                                 ____________

                                  No. 95-3492
                                 ____________


Mary Ann Horn, As Surviving           *
Spouse of James F. Horn, Sr.,         *
Deceased, Individually and on         *
behalf of his Children and            *
Next of Kin, and as the               *
Personal Representative of            *
his Estate,                           *
                                      *
                  Appellant,          *
                                      *
      v.                              * Appeal from the United States
                                      * District Court for the
B.A.S.S., doing business as           * Western District of Missouri
B.A.S.S. National Federation,         *
Inc.; Texas B.A.S.S. Federation,*
Inc., a Texas Corporation;            *
Missouri B.A.S.S. Anglers             *
Sportsman Society Chapter             *
Federation, doing business as         *
Missouri B.A.S.S. Federation,         *
Inc.,                                 *
                                      *
                  Appellees.          *

                                 ____________

                    Submitted:    March 15, 1996

                        Filed:     July 8, 1996
                                 ____________

Before McMILLIAN, BEAM and HANSEN, Circuit Judges.
                              ____________


McMILLIAN, Circuit Judge.


      Mary Ann Horn (plaintiff) appeals from a final order entered in the
United States District Court1 for the Western District of Missouri granting
summary judgment in favor of B.A.S.S., Inc.,




     1
      The Honorable Scott O. Wright, United States District Judge
for the Western District of Missouri.
Texas B.A.S.S. Federation, Inc., and Missouri B.A.S.S. Anglers Sportsman
Society Chapter Federation (defendants), and dismissing her action for the
wrongful death of her husband James F. Horn, Sr.    Horn v. B.A.S.S., Inc.,
No. 94-4386-CV-C-5 (W.D. Mo. Sept. 7, 1995).       For reversal, plaintiff
argues the district court erred in holding defendants owed no duty of care
to Horn.    For the reasons discussed below, we affirm the judgment of the
district court.


                                  BACKGROUND


        Defendants organize commercial fishing tournaments and had scheduled
a fishing tournament at the Lake of the Ozarks, Missouri, on June 15-17,
1994.   Defendants had designated June 12-14, 1994, as tournament “practice”
days.   In order to prevent “scouting,” contestants were not allowed to fish
on the lake for the 14 days before the tournament except for the three
tournament practice days.   Contestants were not required to do anything on
the tournament practice days other than register for the tournament on the
first and second tournament practice days.     On June 13, 1994, one of the
tournament practice days, Horn was killed when a boat operated by Robert
Dunlap,2 a resident of Texas and a tournament contestant, collided with
Horn’s boat.    Horn was not participating in the tournament. The accident
occurred during the late afternoon.    According to Dunlap’s deposition, he
had finished practicing for the day and was returning home.          He was
approaching a fuel pier and had been looking to his right and watching
another boat and some jet skis.    He did not notice Horn’s boat off to his
left, until just before the collision, when it was about 60’ away.   Dunlap
attempted to turn his boat to the left, which is the wrong way according
to boating safety regulations.    It is undisputed that Dunlap’s failure to
keep a proper lookout contributed to cause the fatal accident.




        2
       Dunlap reached a settlement with Horn and is no longer a
party in the present case.

                                      -2-
       Plaintiff filed this wrongful death action against defendants in
federal district court.        Federal jurisdiction was based on diversity of
citizenship.      Plaintiff alleged that defendants negligently organized the
tournament by failing to protect the public from tournament-related
hazards, in particular, the reckless operation of high-speed fishing boats
by tournament contestants. Defendants moved for summary judgment, arguing
that plaintiff could not establish, as a matter of law, that they had a
duty to protect Horn or that they caused Horn’s death.             The district court
held that defendants lacked sufficient control over a tournament contestant
on a practice day and thus had no duty to protect Horn.               Slip op. at 6.
This appeal followed.


                                      DISCUSSION


       For reversal, plaintiff argues the district court erred in holding
that defendants, as the organizers of a public event on public waters, had
no   duty    to   take   reasonable   precautions   to   protect    the   public   from
foreseeable risks of harm.      Plaintiff also argues the district court erred
in granting summary judgment because there were disputed issues of material
fact as to the foreseeability of the risk of harm, cause and defendants’
degree of control over tournament contestants on practice days.             Defendants
argue the district court correctly granted summary judgment in their favor
because plaintiff could not establish as a matter of law either duty or
causation.     For the reasons discussed below, we affirm the judgment of the
district court but on a theory different from that employed by the district
court.      E.g., B.B. v. Continental Insurance Co., 8 F.3d 1288, 1291 (8th
Cir. 1993) (noting court of appeals can affirm on basis other than those
employed by trial court).       We hold plaintiff failed as a matter of law to
establish causation.


       We review a grant of summary judgment de novo.          The question before
the district court, and this court on appeal, is whether the




                                         -3-
record, when viewed in the light most favorable to the non-moving party,
shows that there is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law.    Fed. R. Civ. P.
56(c); e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).   Where
the unresolved issues are primarily legal rather than factual, summary
judgment is particularly appropriate.      E.g., Crain v. Board of Police
Comm’rs, 920 F.2d 1402, 1405-06 (8th Cir. 1990).


      As noted above, the district court applied Missouri substantive law.
Jurisdiction over this matter is founded on diversity, and, because the
district court was located in Missouri, we look to that state’s choice of
law rules to determine which body of substantive law to apply.        E.g.,
Schoffman v. Central States Diversified, Inc., 69 F.3d 215, 219 n.10 (8th
Cir. 1995).   We review the district court’s choice of law analysis de novo.
E.g., Birnstill v. Home Savings of America, 907 F.2d 795, 797 (8th Cir.
1990).


      For tort (and contract) claims, Missouri courts apply the “most
significant relationship” test found in the Restatement (Second) of
Conflict of Laws § 145 (1971).    E.g., Dorman v. Emerson Electric Co., 23
F.3d 1354, 1358 (8th Cir.) (citing Galvin v. McGilley Memorial Chapels, 746
S.W.2d 588, 590 (Mo. Ct. App. 1987)), cert. denied, 115 S. Ct. 428 (1994).
“Under this test, the identity of the state having the most significant
relationship will depend upon the nature of the cause of action and upon
the particular legal issue in dispute.”    Id.


      In an action for a personal injury, the local law of the
      state where the injury occurred determines the rights
      and liabilities of the parties, unless, with respect to
      the particular issue, some other state has a more
      significant relationship . . . to the occurrence and the
      parties, in which event the local law of the other state
      will be applied.




                                    -4-
Restatement (Second) of Conflict of Laws § 146.                “This formulation
essentially   establishes   a   presumption   that   the   state   with   the   most
significant relationship is the state where the injury occurred . . . .”
Dorman v. Emerson Electric Co., 23 F.3d at 1358.           “In cases in which the
injury and the conduct causing the injury occur in the same state, the
Restatement [(Second) of Conflict of Laws] principles are easy to apply.”
Id., citing Restatement (Second) of Conflict of Laws § 146 comment. d
(noting that, subject only to rare exceptions, local law of state where
conduct and injury occurred will be applied).         In the present case, the
conduct, the accident and the injury occurred in Missouri.            We hold the
district court correctly determined, under Missouri choice of law rules,
that Missouri had the most significant relationship to the accident and the
parties and thus correctly applied Missouri substantive law.


      To prove a negligence claim under Missouri law, the plaintiff must
establish


      (1) [a] legal duty on the part of the defendant to
      conform to a certain standard of conduct to protect
      others against unreasonable risks; (2) a breach of that
      duty; (3) a proximate cause between the conduct and the
      resulting injury; and (4) actual damages to the
      claimant’s person or property.


Hoover’s Dairy, Inc. v. Mid-America Dairymen, Inc., 700 S.W.2d 426, 431
(Mo. 1985) (banc); see, e.g., Zafft v. Eli Lilly & Co., 676 S.W.2d 241, 244
(Mo. 1984) (banc).    “‘But for’ [causation] is an absolute minimum for
causation because it is merely causation in fact.”          Callahan v. Cardinal
Glennon Hospital, 863 S.W.2d 852, 862 (Mo. 1993) (banc).


            Proximate cause requires something in addition to
      a “but for” causation test because the “but for”
      causation test serves only to exclude items that are not
      causal in fact; it will include items that are causal in
      fact but that would be unreasonable to base liability




                                      -5-
      upon because they are too far removed from the ultimate
      injury or damage. . . .

            . . . [T]he injury must be a reasonable and
      probable consequence of the act or omission of the
      defendant. This is generally a “look back” test but, to
      the extent it requires that the injury be “natural and
      probable,” it probably includes a sprinkling of
      foreseeability.     To the extent the damages are
      surprising, unexpected, or freakish, they may not be the
      natural and probable consequences of a defendant’s
      actions.   If the facts involved an extended scenario
      involving multiple persons and events with potential
      intervening causes, then the requirement that the
      damages that result be the natural and probable
      consequence of defendant’s conduct comes into play and
      may cut off liability.


Id. at 865 (citations omitted); see, e.g., Ashley v. R.D. Columbia Assocs.,
54 F.3d 498, 501 (8th Cir. 1995) (applying Missouri law).
      We hold plaintiff could not establish as a matter of law that
defendants’     conduct   in   organizing   the   tournament--   the   emphasis        on
“breakneck” speed and the lack of tournament safety precautions-- actually
caused the fatal accident.        Even assuming for purposes of analysis that
defendants, as the organizers of the tournament, had a duty to protect the
public   from   tournament-related    hazards,     in   particular,    the       reckless
                                                                             3
operation of high-speed fishing boats by tournament contestants, and that
defendants breached that duty, plaintiff could not establish any causal
connection between that breach and the accident under the undisputed facts.
Rather, the cause of the accident was Dunlap’s conduct, that is, his
failure to keep a proper lookout.       It was undisputed that Dunlap was not
engaged in any tournament-related activity when the accident occurred.                Not
only did the accident occur on a practice day when defendants had no
control over tournament contestants, it was




     3
      But cf. Archer v. Outboard Marine Corp., 908 S.W.2d 701, 702
(Mo. Ct. App. 1995) (rejecting claim that bass tournaments on
public lakes present an unreasonable danger of injury to the public
due to reckless operation of high-speed fishing boats).

                                        -6-
undisputed that Dunlap had already finished practicing and was returning
home at the time the accident occurred.    It was also undisputed that, at
the time the accident occurred, he was not racing his boat or timing
himself and thus was not engaged in a “timing run” to see how long it would
take to travel from a fishing spot to the tournament check-in point, which
was located several miles away from the accident site.


      Accordingly, we affirm the judgment of the district court.


      A true copy.

            Attest:

                      CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                    -7-
