DISSENTING AND CONCURRING IN THE RESULT
I respectfully dissent from part 111(A) of the Court’s opinion (The District Court Correctly Ruled That Paragraph 5 Of The Lease Did Not Relieve TDT Of Liability For Fires Caused By Its Negligent Actions).
I concur in the result of the portion of part III(B) of the Court’s opinion (The District Court Did Not Err In Refusing To Place The Juveniles’ and Requipco’s Names On the Special Verdict Form And In Refusing To Instruct The Jury On Superseding Cause) that deals with refusing to place the names of the juveniles and Requipco on the special verdict form.
I respectfully dissent from the portion of part III(B) of the Court’s opinion that deals with refusing to instruct the jury on intervening and superseding cause.
PARAGRAPH 5 RELIEVED TDT OF LIABILITY FOR THE FIRE.
In my view, the analysis contained in part 111(A) of the Court’s opinion incorrectly fails to consider all the pertinent provisions of the lease and erroneously relies on authorities from other jurisdictions, when decisions of *308this Court provide the correct focus for the analysis.
In Safeco Ins. Cos. v. Weisgerber, 115 Idaho 428, 767 P.2d 271 (1989), a case in which a tenant was alleged to be negligent in causing a fire that damaged leased premises, the Court considered a lease provision similar to paragraph 5 of the lease between Empire and TDT, and concluded:
When a tenant agrees to maintain the property in a good state and condition with “damage by fire excepted,” a landlord should reasonably be expected to bear the burdens associated with damage by fire and insure against that eventuality.
Id. at 431, 767 P.2d at 274.
In addition to paragraph 5 of the lease between Empire and TDT, the Court should also have considered paragraph 9, which states:
USE-INSURANCE
9. The Lessee shall conduct and carry on in said premises, continuously during each and every business day of the term hereof, the business for which said premises are leased, and shall not use the premises for illegal purposes. The Lessee agrees that no stock-of goods will be carried, or anything done in or about the premises which will prevent Lessee from obtaining insurance as herein required. Lessee will insure said premises for fire protection of $NA and on this day furnish a binder naming Lessor as insured; and the liability insurance shall show Lessor as additionally insured, and Lessee shall pay all premiums.
In Bannock Bldg. Co. v. Sahlberg, 126 Idaho 545, 887 P.2d 1052 (1994), the Court said:
[W]e hold that on a case-by-case basis, the trier of fact must focus on the terms of the lease agreement itself to determine what the reasonable expectations of the parties were as to who should bear the risk of loss for fire damage to the leased premises. With respect to the present ease, we hold that summary judgment must be vacated and the case remanded to the district court to determine the issue of which party agreed to bear the risk of loss for fire damage, including who should bear that risk if the damage is determined to be caused by negligent acts of the tenant.
Id. at 549, 887 P.2d at 1056 (emphasis added). In my view, the Court should focus on both paragraphs 5 and 9 in deciding which party bore the risk of loss if the lease premises were damaged by fire, even a fire caused by TDT’s negligence.
Paragraph 5 provides that TDT is not responsible for “reasonable wear and tear and damage caused by fire or unavoidable casualty.” If “damage caused by fire” did not include fire caused by TDT’s negligence, the term “unavoidable casualty” would be prefaced by the word “other,” making the exclusion read “damage caused by fire or other unavoidable casualty.” As it reads, paragraph 5 does not limit the exclusion of TDT’s responsibility to unavoidable fires.
The decisions of this Court concerning the limitations on agreements limiting liability for negligence do not dictate a different result. In Anderson & Nafziger v. G.T. Newcomb, Inc., 100 Idaho 175, 595 P.2d 709 (1979), the Court said:
It is a general rule of this state and the majority of American jurisdictions that a party may contract to absolve himself from certain duties and liabilities under a contract subject to certain limitations. However, it is nevertheless well established that courts will look with disfavor on such attempts to avoid liability and construe such provisions strictly against the person relying on them, especially when that person is the preparer of the document.
Id. at 178, 595 P.2d at 712 (citations omitted). In Anderson, the party seeking to take advantage of the provision limiting liability had prepared the exculpatory provision. In the present case, Empire, not TDT, prepared the lease. The circumstances in the present case do not call for the Court to rewrite the provision limiting TDT’s liability that was prepared by Empire.
Also, contrary to the Court’s opinion, paragraph 8 of the lease concerning care of the premises does not require a different reading of paragraph 5. In Miller v. Belknap, 75 Idaho 46, 266 P.2d 662 (1954), the Court said:
*309It is axiomatic that 'a lease, like any other contract, is to be construed to give effect to the intention of the parties. In so doing, the courts generally hold that covenants for maintenance and repair and covenants to surrender in good condition are to be construed together, and, so construed, the covenant to surrender in good condition, wear and tear due to reasonable use excepted.
“The general force and effect of a covenant by the lessee to make all repairs to the leased premises during the term of the lease is restricted and limited by a surrender clause containing an exception as to damage by fire and ordinary wear and tear. The two provisions will be construed together as imposing upon the lessee an obligation to make all such repairs as may be necessary for the preservation of the premises in the condition in which he received them from his lessor, except repairs required by reason of ordinary wear and tear, or by reason of fire. Ordinary wear and tear include any usual deterioration from the use of the premises and by lapse of time.” 45 A.L.R. Annotation 70.
Id. at 52-53, 266 P.2d at 665-66.
In my view, paragraph 5 excluded TDT’s liability for damage to the leased premises caused by fire.
IT IS NOT NECESSARY TO ADDRESS THE TRIAL COURT’S REFUSAL TO INCLUDE ON THE SPECIAL VERDICT FORM THE NAMES OF OTHERS WHO WERE POTENTIALLY NEGLIGENT.
In my view, the analysis in the portion of part III(B) of the Court’s opinion in which the Court addresses the trial court’s refusal court to include on the special verdict form the names of the juveniles and of Requipco is not necessary. In answering the questions contained in the special verdict form, the jury found that Empire was not negligent, but that TDT was negligent and that its negligence was the proximate cause of the damages sustained by Empire. Therefore, under the “individual rule” adopted by the Idaho legislature when it enacted comparative negligence, even if others who were potentially negligent had been included on the special verdict form, TDT would have been liable to Empire for its damages. Beitzel v. Orton, 121 Idaho 709, 713, 827 P.2d 1160, 1164 (1992).
THE FORESEEABILITY OF THE JUVENILES’ ACTIONS IS A QUESTION OF FACT THAT SHOULD HAVE BEEN SUBMITTED TO THE JURY.
In my view, the question of foreseeability that the Court’s opinion treats as a matter of law is a question of fact that should have been submitted to the jury as part of instructions concerning TDT’s defense that the actions of the juveniles were an intervening and superseding cause. I am unable to agree that the evidence in this ease leads to only one reasonable conclusion — that TDT should have foreseen that the juveniles would set the fire. The evidence in this case presents the opposite circumstance from that posed in Mico Mobile Sales & Leasing, Inc. v. Skyline Corp., 97 Idaho 408, 546 P.2d 54 (1975), the case cited in support of this portion of the Court’s opinion. In Mico Mobile, instead of ruling that the only reasonable conclusion was that the act in question should have been foreseen, the Court concluded: “Mice’s act of placing the methanol in a fresh water system was in violation of state law, mobile home industry standards, and plumbing trade practices; thus, its act was an extraordinary event which was not foreseeable to Skyline.” Id. at 414, 546 P.2d at 60. Ruling out foreseeability under the circumstances in Mico Mobile is a distinctly different matter than concluding as a matter of law that it exists in the present case.
Although there was evidence that TDT was aware that juveniles had access to the building before the fire, there was also evidence that the fire started when the juveniles entered the building through an unlocked door and played a game in which they placed wadded-up newspaper inside a plastic sack, set the paper on fire, and then tossed it back and forth to one another in a game of “chicken.” The plastic sack landed in some pallets that had been stacked by TDT employees to block an open doorway, which had been ere*310ated several days earlier when the overhead door had been knocked off its rollers by a forklift operated by a TDT employee. Even though the juveniles attempted to stomp out the fire, the sack set the pallets on fire, which spread up the pallets to the roof. In my view, the question of foreseeability was clearly one for the jury, and not this Court, to decide.