     Case: 09-60653     Document: 00511096065          Page: 1    Date Filed: 04/29/2010




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

                                                  FILED
                                                                            April 29, 2010

                                       No. 09-60653                         Lyle W. Cayce
                                                                                 Clerk

JENNIFER RENEE CLARK, Individually and on Behalf of All Wrongful
Death Beneficiaries of Albert Clark, and as Executrix of the Estate of Albert
Clark, Deceased, and as Guardian and Next Friend of His Minor Children,
K.R.C., J.N.C., A.D.C., and J.R.C.,

                                                   Plaintiff–Appellant
v.

EPCO INC., doing business as Enterprise Transportation Company; SEDRIC
J. HARMON; UNIDENTIFIED FICTITIOUS PARTIES A - W,

                                                   Defendants–Appellees




                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 2:08-cv-00103


Before REAVLEY, PRADO, and OWEN, Circuit Judges.
PER CURIAM:*
        Jennifer Renee Clark appeals the district court’s grant of summary
judgment in favor of EPCO, Inc. (“EPCO”) and Sedric J. Harmon. Clark sued
EPCO and Harmon after her husband, Master Sergeant Albert Clark (“the
decedent”), was killed in a car accident while stuck in traffic caused by a prior


        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
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rollover accident involving Harmon, an EPCO employee. The district court held
that Harmon owed no duty to the decedent and did not proximately cause the
accident which killed the decedent. Because we find that EPCO and Harmon
could not have reasonably foreseen the accident causing Clark’s death, we affirm
the district court’s grant of summary judgment in favor of EPCO and Harmon.
            I. FACTUAL AND PROCEDURAL BACKGROUND
       In May 2005, Harmon drove one of EPCO’s butane-bearing eighteen-
wheeled trucks along a highway near Hattiesburg, Mississippi. Between 4:15
and 4:30 A.M., Harmon swerved while trying to avoid a deer in the road and
overturned his truck in the median.          According to the accident report and
Harmon’s affidavit, a dense, dark fog affected the driving conditions at the time
of the accident.
       Harmon’s accident did not involve any other vehicles and did not directly
injure any person other than Harmon himself.            The combustible cargo in
Harmon’s EPCO eighteen wheeler neither leaked nor exploded. Due to the
hazardous nature of the butane and the accompanying delicate nature of the
cleanup operation, the emergency responders closed the highway for several
hours and diverted southbound traffic to a second highway.
       By 6:45 A.M., southbound traffic had backed up significantly, and the
dense fog had not subsided. Around this time, the decedent encountered the
traffic jam, and stopped his Ford Taurus behind an eighteen wheeler. While
stopped, a second eighteen wheeler, driven by Dalton Mayhair and owned by
Mags    Trucking,   Inc.,   rear-ended   the    decedent’s    car   while   traveling
approximately sixty-five miles per hour. The collision pushed the small car
under the rear of the first truck and killed the decedent instantly.
       Clark, the decedent’s widow, filed a claim against Mags Trucking and
Mayhair for negligently killing her husband. Mags Trucking, Mayhair, and their
insurer paid Clark $954,294.74. Asserting that Mags Trucking and Mayhair did

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not fully compensate her for the loss of her husband, Clark sued EPCO and
Harmon, alleging that they created the conditions leading to the decedent’s
death.
      EPCO and Harmon filed a motion for summary judgment, arguing that the
Supreme Court of Mississippi has repeatedly held that an act which merely
furnishes the occasion or condition for a person’s injury cannot be the proximate
cause of an injury caused by a separate tortfeasor. The district court granted
EPCO and Harmon’s motion, finding that EPCO and Harmon owed no duty to
the decedent because they could not foresee Mayhair’s intervening negligence
and that Clark could not stretch Harmon’s general duty to use reasonable care
while driving to encompass the second accident that killed the decedent. The
district court also found that Harmon’s negligence did not proximately cause the
decedent’s death. Clark timely appealed.
                         II. STANDARD OF REVIEW
      “We review the district court’s grant of summary judgment de novo,
applying the same standard as the district court.” Chaney v. Dreyfus Serv.
Corp., 595 F.3d 219, 228–29 (5th Cir. 2010) (citing Golden Bridge Tech., Inc. v.
Motorola, Inc., 547 F.3d 266, 270 (5th Cir. 2008)).        Summary judgment is
appropriate “if the pleadings, the discovery and disclosure materials on file, and
any affidavits show that there is no genuine issue as to any material fact and
that the movant is entitled to judgment as a matter of law.” F ED. R. C IV. P. 56(c).
“Factual controversies are construed in the light most favorable to the
nonmovant, but only if both parties have introduced evidence showing that an
actual controversy exists.” Lynch Props., Inc. v. Potomac Ins. Co. of Ill., 140 F.3d
622, 625 (5th Cir. 1998) (citing Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th
Cir. 1994) (en banc)).




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                                 III. ANALYSIS
      Mississippi tort law controls the disposition of this diversity case. Under
Mississippi law, “‘[a] claim of negligence has four elements: duty, breach,
causation, and damages.’” Magnusen v. Pine Belt Inv. Corp., 963 So. 2d 1279,
1282 (Miss. Ct. App. 2007) (quoting Price v. Park Mgmt., Inc., 831 So. 2d 550,
551 (Miss. Ct. App. 2002)). The Mississippi Supreme Court has held that “[d]uty
and breach of duty are essential to finding negligence and must be demonstrated
first.” Rein v. Benchmark Constr. Co., 865 So. 2d 1134, 1143 (Miss. 2004) (citing
Strantz v. Pinion, 652 So. 2d 738, 742 (Miss. 1995)). “‘Only when the first two
items are shown is it possible to proceed to a consideration of proximate cause
since a duty and breach of that duty are essential to a finding of negligence
under the traditional and accepted formula.’” Moss v. Batesville Casket Co., Inc.,
935 So. 2d 393, 406–07 (Miss. 2006) (quoting May v. V.F.W. Post No. 2539, 577
So. 2d 372, 375 (Miss. 1991)) (emphasis omitted).
      “[D]uty is an issue of law, and causation is generally a matter for the jury.”
Rein, 865 So. 2d at 1143 (emphases omitted). In Mississippi, “[t]he important
component of the existence of the duty is that the injury is ‘reasonably
foreseeable,’ and thus it is appropriate for the trial judge to decide.” Id. (quoting
Lyle v. Mladinich, 584 So. 2d 397, 399 (Miss. 1991)) (alteration in original)
(emphases and internal quotation marks omitted). Therefore, the ultimate
question is whether EPCO and Harmon could reasonably foresee that Harmon’s
accident could likely lead to the second accident which caused the decedent’s
death.
      The parties do not dispute that Mayhair’s negligence led to the decedent’s
death, and the Mississippi Supreme Court has held that “[t]he law dealing with
the duty to foresee the imprudent acts of others appears under the general
rubric of the jurisprudence of ‘intervening cause.’” Causey v. Sanders, 998 So.
2d 393, 405 (Miss. 2008) (quoting Southland Mgmt. Co. v. Brown By & Through

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Brown, 730 So. 2d. 43, 46 (Miss. 1998)) (internal quotation marks omitted)
(alteration in original). In order to be foreseeable, the intervening cause must
be “‘one which in ordinary human experience is reasonably to be anticipated, or
one which the defendant has reason to anticipate under the particular
circumstances.’”    Id. (quoting Southland Mgmt. Co., 730 So. 2d at 46); cf.
Consolidated Aluminum Corp. v. C.F. Bean Corp., 833 F.2d 65, 68 n.1 (5th Cir.
1987) (describing foreseeability in a maritime tort case as “that which is
objectively reasonable to expect, not merely what might conceivably occur”)
(citation and quotation marks omitted).
      In addition, the Mississippi Supreme Court has held that “‘[n]egligence is
remote and non-actionable” when it “merely causes a person to be at a particular
place at a particular time where such person is injured as a result of the
negligent act of another, who puts in motion a different and intervening cause
which efficiently leads in unbroken sequence to the injury.’” Causey, 998 So. 2d
at 406 (quoting Entrican v. Ming, 962 So. 2d 28, 36 n.2 (Miss. 2007)).
“[N]egligence which merely furnishe[s] the condition or occasion upon which
injuries are received, but does not put in motion the agency by or through which
the injuries are inflicted,” does not give rise to legal action either. Robison v.
McDowell, 247 So. 2d 686, 688 (Miss. 1971). To determine whether EPCO and
Harmon should be held liable for the decedent’s death, we ask whether “the facts
constitute a succession of events so linked together as to make a natural whole,
or was there some new and independent cause intervening between the alleged
wrong and the injury[.]” Canton Broiler Farms, Inc. v. Warren, 214 So. 2d 671,
676 (Miss. 1968) (citation omitted).
      Under the facts of this case, EPCO and Harmon owed no duty to the
decedent. We cannot say that Harmon reasonably could have foreseen that the
dense fog which contributed to his accident would last hours later until the
decedent’s accident, nor can we say that Harmon reasonably could have foreseen

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Mayhair’s intervening negligent driving. Cf. id. at 676 (“[T]he law is clear that
one has the right to rely upon a driver to perform his duty until it becomes
apparent that he will not do so.”).    Harmon’s negligence did no more than
“furnish[] the condition or occasion upon which” the decedent lost his life, and
thus “is remote and non-actionable.” Robison, 247 So. 2d at 688. Finding no
duty, we hold that the district court properly granted summary judgment in
favor of EPCO and Harmon.
      Clark insists that the Mississippi Supreme Court’s decision in M&M Pipe
& Pressure Vessel Fabricators, Inc. v. Roberts, 531 So. 2d 615 (Miss. 1988)
mandates a reversal. In M&M Pipe, an M&M employee drove a company pickup
truck with malfunctioning taillights. Id. at 617. When the employee stopped in
an intersection to make a turn, a second car, which had negligently followed the
employee’s truck too closely, skidded into the adjacent lane, and forced a third
car into the path of a fourth. Id. The resulting collision between the third and
fourth cars killed a passenger in the third. Id.
      Although the Mississippi Supreme Court upheld the jury verdict, finding
the second driver’s negligence foreseeable as “precisely the type of negligence
careful drivers of other vehicles must guard against,” id. at 618, M&M Pipe does
not persuade us that the district court erred by granting summary judgment in
favor of EPCO and Harmon. The first driver’s negligence in M&M Pipe almost
instantaneously created a chain reaction fairly characterized as “a succession of
events so linked together as to make a natural whole.” Canton Broiler Farms,
Inc., 214 So. 2d at 676. Here, Harmon’s negligent act took place hours before the
accident which killed the decedent, and contributed no more than the traffic jam
which caused the decedent “to be at a particular place at a particular time,”
where the decedent lost his life “as a result of the negligent act of another.”
Causey, 998 So. 2d at 406. Clark’s reliance on M&M Pipe is thus unavailing.



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       Similarly unavailing is Clark’s reliance on Canton Broiler Farms, in which
the Mississippi Supreme Court held that a defendant who overturned a tractor-
trailer which resulted in a slight blockage of a highway could be held liable for
injuries to another negligent driver who collided with the overturned truck and
a separate vehicle providing assistance.             214 So. 2d at 672–73, 677.            The
Mississippi Supreme Court did not focus on the negligence leading to the initial
accident, but rather on the defendant’s continuing negligence in failing “to set
out flares as required by statute.” Id. at 677. As mentioned above, Harmon’s act
of negligence ended hours before the accident claiming the life of the decedent.1
       Finally, Clark’s reliance on Cooke v. Nationwide Mutual Insurance
Company, 14 So. 3d 1192 (Fla. Dist. Ct. App. 2009) and Smith v. Commercial
Transportation, Inc., 470 S.E.2d 446 (Ga. Ct. App. 1996) does not affect our
decision. The Cooke and Smith courts held, on facts materially similar to those
at issue here, that a trial court should not decide, on a motion for summary
judgment, whether a driver who causes a traffic jam which leads to a subsequent
accident proximately causes the second accident. Cooke, 14 So. 3d at 1196;
Smith, 470 S.E.2d at 448. This case, however, turns on the duty owed by EPCO
and Harmon to the decedent, which, as a legal question, is appropriately
addressed at summary judgment. See Rein, 865 So. 2d at 1143 (“[D]uty is an
issue of law, and causation is generally a matter for the jury.”) (emphases


       1
          This reasoning also serves to distinguish this case from Huff v. Boyd, in which the
Mississippi Supreme Court found that a defendant who obstructed a highway could be held
liable for injuries caused by a second negligent driver who collided with the car at the back of
the traffic jam that the defendant caused. 242 So. 2d 698, 700, 702–03 (Miss. 1971). In Huff,
the Mississippi Supreme Court focused on the defendant’s “continuing duty . . . to remove his
wrecked automobile from the traveled portion of the highway if practical,” id. at 702 (citing
Belk v. Rosamond, 57 So. 2d 461 (Miss. 1952)), and held that “until it was removed, the
negligence of the owner . . . continued over into such other accidents that might have
foreseeably occurred as a result of the dangerous situation created by the original negligence.”
Id. at 703. Harmon’s negligence, in contrast, ended after his initial accident, as the
accompanying traffic jam was not caused by his negligent failure to remove his disabled
vehicle, but instead by the emergency response and subsequent cleanup efforts.

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omitted). Neither Cooke nor Smith addressed the duty analysis, and therefore
they do not affect our analysis in this case.2
                                  IV. CONCLUSION
       “[U]nder the particular circumstances,” Harmon had no “reason to
anticipate” the accident between Mayhair and the decedent. Causey, 998 So. 2d
at 405 (Miss. 2008) (quoting Southland Mgmt. Co., 730 So. 2d. at 46) (internal
quotation marks omitted). We therefore hold that EPCO and Harmon owed no
duty to the decedent.        As such, the district court did not err by granting
summary judgment in favor of EPCO and Harmon.
       AFFIRMED.




       2
         We also note that our decision in this case does not create any inconsistency in this
Circuit. Clark claims that the district court’s grant of summary judgment was inconsistent
with our decision in In re Signal International, LLC, 579 F.3d 478 (5th Cir. 2009). Because
Signal International dealt with maritime tort law and did not involve an intervening
tortfeasor, we disagree. See id. at 491.

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