Filed: Nov. 03, 2003
Latest Update: Feb. 21, 2020
Summary: United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS November 3, 2003 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III _ Clerk No. 03-60062 Summary Calendar _ DAVID FITZGERALD; JAN FITZGERALD, Plaintiffs-Appellants, versus LIBERTY SAFE AND SECURITY PRODUCTS, INC.; ET AL., Defendants, LIBERTY SAFE AND SECURITY PRODUCTS, INC.; DAVID ROWE, individually and/or as employee of Southland Security, Defendants-Appellees. _ Appeal from the United States District Court
Summary: United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS November 3, 2003 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III _ Clerk No. 03-60062 Summary Calendar _ DAVID FITZGERALD; JAN FITZGERALD, Plaintiffs-Appellants, versus LIBERTY SAFE AND SECURITY PRODUCTS, INC.; ET AL., Defendants, LIBERTY SAFE AND SECURITY PRODUCTS, INC.; DAVID ROWE, individually and/or as employee of Southland Security, Defendants-Appellees. _ Appeal from the United States District Court f..
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United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS November 3, 2003
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
_____________________ Clerk
No. 03-60062
Summary Calendar
_____________________
DAVID FITZGERALD; JAN FITZGERALD,
Plaintiffs-Appellants,
versus
LIBERTY SAFE AND SECURITY PRODUCTS, INC.; ET AL.,
Defendants,
LIBERTY SAFE AND SECURITY PRODUCTS, INC.; DAVID ROWE,
individually and/or as employee of Southland Security,
Defendants-Appellees.
__________________________________________________________________
Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. 1:01-CV-469-D
_________________________________________________________________
Before JOLLY, WIENER, and CLEMENT, Circuit Judges.
PER CURIAM:*
On August 24, 1996, David Fitzgerald traveled to a gun show in
Jackson, Mississippi and purchased a safe manufactured by Liberty
Safe and Security Products (“Liberty”). Defendant David Rowe was
the salesperson who made the sale. At the time, Rowe was employed
by Southland Security (“Southland”). Fitzgerald took the safe home
*
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this opinion should not be published and is not precedent except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.
and used it to store a variety of personal items, including guns,
family photos and cash. Over four years later, on January 19,
2001, the Fitzgeralds’ home was destroyed by a fire of unknown
origin. The fire also destroyed all the items contained in the
safe. David Fitzgerald and his wife, Jan, subsequently filed this
lawsuit in Mississippi state court against Liberty, Southland and
Rowe alleging various state law claims including products
liability, fraud, negligence and intentional infliction of
emotional distress. The defendants removed the case to federal
court and, after a period of discovery, moved for summary judgment
on all of the claims. The district court granted this motion in
all respects. Fitzgerald now appeals.
We review the district court’s grant of summary judgment de
novo. Mowbray v. Cameron County, Tex., 274 F.3d 269, 278 (5th Cir.
2001). Summary judgment is appropriate only when the record
indicates "no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law." FED. R.
CIV. P. 56. "Questions of fact are reviewed in the light most
favorable to the nonmovant and questions of law are reviewed de
novo."
Mowbray, 274 F.3d at 278-79. After reviewing this case
subject to this standard, we find the district court properly
granted summary judgment on all claims.
On the products liability claim, the district court found that
Fitzgerald had failed to produce any evidence that a defective
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condition was the proximate cause of the alleged injury to his
property. The district court noted that the Fitzgeralds’ own
expert testified in his deposition that it was the intense heat
from the fire, not any defect in the safe, that proximately caused
the plaintiffs’ damages. Pointing out that proximate causation is
a necessary element in a products liability action under
Mississippi state law, MISS. CODE ANN. § 11-1-63 (Rev. 2002), the
district court dismissed the claim. We find nothing in the record
to overturn this decision. Significantly, Fitzgerald himself makes
no attempt to overcome the uncontroverted testimony of his own
witness that there was no defect in the safe, let alone one that
proximately caused the injury to his property. Accordingly, we
find the district court properly granted summary judgment on the
products liability claim.
The district court dismissed the negligence action for nearly
identical reasons. To prove negligence under Mississippi state
law, a plaintiff must show, inter alia, a “close causal connection
between the [alleged negligent] conduct and the resulting injury.”
Carpenter v. Nobile, 620 So. 2d 961, 964 (Miss. 1993). As we noted
previously, the plaintiffs’ own expert stated in his deposition
that the safe did not malfunction in any way; rather, the contents
were destroyed because the heat from the fire was more intense than
the safe was designed to bear. There being no other evidence that
any alleged negligence proximately caused the injury to the
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Fitzgeralds’ property, we find that the negligence claim against
the defendant was properly dismissed.
In dismissing the fraud claim, the district court relied on
the repeated admissions by Fitzgerald himself that he “didn’t buy
[the safe] for fire protection” but “bought it for burglary
protection.” The district court noted that proving fraud under
Mississippi law requires, inter alia, reliance on a
misrepresentation. See, e.g., Bank of Shaw v. Posey, 573 So. 2d
1355, 1362 (Miss. 1990). Because the plaintiff, by his own
admission, did not purchase the safe to protect himself from fire,
he cannot now claim to have acted in reliance on any alleged
misrepresentations as to the fire protective capabilities of the
safe. We agree with the district court that this fact entitles the
defendants to judgment as a matter of law on the fraud claim.
Finally, the district court dismissed the intentional
infliction of emotional distress claim after finding that, once
again by Fitzgerald’s own admission, he had no evidence that any of
the defendants intended to cause him emotional distress. Under
Mississippi law, a plaintiff must show intent to cause emotional
distress to prevail on an intentional infliction of emotional
distress claim. See, e.g., Tyus v. Kidney Care, Inc., 982 F. Supp.
422, 425 (N.D.Miss. 1997) Almost frivolously, the plaintiffs argue
that Fitzgerald’s admission should be disregarded because the
deposition containing the admission was “taken prior to
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[Fitzgerald’s] consultation with an expert that was able to explain
to [him] that [a Liberty sales brochure] contained serious
misrepresentations that in all likelihood were created
intentionally.” Unfortunately for Fitzgerald, the inability of an
attorney to tell a client what he should think is not a recognized
objection to valid deposition testimony in this circuit. In any
event, even assuming the defendants were guilty of intentional
conduct, Fitzgerald has offered no testimony that this conduct was
in any way “extreme or outrageous” – a showing also required to
prevail on this claim under Mississippi state law. See, e.g.,
Langston v. Bigelow, 820 So. 2d 752, 757 (Miss. Ct. App. 2002).
Thus, we find that district court properly dismissed the claim of
intentional infliction of emotional distress.
Having found that the district court properly granted summary
judgment in favor of the defendants on all claims, we accordingly
AFFIRM the judgment of the district court.
AFFIRMED.
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