James Kellner v. Budget Car

1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0059P (6th Cir.)
File Name: 04a0059p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
JAMES KELLNER and LAURI
KELLNER, individually and as
next kin of Michael W.
Kellner, deceased; LAURI
KELLNER, individually and as
natural parent and next of kin
of Shawn June, a minor,
Plaintiffs-Appellants,
v.
BUDGET CAR AND TRUCK
RENTAL, INC., et al.; COMCAR
INDUSTRIES, INC., a/k/a M.D.
Transport Systems, Inc.,
Defendants,
CLAY HYDER TRUCKING
LINES, INC.; M.D. TRANSPORT
SYSTEMS, INC.; JOHN ZAFFER,
Administrator of the Estate of
Christopher N. Zaffer,
Defendants-Appellees.
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No. 02-5314
Appeal from the United States District Court
for the Eastern District of Tennessee at Knoxville.
2 Kellner, et al. v. Budget Car
and Truck Rental, et al.
No. 02-5314
No. 00-00336—Curtis L. Collier, District Judge.
Argued: September 17, 2003
Decided and Filed: February 26, 2004
Before: BOGGS, Chief Judge; KRUPANSKY and CLAY,
Circuit Judges.
_________________
COUNSEL
ARGUED: Paul T. Gillenwater, GILLENWATER, NICHOL
& AMES, Knoxville, Tennessee, H. Forrest Horne, Jr.,
JONES, MARTIN, PARRIS & TESSENER, PLLC, Raleigh,
North Carolina, for Plaintiffs. Michael J. King, WOOLF,
McCLANE, BRIGHT, ALLEN & CARPENTER, Knoxville,
Tennessee, for Defendants. ON BRIEF: Paul T.
Gillenwater, GILLENWATER, NICHOL & AMES,
Knoxville, Tennessee, for Plaintiffs. Michael J. King, Tony
R. Dalton, WOOLF, McCLANE, BRIGHT, ALLEN &
CARPENTER, Knoxville, Tennessee, for Defendants.
_________________
OPINION
_________________
KRUPANSKY, Circuit Judge. James and Lauri Kellner,
appearing individually and as next of kin, have appealed the
district court’s summary dismissal of their negligence suit
against three party-defendants – John Zaffer, administrator of
the estate of Christopher Zaffer (“Zaffer”), M.D. Transport
Systems, Inc. (“MDTS”) and Clay Hyder Trucking Lines, Inc.
(“CHTL”) – arising from a motor vehicle accident on the
Tennessee interstate. The Kellners have contended that
defendants negligently and proximately caused the accident

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

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

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

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

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

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

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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.

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