Kellner v. Budget Car & Truck Rental, Inc.

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206 2 Kellner, et al. v. Budget Car No. 02-5314
ELECTRONIC CITATION: 2004 FED App. 0059P (6th Cir.) and Truck Rental, et al.
File Name: 04a0059p.06
No. 00-00336—Curtis L. Collier, District Judge.
UNITED STATES COURT OF APPEALS Argued: September 17, 2003
FOR THE SIXTH CIRCUIT
_________________ Decided and Filed: February 26, 2004

Before: BOGGS, Chief Judge; KRUPANSKY and CLAY,
JAMES KELLNER and LAURI X Circuit Judges.
KELLNER, individually and as -
next kin of Michael W. - _________________
- No. 02-5314
Kellner, deceased; LAURI - COUNSEL
KELLNER, individually and as >
,
natural parent and next of kin ARGUED: Paul T. Gillenwater, GILLENWATER, NICHOL
-
of Shawn June, a minor, & AMES, Knoxville, Tennessee, H. Forrest Horne, Jr.,
-
Plaintiffs-Appellants, - JONES, MARTIN, PARRIS & TESSENER, PLLC, Raleigh,
North Carolina, for Plaintiffs. Michael J. King, WOOLF,
- McCLANE, BRIGHT, ALLEN & CARPENTER, Knoxville,
v. - Tennessee, for Defendants. ON BRIEF: Paul T.
- Gillenwater, GILLENWATER, NICHOL & AMES,
-
BUDGET CAR AND TRUCK Knoxville, Tennessee, for Plaintiffs. Michael J. King, Tony
-
RENTAL, INC., et al.; COMCAR - R. Dalton, WOOLF, McCLANE, BRIGHT, ALLEN &
CARPENTER, Knoxville, Tennessee, for Defendants.
INDUSTRIES, INC., a/k/a M.D. -
Transport Systems, Inc., - _________________
Defendants, -
- OPINION
- _________________
CLAY HYDER TRUCKING -
LINES, INC.; M.D. TRANSPORT - KRUPANSKY, Circuit Judge. James and Lauri Kellner,
SYSTEMS, INC.; JOHN ZAFFER, - appearing individually and as next of kin, have appealed the
Administrator of the Estate of - district court’s summary dismissal of their negligence suit
Christopher N. Zaffer, - against three party-defendants – John Zaffer, administrator of
- the estate of Christopher Zaffer (“Zaffer”), M.D. Transport
Defendants-Appellees. N
Systems, Inc. (“MDTS”) and Clay Hyder Trucking Lines, Inc.
(“CHTL”) – arising from a motor vehicle accident on the
Appeal from the United States District Court Tennessee interstate. The Kellners have contended that
for the Eastern District of Tennessee at Knoxville. defendants negligently and proximately caused the accident

1
No. 02-5314 Kellner, et al. v. Budget Car 3 4 Kellner, et al. v. Budget Car No. 02-5314
and Truck Rental, et al. and Truck Rental, et al.

by leaving a tractor-trailer parked in the emergency Zaffer was under or near the tractor-trailer, shortly before
“breakdown” lane along the shoulder of the interstate. For the 3:30 p.m., when Diane Rupe was driving westbound on I-40
reasons discussed below, this Court affirms the order of in a Ford truck with a 24-foot cargo box, rented from Budget
summary judgment. Car & Truck Rental, Inc. (“Budget”). Behind the Ford truck,
Rupe towed a minivan. In the passenger cab, along with
On the morning of October 23, 1999, Christopher Zaffer Rupe, were her grandsons Michael Kellner and Shawn June,
was driving his tractor-trailer westbound on Interstate 40 in ages 1 and 10 respectively.
Jefferson County, Tennessee, when his rig began
experiencing mechanical problems and became disabled.1 Tragically, the Budget truck driven by Rupe left the far
Zaffer drove the vehicle into the emergency lane of the right travel lane of traffic, moved into the emergency lane,
interstate and there is no dispute between the parties that both and collided with Zaffer’s parked tractor-trailer. As a result
Zaffer’s tractor and trailer were completely within the of the collision, Michael Kellner, Rupe and Zaffer were
“breakdown” lane with no portion of the rig protruding into killed, while Shawn June sustained injuries requiring
or overlapping onto the travel lanes of the interstate.2 hospitalization.
Zaffer placed the orange-triangle warning devices required On June 6, 2000, plaintiffs-appellants James and Lauri
by Tennessee statute and federal regulation behind the tractor- Kellner, the parents of Michael Kellner and Shawn June, filed
trailer to signal to approaching traffic that his rig was a negligence complaint in the district court against MDTS and
disabled. The weather conditions were clear and the roadway Comcar Industries (“Comcar”). Appellants later amended
was dry. The section of I-40 on which Zaffer’s rig became their complaint to add as defendants: Zaffer’s estate, CHTL,
disabled provided three lanes for motorists traveling either Jeannie Denniston – the administrator of the estate of Diane
east or west. According to record testimony the tractor- Rupe – and State Farm Insurance Company (“State Farm”),
trailer could be seen by approaching westbound motorists Rupe’s uninsured/underinsured motorist insurance carrier.
from a distance of at least 1,000 feet. On September 20, 2000, the parties agreed by stipulation to
dismiss Comcar from the action.
On November 29, 2001, Zaffer, MDTS and CHTL filed a
1
motion for summary judgment; State Farm filed a motion for
Zaffer owned the parked and disabled 1991 Freightliner commercial summary judgment on December 14, 2001. On February 11,
truck-tractor struck by Rup e. In 19 99 Z affer had leased his tractor to 2002 in a memorandum and order, the district court granted
appellee M.D. Transport Systems and had begun hauling freight for
MD TS; however, at the time of the accident Zaffer was hauling a load for
defendants’ motions, concluding that, as a matter of law, the
defendant-appellee Clay Hyder Trucking Lines, Inc. defendants’ actions were not the proximate cause of the
2
Appellants contend that Zaffer’s tractor-trailer was stopped one foot
from the fog line which separates the travel lanes of the interstate from the
emergency breakdown lane. The evidence indicates that the rig was at
least one foot from the line and may, perhaps, have been further, but the
impact of the accident moved the truck several feet making estimations
difficult.
No. 02-5314 Kellner, et al. v. Budget Car 5 6 Kellner, et al. v. Budget Car No. 02-5314
and Truck Rental, et al. and Truck Rental, et al.

appellants injuries and damages.3 On February 25, 2002, McClenhan v. Cooley, 806 S.W.2d 767, 774 (Tenn. 1991)).
appellants filed a timely notice of appeal to this Court.4 See also McCall v. Wilder, 913 S.W.2d 150, 153 (Tenn.
1995); Bradshaw v. Daniel, 854 S.W.2d 865, 869 (Tenn.
This Court reviews de novo the order granting summary 1993). Recovery in a negligence action may occur only if the
judgment to appellees Zaffer, MDTS and CHTL. See Virts v. plaintiff can prove that the defendants’ conduct was negligent
Consolidated Freightways Corp. of Delaware, 285 F.3d 508, and was the proximate cause of plaintiffs’ injury. Tennessee
516 (6th Cir. 2002). Trailways, Inc. v. Ervin, 438 S.W.2d 733, 735 (Tenn. 1969);
Lancaster v. Montesi, 390 S.W.2d 217, 220 (Tenn. 1965).
As the forum state, Tennessee precedent provides that a Tennessee courts have repeatedly stated that negligence is not
plaintiff bringing a negligence action must prove: “(1) a duty presumed from the mere fact of an accident or injury.
of care owed by the defendant to the plaintiff; (2) conduct Williams v. Jordan, 346 S.W.2d 583, 586 (Tenn. 1961); De
falling below the applicable standard of care amounting to a Glopper v. Nashville Ry. & Light Co., 134 S.W. 609, 611
breach of that duty; (3) an injury or loss; (4) causation in fact; (Tenn. 1911); Armes v. Hulett, 843 S.W.2d 427, 432
and (5) proximate, or legal cause.” Bennett v. Putnam (Tenn.Ct.App.1992).
County, 47 S.W.3d 438, 443 (Tenn. Ct. App. 2000) (quoting
In the instant case, the district court determined that as a
matter of Tennessee law a reasonable jury could conclude that
3 Zaffer had breached his duty by not moving the rig to a safer
The plaintiffs did not respo nd to State Farm’s motion for summary
judgment. State Farm’s p otential for liability rested solely on the
location in the five hours prior to the accident. However, in
testimony of a witness who speculated that Rupe had to take eva sive granting the motion for summary judgment the court
action to avo id a vehicle swe rving toward Rup e on her left and causing concluded that, as a matter of law, none of the movants –
her to strike the tractor-trailer. This testimony was later recanted by the Zaffer, MDTS, or CHTL – provided the proximate cause of
witness as pure speculation and no corro borating testimony em erged to the accident.
support the witness’s earlier statement. Because the plaintiffs did not
contest State Farm’s position the court granted the State Farm motion and
dismissed State Farm from the lawsuit. See E.D. TN. LR 7.2 (“Failure to
Based upon the undisputed facts that Zaffer’s rig rested
respond to a motion may be dee med a waive r of any opposition to the completely off the active traffic lanes of the interstate and was
relief sought.”). plainly visible for a distance of over 1,000 feet, the district
court reasoned that “a reasonable jury would have to conclude
4
On March 22, 2002, because there were other claims and cross- Rupe could see the rig prior to the accident.” Consequently,
claims remaining for a djud ication in the instant case, the Clerk of the the court concluded that Rupe’s actions in leaving the travel
Sixth Circuit entered an O rder for the plaintiffs to show cause why the ir lanes and crashing into Zaffer’s rig were the proximate cause
appeal should not be dismissed for lack of a final appealable order. The
show cause order was withdrawn on May 6, 2002 after the district court
of plaintiffs’ losses. In so deciding, the court relied upon
approved a settlement of all remaining claims in the action, leaving the Carney v. Goodman, 270 S.W.2d 572, 576 (Tenn. Ct. App.
only remaining issues in the case as those between appellees and 1954), which concluded that “the negligence of one in
appellants. Gillis v. United S tates Dep ’t of Health and H uman Serv., 759 obstructing the highway by a standing vehicle was superseded
F.2d 565 , 568 -69 (6 th Cir. 1985 ) (an ap peal from an ord er disp osing of by another's negligence in running into such vehicle, and that
fewer than all claims in a civil action invo kes ap pellate jurisdiction if final
judgment is entered in the underlying action during the pendency of the
the latter's negligence was the proximate cause of the
appeal). accident.” See also Dunnivant v. Nafe, 334 S.W.2d 717, 719
No. 02-5314 Kellner, et al. v. Budget Car 7 8 Kellner, et al. v. Budget Car No. 02-5314
and Truck Rental, et al. and Truck Rental, et al.

(Tenn. 1960). Thus, in the instant case, while the district Tennessee negligence law and, consequently, fails to prove
court concluded that a reasonable jury could find Zaffer that the district court erred in granting summary judgment to
negligent in not removing his rig from the shoulder of the appellees.
interstate before the accident occurred, the court nevertheless
held that plaintiff Rupe had provided the proximate cause Pursuant to Tennessee negligence law, once it is
pursuant to the standard determined in Carney: “Did the determined that the defendant owed the plaintiff a legal
driver running into the standing vehicle see it in time to obligation to conform to a reasonable person standard of
enable him, by use of due care, to avoid the collision? If he conduct, i.e., a duty--the question becomes whether defendant
did not, his negligence is merely a contributory cause; if he failed to exercise reasonable care under the circumstances,
did, his negligence is the proximate cause.” Carney v. i.e., whether defendant breached the duty. In a negligence
Goodman, 270 S.W.2d at 576. action, the standard of conduct is always the same. It is a
standard of reasonable care in light of the apparent risk. See
Further, the district court stated that through Carney Pittman v. Upjohn Co., 890 S.W.2d 425, 428 (Tenn. 1994)
“Tennessee [has] adopted a special rule about proximate (“As in all cases, there is a duty to exercise reasonable care
causation in standing vehicle cases such as the present one.” under the circumstances.”); Bradshaw v. Daniel, 854 S.W.2d
While the general rule in Tennessee, that the foreseeability of at 870 (“All persons have a duty to use reasonable care to
an intervening, superseding act presents a jury question, the refrain from conduct that will foreseeably cause injury to
Carney court adopted a special rule in standing vehicle cases, others.”). If defendant does not exercise reasonable care,
which the district court applied in the present case, noting that defendant has breached the duty. Doe v. Linder Const. Co.,
“[u]nder this rule it is unforeseeable as a matter of law Inc., 845 S.W.2d 173, 178 (Tenn. 1992).
someone would drive into a plainly visible standing vehicle.”
The Carney opinion noted that “[t]he operator of a vehicle Upon this court’s review, the record evidence indicates that,
that crashes into a vehicle negligently left standing in an contrary to the district court’s determination, Zaffer did not
unsuitable stopping place provides the proximate cause of any breach any duty of care. Tennessee has codified the standard
resulting injuries if she could see the standing vehicle in time of care for parking a disabled vehicle by making certain
to avoid a collision.” Id. conduct illegal and by requiring drivers of commercial
vehicles to take certain safety precautions when their vehicles
On appeal, the plaintiffs aver that summary judgment is break down. Vehicles left standing on “any highway outside
inappropriate in the instant case where facts regarding the of a business or residential district” must be parked off of the
foreseeability requirement of proximate causation are in “paved or main-traveled part of the highway” and must be
dispute. Specifically, the appellants maintain that Zaffer’s positioned to allow “a clear view of [the vehicle] from a
negligence was the proximate cause of the tragic accident distance of 200 feet. Tenn. Code Ann. § 55-8-158 (1998)5;
because, by parking his disabled vehicle on the shoulder of
the interstate and not moving it during the five hours
preceding the accident, Zaffer could foresee through the 5
exercise of reasonable diligence that injury or loss could or § 55 -8-15 8. Stopping or p arking on ro adways
would occur. However, appellants’ reliance upon such a (a) Upon any highway outside of a business or residential
broad definition of foreseeability fails to comport with district, no person shall stop, park, or leave standing any vehicle,
No. 02-5314 Kellner, et al. v. Budget Car 9 10 Kellner, et al. v. Budget Car No. 02-5314
and Truck Rental, et al. and Truck Rental, et al.

see also Fergus v. Action Cartage & Distrib., 1990 WL forty-eight hours after the vehicles were first observed. Zaffer
43463, *6 (Tenn. Ct. App. April 17, 1990) (unpublished) had been on the shoulder of the interstate no longer than five
(explaining the “main-traveled part of the highway” does not and a half hours according to the appellants’ own expert and
include the shoulder). Drivers of disabled commercial he had not abandoned the tractor-trailer.
vehicles must place warning devices specified distances
behind their vehicles. See Tenn. Code § 55-9-103. While However, the district court concluded that Zaffer had
neither Tennessee law nor federal regulations limit the breached his common-law duty of care, predicated on its
amount of time a disabled commercial vehicle may remain on reading of Maddux v. Bush, No. 86-183-II, 1987 WL 4845
the side of a roadway, Tennessee statute permits vehicles to (Tenn. Ct. App. May 27, 1987) (unpublished). In Maddux,
be towed only after they have been immobile or unattended the court discussed the common law standard of care for a
for at least twelve hours. See Tenn. Code § 55-16-111 (“[A] motorist who stops a vehicle in the road. Maddux opined
vehicle may not be towed without authorization by the owner that it was not necessarily negligent to temporarily stop a
of the vehicle until twelve (12) hours have passed since it was vehicle on a road for a legitimate purpose, but the driver had
first observed to be immobile or unattended unless such the duty to select a suitable stopping place and to give
vehicle is creating a hazard.”). adequate warning to other motorists when necessary.
According to Maddux, the suitability of a stopping place
The district court found that none of the defendants depended on a number of factors, including whether the
breached a statutory or regulatory duty of care owed to the vehicle was reasonably capable of being moved to a safer
plaintiffs. The evidence disclosed that Zaffer did not violate location.
any of Tennessee’s traffic provisions relating to disabled
vehicles. Additional testimony by the Tennessee Highway In the instant case, the district court found a genuine issue
Patrol also indicated that, as a practice, they do not remove existed with regard to whether Zaffer could have moved his
abandoned vehicles from the shoulder of the interstate until rig to a safer location. However, this Court is persuaded
otherwise and concludes that defendants’ actions did not
result in the breach of a duty of care. The question of whether
a vehicle can reasonably be moved to a safer location should
whether attended or unattended, upon the paved or main-traveled
part of the highway when it is practicable to stop, park or so
be asked when, as was the case in Maddux, the vehicle has
leave such vehicle off such part of the highway, but in every been parked in a dangerous location such as in the roadway.
event an unobstructed width o f the highway opposite a standing The rule that gives rise to this question states that “a driver
vehicle of not less than eighteen feet (18') shall be left for the should not stop his vehicle in a dangerous place when it can
free passage of other vehicles, and a clear view of such stopped be moved to safer one.” Id. at *3 (citing Barr v. Charley, 387
vehicles shall be available from a distance of two hundred feet
(200') in each direc tion up on suc h highway.
S.W.2d 614, 616 (Tenn. 1954) (car with flat tire was left
parked partially in roadway at night)).6 Consequently, Zaffer
(b)(1) This section shall not apply to the driver of any vehicle
which is disabled while on the paved or main-traveled portion of
a highway in such manner and to such extent that it is impo ssible 6
to avoid stopping and temporarily leaving such d isabled vehicle See also Carr v . Ozburn-Hessey Storage Co., 1996 WL 383295
in such position. (Tenn. Ct. Ap p. July 1 0, 19 96) (unpublished), in which the State appellate
Tenn. Code § 55-8-158. court dismissed a c ase similar to the o ne at bar, noting:
No. 02-5314 Kellner, et al. v. Budget Car 11 12 Kellner, et al. v. Budget Car No. 02-5314
and Truck Rental, et al. and Truck Rental, et al.

did not breach his common-law duty of care pursuant to which the negligence had resulted in harm; and (3) the harm
Maddux when he parked his rig completely off the travel giving rise to the action could have reasonably been foreseen
lanes, in a highly visible position, and placed warning devices or anticipated by a person of ordinary intelligence and
behind his tractor-trailer in compliance with state regulations. prudence.” McClenhan v. Cooley, 806 S.W.2d at 775. See
also Lowery v. Franks, 1997 WL 566114 (Tenn. Ct. App.
A breach of defendants’ duty of care is an essential element Sept. 10, 1997) (unpublished) at *5. “[P]roximate causation
of the Kellners’ claim in this negligence action. Summary is a jury question unless the uncontroverted facts and
judgment is appropriate when an essential element of inferences to be drawn from them make it so clear that all
negligence is missing. Doe, 845 S.W.2d at 183. In this case, reasonable persons must agree on the proper outcome.” Id.
the Kellners presented no proof as to how the defendants See also Waste Mgmt. Inc. of Tennessee v. South Cent. Bell
breached their duty to maintain proper clearance on the travel Tel. Co., 15 S.W.3d 425, 430 (Tenn. Ct. App. 1997)
lanes of the interstate when parking their disabled vehicle. In (discussing proximate cause as a policy decision by the
failing to do so, the Kellners have failed to prove an essential judiciary to deny liability for otherwise actionable conduct by
element of their negligence claim and cannot demonstrate a requiring courts to define the boundary of legal liability using
prima facie case of negligence. Consequently, this court mixed considerations of logic, common sense, justice, policy,
concludes that, as a matter of law, defendants did not breach and precedent).
any statutory or common-law duty.
The appellants rely upon the discussion of proximate cause
Moreover, consonant with the district court’s and foreseeability in Goodermote v. State of Tennessee, 856
determination, defendants’ actions were not the proximate S.W.2d 715 (Tenn. Ct. App. 1993) for support of the
cause of the plaintiffs’ injuries. To sustain proximate cause, proposition that the district court erred in applying the Carney
a plaintiff must prove “(1) the tortfeasor’s conduct must have test to the present case. Such reliance is, however, misplaced.
been a ‘substantial factor’ in bringing about the harm being Goodermote involved a single-car accident in which the
complained of; and (2) there is no rule or policy that should vehicle veered off the highway and rolled down an
relieve the wrongdoer from liability because of the manner in embankment, injuring the plaintiff. In that case, the court
concluded that the State’s failure to install safety features
along the highway was the proximate cause of plaintiff’s
It is the op inion o f this court that the undisputed facts establish injury because the State should have reasonably foreseen that
that Ms. Carr's negligence was gre ater than that of M r. Guffy. a driver could leave the roadway and sustain injuries as a
No reasonable jury could find that Mr. Guffy, who drove a result of an omitted safety feature.7 The court concluded that:
heavily loade d truck approxim ately twenty to twenty-five miles
per hour on an uphill slope from an almost com plete stop, was
more negligent than Ms. Carr, who failed to notice a fully lit
tractor-trailer on a familiar, unobstructed stretch of highway in 7
clear weather until it was too late to avoid crashing into it. The The facts pro ving foreseeability included proof that industry
evidence that Ms. Carr's negligence was equal to or greater than standards had called for installation of the safety bars omitted by the State,
that of Mr. Guffy is overwhelming. Reasonable minds could not proof that the State’s own plans fo r construction of the highway in
differ as to the legal conclusions that must be drawn. Therefore, question called for the safety barriers, and proof that the State had notice
the issue of apportionment of fault was properly withdrawn from of six accidents at the same location during the three years preceding the
the jury and determined by the court as a matter of law. specific incident in Go ode rmo te.
No. 02-5314 Kellner, et al. v. Budget Car 13 14 Kellner, et al. v. Budget Car No. 02-5314
and Truck Rental, et al. and Truck Rental, et al.

[T]he plaintiff is not required to show that the State could The essence of the rule as to independent intervening
foresee the specific facts of the accident before plaintiff cause is whether the subsequent successive acts and
can recover . . . . It was necessary only that the plaintiff injuries were probable and therefore to be anticipated. . . .
establish that the State could have foreseen the general Our Supreme Court has explained that the test of liability
manner in which the injury or loss occurred . . . There is under the law of intervening cause requires a person to
no requirement that a cause, to be regarded as the anticipate or foresee what would normally happen; one
proximate cause of an injury, be the sole cause, the last is not required to anticipate and provide against what is
act, or the nearest to the injury, provided it is a unusual or unlikely to happen, or that which is only
substantial factor in producing the end result . . . . We remotely possible.
think that the evidence clearly shows that the negligence
of the State in failing to follow its own plans regarding Id. at 180. Pursuant to this standard, the district court
installing a safety barrier was a substantial factor in correctly determined it was not foreseeable, within the
producing the injuries which the plaintiff sustained. meaning of Tennessee law, that Rupe, with an extended
unobstructed view of Zaffer’s tractor-trailer, would leave
Goodermote, 865 S.W.2d at 72. While the Goodermote court three travel lanes of interstate and strike the rig that was
correctly stated the general rule for determining proximate parked completely within the emergency breakdown lane.
cause in Tennessee, pursuant to Carney, the State had adopted
a specific rule for determining proximate cause and The appellants have additionally argued that the district
foreseeability in claims involving standing vehicles, such as court erred in applying the Carney test because the
the instant case. Carney, 270 S.W.2d at 63-64. subsequent decision in McIntyre v. Ballentine, 833 S.W.2d 52
(Tenn. 1992), altered Tennessee negligence law by replacing
Appellants have further contended that since Zaffer could contributory negligence with a system of comparative fault.
foresee the possibility that a car would leave its lane and Yet, as the Tennessee Supreme Court has emphasized, “the
strike his rig then his actions were the proximate cause of the question is: assuming that both plaintiff and defendant have
accident. Appellants’ broadly construed notion of been found guilty of negligent conduct that proximately
foreseeability leads, however, to logical absurdities and fails caused the injuries, was the fault attributable to plaintiff
to comport with Tennessee judicial precedent. Thus, under equal to or greater than the fault attributable to the
the appellants’ scheme a driver legally traveling in her own defendant.” Eaton v. McLain, 891 S.W.2d 587, 590 (Tenn.
lane, who is hit by another vehicle that crossed into that 1994). Because this court has determined that the defendants’
driver’s lane, could be held liable for negligence because it actions were not negligent, the issue of comparative fault is
was foreseeable that vehicles leave their lanes of traffic. inapplicable.
Tennessee precedent construes foreseeability more Moreover, in light of Eaton’s directive, it is important to
narrowly than plaintiffs suggest. In Underwood v. note that while the district court failed to consider
Waterslides of Mid-America, 823 S.W.2d 171, 180 (Tenn. Ct. comparative negligence in its determination, it did not need
App. 1991), the court discussed foreseeability in the context to do so because the district court did not conclude that Zaffer
of a superseding, intervening cause: was “guilty of negligent conduct that proximately caused the
injuries.” Id. Instead it only concluded that a fair-minded
No. 02-5314 Kellner, et al. v. Budget Car 15
and Truck Rental, et al.

jury could have found that Zaffer’s rig was reasonably
capable of being moved to a safer location. This was a
finding of a possible breach of duty and not a finding of
proximate cause. Consequently, under Eaton, a comparative
negligence analysis was not legally necessary to the district
court’s grant of summary judgment.
In light of the aforementioned, this Court concludes that the
defendants’ actions did not give rise to a breach of a duty of
care and that as a matter of law Rupe’s actions provided the
proximate cause of plaintiffs’ losses and, therefore, affirms
the district court’s grant of summary judgment.