                               UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 09-1679


GLEN FLETCHER,

                 Plaintiff - Appellant,

           and

LUCILLE FLETCHER; LUCY FLETCHER,

                 Plaintiffs,

           v.

PIZZA HUT OF AMERICA, INCORPORATED,

                 Defendant - Appellee,

           and

YUM! BRANDS, INCORPORATED,

                 Defendant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.     Anthony J. Trenga,
District Judge. (1:08-cv-00815-AJT-TCB)


Argued:   October 26, 2010                   Decided:   January 4, 2011


Before KEENAN and WYNN, Circuit Judges, and Bobby R. BALDOCK,
Senior Circuit Judge of the United States Court of Appeals for
the Tenth Circuit, sitting by designation.
Affirmed by unpublished opinion.        Judge Keenan wrote the
opinion, in which Judge Wynn and Senior Judge Baldock joined.


ARGUED: Douglas Bell Wessel, WESSEL LAW OFFICES, Reston,
Virginia, for Appellant. Charles Michael Sims, LECLAIRRYAN, PC,
Richmond, Virginia, for Appellee. ON BRIEF: Tracy Taylor Hague,
Joanna L. Faust, LECLAIRRYAN, PC, Richmond, Virginia, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.




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KEENAN, Circuit Judge:

        This   appeal      in   a    personal         injury    case       arises       from   an

automobile      accident        in   which    the        plaintiff,        Glen     Fletcher,

suffered injuries when his vehicle was struck by a car driven by

Rene Ayala, who drove into an intersection in violation of a red

traffic signal.         Ayala is not a party to this case.                              Fletcher

brought this action against Pizza Hut of America, Inc. (Pizza

Hut),    alleging     that      Pizza   Hut       was     directly         and     vicariously

liable for Fletcher’s injuries based on the presence of a car,

owned by a Pizza Hut delivery driver, which was disabled in a

traffic lane at the intersection where the accident occurred.

After a trial, the jury returned a verdict in favor of Pizza

Hut.

       On appeal, Fletcher raises numerous issues that we do not

reach,    because     we    conclude     as       a    matter    of    law       that   Ayala’s

negligence      was     the     sole    proximate         cause       of     the    accident,

superseding any alleged negligence on the part of Pizza Hut or

its     employees.         We    therefore            affirm    the    district         court’s

judgment.



                                             I.

        In 2008, Fletcher filed a complaint against Pizza Hut in a

state court in Virginia, seeking monetary damages for injuries

he suffered as the result of the automobile accident.                                   Alleging

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diversity     jurisdiction        under    28    U.S.C.       § 1332(a),        Pizza   Hut

removed the action to a federal district court in the Eastern

District of Virginia.

      In his complaint, Fletcher alleged that Nancy Karickhoff, a

Pizza   Hut    employee    and     the    driver       of    the    disabled     vehicle,

created a traffic hazard by leaving her inoperable vehicle in a

left-turn lane leading to the intersection where the collision

occurred.        Among     his    allegations          of    direct      and    vicarious

liability, Fletcher contended that Pizza Hut and its manager

breached      various    duties     that    arose          before   Karickhoff’s        car

stalled near the intersection, including a duty to inspect and

maintain      Karickhoff’s       vehicle       and     a    duty    to    refrain       from

assigning delivery duties to employees with a history of driving

unsafe vehicles.         Fletcher also contended that Pizza Hut and its

manager    breached      other    duties       after       Karickhoff’s        car   became

disabled, including the duty to assist Karickhoff in removing

her vehicle from the road.

      Fletcher further alleged in his complaint that Pizza Hut

was   vicariously       liable    for     Karickhoff’s           acts    and   omissions.

Fletcher asserted that Karickhoff acted negligently before her

car   stalled    by     failing    to     maintain         and   safely    operate      the

vehicle, and acted negligently after her car became disabled by

abandoning it and by failing to remove the vehicle from the

roadway as soon as possible.

                                           4
     Pizza Hut filed a motion for summary judgment, contending

that any negligent acts by Pizza Hut or its employees were not a

proximate cause of the accident.               Pizza Hut argued that Ayala’s

negligence, in driving around the Karickhoff vehicle and into

the intersection against the red traffic signal, superseded any

alleged negligence by Pizza Hut or its employees and was the

sole proximate cause of the accident.               The district court denied

Pizza Hut’s motion, stating that, based on the record, the court

was unable to conclude as a matter of law that Pizza Hut’s

alleged negligence did not contribute to the accident.

     Before      trial,   however,      the    district   court       dismissed    all

direct and vicarious liability claims against Pizza Hut for the

acts of its manager, holding that Pizza Hut did not have a legal

duty to inspect Karickhoff’s vehicle, and did not have a duty to

assist   Karickhoff       in   removing    her     disabled    vehicle    from     the

road.    The case proceeded to a jury trial on the sole remaining

issue    of     Pizza    Hut’s     vicarious      liability     for    Karickhoff’s

allegedly negligent acts.

     The      evidence    at   trial    showed     that   on   the     date   of   the

accident, Karickhoff was driving an automobile that she owned

and used in the performance of her work as a delivery driver for

Pizza    Hut.       Before       the   accident     occurred,     Karickhoff       was

returning to the Pizza Hut store in Manassas, Virginia, after

completing a delivery.            Karickhoff’s car had been experiencing

                                          5
mechanical problems before the day of the accident and, although

she had made some minor repairs to the vehicle, she could not

afford     to      pay     for    additional       suggested      repairs.        Neither

Fletcher       nor   Pizza       Hut     presented    expert      testimony      at   trial

regarding the cause of Karickhoff’s vehicle failure on the day

of the accident.

       In the process of returning from her delivery assignment to

the    Pizza       Hut     restaurant,      Karickhoff’s        car   stalled     in    the

northbound left-turn lane of Sudley Road, where that highway

intersects with Coverstone Drive.                    At this intersection, Sudley

Road    has     three      northbound      “through”      lanes    and    one   left-turn

lane.         In   the     southbound      direction,      Sudley     Road      has   three

“through” lanes and two left-turn lanes.                        Each lane of traffic

in both directions is controlled by a separate traffic signal.

       The traffic signals controlling the intersection operate in

the following sequence.                  After the signals governing the turn

lanes    change      from        green    arrows    to    red   lights,    the    signals

governing the “through” lanes change from red lights to green

lights.       Therefore, the traffic signals governing the turn lanes

never display green arrows at the same time that the signals for

the “through” lanes display green lights.                          The evidence also

showed    that       the    traffic       signals    at    this    intersection        were

operating in proper sequence on the day of the accident.



                                              6
       After Karickhoff’s car stalled in the left-turn lane, she

engaged the vehicle’s hazard lights, raised its hood, and pushed

the    car     as   close     to    the     median     as     possible.      Although

Karickhoff’s vehicle did not obstruct the view of the traffic

signals       for   drivers       located     behind    her      vehicle,    the    car

continued to block most of the left-turn lane in the position

nearest the traffic signal.

       Karickhoff left her car and walked to the nearby Pizza Hut

store to inform the manager that her car had become disabled.

The manager instructed Karickhoff to retrieve the Pizza Hut sign

from   the     roof    of   the    car.          Karickhoff    complied     with   this

instruction, and brought the sign back to the store.

       A few minutes later, Karickhoff returned to her disabled

car to speak with a police officer who had arrived on the scene.

After the police officer requested that a towing service remove

Karickhoff’s car, Karickhoff returned to the Pizza Hut store.

The evidence did not indicate that the police officer directed

traffic or took any other measures to ensure that the traffic

passed safely around Karickhoff’s vehicle.                      About seven minutes

after Karickhoff returned to the Pizza Hut store and forty-five

minutes after Karickhoff’s car initially stalled, the accident

occurred.

       When    Ayala   stopped      his     car    behind     Karickhoff’s   disabled

vehicle, the traffic signals governing the adjacent “through”

                                             7
lane turned from red to green.                   As the traffic in the “through”

lanes began to move, Ayala navigated his car into the nearest

“through” lane to pass to the right of Karickhoff’s vehicle.

Ayala    turned    left    onto      Cornerstone        Drive     from   the    “through”

lane, crossing in front of Karickhoff’s vehicle, and collided

with Fletcher’s car, which had proceeded into the intersection

in the southbound “through” lane of Sudley Road.

      Ayala    testified       that    the       last   time    he    saw   the    traffic

signal    governing     the    left-turn         lane,   the      signal    displayed      a

green arrow.        Ayala admitted, however, that he may have been

mistaken, and that the traffic signal for the left-turn lane may

have changed to red before he made the turn.

      Several witnesses to the accident testified regarding their

observations       at   the    accident       scene.        One      witness,     who    was

driving a vehicle directly behind Ayala in the left-turn lane,

stated that when Ayala maneuvered his car around Karickhoff’s

stalled vehicle and through the intersection, the traffic signal

for the left-turn lane already had turned red.                        Another witness,

who   was     driving     in   the     southbound        “through”       lane     next    to

Fletcher’s car, stated that the traffic signals governing the

southbound “through” lanes of Sudley Road displayed green lights

for several seconds before Ayala’s car entered the intersection.

        A third witness, whose car was directly behind Fletcher’s

vehicle,    also    stated      that    the       traffic      signal    governing       the

                                             8
southbound       “through”       lanes    had     “turned     green”     when    he    saw

Ayala’s car traveling “fairly fast” through the intersection.

Finally, Lucy Fletcher, Fletcher’s wife, who was driving the

vehicle in which Fletcher was a passenger, testified that after

the   traffic     signal        governing      her    southbound       “through”      lane

turned green, she drove her car straight into the intersection.

      After Fletcher presented his evidence, Pizza Hut moved for

a directed verdict.             The district court granted the motion in

part, concluding that Fletcher’s evidence was insufficient to

prove that Pizza Hut or its employees acted negligently before

Karickhoff’s       car    stalled,       or    that    any    such     conduct     was   a

proximate cause of the accident.                     After this ruling, the only

issues     remaining      for    the     jury’s      consideration       were    whether

Karickhoff acted negligently after her car stalled, and whether

any such negligence was a proximate cause of the accident.

      At   the    close    of     all    the      evidence,    the     district       court

instructed the jury on several different principles, including

negligence, proximate causation, and superseding causation.                            The

jury returned its verdict in favor of Pizza Hut.                         Completing a

special verdict form, the jury concluded that Karickhoff had not

acted negligently after her car became disabled.

      In accordance with the jury verdict, the district court

entered judgment in favor of Pizza Hut.                   Fletcher filed a motion



                                              9
for a new trial, which the district court denied.                       Fletcher

timely noted this appeal.



                                      II.

      On   appeal,      Fletcher    asserts    that   the     district    court

committed numerous errors.          Among these alleged errors, Fletcher

contends   that   the    district    court    erred   in   dismissing    before

trial his claim that Pizza Hut was both directly and vicariously

liable for the acts of its manager.             Fletcher also argues that

the   district    court     erred     in     excluding     from   the    jury’s

consideration his claim that Karickhoff acted negligently before

her car became disabled.           Additionally, Fletcher raises several

arguments relating to the district court’s refusal of various

jury instructions, including a requested instruction addressing

the allegedly prejudicial statements made by Pizza Hut’s counsel

during closing argument.

      In its brief and during oral argument, Pizza Hut addressed

each of Fletcher’s contentions.             However, Pizza Hut urges that

we affirm the district court’s judgment on an alternate basis,

namely, that, as a matter of law, Ayala’s negligence was the

sole proximate cause of Fletcher’s injury.                 According to Pizza

Hut, Ayala’s reckless conduct entirely superseded any potential

negligence on the part of Pizza Hut or its employees.



                                       10
       In response to Pizza Hut’s proximate causation argument,

Fletcher contends that the negligent acts and omissions of Pizza

Hut and its employees created a continuing, dangerous condition,

and that Ayala’s conduct arose from that dangerous condition.

Fletcher asserts that this dangerous condition required drivers

in the left-turn lane, who were positioned behind Karickhoff’s

disabled vehicle, to disobey either the traffic signal governing

the “through” lane or the signal controlling the left-turn lane.

Accordingly, Fletcher argues that Karickhoff’s negligent conduct

set    in   motion      Ayala’s   negligent           acts,    and   that     Ayala’s

negligence was not a superseding cause of the accident.

       Upon consideration of these arguments, we agree with Pizza

Hut that this appeal should be resolved on the ground that, as a

matter of law, Ayala’s negligence was the sole proximate cause

of the accident.         Pizza Hut advanced this proximate causation

argument in the district court in both its motion for summary

judgment    and   its   motion    for    a     directed      verdict.    Therefore,

despite the fact that the jury returned a verdict for Pizza Hut

on    different   grounds,   Pizza      Hut     was    not    required   to   file   a

cross-appeal to preserve this issue for our consideration.                        See

Blum v. Bacon, 457 U.S. 132, 137 n.5 (1982)(explaining that an

appellee may rely upon any matter appearing in the record to

support     the   judgment    and       need     not    file     a   cross-appeal).

Additionally, we have explained that courts of appeal may affirm

                                         11
a judgment on any ground appearing in the record.                 Toll Bros.,

Inc. v Dryvit Sys., Inc., 432 F.3d 564, 572 (4th Cir. 2005); MM

v. Sch. Dist. of Greenville Cnty., 303 F.3d 523, 536 (4th Cir.

2002).



                                    III.

       The district court considered this negligence action under

its    diversity    jurisdiction,   and    properly     concluded   that    the

substantive law of Virginia is controlling.                  See Volvo Const.

Equip. N. Am., Inc. v. CLM Equip. Co., 386 F.3d 581, 599-600

(4th Cir. 2004).       The record before us presents a textbook case

of    superseding   causation   under     Virginia    law.     Therefore,    we

begin    our   analysis   by   stating    the     applicable   principles   of

proximate causation.

       A proximate cause of an event is an act which, in natural

and continuous sequence produces the event, and without which

that event would not have occurred.               Kellermann v. McDonough,

684 S.E.2d 786, 793 (Va. 2009).             Under certain conditions, a

proximate cause may also be a superseding cause.                  Williams v.

Joynes, 677 S.E.2d 261, 264 (Va. 2009).

       A superseding cause is an intervening act that severs the

potential link of proximate causation between an initial act of

negligence and the resulting harm, thereby relieving the initial

negligent actor of any liability.           Id.     By entirely supplanting

                                     12
an initial act of negligence, a superseding cause alone causes

the plaintiff’s injury and is the only proximate cause of that

injury.      Id.; Williams v. Le, 662 S.E.2d 73, 77 (Va. 2008);

Jenkins v. Payne, 465 S.E.2d 795, 799 (Va. 1996).

      When a superseding cause occurs, the condition created by

the initial act of negligence becomes merely a “circumstance of

the   accident,”      and    the     initial    negligent      actor       is     “legally

insulated” from liability.            Hubbard v. Murray, 3 S.E.2d 397, 401

(Va. 1939).     An intervening act may not be deemed a superseding

cause, however, if the intervening act was set in motion by the

initial act of negligence.              Joynes, 677 S.E.2d at 264; Philip

Morris Inc. v. Emerson, 368 S.E.2d 268, 277 (Va. 1988).

      Within    this     conceptual        framework,         we    assume,        without

deciding, that Pizza Hut, directly or vicariously through its

employees,      acted        negligently       and     consider           whether        such

negligence     became    a    mere    circumstance       of    the       accident    as     a

result of Ayala’s intervening negligent acts.                           In other words,

we    must   decide      whether       Ayala’s       actions       so     eclipsed       any

negligence by Pizza Hut or its employees that, as a matter of

law, Ayala’s     actions       became    the    sole    proximate         cause     of   the

accident.

      During    his     testimony,      Ayala    admitted          that    the     traffic

signal for the left-turn lane may have changed to red before he

crossed from the adjacent “through” lane into the intersection.

                                          13
We consider Ayala’s admission in conjunction with the testimony

of the witness located directly behind Ayala’s car in the left-

turn    lane,   who     stated       that        Ayala   moved     his    car   around

Karickhoff’s vehicle and into the intersection against the red

traffic signal governing the left-turn lane.                       We also consider

the undisputed testimony of other witnesses that the traffic

signals governing the southbound “through” lanes on Sudley Road

had    turned   green       before     Ayala        drove   his     car    into    the

intersection.

       Based on this testimony, Ayala acted negligently because he

disobeyed the red traffic signal governing the left-turn lane,

and failed to ensure that he could safely turn left into the

intersection.         See   Va.   Code      § 46.2-833      (red    traffic     signal

indicates moving traffic shall stop and remain stopped except in

direction indicated by lighted green arrow).                        Because Ayala’s

actions produced the collision and, without his actions, the

accident would not have occurred, Ayala’s negligence was, as a

matter of law, a proximate cause of the collision between his

car and Fletcher’s vehicle.           See Kellermann, 684 S.E.2d at 793.

       The undisputed testimony also showed that Ayala was aware,

or by the exercise of ordinary care should have been aware, of

the danger created by Pizza Hut or its employees.                        Despite this

awareness, Ayala, disobeying the traffic signal and entering the

intersection against oncoming traffic, committed an independent

                                            14
act of negligence that entirely supplanted any prior negligent

act by Pizza Hut or its employees.                  Ayala’s acts of negligence

thus    rendered         the   condition    created       by     Pizza    Hut     or     its

employees a mere circumstance of the accident, legally insulated

from liability by Ayala’s independent acts of negligence.                                See

Hubbard, 3 S.E.2d at 401.

       In reaching this conclusion, we find no merit in Fletcher’s

argument that the location of the disabled car required Ayala to

disobey      the    red    traffic   signal.      Ayala        could   have     proceeded

straight on Sudley Road in one of the “through” lanes, or could

have waited in the left-turn lane behind the disabled vehicle

until     it       was    towed.      These      lawful        options    conclusively

demonstrate that Ayala’s negligent acts were not set in motion

by any negligence on the part of Pizza Hut or its employees.

Therefore,         Ayala’s      actions    were     a     superseding           cause    of

Fletcher’s injury and, as such, were the sole proximate cause of

that injury.         See Joynes, 677 S.E.2d at 264.

       For     these      reasons,   we   hold    that,    as    a     matter    of     law,

Ayala’s      negligence        entirely   supplanted      any    negligence       on     the

part of Pizza Hut or its employees.                See id.        Therefore, on this




                                           15
independent   basis,   we   conclude    that   the   record   supports   the

district court’s judgment, which we hereby affirm. *

                                                                  AFFIRMED




     *
       Based on this conclusion, we need not consider Fletcher’s
arguments relating to the district court’s holdings limiting the
theories of liability presented to the jury, the court’s various
decisions   regarding  jury   instructions,  or   the  allegedly
prejudicial closing argument by counsel for Pizza Hut.       Our
holding that Ayala’s negligence, as a matter of law, was the
sole proximate cause of the accident renders these other issues
moot.



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