specially concurring.
I concur in the result in this case, but do not agree with the majority's application of the doctrine of collateral estoppel to Wag-goner’s theories of strict products liability and warranty.
In disposing of the appellate issues, the majority seems to hold that the jury finally decided, as a factual matter, that Fiedler’s negligence was the sole actual cause of Waggoner’s accident. At 1203. Stated another way, the majority is holding that when the jury decided Fiedler was one hundred percent at fault as the direct cause of Waggoner’s accident, the jury, as a factual matter, had necessarily excluded any other actual causal factor in the accident, i.e., an alleged defect in the vehicle.
The majority’s authority for this application of the doctrine of collateral estoppel is Hurley v. Beech Aircraft Corporation, 356 F.2d 517 (7th Cir.1966), which concerned an airplane that crashed after one of its wings separated from its fuselage. That case is factually distinguishable from *1205this one; in Hurley, there were specific trial court findings of no defect in the airplane. Id. at 520. Based on those specific findings concerning the nonexistence of any defect, the appellate court was able to conclude that an outstanding action for breach of warranty was collaterally es-topped, because the factual determination that a defect existed was the identical element of proof needed to put forth a prima facie case of breach of warranty. The Hurley court collaterally estopped one party from relitigating a specific fact issue which had been decided in earlier litigation. However, it did invoke the more general factual determination that only one of the parties had been negligent.1
Unlike the situation in Hurley, the fact-finder in this case never made a factual finding that any alleged defect did not contribute in any way to Waggoner’s accident. This is because the jury was never instructed to consider that factual issue. The jury instruction which led to the finding of one hundred percent fault of Fiedler in this case reads:
You are instructed that the Defendants [General Motors, Burman Motors, and Western Rentals] were under a duty to exercise ordinary care and furnish a reasonably safe vehicle to Plaintiff [Wag-goner]. Though the Defendants are not insurers against injuries from defects in the vehicle, Defendants must exercise ordinary care in examining the vehicle before furnishing it. Defendants must also exercise reasonable care to inspect and repair the vehicle whenever called on to do so during the period that the vehicle is furnished.
(Emphasis added). This instruction requires the jury to consider whether the defendants negligently “inspecifed] and repair[ed]” the bailed vehicle as an actual cause of Waggoner’s accident. It does not require the jury to give any consideration to the potential presence of a defect in that vehicle that could be an actual cause of the accident. The jury was not instructed to consider whether an alleged defect contributed to the accident, and consistent with that instruction it never made such a finding. Based on this, in applying the doctrine of collateral estoppel, the majority must be inferring what the jury would have decided on that particular issue of fact had it been so instructed.
I fear this rather protracted reasoning stretches the doctrine of collateral estoppel a bit too far. It can be interpreted as implying that a party can be collaterally estopped on an issue of fact based on a judicial inference drawn from a similar factual determination in previous litigation between the parties. We have stated that the doctrine of collateral estoppel prevents “re-litigation of issues which were involved actually and necessarily in the prior action between the same parties.” Delgue v. Curutchet, 677 P.2d 208, 214 (Wyo.1984). Based on the record in this case, we cannot determine whether this jury, as instructed, actually and necessarily decided that an alleged defect could not have been an actual cause of Waggoner’s accident. That uncertainty tells me we should avoid gambling with the scope of the doctrine of collateral estoppel to affirm these issues.
Having made this point, I offer an alternate method for affirming the trial court. I believe the real problem here was Wag-goner’s taking his theories of strict liability and warranty as far into the litigation as he did. To put either of those theories before a jury, Waggoner had to allege some facts showing a defect in the bailed vehicle; he never made that showing.
This court can affirm the trial court on any legal basis appearing in the record. Boehm v. Cody Country Chamber of Commerce, 748 P.2d 704, 706 (Wyo.1987). I would apply that standard of appellate review and hold that Waggoner did not present the trial court with a genuine issue of material fact to justify sending his strict *1206liability or warranty claims to the jury, See W.R.C.P. 56.
. The other cases cited as authority in the majority opinion rely on the holding in Hurley and are therefore similarly distinguishable. See LaVay Corporation v. Dominion Federal Savings & Loan Association, 830 F.2d 522, 529 (4th Cir.1987) cited at 1203; and Lewis v. Baker, 243 Or. 317, 413 P.2d 400, 404 (1966) cited at 1204.