     Case: 11-60366   Document: 00511904914    Page: 1   Date Filed: 06/29/2012




          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                   Fifth Circuit

                                                                  FILED
                                                                 June 29, 2012

                                  No. 11-60366                   Lyle W. Cayce
                                                                      Clerk

ILLINOIS CENTRAL RAILROAD COMPANY,

                                            Plaintiff
v.

CRYOGENIC TRANSPORTATION, INCORPORATED,

                                            Defendant

CLYDINE DANIEL, in her capacity as Administratrix/Executrix/Personal
Representative of the Estate of Michael Daniel, deceased,

                                            Defendant-Third Party Plaintiff -
                                            Appellant

v.

AIRGAS CARBONICS, INCORPORATED,

                                            Third Party Defendant - Appellee


                  Appeal from the United States District Court
                    for the Southern District of Mississippi


Before JOLLY, BENAVIDES, and DENNIS, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
        Clydine Daniel appeals the dismissal of her claim against a company that
owned property that her husband, Michael Daniel, exited moments before
colliding with a train. The district court dismissed the claim, holding that the
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                                       No. 11-60366

property owner owed no duty to Michael Daniel at the time of the collision. We
AFFIRM.
                                               I.
         On July 26, 2009, Michael Daniel drove an eighteen-wheeler for Cryogenic
Transportation to pick up carbon dioxide at a plant in Star, Mississippi, owned
by Airgas Carbonics. Upon exiting the Airgas plant, Daniel collided with a
passing train operated by Illinois Central Railroad Company. He died two days
later.
         On August 11, 2009, Illinois Central filed a complaint in the United States
District Court for the Southern District of Mississippi against Cryogenic
Transportation and Michael Daniel’s widow, Clydine Daniel, as representative
of Michael Daniel’s estate. Illinois Central sought recovery for damage to its
train, tracks, and other property resulting from the collision. Clydine Daniel
filed a counterclaim sounding in negligence, and later amended the counterclaim
to add Airgas as a counterclaim defendant.1 Mrs. Daniel sought recovery for
damages resulting from Michael Daniel’s death.
         Airgas filed a motion to dismiss for failure to state a claim, which the
district court granted orally on October 12, 2010. The court later set out its
reasons in writing, explaining that, based on the counterclaim’s allegations,
Airgas owed no duty to Daniel because Airgas did not own the railroad tracks or
railroad crossing at which the accident occurred. On May 4, 2011, the district
court entered final judgment on the counterclaim against Airgas under Federal
Rule of Civil Procedure 54(b). Clydine Daniel appeals.



         1
          Illinois Central sued Clydine Daniel in her representative capacity, but Mrs. Daniel’s
counterclaim indicates that it is prosecuted in an individual and representative capacity. She
initially filed both a counterclaim against Illinois Central and a third party complaint against
Airgas, invoking federal impleader practice. See FED. R. CIV. P. 14. Mrs. Daniel later
voluntarily dismissed the third party complaint and amended the counterclaim to include
Airgas as a counterclaim defendant. See FED. R. CIV. P. 15, 20.

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                                        II.
      We review a district court’s dismissal for failure to state a claim de novo,
accepting as true all well pleaded facts and viewing those facts in the light most
favorable to the non-movant. Bass v. Stryker Corp., 669 F.3d 501, 506 (5th Cir.
2012).   Dismissal was appropriate if Clydine Daniel failed to allege facts
supporting a plausible claim or failed to raise her right to relief above a
speculative level. Id.
      Because diversity furnishes the basis for jurisdiction, we apply the
substantive law of Mississippi, the forum state. Citigroup, Inc. v. Fed. Ins. Co.,
649 F.3d 367, 371 (5th Cir. 2011). Decisions of the Mississippi Supreme Court
guide our determination of Mississippi law. Id. In both the district court and
this Court, Clydine Daniel pursued a negligence theory based on Airgas’s
ownership of its premises and its control of the areas surrounding those
premises. Tort law, specifically the law of premises liability, is therefore the
Mississippi law at issue. See Double Quick, Inc. v. Moore, 73 So. 3d 1162, 1165-
66 (Miss. 2011).
                                        A.
      Under Mississippi law, the duty a premises owner owes to entrants
depends on whether the entrants are invitees, licensees, or trespassers. Id. at
1166. Here, the parties agree that Michael Daniel was Airgas’s business invitee,
and therefore that Airgas owed Daniel a duty “to keep the premises reasonably
safe and . . . to warn only of hidden dangers not in plain and open view.” Id.
Airgas’s duty extended to all areas substantially under its control that it invited
the public to use. Albert v. Scott’s Truck Plaza, Inc., 978 So. 2d 1264, 1267 (Miss.
2008).
      The counterclaim, therefore, can state a premises liability claim only if it
alleges that the collision occurred at a location under Airgas’s control. Id. The
counterclaim describes three sets of railroad tracks outside the Airgas plant exit:

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one set that is a “private crossing owned by Airgas,” a second set that is a “public
crossing and the tracks are owned by Illinois Central,” and a third set that is,
simply, a “public crossing.” Each set of tracks intersects “Andrew Jackson
Circle,” a road adjacent to the Airgas plant. The counterclaim alleges that the
collision occurred when “the front cab of [Daniel’s] truck had crossed over the
second set of tracks but the trailer was in the process of crossing over the second
set of tracks.”
      In other words, the counterclaim indicates that the collision occurred, not
on Airgas’s property, but on tracks owned by Illinois Central intersecting a
public road. There are no allegations from which one might infer that Airgas
had control over this public crossing. The district court was therefore correct in
holding that Airgas owed no duty to Michael Daniel at the time of the collision.
                                        B.
      Irrespective of who controlled the railroad tracks, Clydine Daniel contends
that Airgas owed a duty to furnish a safe exit, it breached this duty by requiring
Michael Daniel to exit in the direction of railroad tracks, and the breach caused
the off-premises collision. This suggested approach—coupling an on-premises
duty with an off-premises accident—is foreclosed by the Mississippi Supreme
Court’s decision in Albert v. Scott’s Truck Plaza, Inc.
      In Albert, a truck driver sued a truck stop owner after the driver’s wife was
hit by a car while crossing a public highway abutting the truck stop. Albert, 978
So. 2d at 1265. The driver’s wife was struck by a passing car when she exited
the truck stop parking lot on foot. Id. The driver’s theory was that the truck
stop owner was negligent in providing inadequate lighting in the parking lot, in
placing objects in the parking lot that obstructed the woman’s view as she exited,
and in failing to warn of hidden dangers. Id. at 1266. The Mississippi Supreme
Court rejected this theory, holding that the truck stop owner owed no duty to the
driver’s wife at the moment that she left the truck stop and entered the public

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highway. Id. at 1267. Because the truck stop owner owed no duty, it could not
be liable for the accident. Id. The majority considered and rejected an argument
identical to the argument Clydine Daniel is making here: that the breach of an
on-premises duty coupled with an off-premises accident could support a claim
sounding in tort. Id. at 1267 n.3, 1268.
      We see no meaningful way to distinguish Albert from the instant case.
Here, as in Albert, the alleged tort occurred on a public way near a defendant’s
property, and the asserted theory is that the condition of the property’s exit
caused the tort. The Mississippi Supreme Court has determined that this set of
facts does not support a claim for relief under Mississippi law because the
threshold tort element—duty—is not present. Id. We are bound by that court’s
determination.
                                      III.
      After Michael Daniel exited Airgas’s plant, Airgas did not owe him a duty
under Mississippi tort law. The judgment of the district court is therefore
                                                                   AFFIRMED.




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