         IN THE UNITED STATES COURT OF APPEALS

                       FOR THE FIFTH CIRCUIT
                                 _______________

                                   No. 01-20672
                                 _______________



                           CHRISTINA B. HAARGAARD,

                                                    Plaintiff-Appellant,

                                     VERSUS

                             HARRIS COUNTY, ET AL.,

                                                    Defendants,

                                GARRISON SHIELDS,

                                                    Defendant-Appellee.



                          _________________________

                    Appeal from the United States District Court
                        for the Southern District of Texas
                                m H-99-CV-1076
                         _________________________
                                  April 11, 2002




Before REAVLEY, SMITH, and DENNIS,           JERRY E. SMITH, Circuit Judge:*
  Circuit Judges.
   Garrison Shields drove one of the first                 those potential escape routes, and the
cars to enter a multi-car pileup. Christina                vehicle that had swerved right blocked
Haargaard, a passenger in one of the cars                  another. Smith hit the parked patrol car in
further down the chain, sued Shields and                   the near lefthand lane.
others for negligence. The district court
granted summary judgment for Shields,                         Haargaard claims that Kamika Harvey’s
because Haargaard had failed to create a                   and Roslyn Ray’s cars then slammed into
fact question about whether Shields proxi-                 Smith’s.     Shields avers that Harvey
mately caused her injuries. We affirm.                     brought her vehicle to a complete stop one
                                                           or two car lengths behind the stopped
                      I.                                   vehicles; Ray braked but was hit from
   Shields crested an overpass on a free-                  behind. Angela Juneman’s car, with Haar-
way. A parked police car and two                           gaard in the passenger’s seat, next collided
wrecked cars blocked the two lefthand                      into Ray’s car, causing Junemann to veer
lanes, which Shields and two other oncom-                  into the near right lane and collide with
ing cars occupied as they approached.                      William West’s vehicle. Jason Proctor
Constable Linnard Crouch, an off-duty                      then rear-ended Juneman’s car, forcing
peace officer at the bottom of the hill,                   one or both of these cars to hit Harvey’s
testified that the patrol car was parked ten               car.
yards from the bottom of the overpass, or
almost two hundred yards from the top of                                        II.
the overpass. Shields either did not, or                      After limited discovery, Shields moved
could not, take evasive action fast enough                 for partial summary judgment. The court
on the slick, wet pavement. On reaching                    granted the motion because Haargaard had
the patrol car, he swung into the far left-                not created a fact question about whether
hand lane and rear-ended a van parked in                   Shields had proximately caused Haar-
front of the accident scene. Another vehi-                 gaard’s injuries. The court certified judg-
cle took evasive action by darting into the                ment under FED. R. CIV. P. 54(b), allow-
nearest right-hand lane.                                   ing Haargaard an immediate appeal.

   Elizabeth Smith, driving behind Shields,                                   III.
noticed the police car only after Shields                     Haargaard has never identified compe-
had swerved to the left. Smith testified                   tent summary judgment evidence that
that she did not have time to stop, and she                Shields or Smith impaired the view of
could not escape in either direction. The                  Harvey and the other following drivers.
stopped van and Shields blocked one of                     Nor has Haargaard pointed to any evi-
                                                           dence the Shields and Smith blocked es-
   *
                                                           cape routes; both Shields and Smith
     Pursuant to 5TH CIR. R. 47.5, the court has
                                                           crashed into stopped vehicles already
determined that this opinion should not be pub-
lished and is not precedent except under the limited       occupying the two lefthand lanes. Harvey
circumstances set forth in 5TH CIR. R. 47.5.4.             and the other following drivers had the

                                                       2
same opportunity to avoid the accident as          Comm’n v. Recile, 10 F.3d 1093, 1097
did Shields and Smith, so Shields’s acci-          (5th Cir. 1993).
dent was not the but-for cause of the sub-
sequent wrecks.                                       We hesitate to resolve negligence
                                                   actions at summary judgment1 because of
                     A.                            state precedent defining the necessary
   The same standards for summary judg-            summary judgment proof of proximate
ment bind both this court and the district         cause.2 Texas courts usually consider
court. McDaniel v. Anheuser-Busch, Inc.,           proximate cause an issue for the jury.
987 F.2d 298, 301 (5th Cir. 1993). Sum-            Boyd v. Fuel Distrib., Inc., 795 S.W.2d
mary judgment is appropriate only if “the          266, 272 (Tex. App.SSAustin 1990, writ
pleadings, depositions, answers to inter-          denied). Texas courts, however, do re-
rogatories, and admissions on file, together       solve proximate cause at summary
with the affidavits, if any,” when viewed          judgment if a reasonable jury could reach
in the light most favorable to the                 only one conclusion.3
nonmovant, “show that there is no genuine
issue as to any material fact.” Anderson v.                           B.
Liberty Lobby, Inc., 477 U.S. 242, 249-50             In Texas, general proximate cause
(1986). A dispute about a material fact is         principles govern where a lead driver’s
“genuine” if the evidence is such that a           negligence led to a multiple car wreck.4
reasonable jury could return a verdict for
the nonmoving party. Id. at 248. In
making its determination, the court must              1
                                                        Zimzores v. Veterans Admin., 778 F.2d 264,
draw all justifiable inferences in favor of        267 (5th Cir. 1985) (“[I]t is extremely rare that the
the nonmoving party. Id. at 255.                   issue of negligence can be properly disposed of by
                                                   summary judgment.”)
   Once the moving party has initially                2
                                                        Dickey v. Baptist Mem’l Hosp., 146 F.3d 262,
shown “that there is an absence of                 267 (5th Cir. 1998) (looking to Mississippi law to
evidence to support the non-moving                 determine that “[a] mere possibility of causation is
party’s cause,” Celotex Corp. v. Catrett,          not enough” at summary judgment) (citation
477 U.S. 317, 325 (1986), the nonmovant            omitted) (internal quotation omitted).
must come forward with “specific facts”               3
                                                        Doe v. Boys Club, Inc., 907 S.W.2d 472, 478
showing a genuine factual issue for trial.
                                                   (Tex. 1995) (granting summary judgment in a neg-
FED. R. CIV. P. 56(e); Matsushita Elec.            ligence action because plaintiff failed to create fact
Indus. Co. v. Zenith Radio Corp., 475 U.S.         question about proximate cause); Boyd, 972
574, 587 (1986). Conclusional allegations          S.W.2d at 272 (“[P]roximate cause may be
and denials, speculation, improbable               established as a matter of law if circumstances are
inferences, unsubstantiated assertions, and        such that a reasonable mind could not arrive at a
legalistic argumentation do not adequately         different conclusion.”).
substitute for specific facts showing a               4
                                                          Lear Siegler, Inc. v. Perez, 819 S.W.2d 470,
genuine issue for trial. Sec. & Exch.                                                     (continued...)

                                               3
We can divide the proximate cause inquiry                  did not proximately cause the second
into two elementsSScause in fact and                       accident. Id. The court explained that the
foreseeability. Travis v. City of Mesquite,                defendant’s negligence and accident must
830 S.W.2d 94, 98 (Tex. 1992). The                         be “an active and efficient cause of the
plaintiff cannot create a fact question                    injury.” Id.
about cause in fact through “mere con-
jecture, guess, or speculation.” Doe, 907                     In the wake of Bell, several Texas
S.W.2d at 477 (citations omitted), but                     courts of appeals have refused to find
must prove that “an act or omission was a                  proximate cause in pileup accidents.5
substantial factor in bringing about injury                Other Texas courts have found that the
which would not otherwise have oc-                         first wreck proximately caused subsequent
curred,” Prudential Ins. Co. v. Phillips,                  wrecks.6      All of these courts re
896 S.W.2d 156, 164 (Tex. 1990) (citation
omitted). The evidence must show that
negligence was the not a remote cause and                     5
                                                                Sallie v. Cook, 403 S.W.2d 509, 511-12 (Tex.
that its consequences were a natural and                   Civ. App.SSDallas 1966, no writ) (refusing to find
probable result. Doe, 907 S.W.2d at 477.                   that primary wreck caused secondary wreck be-
                                                           cause drivers in secondary wreck stopped short of
                                                           colliding with cars involved in primary wreck);
   The Texas Supreme Court has refused
                                                           Heavy Haulers v. Nicholson, 277 S.W.2d 250,
to find proximate cause without evidence                   254 (Tex. Civ. App.SSGalveston 1955, writ ref’d
that the lead vehicle’s accident was a                     n.r.e.) (finding that drivers in primary accident
“substantial factor” in the subsequent pile-               should not have anticipated secondary accident
up. In Bell, 434 S.W.2d at 122, the                        because they pulled the vehicles almost entirely off
defendant rear-ended another vehicle,                      the road); Firestone Tire & Rubber Co. v. Rhodes,
knocking his trailer over into a traffic lane;             256 S.W.2d 448, 452 (Tex. Civ. App.SSAustin
                                                           1953, writ ref’d n.r.e.) (finding that when car rear-
a drunk driver traveling in the same lane
                                                           ended another driver, forcing that driver into the
later struck the trailer. The court held that              car in front, the driver of the middle car did not
because the first accident had “run its                    proximately cause any harm).
course” and was “complete,” the defendant
                                                              6
                                                                 Longoria v. Graham, 44 S.W.3d 671, 674
                                                           (Tex. Civ. App.SSHouston [14th Dist.] 2001,
   4
    (...continued)                                         n.w.h.) (reversing grant of summary judgment
471-72 (Tex. 1991) (referring to RESTATEMENT               where defendant’s “negligence created a boxed
(SECOND) OF TORTS and general principles of                canyon effect that afforded only the highly
Texas law); Bell v. Campbell, 434 S.W.2d 117,              dangerous escape of backing against traffic on an
121 (Tex. 1968) (basing decision on reasonable             interstate.”); J. Wigglesworth Co. v. Peeples, 985
foreseeability); 8 TEX. JUR. 3D Automobiles § 550          S.W.2d 659, 664 (Tex. App.SSFort Worth 1999,
(3d ed. 1994) (“Once a motor vehicle operator              pet. denied) (finding proximate cause when trucker
starts a chain of events by reason of his or her own       missed exit before construction, hit barriers where
negligence, the operator is ordinarily responsible,        construction left opening too narrow to pass
under the general rules of negligence, for all             through, and caused pileup); Almaraz v. Burke,
injuries or damage that are the proximate result of        827 S.W.2d 80, 81-82 (Tex. App.SS1992, writ
the operators unlawful conduct.”).                                                               (continued...)

                                                       4
quire, on the facts of the particular case,                 Because the van already blocked the same
that the first wreck in fact cause any                      lane that Shields occupied, Shields did not
subsequent accidents. So we will turn to                    cause the accident.
the facts of this case, applying Bell.
                                                               Haargaard argues that Shields’s late
                    C.                                      evasive action blocked the sight of
   The district court held that Haargaard                   subsequent drivers and potential escape
had failed to create a fact question about                  routes. Haargaard presents some evidence
whether Shields’s delayed lane change was                   that Smith did not see the accident until
a cause in fact. The court emphasized that                  she was upon it. Smith testified that
Harvey stopped short of the Shields/Smith                   Shields and another driver were in front of
accident; any subsequent crashes resulted                   her; she crested the hill; and five seconds
from the previously blocked road, not from                  later each of the leading cars veered to one
Shields’s late braking and lane change.                     side.

                                                               Smith veered to the left, into the van
   6
     (...continued)                                         stopped in front of the original accident.
denied) (holding that when van negligently                  The other car veered to the right, through
sideswiped car and left car disabled on overpass,
van driver proximately caused secondary wreck
                                                            the open lanes of traffic and presumably to
with disabled car); Hennessy v. Estate of Perez,            safety. Smith testified that she braked, but
725 S.W.2d 507, 508 (Tex. App.SSHouston [1st                did not swerve, and drove straight into the
Dist.] 1987, no writ) (finding fact question for jury       patrol vehicle. Less than five seconds
where drunk driver overturned car and subsequent            later, while still in the car, she heard but
drunk drivers ran into the crash scene); Tex.               did not feel the second accident.
Highway Dep’t v. Broussard, 615 S.W.2d 326,
329 (Tex. Civ. App.SSFort Worth 1981, writ ref’d
n.r.e.) (finding that following car too closely and
                                                               Haargaard’s evidence creates a fact
rear-ending can proximately caused wreck between            question about whether Shields caused
second car and car third car); Westbrook v. Reed,           Smith to crash but does not create a fact
531 S.W.2d 890, 891-92, 893 (Tex. Civ.                      question about whether the Shields/Smith
App.SSAmarillo 1975, writ ref’d n.r.e.) (finding            crash caused the subsequent accident.
that negligently causing primary accident in                Smith testified that no other cars were
sandstorm, when visibility was very poor,
                                                            within her sight when she crested the hill.
proximately caused secondary wreck by following
vehicles); Herring v. Garnett, 463 S.W.2d 52, 54
                                                            Haargaard has not argued that either
(Tex. Civ. App.SSHouston [1st Dist.] 1971, writ             Shields or Smith blocked following
ref’d n.r.e.) (finding that driving with defective          drivers’ line of sight.
tires creates liability not only for flat and primary
accident but also for secondary accident); Nash v.             Finally, the idea that Shields or Smith
Roden, 415 S.W.2d 251, 254–55 (Tex. Civ.                    blocked escape lanes is untenableSSboth
App.SSAustin 1967, writ ref’d n.r.e.) (holding that
                                                            crashed into cars in occupied lanes.
when lead driver improperly applied brakes, spun
out, and was struck from behind, lead driver was            Harvey had the same opportunity to see
also responsible for secondary accident).                   and avoid the crash that Shields did: Each

                                                        5
could see the accident from the top of the                      Haargaard argues that a single piece of
crest, and each could have avoided it only                   evidence creates a fact issueSSOfficer
by veering into the two right lanes.                         John Miller’s accident report. In the blank
                                                             for Smith’s “vehicle damage rating,”
   For the first time on appeal,7 Haargaard                  Miller wrote “FD-4/RD-3.” Haargaard
argues that Harvey actually hit Smith,                       interprets the “RD-3" as an assessment of
which led to a pileup involving all the                      the damage to the rear of Smith’s vehicle
cars.     Shields, however, presented                        and argues that it creates a fact question
overwhelming evidence that Harvey never                      about whether Harvey rear-ended Smith.
hit Smith: (1) Smith testified that no one                   We disagree.
made contact with her car. (2) Haa-
rgaard’s expert, Walter S. Reed, Ph.D.,                         First, Haargaard’s interpretation of the
P.E., submitted an affidavit that describes                  damage report is not entirely consistent
the accident in great detail but does not                    with her theory of the accident. Assume
include a collision between Harvey and                       that “FD” stands for “front damage” and
Smith. (3) Harvey testified in a deposition                  “RD” stands for “rear damage.”
that she came to a complete stop one or                      According to Haargaard’s theory, Smith’s
two car lengths behind the stalled car. (4)                  car should have suffered rear damage and
Crouch testified by affidavit that the                       Harvey’s car should have suffered front
Shields/Smith accident was separate from                     damage. But the damage assessments for
the Harvey/Juneman accident.                                 Smith and Harvey’s vehicles do not add
                                                             up. The report does not use the symbol
                                                             “FD” plainly to indicate front damage to
   7
                                                             Harvey’s car.8 Haargaard does not present
      Fifth Circuit cases do not consistently describe       any external evidence supporting her
the standard for considering an issue raised for the
first time on appeal. Some panels have stated that
                                                             interpretation of the accident report, such
we need not address an issue for the first time on           as testimony by Miller. Extrapolating
appeal “unless it is a purely legal issue and our            such a complicated theory from scant
refusal to consider it would result in a miscarriage         proof resembles speculation more than
of justice.” E.g., Heci Exploration Co. v.                   competent summary judgment evidence.
Holloway, 862 F.2d 513, 518 & n.7 (5th Cir.
1988) (emphasis added). More recently, panels
have explained that this court can consider an issue
for the first time on appeal if “the issue presents a
                                                                8
pure question of law or [is] an issue which, if                    The blank for Harvey’s vehicle damage is
ignored, would result in a miscarriage of justice.”          filled with “RD-5,” plus an indecipherable four
E.g., United States ex rel. Wallace v. Flintco, Inc.,        characters that might symbolize front or side dam-
143 F.3d 955, 971 (5th Cir. 1998) (emphasis                  age. Because Procter’s car later crashed into Har-
added). We need not resolve this issue on the basis          vey’s from his right side, the officer would have to
of waiver, and we do not express an opinion on               record damage from that accident. The summary
whether Haargaard in fact waived her right to                judgment evidence strongly suggests that the
make this ar gument by failing to raise it in the            indecipherable characters represent side, rather
district court.                                              than front, damage.

                                                         6
   Second, subsequent collisions could
have caused damage to Smith’s car after
Harvey stopped short. For example,
Juneman’s car later hit Procter’s car and
caused it to crash into Harvey’s. One of
the three cars may well have traversed the
one- or two-car length distance and caused
damage to the rear of Smith’s car. We can
reconcile all available summary judgment
evidence if Smith’s car sustained the rear
damage after the series of accidents. Haar-
gaard’s evidence fails to create a fact
question about whether Harvey collided
with Smith and led to the accidents.

   Finally, even if Harvey’s car physically
collided with Smith’s car, Haargaard fails
to present evidence that the Shields/Smith
accident caused that collision.        She
presents no evidence that the
Smith/Shields accident somehow reduced
Harvey’s visibility. As explained above,
both Smith and Shields crashed in
occupied lanes, so they could not have cut
off escape routes.

  AFFIRMED.




                                              7
