                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                                                             January 26, 2004
                       FOR THE FIFTH CIRCUIT
                                                          Charles R. Fulbruge III
                                                                  Clerk

                           No. 03-30522


OBEDEAN CREAR, JR.,

                             Plaintiff,

                              versus

OMEGA PROTEIN, INC.,

                              Defendant.

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

JOE NATHAN CREAR, OBEDEAN CREAR, SR., CLARENCE O. CREAR, SR.,
JACQUELYN D. JONES, ANDREW CREAR, BRINFUS LEE CREAR, SR., MALONE
CREAR, JR. AND ADRIAN L. CREAR,

                               Plaintiffs - Appellants,

                              versus

OMEGA PROTEIN, INC.,

                               Defendant - Appellee.



          Appeal from the United States District Court
              For the Eastern District of Louisiana
                           (01-CV-3876)



Before JOLLY, HIGGINBOTHAM, and DeMOSS, Circuit Judges.

PER CURIAM:*



     *
       Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
     Plaintiffs, heirs of Pernell Crear, brought wrongful death

suit against Omega Protein, Inc. Omega previously employed Obedean

Crear, who suffered a head injury at work.     Thirteen months later

Mr. Crear murdered his grandmother, which Plaintiffs assert was the

foreseeable result of Omega’s negligence.      Plaintiffs appeal the

district court’s decision to grant summary judgment for Omega based

on the finding that Omega owed no duty to the grandmother because

her injury was not foreseeable.   We AFFIRM.

                                  I

     On June 24, 1999, Mr. Obedean Crear murdered Pernell Crear,

his grandmother.1   Thirteen months before the murder, Mr. Crear

suffered a head injury while working aboard one of Omega’s fishing

vessels when an improperly affixed stern pole fell and struck him.

He was treated for a concussion and for pain in his back and neck.

Mr. Crear developed severe mental problems.      Various physicians

treated Mr. Crear between May 1998 and June 1999, including a

psychiatrist’s treatment two weeks before the murder, but it

appears that his mental problems may have been improperly diagnosed

or untreated.

     Pernell Crear’s heirs sued Defendant Omega Protein, Inc., Mr.

Crear’s former employer, for wrongful death, alleging that Pernell

Crear’s murder was a foreseeable result of Omega’s negligence.

Defendant Omega Protein stipulated to Plaintiffs’ facts in its

     1
       Mr. Crear was prosecuted for the murder and found not
guilty by reason of insanity.

                                  2
Motion for Summary Judgment.   Specifically, it stipulated that (1)

the injury to Mr. Crear caused the murder of his grandmother, and

(2) Mr. Crear’s mental problems were left untreated due to the

actions of Omega.

     Omega’s sole argument below was that the murder of Mr. Crear’s

grandmother was unforeseeable as a result of his head injury;

therefore, Omega owed no duty to her or her heirs.   In support of

its summary judgment motion, Omega attached deposition testimony of

nine family members, most of whom are plaintiffs in this action.

Each family member testified that they never believed Mr. Crear

would physically harm his grandmother.     In response, Plaintiffs

submitted an expert’s affidavit, opining that “it is certainly

foreseeable that a person who suffers an injury such as that of

Obedean Crear would develop violent propensities.”

     The district court granted Omega’s summary judgment motion.

Plaintiffs appeal this judgment, asserting that Omega’s summary

judgment evidence was insufficient and that its own evidence

foreclosed the possibility of summary judgment.

                                 II

     The standard for reviewing the grant of summary judgment is

clear.   Summary judgment is appropriate when the summary judgment

evidence shows “that there is no genuine issue as to any material




                                 3
fact and that the moving party is entitled to a judgment as a

matter of law.”2

       There is some dispute between the parties regarding the

controlling law. Plaintiffs argue that Mississippi law must apply,

but they did not make this argument in opposition to the summary

judgment below, do not brief the issue to this court, and do not

raise it as an independent issue on appeal.        Instead, Plaintiffs

assert in one paragraph that admiralty law should not apply.      In an

earlier, and apparently uncontested ruling, the district court held

that admiralty law applied.         It made this holding because the

alleged cause of the murder - Mr. Crear’s head injury - occurred on

a vessel on navigable waters. Although the issue is apparently not

preserved and is inadequately briefed, its resolution does affect

the case.        General tort law principles inform the analysis of

maritime torts,3 and the district court correctly noted that the

rules of negligence are the same under admiralty and Mississippi

law.       Finally, regardless of the applicable law, Plaintiffs failed

to provide any evidence that it owed Mr. Crear’s grandmother a duty

of care.

       The elements of a cause of action for negligence are well

established.       A plaintiff must establish that (1) the defendant

owed the plaintiff a duty of care; (2) the defendant breached the

       2
           FED. R. CIV. P. 56.
       3
       See Consolidated Aluminum Corp. v. C.F. Bean Corp., 833
F.2d 65, 67 (5th Cir. 1987).

                                     4
duty; (3) the plaintiff suffered damages; and (4) the breach of the

duty proximately caused the damages.4           Whether a defendant owes a

duty to a plaintiff depends on various factors, and the primary

indicator of duty is whether the harm suffered by the plaintiff was

foreseeable.5

      Harm is foreseeable “if harm of a general sort to persons of

a   general     class   might   have   been   anticipated   by    a   reasonably

thoughtful person, as a probable result of the act or omission,

considering the interplay of natural forces and likely human

intervention.”6         In Consolidated Aluminum, an aluminum reduction

plant sued, among others, a dredge operator who cut a pipeline that

supplied power to the plant.           Once the dredge cut the pipe, the

pipe’s owner turned off its supply of gas.                  As a result, the

plaintiff’s plant could no longer power its electrical generators.

The plant and the work-in-progress were damaged.                 The court held

that the dredge operator owed no duty to the plaintiff because its

harm “was not of a general sort expected to follow from the failure

to dredge carefully in proximity to a gas pipeline.”7                 The court

also offered examples of foreseeable harms:            “Injury to property



      4
       See Lloyd’s Leasing Limited v. Conoco, 868 F.2d 1447, 1449
(5th Cir. 1989).
      5
          Consolidated Aluminum, 833 F.2d at 67.
      6
          Id. at 68.
      7
          Id.

                                        5
and persons from the escaping gas, or from a fire which might have

ensued,      would   be       examples   of   consequences      that   would   be

foreseeable.”8        But the injury to the plant fell outside the

general, reasonably anticipated class of harm as a result of

negligent dredging.

      Mississippi law follows the same principle.                 Damages to a

plaintiff must be reasonably foreseeable, but “[o]rdinary care does

not   require    that     a    person    prevision   unusual,    improbable    or

extraordinary        occurrences.          Failure   to   anticipate      remote

possibilities does not constitute negligence.”9                 To establish a

defendant’s liability for a negligent act, “‘the act must be of

such character, and done in such a situation, that the person doing

it should reasonably have anticipated that some injury to another

will probably result therefrom.’”10

      In Rolison, a batter in a softball game threw his bat,

injuring a base runner.11          The base runner sued, among others, the

city and the umpires.          The trial court granted defendant’s summary

judgment because there was no evidence that the defendants could




      8
           Id.
      9
       Rolison v. City of Meridian, 691 So.2d 440, 444 (Miss.
1997) (citing seven cases dating back to 1933).
      10
       Id. (quoting Mauney v. Gulf Refining Co., 9 So.2d 780,
780-81 (1942) (citations omitted)).
      11
           Id. at 441.

                                          6
foresee a batter throwing his bat.               The Mississippi Supreme Court

upheld the decision to grant defendant’s summary judgment.12

                A reasonable man can be guided only by a
                reasonable estimate of probabilities. If men
                went about to guard themselves against every
                risk to themselves or others which might by
                ingenious conjecture be conceived as possible,
                human affairs could not be carried on at all.
                The reasonable man, then, to whose ideal
                behavior we are to look as the standard-of
                duty, will neither neglect what he can
                forecast as probable, nor waste his anxiety on
                events that are barely possible.13

The court held that because both parties testified that there was

no way to foresee this type of action, summary judgment was

appropriate.14

                                         III

     These principles indicate that the court properly granted

summary judgment.         Despite Plaintiffs’ various arguments, nothing

indicates that a reasonable employer in Omega’s situation could

foresee    a     murder    by   its   employee    thirteen   months   after   the

employee’s initial head injury.            Plaintiffs presented no evidence

that the injury to Mr. Crear’s grandmother is the general type of

injury resulting from Mr. Crear’s at-work injury.

     Various considerations support the district court’s decision.

First     and     most    basically,    the    harm   resulting   from   Omega’s


     12
          Id. at 444.
     13
          Id. (quoting Mauney, 9 So.2d at 780-81).
     14
          Id.

                                          7
negligence - the murder of Mr. Crear’s grandmother - is not harm of

the “general sort to persons of a general class” resulting from a

negligently affixed stern pole.    One must ask what general sort of

harm would be caused to what general class as a result of Omega’s

negligence.15    Here, Omega stipulates that it failed to properly

affix the stern pole.    What type of harm, and to what general class

of people, could a reasonable employer anticipate as a result of

this negligence? A reasonable employer could anticipate (1) direct

harm to employees like the injury suffered by Mr. Crear; (2) direct

harm to anyone who visited the vessel or stood near enough to it to

be struck by the falling stern pole; (3) aggravated injuries

resulting from medical malpractice while a victim is being treated

for the injury; and (4) economic and emotional damages resulting

from the loss of work or mental incapacity.    A reasonable employer

could not anticipate that after an employee was struck by the pole,

he would develop a psychosis, that his family members would not

detect this developing psychosis, that various physicians would

fail to neutralize this psychosis over a thirteen-month period, and

finally that the employee would suddenly snap and murder a family

member.    If this conduct is foreseeable, one must ask what is not

foreseeable.     One must also consider what an employer in Omega’s

situation could have done to deter this type of action, and for how

long must an employer continue the deterrence.


     15
          Consolidated Aluminum, 833 F.2d at 68.

                                   8
     Second, Plaintiffs discount the level of summary judgment

proof presented by Omega.       Plaintiffs state that “[i]n defendant’s

motion for summary judgment, no facts were presented, except that

the Crear family had no idea that Mr. Crear would be capable of

such violent behavior.”        Each one of Mr. Crear’s family members,

many of whom are plaintiffs in this case, testified in their

depositions that no actions of Mr. Crear led them to believe that

he was capable of this type of act.         Like the plaintiff’s admission

in Rolison that no one could foresee the batter throwing his bat

and injuring a runner, Plaintiffs’ admissions here are similarly

compelling.    The Crear family did not indicate any behavior by Mr.

Crear   that   would   have    led   them   to   believe   he   had   violent

capabilities.

     Third, Plaintiffs’ expert report does not foreclose summary

judgment.      The uncontradicted opinion states that victims of

frontal lobe head injuries have an increased chance of developing

violent behavior.      However, it does not follow from this general

opinion that a reasonable employer in Omega’s position would

anticipate that their negligence in failing to properly affix a

stern pole would cause an employee to seriously injure or murder

another person.    Mr. Crear was provided medical attention over the

thirteen-month period.        Plaintiffs insinuate that various doctors

may have improperly diagnosed or mistreated Mr. Crear’s condition.

The expert’s general opinion that violent conduct is a foreseeable



                                      9
consequence of a frontal lobe injury is no answer to Omega’s

evidence that Mr. Crear’s extreme, sudden, and violent behavior

thirteen months after his injury was unforeseeable as a result of

failing    to    properly      affix    a     stern    pole.        The   test   for

foreseeability simply does not extend that far.

     Fourth, Plaintiffs incorrectly argue that the district court

set a new standard for foreseeability in its order.                       Plaintiffs

focus on the district court’s language that an injury must be

probable, not just possible.            As discussed above, Mississippi law

does not require a defendant to foresee the improbable.16

     Finally, the district court’s decision does not conflict with

American National Insurance Company v. Hogue.17                 Hogue held that

once sufficient evidence is presented to create a fact question on

foreseeability, a jury must resolve the question.                     This case is

easily distinguished; here the district court correctly found that

“[t]here is      simply   no    evidence      that    Mr.   Crear   exhibited    any

behavior prior to the murder that would indicate that Mr. Crear had

violent propensities or that murdering his grandmother was a

possibility.”     Plaintiffs presented no evidence of foreseeability

that would      require   a    jury’s    resolution.         Even   under    Hogue’s

rationale, duty remained a question of law for the court to decide.



     16
       Rolison v. City of Meridian, 691 So.2d 440, 444 (Miss.
1997) (citing seven cases dating back to 1933).
     17
          749 So.2d 1254 (Miss. App. 2000).

                                         10
                                IV

     The district court properly found that Omega owed no duty to

Plaintiffs.   There is no genuine issue of material fact indicating

the grandmother’s injury to be foreseeable.     The harm resulting

from Omega’s negligence - Mr. Crear’s murder of his grandmother -

is too far outside the foreseeable class of harm and individuals to

impose a duty on Omega.   Accordingly, we AFFIRM.




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