                                                           [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT                      FILED
                        ________________________          U.S. COURT OF APPEALS
                                                            ELEVENTH CIRCUIT
                                                                October 17, 2007
                               No. 07-12881                  THOMAS K. KAHN
                           Non-Argument Calendar                 CLERK
                         ________________________

                     D. C. Docket No. 06-00865-CV-3-IPJ

DONALD EUGENE BELEW, parent of Joseph Daniel
Belew, a minor decedent,

                                                             Plaintiff-Appellant,

                                    versus

UNITED STATES OF AMERICA,

                                                            Defendant-Appellee.


                         ________________________

                 Appeal from the United States District Court
                    for the Northern District of Alabama
                       _________________________

                              (October 17, 2007)

Before DUBINA, CARNES and KRAVITCH, Circuit Judges.

PER CURIAM:

     Appellant Donald Eugene Belew appeals the district court’s grant of
summary judgment in this suit arising under the Federal Tort Claims Act

(“FTCA”), 28 U.S.C. § 1346(b)(1) (2006). He filed the suit on behalf of his son, a

deceased minor, alleging that Natchez Trace Parkway Ranger J.J. Montgomery

caused the decedent’s death following a high speed chase. For the reasons stated

below, we affirm the district court’s decision.

                                    I. Background

      On the evening of July 11, 2003, Eric Tate (age 22), Joseph Daniel Belew

(age 15), and Johnny Keith Yerbey (age 16) played pool just north of the Alabama/

Tennessee state line at a pool hall. During the evening, Yerbey drank alcohol,

Belew smoked marijuana, and Tate consumed both substances.

      After leaving the pool hall, Tate—the driver of the vehicle—drove to the

intersection of County Road 10 and Natchez Trace Parkway in Alabama. Instead

of stopping at the stop sign, Tate came to a “rolling stop.” J.J. Montgomery, a

Natchez Trace Parkway Ranger employed by the United States National Park

Service, was sitting in his vehicle just north of the intersection with his headlights

off. After observing the traffic violation, Ranger Montgomery turned on his blue

lights and followed Tate. Tate stopped at the intersection of County Road 5 and

County Road 10. Montgomery pulled his vehicle behind Tate’s and exited. While

exiting, Montgomery reached for his shoulder microphone to radio-in the stop. As



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he did that, he observed Tate turn around and look at him. Tate immediately

“gas[sed] it” and took off on County Road 5. The relevant stretch of County Road

5 is a two-lane road with hills and curves. It has no paved shoulders and the speed

limit is 45 miles per hour.

      Montgomery got into his car, turned on his siren, pursued Tate, and called

for backup. The call was placed at 10:46 p.m. The chase reached the speed of 90

miles per hour. When Montgomery noticed he was going that fast he slowed down

to “just keep a visual of the vehicle.” During the chase, Yerbey begged Tate to

stop but he failed to do so. There is no evidence that either Yerbey or Belew

encouraged the chase.

      Montgomery observed Tate enter a curve, lose control, and strike a tree. At

the time of impact, Montgomery was at least 100-200 yards away. Both Yerbey

and Belew were severely injured in the crash; Belew later died as a result of his

injuries. Tate suffered only minor injuries.

      Montgomery called in the crash at 10:47 p.m.—only one minute after he

called in the chase. The distance between where the traffic stop and the accident

occurred was only 1.75 miles.

      Belew’s father, Donald Eugene Belew, filed this suit. The district court

granted summary judgment on the issue of proximate cause.



                                          3
                               II. Standard of Review

      This Court reviews a district court’s grant of summary judgment de novo,

viewing the evidence in the light most favorable to the party opposing the motion.

Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1085 (11th Cir. 2004). Summary

judgment is appropriate when “there is no genuine issue as to any material fact and

. . . the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(a). This Court has held that the plain language of Rule 56 “mandates the entry

of summary judgment . . . against a party who fails to make a showing sufficient to

establish the existence of an element essential to that party’s case, and on which

that party will bear the burden of proof at trial.” Johnson v. Bd. of Regents, 263

F.3d 1234, 1243 (11th Cir. 2001).

                                    III. Discussion

      The plaintiff brought this claim pursuant to the FTCA. Under the FTCA, the

United States may be liable for personal injury or death caused by the negligent

conduct of a federal employee while acting within the scope of his or her

employment if the government would be liable were it a private person in the state

where the act or omission occurred. 28 U.S.C. § 1346(b)(1). We, therefore, must

look to the negligence law of Alabama to determine whether the plaintiff in this

case can recover from the defendant. Id. Under Alabama law, a plaintiff must



                                           4
demonstrate four elements to establish negligence: (1) duty, (2) breach of that duty,

(3) proximate cause, and (4) actual damages or injury. Martin v. Arnold, 643

So.2d. 564, 567 (Ala. 1994). This case is about proximate cause.

      “Proximate cause is an act or omission that in a natural and continuous

sequence, unbroken by any new independent causes, produces the injury and

without which the injury would not have occurred.” Thetford v. City of Clanton,

605 So.2d 835, 840 (Ala. 1992). Although proximate cause is an issue generally

determined by the fact-finder, it may be decided on summary judgment if “there is

a total lack of evidence from which the fact-finder may reasonably infer a direct

causal relation between the culpable conduct and the resulting injury.” Green v.

Alabama Power Co., 597 So.2d 1325, 1328 (Ala. 1992).

      The Alabama Supreme Court has stated that the proximate cause of injuries

sustained by an innocent third-party in a police chase is the driver of the fleeing

vehicle, not the police officers giving chase. See Doran v. City of Madison, 519

So.2d 1308 (Ala. 1988); Madison v. Weldon, 446 So.2d 21 (Ala. 1984). In

Weldon, the Court held that the district court erred when it failed to clearly explain

the proper standard of care and the issue of proximate cause in the jury

instructions. 446 So.2d at 25-26. In that case, a minor and his mother sued Don

Edwin Adkins, two police officers, and the city after Adkins’s truck collided with


                                           5
the plaintiffs’ vehicle while the police officers pursued Adkins for speeding. Id. at

23. The Court noted that the duty the police officers owe while in pursuit is more

liberal than the duty they would owe if they were not acting within their official

police duties. Id. at 27. The Court also stated that the proximate cause of the

injury was the behavior of the driver of the pursued automobile, not the police

officer pursuing that offender. Id. The Court quoted a 1967 Florida Supreme

Court decision and adopted its conclusion. The Court wrote

      The rule governing the conduct of [a] police [officer] in pursuit of an
      escaping offender is that he must operate his car with due care and, in
      doing so, he is not responsible for the acts of the offender. Although
      pursuit may contribute to the reckless driving of the pursued, the
      officer is not obligated to allow him to escape.


Id. at 28 (quoting City of Miami v. Horne, 198 So.2d 10 (Fla. 1967) (emphasis

omitted)).

      In Doran, police officers chased a vehicle after witnessing the driver commit

a minor traffic violation. 519 So.2d at 1310. During the pursuit, the car ran

through an intersection and collided with a truck. Id. The passengers in the truck

sued the officers and the city under a negligence theory. Id. at 1311-1312.

Reviewing the trial court’s grant of summary judgment for the defendants, the

Alabama Supreme Court concluded that because the police vehicles did not

actually collide with the plaintiffs’, the police could not have proximately caused

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the accident. Id. at 1314. Noting the policy implication of the decision, the Court

went on further to quote the rule of Weldon that the police officer is “not

responsible for the acts of the offender.” Id.

      The Alabama Supreme Court also has concluded that the driver of a fleeing

vehicle was the proximate cause of his own injuries—not the police giving chase.

Both decisions relied in part on Weldon and Doran. See Gooden v. City of

Talladega, __So.2d.__ (Ala. 2007); Blair v. City of Rainbow City, 542 So.2d 275

(Ala. 1989). In Gooden, the mother of a deceased fleeing offender filed suit

against the city and the police officer who gave chase to her son. Her son, Tyrone

Gooden, pulled over and let his passengers out of his S.U.V. after being stopped

for a minor traffic violation. Id. at 1. Gooden then took off and the police

followed. Id. Officers chased Gooden for 3.2 miles at 70-80 miles per hour before

Gooden lost control of his vehicle and died as a result of a crash. Id. at 2. The trial

court entered summary judgment for the defendants and Gooden’s survivor

appealed. Id. The Alabama Supreme Court concluded that summary judgment

was proper for the defendants because the plaintiff failed to show that the fleeing

driver’s injury was caused by the police instead of Gooden himself. Id. at 9.

Particularly, the Court noted that there was no evidence that the police officer’s

vehicle made any contact with Gooden’s S.U.V. Id. The Court stated that Gooden


                                           7
had the opportunity to slow down or stop but failed to do so and, thus, he was the

proximate cause for his injuries—not the police officers giving chase. Id.

       In Blair, the police attempted to stop Ricky Blair for speeding on his

motorcycle. Id. at 276. Instead of pulling over, however, Blair increased his speed

to 120 miles per hour, lost control of his vehicle, and crashed. Id. He died three

days later from the injuries he sustained. Id. The administrator of Blair’s estate

filed suit under negligence and other theories. Id. at 275. As in Gooden, the trial

court entered summary judgment for the defendants and the plaintiff appealed. Id.

at 276. The Alabama Supreme Court concluded that summary judgment was

proper because the plaintiff failed to contradict that “Ricky could have slowed

down and stopped at any time during the chase; the choice to speed and drive

recklessly to evade capture was Ricky’s alone.” Again, the Court noted the policy

implication of its decision: “The plaintiff would have us require police officers to

allow a fleeing offender to escape if the offender exceeds the speed limit; [we]

reject[] this contention.” Id. at 276.

       The Alabama Supreme Court only once has found that there was a genuine

issue of material fact as to proximate cause on a case with similar facts and

reversed summary judgment. In Seale v. City of Columbia, 575 So.2d 1061

(1994), the plaintiff’s decedent was driving and was struck head-on by a vehicle


                                           8
being pursued by police. Id. at 1248. It is not clear from the opinion why the

officer chased the vehicle. What is clear, however, is that police officers had setup

a road block ahead of where the chase was occurring. Id. It was proper procedure

for the officer to slow down and turn off his blue light and siren if a road block

existed ahead. Id. at 1248-1249. A fact issue existed as to whether the officer

continued to pursue the decedent despite being informed of the road block or

whether he followed procedure. Id. at 1250. Thus, there was a genuine issue of

material fact as to whether the defendant met his standard of care. Id.

Moreover—and more relevant for our purposes—the plaintiff’s evidence included

the testimony of an expert witness that the pursuit was unnecessary because the

road block was in place. Id. The plaintiff, therefore, submitted evidence that the

defendant was the proximate cause of the injury. Id. at 1248-1250. The Court

went through a lengthy discussion of proximate cause, distinguishing the case from

Doran and Blair. Id. It concluded that unlike those two cases, the plaintiff

established a genuine issue of material fact as to whether the police officer

exercised due care and Seal’s expert testified that no pursuit was necessary because

a road block was in place. In Doran and Blair, neither plaintiff submitted evidence

to suggest that the pursuit was unnecessary.




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         This case is more similar to Doran, Gooden, and Blair than it is to Seals.1

Belew submitted no evidence that the pursuit was unnecessary, and there is no

evidence that Montgomery’s vehicle hit Tate’s, causing the accident to occur. Nor

is there any evidence that a road block existed or that the fleeing offender could be

apprehended at a later time. Montgomery did not have time to radio-in the license

plate information as Tate sped off too quickly. Moreover, Montgomery could not

obtain this information as he was never close enough to read it during the brief

chase.

                                     IV. Conclusion

         For the above reasons, we AFFIRM the district court’s grant of summary

judgment.




         1
        Because the Alabama Supreme Court has concluded that the fleeing
offender is the proximate cause of injuries to both the driver (Gooden and Blair)
and innocent third-parties in other vehicles (Doran and Weldon), the same
conclusion should apply to innocent third-parties in the same vehicle as the fleeing
offender. Thus, the fact that Belew was in the same vehicle as Tate is irrelevant.

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