                                                            [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                    FILED
                       FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                         ________________________ ELEVENTH CIRCUIT
                                                               SEPT 17, 2008
                               No. 08-12694                  THOMAS K. KAHN
                           Non-Argument Calendar                 CLERK
                         ________________________

                    D. C. Docket No. 06-00098-CV-CDL-3

CSX TRANSPORTATION, INC.,


                                                              Plaintiff-Appellant,

                                     versus

PYRAMID STONE INDUSTRIES, INC.,

                                                             Defendant-Appellee.


                         ________________________

                  Appeal from the United States District Court
                      for the Middle District of Georgia
                       _________________________

                             (September 17, 2008)

Before CARNES, BARKETT and WILSON, Circuit Judges.

PER CURIAM:

     CSX Transportation, Inc. (CSXT), appeals the district court’s entry of
summary judgment in favor of Pyramid Stone Industries, Inc. On appeal, CSXT

argues that its negligent hiring, retention, training and supervision claims should

have survived summary judgment and that, consequently, summary judgment was

not appropriate for its punitive damages claim. For the reasons set forth below, we

affirm.

                                  BACKGROUND

      On November 24, 2005, a northbound CSXT train derailed at a rural railroad

crossing in Elberton, Georgia because of track damage. CSXT had closed the

crossing two months earlier. The accident caused CSXT over $700,000 of

property damage.

      Pyramid Stone is owned and operated by James Michael Rutherford and

runs a quarry a short distance from where the derailment occurred. William Dean

Bowman is a Pyramid Stone employee and rents a trailer home from Rutherford

directly across the street from the quarry. Bowman keeps an eye on the quarry gate

during non-working hours to make sure it is kept closed. Pyramid Stone hired

Bowman in 2003 as a ledge hand. By 2005, Bowman’s work included doing

“basically anything” Rutherford needed him to do. When Bowman works after

hours, he drives himself home in the Pyramid Stone golf cart.

      The quarry was closed on the day of the accident, but Bowman noticed the



                                          2
gate was open, so he drove the golf cart through the quarry to make sure all was

well. After closing the quarry gate, he drove the golf cart back to the trailer home.

Shortly thereafter, deer hunters stopped by Bowman’s home and offered him a deer

that they had left at their hunting camp. Bowman drove the golf cart to pick up the

deer, but he ran the cart into a ditch on his way back before reaching the railroad

tracks. He decided to get the front-end loader from the quarry so that he could

move the golf cart back onto Pyramid Stone’s property. Bowman drove the front-

end loader across the railroad tracks, picked up the golf cart, and returned to the

quarry, again crossing the tracks. He stated that he did not notice any damage to

the tracks when he drove over them. Shortly thereafter, the CSXT train derailed.

      CSXT sued Pyramid Stone and Bowman alleging, among other things,

negligent hiring, retention, training and supervision. The district court granted

Pyramid Stone’s motion for summary judgment, and CSXT appealed.

                            STANDARD OF REVIEW

      We review a district court’s grant of summary judgment de novo, viewing

the evidence and all factual inferences in the light most favorable to the nonmoving

party. Sharp v. Fisher, 532 F.3d 1180, 1182-83 (11th Cir. 2008) (per curiam).

                                   DISCUSSION

A. Bowman’s Suitability for Work at the Quarry



                                           3
      CSXT first argues that Pyramid Stone breached its duty of ordinary care in

hiring, retaining, training and supervising Bowman because it knew or should have

known that Bowman was not suited for employment at the quarry. Rutherford

knew that Bowman had a criminal history, and could have easily inquired as to the

full extent and specific nature of that criminal history. CSXT asserts that

Bowman’s criminal history shows his “dangerous propensities to disobey rules,

take things that do not belong to him, and trespass onto other people’s property and

damage their property.” Thus, CSXT contends that a reasonable jury could find

that Pyramid Stone breached its duty of ordinary care in hiring, retaining, training

and supervising Bowman.

      “The appropriate standard of care in a negligent hiring/retention action is

whether the employer knew or should have known the employee was not suited for

the particular employment.” W. Indus., Inc. v. Poole, 634 S.E.2d 118, 121 (Ga. Ct.

App. 2006). The suitability question is properly determined in reference to the

particular job involved. Munroe v. Universal Health Servs., 596 S.E.2d 604, 606

n.2 (Ga. 2004) (internal quotation marks omitted). Pyramid Stone hired Bowman

as a ledge hand, and Bowman eventually took on varied tasks around the quarry.

CSXT argues that, because of Bowman’s alleged “dangerous propensities,” he was

not suited to work with the dangerous equipment in the quarry. By CSXT’s



                                          4
reasoning, however, it would be negligent for any employer whose work includes

dangerous machinery to hire an employee who has a history of violence or

irresponsibility. Bowman had prior experience, moreover, working with heavy,

dangerous equipment similar to the machines he used at the quarry, and none of his

past criminal conduct occurred during his prior work with such equipment. Thus,

we fail to see how a reasonable jury could find that Bowman’s criminal history

rendered him unsuitable for quarry work, especially considering that his prior

experience indicated that he was specifically suited for the job.

B. Foreseeability of the Accident in Light of Bowman’s Criminal History

         CSXT next argues that a jury could find that CSXT’s damages were

reasonably foreseeable in light of Bowman’s dangerous propensities. Specifically,

CSXT asserts that Bowman’s irresponsibility for others’ property suggests that it is

reasonably foreseeable that allowing him to use quarry equipment would cause

damage to another’s property, as it did here. In support of its argument, CSXT

notes that, because it had closed the railroad crossing, Bowman’s conduct in

driving the front-end loader over the tracks was technically criminal. See

O.C.G.A. § 16-7-21 (prohibiting knowing and unauthorized entry upon another’s

land).

         “The causation element requires showing that, given the employee’s . . .



                                            5
propensities, the victim’s injuries should have been foreseen as the natural and

probable consequence of hiring [or retaining] the employee.” TGM Ashley Lakes,

Inc. v. Jennings, 590 S.E.2d 807, 813 (Ga. Ct. App. 2003). In other words, was it

“reasonably foreseeable from the employee’s ‘tendencies’ or propensities that the

employee could cause the type of harm sustained by the plaintiff.” Munroe, 596

S.E. 2d at 606.

      We cannot say that, given Bowman’s criminal history, it was natural and

probable that Bowman would trespass on another’s property using quarry

equipment. Viewing the facts in the light most favorable to CSXT, the damage to

the tracks was accidental, resulting from, at worst, a lapse in judgment. Thus, we

agree with the district court that CSXT failed to present sufficient evidence to

warrant submission of its claims to a jury.

C. Punitive Damages

      A punitive damages claim only has efficacy alongside a valid claim for

actual damages. Barnes v. White County Bank, 318 S.E.2d 74, 75-76 (Ga. Ct. App.

1984). Therefore, because we conclude that the district court did not err in

entering summary judgment for Pyramid Stone, CSXT’s punitive damages claim

fails. Accordingly, we affirm.

AFFIRMED.



                                          6
