Crear, et al v. Omega Protein Inc

* 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this opinion should not be published and is not precedent except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.
United States Court of Appeals
Fifth Circuit
F I L E D
January 26, 2004
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 03-30522
OBEDEAN CREAR, JR.,
Plaintiff,
versus
OMEGA PROTEIN, INC.,
Defendant.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
JOE NATHAN CREAR, OBEDEAN CREAR, SR., CLARENCE O. CREAR, SR.,
JACQUELYN D. JONES, ANDREW CREAR, BRINFUS LEE CREAR, SR., MALONE
CREAR, JR. AND ADRIAN L. CREAR,
Plaintiffs - Appellants,
versus
OMEGA PROTEIN, INC.,
Defendant - Appellee.
Appeal from the United States District Court
For the Eastern District of Louisiana
(01-CV-3876)
Before JOLLY, HIGGINBOTHAM, and DeMOSS, Circuit Judges.
PER CURIAM:*

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1 Mr. Crear was prosecuted for the murder and found not
guilty by reason of insanity.
2
Plaintiffs, heirs of Pernell Crear, brought wrongful death
suit against Omega Protein, Inc. Omega previously employed Obedean
Crear, who suffered a head injury at work. Thirteen months later
Mr. Crear murdered his grandmother, which Plaintiffs assert was the
foreseeable result of Omega’s negligence. Plaintiffs appeal the
district court’s decision to grant summary judgment for Omega based
on the finding that Omega owed no duty to the grandmother because
her injury was not foreseeable. We AFFIRM.
I
On June 24, 1999, Mr. Obedean Crear murdered Pernell Crear,
his grandmother.1 Thirteen months before the murder, Mr. Crear
suffered a head injury while working aboard one of Omega’s fishing
vessels when an improperly affixed stern pole fell and struck him.
He was treated for a concussion and for pain in his back and neck.
Mr. Crear developed severe mental problems. Various physicians
treated Mr. Crear between May 1998 and June 1999, including a
psychiatrist’s treatment two weeks before the murder, but it
appears that his mental problems may have been improperly diagnosed
or untreated.
Pernell Crear’s heirs sued Defendant Omega Protein, Inc., Mr.
Crear’s former employer, for wrongful death, alleging that Pernell
Crear’s murder was a foreseeable result of Omega’s negligence.
Defendant Omega Protein stipulated to Plaintiffs’ facts in its

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3
Motion for Summary Judgment. Specifically, it stipulated that (1)
the injury to Mr. Crear caused the murder of his grandmother, and
(2) Mr. Crear’s mental problems were left untreated due to the
actions of Omega.
Omega’s sole argument below was that the murder of Mr. Crear’s
grandmother was unforeseeable as a result of his head injury;
therefore, Omega owed no duty to her or her heirs. In support of
its summary judgment motion, Omega attached deposition testimony of
nine family members, most of whom are plaintiffs in this action.
Each family member testified that they never believed Mr. Crear
would physically harm his grandmother. In response, Plaintiffs
submitted an expert’s affidavit, opining that “it is certainly
foreseeable that a person who suffers an injury such as that of
Obedean Crear would develop violent propensities.”
The district court granted Omega’s summary judgment motion.
Plaintiffs appeal this judgment, asserting that Omega’s summary
judgment evidence was insufficient and that its own evidence
foreclosed the possibility of summary judgment.
II
The standard for reviewing the grant of summary judgment is
clear. Summary judgment is appropriate when the summary judgment
evidence shows “that there is no genuine issue as to any material

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2 FED. R. CIV. P. 56.
3 See Consolidated Aluminum Corp. v. C.F. Bean Corp., 833
F.2d 65, 67 (5th Cir. 1987).
4
fact and that the moving party is entitled to a judgment as a
matter of law.”2
There is some dispute between the parties regarding the
controlling law. Plaintiffs argue that Mississippi law must apply,
but they did not make this argument in opposition to the summary
judgment below, do not brief the issue to this court, and do not
raise it as an independent issue on appeal. Instead, Plaintiffs
assert in one paragraph that admiralty law should not apply. In an
earlier, and apparently uncontested ruling, the district court held
that admiralty law applied. It made this holding because the
alleged cause of the murder - Mr. Crear’s head injury - occurred on
a vessel on navigable waters. Although the issue is apparently not
preserved and is inadequately briefed, its resolution does affect
the case. General tort law principles inform the analysis of
maritime torts,3 and the district court correctly noted that the
rules of negligence are the same under admiralty and Mississippi
law. Finally, regardless of the applicable law, Plaintiffs failed
to provide any evidence that it owed Mr. Crear’s grandmother a duty
of care.
The elements of a cause of action for negligence are well
established. A plaintiff must establish that (1) the defendant
owed the plaintiff a duty of care; (2) the defendant breached the

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4 See Lloyd’s Leasing Limited v. Conoco, 868 F.2d 1447, 1449
(5th Cir. 1989).
5 Consolidated Aluminum, 833 F.2d at 67.
6 Id. at 68.
7 Id.
5
duty; (3) the plaintiff suffered damages; and (4) the breach of the
duty proximately caused the damages.4 Whether a defendant owes a
duty to a plaintiff depends on various factors, and the primary
indicator of duty is whether the harm suffered by the plaintiff was
foreseeable.5
Harm is foreseeable “if harm of a general sort to persons of
a general class might have been anticipated by a reasonably
thoughtful person, as a probable result of the act or omission,
considering the interplay of natural forces and likely human
intervention.”6 In Consolidated Aluminum, an aluminum reduction
plant sued, among others, a dredge operator who cut a pipeline that
supplied power to the plant. Once the dredge cut the pipe, the
pipe’s owner turned off its supply of gas. As a result, the
plaintiff’s plant could no longer power its electrical generators.
The plant and the work-in-progress were damaged. The court held
that the dredge operator owed no duty to the plaintiff because its
harm “was not of a general sort expected to follow from the failure
to dredge carefully in proximity to a gas pipeline.”7 The court
also offered examples of foreseeable harms: “Injury to property

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8 Id.
9 Rolison v. City of Meridian, 691 So.2d 440, 444 (Miss.
1997) (citing seven cases dating back to 1933).
10 Id. (quoting Mauney v. Gulf Refining Co., 9 So.2d 780,
780-81 (1942) (citations omitted)).
11 Id. at 441.
6
and persons from the escaping gas, or from a fire which might have
ensued, would be examples of consequences that would be
foreseeable.”8 But the injury to the plant fell outside the
general, reasonably anticipated class of harm as a result of
negligent dredging.
Mississippi law follows the same principle. Damages to a
plaintiff must be reasonably foreseeable, but “[o]rdinary care does
not require that a person prevision unusual, improbable or
extraordinary occurrences. Failure to anticipate remote
possibilities does not constitute negligence.”9 To establish a
defendant’s liability for a negligent act, “‘the act must be of
such character, and done in such a situation, that the person doing
it should reasonably have anticipated that some injury to another
will probably result therefrom.’”10
In Rolison, a batter in a softball game threw his bat,
injuring a base runner.11 The base runner sued, among others, the
city and the umpires. The trial court granted defendant’s summary
judgment because there was no evidence that the defendants could

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12 Id. at 444.
13 Id. (quoting Mauney, 9 So.2d at 780-81).
14 Id.
7
foresee a batter throwing his bat. The Mississippi Supreme Court
upheld the decision to grant defendant’s summary judgment.12
A reasonable man can be guided only by a
reasonable estimate of probabilities. If men
went about to guard themselves against every
risk to themselves or others which might by
ingenious conjecture be conceived as possible,
human affairs could not be carried on at all.
The reasonable man, then, to whose ideal
behavior we are to look as the standard-of
duty, will neither neglect what he can
forecast as probable, nor waste his anxiety on
events that are barely possible.13
The court held that because both parties testified that there was
no way to foresee this type of action, summary judgment was
appropriate.14
III
These principles indicate that the court properly granted
summary judgment. Despite Plaintiffs’ various arguments, nothing
indicates that a reasonable employer in Omega’s situation could
foresee a murder by its employee thirteen months after the
employee’s initial head injury. Plaintiffs presented no evidence
that the injury to Mr. Crear’s grandmother is the general type of
injury resulting from Mr. Crear’s at-work injury.
Various considerations support the district court’s decision.
First and most basically, the harm resulting from Omega’s

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15 Consolidated Aluminum, 833 F.2d at 68.
8
negligence - the murder of Mr. Crear’s grandmother - is not harm of
the “general sort to persons of a general class” resulting from a
negligently affixed stern pole. One must ask what general sort of
harm would be caused to what general class as a result of Omega’s
negligence.15 Here, Omega stipulates that it failed to properly
affix the stern pole. What type of harm, and to what general class
of people, could a reasonable employer anticipate as a result of
this negligence? A reasonable employer could anticipate (1) direct
harm to employees like the injury suffered by Mr. Crear; (2) direct
harm to anyone who visited the vessel or stood near enough to it to
be struck by the falling stern pole; (3) aggravated injuries
resulting from medical malpractice while a victim is being treated
for the injury; and (4) economic and emotional damages resulting
from the loss of work or mental incapacity. A reasonable employer
could not anticipate that after an employee was struck by the pole,
he would develop a psychosis, that his family members would not
detect this developing psychosis, that various physicians would
fail to neutralize this psychosis over a thirteen-month period, and
finally that the employee would suddenly snap and murder a family
member. If this conduct is foreseeable, one must ask what is not
foreseeable. One must also consider what an employer in Omega’s
situation could have done to deter this type of action, and for how
long must an employer continue the deterrence.

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9
Second, Plaintiffs discount the level of summary judgment
proof presented by Omega. Plaintiffs state that “[i]n defendant’s
motion for summary judgment, no facts were presented, except that
the Crear family had no idea that Mr. Crear would be capable of
such violent behavior.” Each one of Mr. Crear’s family members,
many of whom are plaintiffs in this case, testified in their
depositions that no actions of Mr. Crear led them to believe that
he was capable of this type of act. Like the plaintiff’s admission
in Rolison that no one could foresee the batter throwing his bat
and injuring a runner, Plaintiffs’ admissions here are similarly
compelling. The Crear family did not indicate any behavior by Mr.
Crear that would have led them to believe he had violent
capabilities.
Third, Plaintiffs’ expert report does not foreclose summary
judgment. The uncontradicted opinion states that victims of
frontal lobe head injuries have an increased chance of developing
violent behavior. However, it does not follow from this general
opinion that a reasonable employer in Omega’s position would
anticipate that their negligence in failing to properly affix a
stern pole would cause an employee to seriously injure or murder
another person. Mr. Crear was provided medical attention over the
thirteen-month period. Plaintiffs insinuate that various doctors
may have improperly diagnosed or mistreated Mr. Crear’s condition.
The expert’s general opinion that violent conduct is a foreseeable

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16 Rolison v. City of Meridian, 691 So.2d 440, 444 (Miss.
1997) (citing seven cases dating back to 1933).
17 749 So.2d 1254 (Miss. App. 2000).
10
consequence of a frontal lobe injury is no answer to Omega’s
evidence that Mr. Crear’s extreme, sudden, and violent behavior
thirteen months after his injury was unforeseeable as a result of
failing to properly affix a stern pole. The test for
foreseeability simply does not extend that far.
Fourth, Plaintiffs incorrectly argue that the district court
set a new standard for foreseeability in its order. Plaintiffs
focus on the district court’s language that an injury must be
probable, not just possible. As discussed above, Mississippi law
does not require a defendant to foresee the improbable.16
Finally, the district court’s decision does not conflict with
American National Insurance Company v. Hogue.17 Hogue held that
once sufficient evidence is presented to create a fact question on
foreseeability, a jury must resolve the question. This case is
easily distinguished; here the district court correctly found that
“[t]here is simply no evidence that Mr. Crear exhibited any
behavior prior to the murder that would indicate that Mr. Crear had
violent propensities or that murdering his grandmother was a
possibility.” Plaintiffs presented no evidence of foreseeability
that would require a jury’s resolution. Even under Hogue’s
rationale, duty remained a question of law for the court to decide.

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11
IV
The district court properly found that Omega owed no duty to
Plaintiffs. There is no genuine issue of material fact indicating
the grandmother’s injury to be foreseeable. The harm resulting
from Omega’s negligence - Mr. Crear’s murder of his grandmother -
is too far outside the foreseeable class of harm and individuals to
impose a duty on Omega. Accordingly, we AFFIRM.

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