DISSENTING.
I join in Justice Johnson’s dissent and also dissent on the basis that failure to include the juveniles’ names and Requipco on the special verdict was error because it limited the scope of the jury’s consideration on causation.
The Court has determined the case based upon contract principles and, consequently, holds that tort-based defenses are not available to TDT. However, to hold TDT liable for breach of contract it was necessary to determine that TDT was negligent and that its negligence caused the damage. The jury should have been allowed to consider the negligence of the juveniles who actually started the fire and the possible negligence of Requipco to determine if their negligence was actually the cause of damage to Empire. If given the question directly on the special verdict form, the jury might have determined that the juveniles’ or Requipco’s negligence was the cause of damages to Empire. Under the Court’s analysis, the liability of TDT for the damage to Empire was dependent upon a determination that TDT was negligent and that its negligence was the cause of that damage. A finding of negligence by TDT is inherent in the jury’s verdict, but it is speculation to say what the jury might have done or what the verdict means when the jury did not have a full opportunity in the verdict to address the question of whose negligence caused the fire and the damage. The Court determines as a matter of law an issue that is routinely held to be a question for the jury.
The trial court had a duty to instruct upon all of TDT’s theories and defenses which find any support in the evidence, Spence v. Howell, 126 Idaho 763, 890 P.2d 714 (1995), and the facts must be construed most favorably to the party requesting the instruction, in this case TDT. Doty v. Bishara, 123 Idaho 329, 848 P.2d 387 (1992). Failure to submit a party’s defenses and theories to the jury is reversible error. Garrett Freightlines, Inc. v. Bannock Paving Co., 112 Idaho 722, 735 P.2d 1033 (1987).
The Court made this statement in Vannoy v. Uniroyal Tire Co., Ill Idaho 536, 726 P.2d 648 (1985):
In the present case, based upon the evidence submitted by plaintiffs’ own expert and the standard applied in Fouche v. Chrysler, supra, [101 Idaho 701, 692 P.2d 345 (1984)] the jury would have been entirely justified in allocating to the mounting machine manufactured by Coats, and to the wheel rim manufactured by Kelsey-Hayes, some or all of the responsibility for proximately causing the damages to the plaintiffs. Accordingly, it was reversible error for the trial court to refuse to include them on the jury verdict form. Lasselle v. Special Products Co., 106 Idaho 170, 677 P.2d 483 (1983).
Id. at 543, 726 P.2d at 655.
Vannoy was a tort case based on a theory of strict liability, not a contract case, but the principle is the same. In this case the jury might have allocated all of the negligence that proximately caused the fire to the juveniles. There was also evidence that the other tenant on the premises, Requipco, failed to maintain the pump or sprinkler system, and it should also have been on the special verdict. Even accepting the Court’s contract analysis, the failure to place the other non-parties on the special verdict calls into question the negligence finding by the jury as to TDT and requires the reversal of the contract claim which relies upon that finding.
The jury’s negligence finding is further undermined by the trial court’s failure to instruct the jury on TDT’s defense of superseding, intervening cause. Again, while this is a concept applicable in tort, it has application when the contract claim is based on negligence. Even in contract terms, there must be a relation between the breach and the damage. A breach that is not the cause of damage does not result in liability. The jury could well have concluded that the *311cause of damage to Empire was the juveniles trespassing and playing catch with a burning sack or Requipco’s failure to maintain the pump or sprinkler system. It was an issue of fact for the jury. The verdict form unduly limited the jury’s consideration.