United States Court of Appeals
                                                                Fifth Circuit
                                                              F I L E D
               IN THE UNITED STATES COURT OF APPEALS           April 30, 2003

                        FOR THE FIFTH CIRCUIT            Charles R. Fulbruge III
                                                                 Clerk
                          ________________

                            No. 02-30405
                          ________________


     LORRAINE ROCHE LINEHAN;
     JOHN EDWARD LINEHAN,
                                      Plaintiffs-Appellants,

                                 v.

     NEW ORLEANS ROOSEVELT VENTURE; ET AL.,

                                      Defendants,

     PAUL GARING;
     CINCINNATI INSURANCE COMPANY,

                                      Defendants-Appellees.

            _____________________________________________

            Appeals from the United States District Court
         for the Eastern District of Louisiana, New Orleans
                             01-CV-412-F
            _____________________________________________

Before BENAVIDES, STEWART, and CLEMENT, Circuit Judges.

PER CURIAM:*

     This diversity suit arose from an incident that occurred in

a New Orleans hotel in the early morning hours of November 4,

2000.    After retiring to her room for the evening, appellant

Lorraine Linehan awoke to find a man that she did not know,


     *
        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that this opinion should not be published and is not precedent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.
appellee Paul Garing, asleep in her room and on her bed.         Garing

was also a guest of the hotel, and had gone to sleep in his own

room prior to appearing in Ms. Lineham’s room hours later.        It is

unclear how Garing was able to get into Ms. Linehan’s room –

whether her door had been left partially ajar or the automatic

locking mechanism was faulty is uncertain.       Ms. Linehan, quite

naturally, was alarmed and upset to find Garing asleep in her

bed.       She woke him up and dispatched him out into the hallway.

Garing insisted that he was in his room and objected to being

forced into the hallway without his trousers and keys.

       Alleging mental injuries from the encounter with Garing, Ms.

Linehan and her husband filed this suit against Garing and his

insurance company, asserting claims of civil trespass and

negligence under Louisiana law.1      Following discovery, the

appellees moved for summary judgment, which the district court

granted.       The appellants contend that because they raised

material issues of fact regarding both of their claims, the

district court erred in granting summary judgment.

       This court reviews a district court’s grant of summary

judgment de novo, and applies the same standards as the district

court.       Rivers v. Cent. and S. W. Corp., 

, 682 (5th



       1
     Ms. Linehan also brought suit against the hotel, alleging
that defects in the locking system of the door permitted Garing
to enter her room without a key. That claim was settled prior to
this appeal and is not before us.

                                    -2-
Cir. 1999).   Summary judgment is appropriate when, viewing the

evidence in the light most favorable to the nonmoving party, the

record reflects that no genuine issue of any material fact

exists.   Fed. R. Civ. P. 56(c); Little v. Liquid Air Corp., 

, 1075 (5th Cir. 1994).   Summary judgment is mandated

when the party opposing the motion “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.”   Celotex Corp. v. Catrett, 

, 322

(1986).   Such a showing requires more than “some metaphysical

doubt as to the material facts,” “conclusory allegations,” or a

“scintilla of evidence.”   

(citations and

internal quotations omitted).   If the record, when viewed as a

whole, could not lead a rational trier of fact to find for the

non-moving party, there is no “genuine issue for trial” and

summary judgment is mandated.   Matsushita Elec. Indus. Co. v.

Zenith Radio Corp., 

, 587 (1986).

     Regarding the trespass claim, the district court granted

summary judgment for Garing and his insurer on the grounds that

the appellants were unable to create an issue of fact as to

whether Garing intentionally entered Ms. Linehan’s hotel room.

Under Louisiana law, the tort of trespass requires a

demonstration that the defendant intended the “unlawful physical

invasion of the property of another.”   Terre Aux Boeufs Land Co.,


                                -3-
Inc. v. J.R. Gray Barge Co., 

, 94-95 (La. Ct. App.

2001).

     Garing argued, and the district court agreed, that because

he was sleepwalking when he entered Ms. Linehan’s hotel room, he

was unable to form the requisite intent.     In support of his

contention, Garing submitted the testimony of a life-long friend

who personally witnessed Garing sleepwalking during their teenage

years and was aware that Garing had continued to have

sleepwalking episodes as an adult.      Garing additionally presented

an affadavit by a board certified neurologist, Dr. Gregory

Ferriss, who specializes in sleep disorders.     Dr. Ferriss

testified that the symptoms Garing claimed to have experienced

around the time of the incident were consistent with the clinical

picture of sleepwalking, and were indicative of a “partial level

of consciousness” which rendered him “incapable of understanding,

reasoning, or problem solving.”

     We are unable to find any evidence in the record to counter

Garing’s claim that he was sleepwalking when he entered Ms.

Linehan’s hotel room.   The appellants merely assert the existence

of an issue of fact on this matter, and fail to provide us with

any evidence, in the form of expert testimony or otherwise, that

Garing intended to enter a room that was not his own that

evening.   Because there is no evidence to the contrary, or from

which we can infer otherwise, we are left to conclude that Garing



                                  -4-
was indeed sleepwalking when he entered Ms. Linehan’s room, and

was therefore unable to form the requisite intent to trespass.

Summary judgment was thus properly granted on this claim.

     Appellants’ second claim alleged that Garing’s failure to

take precautions against the possibility that he would sleepwalk

constituted general negligence under Louisiana Civil Code

Articles 2315 and 2316.   The Louisiana Supreme Court supplied the

elements of a negligence claim in Roberts v. Benoit, 

(La. 1991).   Under the established duty-risk analysis, in

order for the defendant to be found liable, the trier of fact

must be able to answer the following four questions

affirmatively:

          1)     Was the conduct in question a substantial factor

                 in bringing about the harm to the plaintiff, i.e.,

                 was it a cause-in-fact of the harm which occurred?

          2)     Did the defendant owe a duty to the plaintiff?

          3)     Was the duty breached?

          4)     Was the risk, and harm caused, within the scope of

                 protection afforded by the duty breached, i.e.,

                 was the defendant’s conduct the legal cause of the

                 harm?

Haydin v. Crescent Guardian, Inc., 

, 1040 (La. Ct.

App. 2002).    See Felton v. Greyhound Lines, Inc., No. 02-30324,

at *3 (5th Cir. April 1, 2003); Federal Deposit


                                 -5-
Insurance Corp. v. Barton, 

, 863 (5th Cir. 2000).

     The district court granted appellees summary judgment on the

grounds that the appellants could not demonstrate that Garing’s

sleepwalking was the legal cause of Ms. Linehan’s injuries.

Legal cause is a matter of law, and ultimately a question of

policy as to “whether the enunciated rule or principle of law

extends to or is intended to protect this plaintiff from this

type of harm arising in this manner.”   

;

(emphasis in original).

Generally, the circumstances leading to the plaintiff’s injury

must be reasonably foreseeable in order for the risk to fall

within the scope of the duty.   Paul v. Louisiana State Employees’

Group Benefit Program, 

, 143 (La. Ct. App. 2000).

     Based upon our examination of the record, we must agree with

the district court that the appellants are unable as a matter of

law to demonstrate that the injuries they sustained were within

the scope of any duty owed to them by Garing.   At bottom, the

question is whether the risk of injury from Garing’s

sleepwalking, produced by a combination of his actions and that

of a third party (a malfunctioning or propped open door), is

within the scope of protection of a rule of law that would

prohibit sleepwalking.   See 

.

Sleepwalking is not a negligent activity per se – it is only

conduct that creates an appreciable range of risk for causing


                                -6-
harm that is prohibited.   See 

sleepwalking

episodes harmed neither himself nor others.    Although Garing has

had sleepwalking episodes since childhood, they were infrequent.

Our review of the record leaves us unable to conclude that the

appellants’ injuries could have been reasonably foreseen or

anticipated.   Appellants are therefore unable to demonstrate

legal causation as a matter of law, and summary judgment for the

appellees on the negligence claim was therefore also appropriate.

     Accordingly, the judgment of the district court is AFFIRMED.

          JUDGE CARL STEWART CONCURS IN THE JUDGMENT ONLY.




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