dissenting.
I must respeetfiilly dissent. The question is ‘“whether [appellant’s] injury and the manner of its occurrence [were] so highly unusual that we can say, as a matter of law that a reasonable [person], making an inventory of the possibilities of harm which [that person’s] conduct might produce, would not have reasonably expected the injury to occur.’” Alegria v. Payonk, 101 Idaho 617, 620, 619 P.2d 135, 138 (1980) (quoting Kirby v. Sonville, 286 Or. 339, 594 P.2d 818, 821 (1979) (emphasis added)). I would hold that the question must be answered in the affirmative.
We have indeed stated that the resolution of whether an injury was a foreseeable result of a negligent act is generally a question of fact for the jury. Alegria, 101 Idaho at 619-*60220, 619 P.2d at 137-38; Mico Mobile Sales and Leasing, Inc. v. Skyline Corp., 97 Idaho 408, 412, 646 P.2d 54, 58 (1975). However, in order for foreseeability to be a jury question, one of three possible scenarios must exist. The first scenario is'that there is conflicting evidence on material facts. The second possibility is that there are undisputed facts upon which reasonable and fair-minded persons might reach different inferences or conclusions. Or, the third and final scenario is that “different conclusions might reasonably be reached by different minds.” Alegria, 101 Idaho at 619-20, 619 P.2d at 137-38. When considering each of those three scenarios, it is important to keep in mind that we require a power company to guard against probabilities, not possibilities. Orthman v. Idaho Power Co., 126 Idaho 960, 962, 895 P.2d 561, 563 (1995) (Orthman I).
In this ease, the first scenario does not apply, because as the trial court found, the parties do not dispute the essential facts of this case. The question then becomes whether reasonable people could reasonably conclude that Russell’s actions were foreseeable, or phrased differently, whether Russell’s actions were such that a reasonable person could find that they were a probability against which a power company should guard. We have held that when a mobile home retailer illegally used methanol in a mobile home plumbing system, that illegal act was an extraordinary event not foreseeable to the mobile home manufacturer. Thus, as a matter of law, the retailer’s actions were not foreseeable, and we upheld the grant of summary judgment in favor of the manufacturer. Mico, 97 Idaho at 414, 546 P.2d at 60.
Although Russell was not charged with a crime, he illegally attempted to reconnect his own power, in violation of Idaho Code section 18-4621. Under Mico, that fact alone is sufficient to call into question the foreseeability of Russell’s actions. Further, the fact that Russell acknowledged in his deposition that he knew that raising a metal pole around power lines presented a risk of shock calls into question whether a reasonable person could find it foreseeable that someone would take such a risk. Finally, the record contains facts showing that Russell’s wife was communicating with Idaho Power in an effort to have electrical service restored; thus, Idaho Power could have only reasonably believed that the Orthmans were taking legal steps to have power restored.
Given these facts, I would hold as a matter of law that while it was possible that Russell would attempt to reconnect his own power, it was not probable. Phrased differently, and to paraphrase Alegría, I would hold that Russell’s injury and the manner of its occurrence were so highly unusual that this Court can say, as a matter of law, that a power company, making an inventory of the possibilities of harm which his conduct might produce, would not have reasonably expected Russell’s injuries to occur. Therefore, I respectfully dissent.
SCHROEDER, J., concurs.