is ruling on a motion for summary judgment or for a directed verdict. The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor. Adickes [v. S.H. Kress & Co.], 398 U.S. [144] 158-59, 90 S.Ct. [1598] 1608-09 [26 L.Ed.2d 142 (1976)]. Neither do we suggest that the trial courts should act other than with caution in granting summary judgment or that the trial court may not deny summary judgment in a case where there is reason to believe that the better course would be to proceed to a full trial. Kennedy v. Silas Mason Co., 334 U.S. 249, 68 S.Ct. 1031, 92 L.Ed. 1347 (1948).
In sum, we conclude that the determination of whether a given factual dispute requires submission to a jury must be guided by the substantive evidentiary standards that apply to the ease. This is true at both the directed verdict and summary judgment stages. Consequently, where the New York Times ‘clear and convincing’ evidence requirement applies, the trial judge’s summary judgment inquiry as to whether a genuine issue exists will be whether the evidence presented is such that a jury applying that evidentiary standard could reasonably find for either the plaintiff or the defendant. Thus, where the factual dispute concerns actual malice, clearly a material issue in the New York Times case, the appropriate summary judgment question will be whether the evidence in the record could support a reasonable jury finding either that the plaintiff has shown actual malice by clear and convincing evidence or that the plaintiff has not.
Anderson, 477 U.S. at 254-55, 106 S.Ct. at 2513-14 (footnote omitted). The question before us is to what extent, if any, should the Anderson ratio decidendi be applied to a run-of-the-mill civil case (borrowing from the language of Justice White3), which *531comes before the trial court for its ruling in summary judgment proceedings in a state rather than a federal court. Otherwise stated, is this Court required by the High Court’s pronouncement in Anderson to force off onto a plaintiff the burden of resisting a summary judgment motion by producing evidence that would meet the burden of being of such convincing clarity that any reasonable jury would find against the opposing party? As Justice Brennan explained:
The Court’s holding is not, of course, confined in its application to First Amendment cases. Although this case [i.e., Anderson \ arises in the context of litigation involving libel and the press, the Court’s holding is that ‘in ruling on a motion for summary judgment, the judge must view the evidence presented through the prism of the substantive evidentiary burden.’ 106 S.Ct. at 2513. Accordingly, I simply do not understand why Justice REHNQUIST, dissenting, feels it appropriate to cite Calder v. Jones, 465 U.S. 783, 104 S.Ct. 1482, 79 L.Ed.2d 804 (1984), and to remind the Court that we have consistently refused to extend special procedural protections to defendants in libel and defamation suits. The Court today does nothing of the kind. It changes summary judgment procedure for all litigants, regardless of the substantive nature of the underlying litigation.
... [TJoday’s decision by its terms applies to all summary judgment motions, irrespective of the burden of proof required and the subject matter of the suit.
Anderson, 477 U.S. at 257-58 n. 1, 106 S.Ct. at 2515 (Brennan, J. dissenting) (emphasis in original and added).
While Justice Brennan could not understand why Justice Rehnquist included Calder v. Jones in his dissent, state court trial judges and appellate justices surely read with relief that they were not required, as a matter of constitutional law, to consider the holding in Anderson as mandatorily prescribed in all defamation suits which necessarily implicate the First Amendment. With Chief Justice Burger joining it, the Rehnquist dissent begins with this observation:
The Court, apparently moved by concerns for intellectual tidiness, mistakenly decides that the ‘clear and convincing evidence’ standard governing finders of fact in libel cases must be applied by trial courts in deciding a motion for summary judgment in such a case.4
*532The Court refers to this as a ‘substantive standard,’ but I think it is actually a procedural requirement engrafted onto Rule 56, contrary to our statement in Calder v. Jones, 465 U.S. 783, 104 S.Ct. 1482, 79 L.Ed.2d 804 (1984), that
[w]e have already declined in other contexts to grant special procedural protections to defendants in libel and defamation actions in addition to the constitutional protections embodied in the substantive laws. Id., at 790-91, 104 S.Ct. at 1487-88.
Anderson, 477 U.S. at 268-69, 106 S.Ct. at 2520-21 (Rehnquist, J. dissenting) (footnote added). This Court was free to follow Anderson or to leave it be. No federal constitutional mandate required this Court (or any other state court) to engraft the Anderson holding onto its defamation case law, and nothing at all required us to construe our Rule 56 just like the federal interpretation of the Federal Rules of Civil Procedure.
It is of interest that two states have already decided to disregard Anderson. Consider, for example, this discussion of what the Alaska Supreme Court decided to do with Anderson — put it aside:
The malice standard was more fully discussed in an earlier decision, Moffat[t] v. Brown [751 P.2d 939 (Alaska 1988)], in which the court reaffirmed the requisite mental state for a finding of malice in libel actions as reckless disregard sufficient to permit the inference that the defendant “subjectively entertained serious doubts as to the truth of his statement.” More importantly, perhaps, in Moffat[t], the court declined to follow the United States Supreme Court’s standard for summary judgment in libel cases, enunciated in Anderson v. Liberty Lobby, Inc., of whether the evidence supports a finding “that the plaintiff has shown actual malice by clear and convincing evidence or that the plaintiff has not.” On the grounds that Anderson was “a case about federal procedure,” the court instead elected to continue its own standard for denial of motions for summary judgment that “a genuine issue of material fact exists to be litigated.” The court’s reasoning was based on the belief that the Anderson standard requires a weighing of the evidence by the judge, a function which intrudes into the province of the jury.
Note, The Year in Review, 6 Alaska L.Rev. 1, 70 (1989) (footnotes omitted). See also Berner v. Caldwell, 543 So.2d 686 (Ala.1989) (expressly rejecting the Anderson summary judgment standard).
So far, this Court’s use of Anderson has been very limited, probably because of the paucity of defamation cases which arise in Idaho. Anderson does appear in the defamation case, Wiemer v. Rankin, 117 Idaho 566, 790 P.2d 347 (1990). Justice Johnson in authoring the opinion for the Court adopted only the narrow holding of Anderson, by prefacing his quote from Anderson with these words: “The Supreme Court has announced the standard to be applied in ruling on a motion for summary judgment in a defamation case in which actual malice must be proved.” Wiemer, 117 Idaho at 574, 790 P.2d at 355.
Even though some small trouble was experienced with the authority cited in Wiemer in support of the principle that defamation defendants are accorded some special protections, the idea that proof of defamation should be sure and certain strikes close to what I believe is an important idea in our jurisprudence. This is especially true whenever private figure plaintiffs are involved because, as Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974) recognized, public figure plaintiffs by definition have ready ac*533cess to the media as a forum whereat refutation of libelous assertions can be made, a forum which is not open to private figures who have been defamed.
The next use of Anderson occurred in R. G. Nelson, A.I.A. v. Steer, 118 Idaho 409, 797 P.2d 117 (1990). Nelson was not, however, a defamation action. Notwithstanding Anderson’s inapplicability, an unenlightened majority seized upon this wholly innocuous civil controversy as a vehicle to help along the promotion of a heightened burden for all litigants resisting motions for summary judgment. The majority utilized a full paragraph to discuss the standard for reviewing a summary judgment motion — a readily obvious springboard from which to further a likely goal of fostering a new and different rule whereby plaintiffs can be ousted out of the courtroom before they make it past the threshold:
It is not the judge’s function to weigh evidence, ‘but to determine whether there is a genuine issue for trial____ [Tjhere is no issue for trial unless there is sufficient evidence favoring the non-moving party for a jury to return a verdict for that party.’ Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202, 209 (1986). Summary judgment should be granted if the evidence in opposition to the motion ‘is merely colorable’ or ‘is not significantly probative.’ Id.
Nelson, 118 Idaho at 410, 797 P.2d at 118. My dissent from Nelson was in part on the ground that this Court had just previously utilized Anderson for limited use in summary judgment only in defamation suits in which actual malice must be proved. In fact, I commended the author of Wiemer for having called Anderson to the attention of the bench and bar. That accolade was premised upon the acknowledgement that proof of actual malice was an element appropriate for use in defamation cases involving public figure plaintiffs.
The one good aspect of Nelson’s use of Anderson was that it did not explicitly require of a court that it consider the evidentiary standard to be used at trial in making its ruling on a defendant’s summary judgment motion. Better yet, Nelson did not quote from that part of Anderson which commands such a consideration. My Nelson opinion also pointed to my belief that any misuse of Anderson was inadvertent.
In reflecting on the history of the evolution of the well worn, tried and true summary judgment standard, I am reminded of Justice Brennan’s appropriately wise comment:
In my view, the Court’s result [in Anderson ] is the product of an exercise akin to the child’s game of ‘telephone,’ in which a message is repeated from one person to another and then another; after some time, the message bears little resemblance to what was originally spoken. In the present case, the Court purports to restate the summary judgment test, but with each repetition, the original understanding is increasingly distorted.
Anderson, 477 U.S. at 264-65, 106 S.Ct. at 2518 (Brennan, J. dissenting). This Court in Wiemer recognized Anderson as being applicable only to defamation suits, which necessarily involved actual malice. This Court used Anderson in Nelson purportedly to repeat again the standard for summary judgment in general, but did not quote from the portions of Anderson which offend the common understanding of that standard. Hopefully, the day shall never come when this Court uses Anderson as a cornerstone for adopting it as an improved and preferred summary judgment standard for all cases.
The issue as to which I concur with reservation was not accorded adequate attention by the majority. Primarily, I am not persuaded that damages to crops are always economic damages that are not recoverable in tort in Idaho. Other states have not been all that hasty to so rule. While a case from Texas does support the construction that damages to crops are an economic loss and that tort theories are therefore not available to redress this *534wrong,5 courts in other states have made a scholarly approach to that issue.
Consider, for example:
When a product fails to perform properly, the buyer may incur one or more of three kinds of harm: personal injury, property damage, or economic loss. The term ‘personal injury’ is self-explanatory. Property damage consists of injury to the plaintiff’s property other than to the product itself. Economic loss may be either direct or consequential. Direct economic loss occurs when a product damages itself or is unfit for the purpose for which it was sold. Such losses are generally limited to the price of the product. Consequential economic loss consists of an injury extrinsic to the product, such as lost profits or the loss of use of the product. See Note, Manufacturer’s Strict Tort Liability to Consumers for Economic Loss, 41 St. John’s L.Rev. 401 (1967).
As we observed above, the plaintiff’s complaint alleges only economic loss— cost of repairs (direct economic loss) and loss of use of the product (consequential economic loss). In dismissing the plaintiff’s counts alleging strict liability in tort, negligence, and misrepresentation, the trial court specifically relied upon the Second District’s decision in Alfred N. Koplin & Co. v. Chrysler Corp. (1977), 49 Ill.App.3d 194, 7 Ill.Dec. 113, 364 N.E.2d 100. In that case, the plaintiff alleged negligent manufacture and breach of warranty and sought recovery for its expenses in repairing and replacing air conditioning units manufactured by the defendant. The court said the plaintiff’s allegation of solely economic loss placed the case within the ‘narrow range of situations dividing tort theory from contract theory. * * * The line of demarcation between physical harm and economic loss in our view reflects the line of demarcation between tort theory and contract theory.’ (49 Ill.App.3d 194, 199, 7 Ill.Dec. 113, 116-17, 364 N.E.2d 100, 103-04.) The court then proceeded to discuss cases which have divided on the question of whether economic loss should be recoverable in strict liability in tort absent any personal injury or property damage. Although the only tort count before it was the negligence count, the Koplin court purported to deny recovery for pure economic loss in any kind of tort action. Thus, the court’s discussion is dictum as it relates to strict liability in tort and to misrepresentation.
The only other Illinois case facing the issue of recovery for purely economic loss in a tort action appears to be the First District’s decision in Rhodes Pharmacol Co. v. Continental Can Co. (1966), 72 Ill.App.2d 362, 219 N.E.2d 726. The plaintiff in Rhodes was a marketer of drugs, cosmetics, and hair beauty products. It sought recovery for damages incurred because aerosol cans manufactured by the defendant had leaked. Without explanation, the court merely stated that the case did not meet the requirements for application of the strict liability in tort doctrine. Since the Rhodes court did not discuss the many policy issues on each side of the question we now face, the opinion is not persuasive, and we do not feel compelled to follow it. Wanderer v. Plainfield Carton Corp. (1976), 40 Ill.App.3d 552, 351 N.E.2d 630.
In products liability actions in which the plaintiff has suffered either personal injury or property damage, courts have generally also allowed recovery for economic losses. (See generally Suvada [v. White Motor Co. (1965) 32 Ill.2d 612, 210 N.E.2d 182]; 141 South Main, Inc. v. Magic Fingers, Inc. (1977), 49 Ill.App.3d 724, 7 Ill.Dec. 444, 364 N.E.2d 605; Hales v. Green Colonial, Inc. (8th Cir. 1974), 490 F.2d 1015.) To deny recovery for economic loss under strict liability in tort when there is no accompanying personal injury or property damage is an arbitrary distinction leading to opposite *535results in cases that are virtually indistinguishable. In the instant case, had the plaintiff alleged that a mere bushel of corn had been destroyed by rain water leaking into the tank through the crack, then it would have suffered property damage sufficient to allow recovery of economic loss. Likewise, if an individual had cut his finger while inspecting the crack in the tank, he would have suffered a personal injury allowing recovery for all types of harm.
Moorman Mfg. Co. v. National Tank Co., 92 Ill.App.3d 136, 47 Ill.Dec. 186, 189-91, 414 N.E.2d 1302, 1305-07 (1980). The Illinois court, in considering negligence, came across the case cited by today’s majority, Clark v. International Harvester, 99 Idaho 326, 581 P.2d 784 (1978):
With the growth of the strict liability in tort doctrine, negligence has been left to the backwaters of products liability law. Traditionally, courts did not allow recovery in negligence for economic losses absent personal injury or property damage. (Wyatt v. Cadillac Motor Car Division (1956), 145 Cal.App.2d 423, 302 P.2d 665; Trans World Airlines v. Curtiss-Wright Corp. (1955), 1 Misc.2d 477, 148 N.Y.S.2d 284.) However, even Wyatt, a leading case for the proposition that a manufacturer does not have a duty to avoid causing a buyer economic loss, has been limited by subsequent cases. See Stewart v. Cox (1961), 55 Cal.2d 857, 13 Cal.Rptr. 521, 362 P.2d 345, wherein the court said a contractor who built a swimming pool was liable for economic loss caused by the fact that the pool leaked.
In the recent case of Clark v. International Harvester Co. (1978), 99 Idaho 326, 581 P.2d 784, the court denied recovery under negligence for a custom farmer’s lost income while his tractor, manufactured by the defendant, was being repaired. The court used the same rationale as have courts denying such recovery under strict liability in tort — the UCC’s preemption of such cases. We reject, however, that basis for denying recovery under negligence, just as we did under strict liability in tort.
We agree with the courts m Berg v. General Motors Corp. (1976), 87 Wash.2d 584, 555 P.2d 818, and State ex rel. Western Seed Production Corp. v. Campbell (1968), 250 Or. 262, 442 P.2d 215, which held that a buyer’s suit in negligence against a manufacturer should be limited, like any other negligence action, only by the factors of proximate cause and foreseeability, not by the kind of harm the plaintiff has incurred. We note that the court in Berwind Corp. v. Litton Industries, Inc. (7th Cir.1976), 532 F.2d 1, applying Illinois law, allowed recovery for negligent manufacture absent either personal injury or property damage. The court did not, however, discuss the fact that some courts do not allow such recovery. Rather, it determined the plaintiff’s right to recovery by looking only to foreseeability and proximate cause.
Our analysis under strict liability in tort has already pierced the veil of the contract/tort distinction relied upon by the court in Koplin. For the same reasons enunciated above, we hold that the plaintiff in this case can recover for economic loss under its negligence count.
Moorman Mfg. Co., 47 Ill.Dec. at 195, 414 N.E.2d at 1311 (emphasis added). It is believed that many are the members of the trial bench and bar who would welcome an updated discussion and reconsideration by the justices of this Court of the economic issues as treated by Moorman.
A case from Iowa brings out similar concerns:
We believe that when distinguishing between economic loss and property damage which will allow compensation the reason for the distinction must be kept in mind. The court emphasizes that there must be a closer connection between the injured party and the defendant than tangential economic losses. The plaintiff must own the property. This situation is unlike that of Nebraska Innkeepers [v. Pittsburgh-Des Moines Corp., 345 N.W.2d 124 (Iowa 1984) ] where the plaintiffs are only tenuously connected to the cause of action. Here the plaintiff *536owned the crop and was directly damaged because his crop was not as large as it should have been. Simply because the damage is measured in terms of potential sale of the crop if it had grown as it should does not automatically mean that the damage is economic. Damages for loss of cattle would also be measured in terms of the amount of money they would have brought if sold for slaughter. See, e.g., Denman v. Armour Pharmaceutical Co., 322 F.Supp. 1370, 1373 (N.D.Miss.1970). We agree with the trial court that the damage suffered by the plaintiff to his crop was property damage and not the indirect purely economic damage of the type condemned in Nebraska Innkeepers and Van Wyk [v. Norden Laboratories, Inc., 345 N.W.2d 81 (Iowa 1984) ].
Manning v. International Harvester Co., 381 N.W.2d 376, 378-79 (Iowa Ct.App.1985) (emphasis added).
Finally, a New York case also refers to Idaho case law:
The law is now settled in New York that if the loss of plaintiffs crops and the consequential damages resulting therefrom are ‘economic damages,’ plaintiff cannot recover (see Schiavone Constr. Co. v. Elgood Mayo Corp., 81 A.D.2d 221, 227, 439 N.Y.S.2d 933, revd. for the reasons stated in dissenting opn., Silverman, J., 56 N.Y.2d 667, 451 N.Y. S.2d 720, 436 N.E.2d 1322, supra; Hole v. General Motors Corp., 83 A.D.2d 715, 442 N.Y.S.2d 638; Dudley Constr. v. Drott Mfg. Co., 66 A.D.2d 368, 372-375, 412 N.Y.S.2d 512). The Court of Appeals in its reversal in Schiavone on the rationale of the dissenting opinion at the Appellate Division (81 A.D.2d 221, 227-234, 439 N.Y.S.2d 933) has necessarily rejected the contrary view in Santor v. A & M Karagheusian, Inc., 44 N.J. 52, 207 A.2d 305, and embraced the majority rule as stated by Chief Justice Traynor in Seely v. White Motor Co., 63 Cal.2d 9, 18, 45 Cal.Rptr. 17, 403 P.2d 145: ‘The distinction that the law has drawn between tort recovery for physical injuries and warranty recovery for economic loss is not arbitrary and does not rest on the “luck” of one plaintiff in having an accident causing physical injury. The distinction rests, rather, on an understanding of the nature of the responsibility a manufacturer must undertake in distributing his products. He can appropriately be held liable for physical injuries caused by defects by requiring his goods to match a standard of safety defined in terms of conditions that create unreasonable risks of harm. He cannot be held for the level of performance of his products in the consumer’s business unless he agrees that the product was designed to meet the consumer’s demands’ (emphasis added). The Seely rule applies whether the damages are sought under a strict products or negligence theory (Seely v. White Motor Co., supra, 63 Cal.2d at p. 18, 45 Cal.Rptr. 17, 403 P.2d 145; see Hole v. General Motors Corp., supra; S.M. Wilson & Co. v. Smith Intern., Inc., 587 F.2d 1363 [CCA 9th, 1978], supra; Clark v. International Harvester Co., 99 Idaho 326, 332-336, 581 P.2d 784, supra).
Cayuga Harvester v. Allis-Chalmers Corp., 95 A.D.2d 5, 465 N.Y.S.2d 606, 620 (1983) (footnote omitted). These statements from other courts are provided to suggest that this Court should avoid getting caught up in technical distinctions instead of concerning itself with the underlying basis of a damaged party’s claim for relief.
In conclusion, it is noted that on an almost regular basis we are exposed to the written decisions of the district courts, and as a generality all are well written. Some are more thorough than others, and Judge Winmill’s written decision here exemplifies those which are outstanding as to writing ability and detailed attention to all of the issues, which in this case, as pointed out by Justice Boyle, are many and not simple.
In twenty-five pages, Judge Winmill discusses all of the issues, and necessarily rules when confronted with a conflict in the evidence, but always with a bent toward applying the law which is available and applicable. Of interest, Judge Winmill, as does Justice Boyle, demonstrated his awareness of the Anderson case from the *537High Court. Judge Winmill cites an Idaho case, Sharp v. Idaho Inv. Corp., 95 Idaho 113, 121, 504 P.2d 386, 394 (1972), as authority for “this elevated standard of proof.” R. 457. In that regard, there was a misreading of the Sharp case. Sharp requires only that at trial, a plaintiff’s burden is to establish all nine of the essential elements of fraud by evidence which is clear and convincing.
ATTACHMENT A
INDEMNITY AGREEMENT
THIS Indemnity Agreement, made and entered into this 22 day of August, 1984, by and between LINDSAY MANUFACTURING COMPANY, a Corporation, of Lindsay, Nebraska, hereinafter referred to as “Lindsay”, and FUNK IRRIGATION of American Falls, Idaho, hereinafter referred to as “Funk”.
WHEREAS, Lindsay is the manufacturer of certain irrigation equipment including equipment known as lateral move enclosed pipeline systems, and
WHEREAS, Funk desires to purchase two of said lateral move enclosed pipeline systems for resale to a customer of Funk, and
WHEREAS, Lindsay has not designed said system for the length requested by Funk and the same is not designed to operate on slopes as severe as those that the customer of Funk intends to operate said system on, and
WHEREAS, Lindsay has advised Funk of these facts and has advised Funk that Lindsay personnel will not be available during the next several months to work on the machines and assist in keeping them operational, and
WHEREAS, Lindsay has advised Funk that certain operational characteristics of the equipment have been discovered and have not yet been corrected that may effect the operation of said equipment under normal operating conditions, and
WHEREAS, Funk has indicated that it desires to purchase said equipment, notwithstanding the above facts, and that Funk will do the work necessary to erect and keep said systems operational, and
WHEREAS, Lindsay is willing to sell the same to Funk only upon condition that Funk indemnify and hold harmless Lindsay from any claim of damages that may result from the above, and
WHEREAS, Funk is willing to purchase said equipment, indemnifying Lindsay from loss pursuant to terms and conditions hereof,
NOW THEREFORE, in consideration of Lindsay agreeing to sell said equipment to Funk and the further mutual covenants and agreements herein contained, the parties agree as follows:
1. Lindsay agrees to make the sale of said irrigation equipment to Funk upon the terms and conditions set forth in this Indemnity Agreement.
2. Funk does hereby indemnify Lindsay against all actions, proceedings, claims, demands, costs, damages and expenses to which Lindsay may be subjected by reason of the fact that the irrigation equipment sold hereunder is longer than the length recommended by Lindsay and by reason of the fact that the same will be operating on slopes more severe than those recommended by Lindsay, and by reason of the fact that Lindsay will be unable to provide Lindsay service personnel to work on any problems that might develop with the equipment.
3. In entering into this Indemnity Agreement, Funk understands that the above conditions may cause the system to misalign and shut down and may cause operational problems and Funk is willing to assume the responsibility therefor, without any right to look to Lindsay for any claims or damages. In the event the customer of Funk asserts any such claims or damages resulting from the conditions set forth in this Indemnity Agreement, then Funk will fully indemnify Lindsay therefrom.
4. Funk further understands that the operational characteristics of the equipment that have been discovered that effect the operation of the equipment under normal operating conditions have not yet been corrected. Funk is willing to assume the *538responsibility therefor without any right to look to Lindsay for claims or damages, the same being specifically released and Funk indemnifies Lindsay for any claims or damages that may be asserted by Funk’s customer against Lindsay. If Lindsay is able to isolate and correct said operational difficulties, Lindsay will retrofit said systems covered under this agreement with any corrective measures determined by Lindsay to be useful in correcting said operational difficulties.
5. The standard warranties set forth in the Lindsay Sales Agreement will remain in full force and effect as to this sale; except as limited herein. In the event Lindsay is able to do a retrofit of said systems, as set forth in paragraph 4 hereof, then the standard warranties will apply to the operation of the equipment under normal operating conditions.
IN WITNESS WHEREOF, the parties hereto have executed this Indemnity Agreement the date first above written.
LINDSAY MANUFACTURING COMPANY
By: Robert S. Snoopy
FUNK IRRIGATION
By: GR Toevs
ATTACHMENT B
INDEMNITY AGREEMENT
THIS Indemnity Agreement, made and entered into this 29 day of January, 1985 by and between LINDSAY MANUFACTURING COMPANY, a Corporation, of Lindsay, Nebraska, hereinafter referred to as “Lindsay”, and FUNK IRRIGATION of American Falls, Idaho, hereinafter referred to as “FUNK”.
WHEREAS Lindsay is the manufacturer of certain irrigation equipment including equipment known as lateral move enclosed pipeline systems, and
WHEREAS, Funk desires to purchase said lateral move enclosed pipeline system for resale to a customer of Funk, and
WHEREAS, Lindsay has not designed said system for the length requested by Funk, and
WHEREAS, Lindsay has advised Funk of this fact and has advised Funk that Lindsay personnel will not be available during the next several months to work on the machines and assist in keeping them operational, and
WHEREAS, Funk has indicated that it desires to purchase said equipment, notwithstanding the above facts, and that Funk will do the work necessary to erect and keep said system operational, and
WHEREAS, Lindsay is willing to sell the same to Funk only upon condition that Funk indemnify and hold harmless Lindsay from any claim of damages that may result from the above, and
WHEREAS, Funk is willing to purchase said equipment, indemnifying Lindsay from loss pursuant to terms and conditions hereof,
NOW, THEREFORE, in consideration of Lindsay agreeing to sell said equipment to Funk and the further mutual covenants and agreements herein contained, the parties agree as follows:
1. Lindsay agrees to make the sale of said irrigation equipment to Funk upon the terms and conditions set forth in this Indemnity Agreement.
2. Funk does hereby indemnify Lindsay against all actions, proceedings, claims, demands, costs, damages and expenses to which Lindsay may be subjected by reason of the fact that the irrigation equipment sold hereunder is longer than the length recommended by Lindsay, and by reason of the fact that Lindsay will be unable to provide Lindsay service personnel to work on any problems that might develop with the equipment.
3. In entering into this Indemnity Agreement, Funk understands that the above conditions may cause the system to misalign and shut down and may cause operational problems and Funk is willing to assume the responsibility therefor, without any right to look to Lindsay for any claims or damages. In the event the customer of Funk asserts any such claims or damages *539resulting from the conditions set forth in this Indemnity Agreement, then Funk will fully indemnify Lindsay therefrom.
4. The standard warranties set forth in the Lindsay Sales Agreement will remain in full force and effect as to this sale, except as limited herein.
This agreement is effected on system to be sold to G & M Farms by Funk Irrigation as ordered on ZL-__
IN WITNESS WHEREOF, the parties hereto have executed this Indemnity Agreement the date first above written.
LINDSAY MANUFACTURING COMPANY
By: Robert S. Snoopy
FUNK IRRIGATION
By: GR Toevs
. Given the great difference between the philosophies of these two scholarly justices, and the fact that both have given up their valuable time in writing separate dissenting opinions seeking to dissuade their fellow justices from recklessly charting a doubtful course, it would seem that reasoning members of this Court would be deeply worried about entering uncharted waters where hidden shoals lurk below. Moreover, that Chief Justice Burger fully concurred in Justice Rehnquist’s dissent is, or should be, to most minds, the raising of the red flag which signals the need for extreme caution in proceeding any further.
. "Progressing to the specific issue in this case, we are convinced that the inquiry involved in a *531ruling on a motion for summary judgment or for a directed verdict necessarily implicates the substantive evidentiary standard of proof that would apply at the trial on the merits. If the defendant in a run-of-the-mill civil case moves for summary judgment or for a directed verdict based on the lack of proof of a material fact, the judge must ask himself not whether he thinks the evidence unmistakably favors one side or the other but whether a fair-minded jury could return a verdict for the plaintiff on the evidence presented." Anderson, id. at 252, 106 S.Ct. at 2512 (emphasis added).
. Justice Brennan did not fail to observe in his opinion that although "[t]he Court’s opinion is replete with boilerplate language to the effect that trial courts are not to weigh evidence when deciding summary judgment motions ... the Court’s opinion is also full of language which could surely be understood as an invitation — if not an instruction — to trial courts to assess and weigh evidence much as a juror would:
‘When determining if a genuine factual issue ... exists ..., a trial judge must bear in mind the actual quantum and quantity of proof necessary to support liability____ For example, there is no genuine issue if the evidence presented in the opposing affidavits is of insufficient caliber or quality to allow a rational finder of fact to find actual malice by clear and convincing evidence.’ Ante, 106 S.Ct. at 2513 (emphasis added).
'[T]he inquiry ... [is] whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.’ Ante, 106 S.Ct. at 2512 (emphasis added).
'[T]he judge must ask himself ... whether a fair-minded jury could return a verdict for the plaintiff on the evidence presented. The mere existence of a scintilla of evidence in support of the plaintiffs position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.’ Ibid. Anderson, 477 U.S. at 265-66, 106 S.Ct. at 2519 (Brennan, J. dissenting) (emphasis in original).
Justice Brennan, to his ever-lasting credit, and may our memories never fail us, made such a pile of mincemeat out of the Court’s ration decidendi, that one can only wonder at the lack of perspicuity displayed by the justices who joined Justice White's opinion. It *532was not a sound opinion. That three justices would feel obliged to register stinging dissents (Burger, J., joined the dissenting opinion of Rehnquist, J.) should not, however, suffice as reason for rejecting the opinion without studying it thoroughly. Having done just that, this time far more so than at the time of Wiemer, and then more recently at the time of Nelson, it is readily seen that all of the shortcomings of Anderson as exposed and discussed in the dissenting opinions are well substantiated. In fact, the criticism made therein borders on the extremely moderate. In short, it is an opinion which should not be allowed any more import beyond that which is imposed on federal courts by federal rules.
. See Lockwood Corp. v. Spencer, 613 S.W.2d 369 (Tex.Civ.App.1981) (crop damage, caused by defective irrigation system, is an economic loss).