*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this opinion should not be published and is not precedent except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

FOR THE FIFTH CIRCUIT

____________________

Nos. 98-60396 & 98-60530

____________________

HOWARD DALE WOODS; GENEVA WOODS,

Plaintiffs-Appellants,

versus

CHARLES RAMSEY; BAY TECHNICAL ASSOCIATES, INC.,

a Mississippi Corporation,

Defendants-Appellees.

Appeals from the United States District Court

for the Southern District of Mississippi

(1:96-CV-562-GR)

October 13, 1999

Before DUHÉ, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

The linchpin for this diversity action is whether an unsecured

rope grasped by Howard Dale Woods when he slipped descending a

scaffold ladder was a proximate contributing cause of his resulting

injury when he fell. Woods contests the summary judgments awarded

Charles Ramsey and Bay Technical Associates, Inc., against his

negligence and other claims; Geneva Woods, the judgment against her

loss of consortium claim. Because Woods did not produce sufficient

evidence to create a material fact issue on causation, we AFFIRM.

I.
2

In October 1993, Woods, a painter employed by a subcontractor

on a construction job for Ramsey’s home in Mississippi, fell

approximately 20 feet to the ground while descending a scaffold

ladder. The subcontractor was employed by a general contractor

separate from Ramsey and Bay Technical.

Woods obtained workers’ compensation. For this third-party

action, he alleged that he missed a step while making the descent;

that, when he did so, he grasped a rope hanging near the ladder;

and that, because the rope was not secured, he fell and was

injured. Woods claimed, inter alia, that Ramsey, as homeowner, and

Ramsey’s closely-held corporation, Bay Technical, which owned and

erected the scaffold, had a duty to provide him with a safe

workplace; and that their failure to do so caused his injury.

Both defendants moved for summary judgment, supported, inter

alia, by the deposition testimony of Woods’ expert, Michael

Frenzel, who testified (1) that the scaffold’s construction did not

cause Woods’ injury; and (2) that he could not say with reasonable

probability that Woods’ injuries would have been different had the

rope, used by various workers as a materials hoist (he admitted

this was not uncommon), been secured. In response, as well as in

support of his cross-motion for summary judgment, Woods submitted,

inter alia, 40 exhibits, including 16 depositions.

Holding that neither Ramsey nor Bay Technical owed a duty to

Woods, the court granted summary judgment to each. For Ramsey, it

ruled that he “did not control the work at his residence”, and

therefore, could not incur liability as a homeowner; for Bay
3

Technical, that, as “merely the owner and supplier of the

scaffolding”, it had no “duty to warn Woods of any possible danger

in using” it. 

II.

A summary judgment, reviewed de novo, e.g., Tolson v. Avondale

Indus., Inc., 141 F.3d 604, 608 (5th Cir. 1998), is appropriate

when the summary judgment record “show[s] that there is no genuine

issue as to any material fact and that the moving party is entitled

to a judgment as a matter of law”. FED. R. CIV. P. 56(c); e.g.,

Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en

banc). If the movant shows there is no material fact issue, the

nonmovant must “set forth specific facts” as to each element of his

claim, “showing that there is a genuine issue for trial”. FED. R.

CIV. P. 56(e); e.g., Little, 37 F.3d at 1075 (citing Celotex Corp.

v. Catrett, 477 U.S. 317, 325 (1986)). Facts, and reasonable

inferences from them, are viewed in the light most favorable to the

nonmovant. E.g., Coleman v. Houston Indep. Sch. Dist., 113 F.3d

528, 533 (5th Cir. 1997).

Of course, we may affirm a summary judgment on any ground

raised in district court. E.g., Andrus v. AgrEvo USA Co., 178

F.3d 395, 398 (5th Cir. 1999); Johnson v. Sawyer, 120 F.3d 1307,

1316 (5th 1997). Although not addressed by the district court,

causation was one of several issues raised there (and here).

A.

To succeed under Mississippi law on a negligence claim, Woods

must prove (1) Ramsey and/or Bay Technical owed him a duty; “(2)
4

breach of that duty; (3) damages; and (4) a causal connection

between the breach and the damages, such that the breach is the

proximate cause of the damages”. (Emphasis in original.) Grisham

v. John Q. Long V.F.W. Post, 519 So. 2d 413, 416 (Miss. 1988)

(citing Burnham v. Tabb, 508 So. 2d 1072 (Miss. 1987)). Proximate

cause “is that cause which in natural and continuous sequence

unbroken by any efficient intervening cause produces the injury,

and without which the result would not have occurred”. Id. at 417

(citing Thompson v. Mississippi Cent. R. Co., 166 So. 353 (Miss.

1936)). See also Rudd v. Montgomery Elevator Co., 618 So. 2d 68,

73 (Miss. 1993) (citing, inter alia, Palmer v. Biloxi Reg’l Med.

Ctr., Inc., 564 So. 2d 1346, 1354 (Miss. 1990) (“elementary” that

negligence must be “a proximate cause of the accident”).

As discussed, causation being one of the summary judgment

issues presented, Woods “had the burden of presenting evidence

sufficient to demonstrate the existence of a material fact issue”

on that point. Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir.

1994); FED. R. CIV. P. 56(e); Little, 37 F.3d at 1075. In so doing,

he was required to explain how “specific evidence in the record”

supported his claim. Forsyth, 19 F.3d at 1537 (citing Topalian v.

Ehrman, 954 F.2d 1125, 1131 (5th Cir.), cert. denied, 506 U.S. 825

(1992) (emphasis added)). It is neither the duty of the district

court, nor this court, to “sift through the record in search of

evidence to support a party’s opposition to summary judgment”. Id.

(citing Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915 & n.7

(5th Cir. 1992)). 
5

Besides failing for the most part to cite specific evidence

(Woods, instead, usually cites to an entire deposition), Woods’

contentions on appeal regarding causation are inconsistent — to say

the least. In his brief, he cites ten violations of the

scaffolding manufacturer’s safety regulations manual, lists the

rope as an “obstruction”, and maintains that these violations had

a “direct causal relation to the accident”. Yet, at oral argument,

he conceded that neither the construction of the scaffold nor the

claimed obstruction of the ladder caused him to fall.

Regarding causation, the summary judgment record is sparse

indeed. (As shown infra, this, in large part, is due to continuous

improper interruptions and coaching of witnesses by Woods’ counsel,

especially during Woods’ deposition.) To show causation, Woods’

response, in part, to the summary judgment motion was that the rope

was “unsecured” and “dangling down the vertical ladder way” of the

scaffold; but, he does not create a material fact issue concerning

causation — how the rope was the proximate cause, or a proximate

contributing cause, of his injury. 

No one observed the accident. In his deposition, Woods

testified that, at “quitting time”, as he began descending the

ladder, the rope was “on the side of me”; that his “foot slipped”

on the ladder; that he “lost [his] footing”; and that he could not

“remember” whether it “was ... one foot or both feet at first”.

This extremely critical examination by Ramsey’s counsel, soon and

often improperly interrupted, as usual, by Woods’ counsel,

continued as follows:
6

Q. All right. The ladder on the

scaffolding is straight up and down, isn’t it?

A. Right.

Q. So you are climbing down using two

hands and two feet, right?

A. Right.

Q. And you lost footing?

A. Right.

Q. Do you remember whether you were

stepping down a step and lost footing, or

whether your feet were on one rung?

A. Stepping down.

Q. So you lost your footing as you were

putting one of your feet down to the next rung

down, right?

A. Right.

Q. Did that foot slip off the

scaffolding?

A. Right.

Q. So at that point, it is one foot

that slipped?

A. Right.

Q. And you are still hanging on with

the other foot and the two hands?

A. I don’t understand what you are

talking about.

MR. BOONE [Ramsey’s counsel]: Please,

Derek [Wyatt, Woods’ counsel]. Let him tell

me the story.

MR. WYATT: Wait just a second, Walter

[Boone]. If the witness tells you, I don’t

understand, and you have been deposing this

man for a couple of hours, you have an idea of

what his capacity of understanding is. That’s

unfair. You are badgering him, and you are
7

asking him really, really technical questions

about which hand, which foot, at what point,

how many steps for an event that happened four

years ago.

MR. BOONE: That’s going to the key issue

to this case, Derek, and I’m tired of you --

MR. WYATT: Key or not. I’ll tell you

what it won’t be the key about, that there was

a rope, it wasn’t tied, and he fell 20 feet

onto a concrete surface. If you can dispute

that, let’s go to a motion hearing right now

because you can’t. So all of this stuff

that’s designed to get him to say, it was my

left foot and later you are going to say it

was his right, and all that, is not going to

amount to anything. But if he tells you, I

don’t understand, in fairness to him, you have

a duty to explain to him what you are asking

him, and he just told you that. He said, I

don’t understand, and I don’t think he does

either.

BY MR. BOONE:

Q. I will be happy to find out exactly

what you do understand and what you don’t.

All I want to know today is what you recall,

and what you are willing to testify as to the

truth because it’s very important. 

A. Okay.

(OFF THE RECORD.)

BY MR. BOONE:

Q. Mr. Woods, I want to back up just a

minute so that I can understand exactly where

you were and what you were doing when you were

coming down the scaffolding.

A. Okay.

Q. As I understand it, each end of each

individual scaffolding had a ladder coming

down it, right?

A. That I know of, yes.
8

Q. But certainly the one that you were

coming down had a ladder coming all the way

down the middle, right?

A. Yes, sir.

Q. And this ladder wasn’t on the end of

the scaffolding, it’s where two scaffoldings

were put together, right?

A. Right.

Q. So what you had, as you were coming

down, you looked through the ladder -- there

was a ladder just a short distance away from

the other piece of scaffolding; it that right?

A. Right.

Q. And you were telling me that at the

moment that your foot slipped, you were

stepping down one rung, right?

A. Right.

Q. Do you remember which foot it was

that slipped?

A. No, sir. I don’t remember.

Q. But at that point, you had two hands

on the ladder, and one foot, and then one foot

slipped off, right?

A. I don’t remember which foot.

Q. But one of them did; is that fair to

say?

A. I don’t know, sir.

Q. At what point did you grab the rope?

A. When I was about to fall.

Q. Before you grabbed the rope, had

your other foot slipped?

A. It could have, sir. I don’t

remember.
9

Q. Do you know whether either of your

hands had slipped off?

A. I don’t remember that neither, sir.

Q. Tell me -- as you are sitting there,

picture in your mind, you are there with two

hands on the scaffolding, right?

A. Uh-huh (yes).

Q. And the moment your foot slipped,

were they on the same rung, or on different

rungs?

A. When I was coming down, and before I

grabbed that rope, I was getting ready to go

down on another level, and my hands was, like,

getting ready to reach for the other level,

and then my foot slipped, and I grabbed the

rope.

Q. Okay. Tell me what you mean by

another level.

A. The next level on the scaffolding.

MR. WYATT [Woods’ counsel]: Do you see

this picture of the scaffold? Of the end of

the scaffold?

THE WITNESS: Uh-huh (yes).

MR. WYATT: Does that look familiar to

you?

THE WITNESS: Uh-huh (yes).

MR. WYATT: This is the ladder on this

side, isn’t it?

THE WITNESS: Yes, sir.

MR. WYATT: I’m just adding. Maybe

this will assist in this.

BY MR. BOONE:

Q. Is this what you are talking about

one level?
10

MR. WYATT: Would you ask that

question, please? What was your question to

him?

BY MR. BOONE:

Q. Is this a picture of what you are

talking about of one level?

MR. WYATT: I thought your question

was a minute ago -- what was your question

before that you asked him?

MR. BOONE: I don’t remember.

BY MR. BOONE:

Q. But I’m asking you now: Is this a

picture of one level?

A. Part of it.

Q. About half of one level, right?

A. A piece of it, yes.

Q. So you are testifying that you were

coming down to a new level?

A. Yes, sir.

Q. When your foot slipped?

A. Yes, sir.

Q. Were you all stretched out, or were

you crunched over?

A. I don’t remember, sir.

Q. Do you remember whether your hands

were on the same level, or a different level?

A. No, sir.

Q. Where was the rope in relation to

where you were?

A. The rope was right in front of me.

Q. Was it through the steps?
11

A. It was on the same side I was on.

Q. So the rope was hanging on your side

of the steps?

A. Right.

Q. Was it hanging on the right side of

you, or the left side of you?

A. I don’t remember that.

Q. Do you know which hand you grabbed

it with?

A. My left hand, I believe, sir. I

don’t remember.

MR. BOONE [Ramsey’s counsel]: He’s

telling me what he remembers.

MR. WYATT [Woods’ counsel]: I understand.

Was the answer: “The left hand, I believe,

sir. I don’t remember.” Was that the answer?

MR. BOONE: I object to coaching the

witness.

MR. WYATT: I’m asking Ms. Court Reporter

if she could please tell me was that the

answer.

(Answer read.)

BY MR. BOONE:

Q. Do you understand my question? I’m

asking you which hand you grabbed the rope

with. 

A. Yes, sir.

Q. Do you remember which hand you

grabbed the rope with?

A. No, sir.

Q. What did you mean when you were

testifying about your left hand?

A. It could have been my left hand, or

both hands, sir. I don’t remember.
12

Q. Could it have been your right hand

that you grabbed it with?

A. Like I said, sir, I don’t remember

what hand it was.

Q. How far away was the rope from you?

A. I don’t remember how far neither,

sir.

Q. Presumably, it was within your

reach, though, right?

A. Possibly, sir.

Q. What do you remember next after you

grabbed the rope?

A. When I grabbed the rope? I remember

for a split second that I looked up and I

thought the rope was secured, and it wasn’t,

and I went down.

Q. Did you see what was happening at

the top of the rope?

A. Just like a flash.

Q. What did you see?

A. I seen the rope come untwirled.

Q. Was it wrapped around a bar?

A. Sir, I can’t tell you that. I don’t

know. All I can remember, like I said, that

it come unraveled, and I went down as quick as

possible. I don’t remember.

Q. Is that same stairway that you went

down the same one that you used to go up?

A. No, sir.

Q. You used a different one?

A. Yes, sir.

Q. Why did you come down on that one

that you came down on?
13

A. Like I said, sir, when you go up and

down the scaffolding, there’s different places

you can do down, and I don’t know why I went

down that side, sir.

Q. How far up were you when you fell?

A. I don’t know how far. I don’t know,

sir, how far it was. It could have been 20

feet or more.

(Emphasis added.)

No summarization of this testimony can do justice to showing

the inadequate record to preclude summary judgment, caused in

considerable part by the improper tactics of Woods’ counsel. This

line of questioning by Ramsey’s counsel resumed at the end of

Woods’ deposition:

Q. Would you character yourself as

pretty strong?

A. Yes, sir.

Q. When you were coming down the

ladder, did you have a pretty good grip on the

bars?

A. On the bars?

Q. As you were coming down the ladder.

A. It’s possible, sir.

Q. It’s possible that you had a good

grip?

A. Yes, sir.

Q. When your foot slipped, do you

remember you telling me both of your arms were

still on there?

A. Yes, sir.

Q. Probably at that time, you had a

pretty good grip on there, didn’t you?
14

A. Yes, sir.

Q. And a man of your strength wanted to

grab on the rope as opposed to hanging onto

the bars?

A. I don’t know, sir.

Q. If you hadn’t grabbed the rope, you

would be okay today, wouldn’t you?

MR. WYATT [Woods’ counsel]: That’s a

speculative question. Go ahead and answer, if

you know.

A. I don’t know, sir.

MR. BOONE [Ramsey’s counsel]: No further

questions.

(Emphasis added.)

Concerning causation these are the operative facts in the

summary judgment record. As discussed, they are viewed in the

light most favorable to Woods, the nonmovant; but, that cannot

alter his being required, as also discussed, to identify specific

facts creating a material fact issue. For example, as emphasized

supra, Woods could not state positively that the rope was within

his reach, or why it was even necessary to grasp it when his foot

slipped. The testimony by his expert, Frenzel, bears on this

question.

Frenzel, on whom Ramsey and Bay Technical also rely, testified

that the rope “possibly” could have prevented Woods’ fall:

Q: If the rope had been tied, would

that have prevented Mr. Woods’ fall in your

opinion?

A: It possibly could have prevented Mr.

Woods’ fall or it may have arrested the fall.

It may have lessened the significance of the

fall. 
15

Q: In what way would it have lessened

the significance of the fall?

A: It may have reduced the energy at

impact or it may have changed the angles of

impact. In other words, if the rope had been

secured and Mr. Woods grabbed hold of the

rope, he may have hit on his feet with brush

burns on his hands.

He was a big fellow with lots of upper

body strength. He may have been able to stop.

But even if he had not stopped it may have

caused him to land in a more erect position

which would have minimized the injury or the

impact.

....

Q: And it’s possible it could have been

at a worse angle, you just don’t know?

A: I guess that’s possible.

....

Q: Is it speculative to say what would

have happened had the rope been tied with

regard to the extent of his injury?

A: To some degree that’s correct....

But to say that it would lessen the injury or

alter the fall, I think I can say that. To be

able to prove or to offer medical testimony

that would support that, I cannot.

Q: So it would be fair to say that you

can’t state to a reasonable probability that

his injuries would have been lessened had the

rope been tied off?

A: I cannot say that with medical

certainty, that’s correct.

(Emphasis added.)

Again, no one observed the accident. The foregoing evidence

provided by the expert’s testimony, especially when linked to that

provided (or, more accurately, not provided) in Woods’ deposition,
16

is plainly insufficient to overcome a summary judgment motion.

See, e.g., Marshall v. East Carroll Parish Hosp., 134 F.3d 319,

324 (5th Cir. 1998) (“conclusory, unsupported statements” are

insufficient summary judgment evidence). In sum, Woods has failed

to show a “reasonable connection between” the rope and his injury.

See Burnham, 508 So. 2d at 1074; see also Herrington v. Leaf River

Forest Prods., Inc., 733 So. 2d 774, 779 (Miss. 1999) (quoting

Kramer Serv., Inc. v. Wilkins, 186 So. 625, 627 (Miss. 1939)

(coexistence of “negligence of one person and injury to another” is

not enough to show causation); Mississippi Valley Gas Co. v. Estate

of Walker, 725 So. 2d 139, 145-46 (Miss. 1998) (defendant’s

negligence may not be inferred as proximate cause unless plaintiff

has eliminated other probable causes).

B. 

As detailed in the district court’s two opinions granting

summary judgment to each defendant, it was also proper for the

other claims. 

1.

Ramsey’s and Bay Technical’s failure to comply with various

safety standards is equated with negligence per se. But, Woods has

not shown a connection between the alleged violations and his

injury. See Snapp v. Harrison, 699 So. 2d 567, 571 (Miss. 1997)

(for negligence per se, plaintiff must show (1) membership in class

protected by statute, (2) injury of type sought to be prevented,

and (3) violation of statute proximately caused injury).

2. 
17

Woods presented a strict liability and several breach of

warranty claims. But, he did not produce evidence that either

defendant (1) manufactured or sold the scaffolding (he admits they

did not do so), or (2) made an express warranty. See, e.g.,

Scordino v. Hopeman Bros., Inc., 662 So. 2d 640, 643 (Miss. 1995)

(seller must be more than “occasional seller” of product); Hargett

v. Midas Int’l Corp., 508 So. 2d 663, 664 (Miss. 1987) (implied

warranty of merchantability applies where seller is “merchant” with

respect to goods sold). And, he conceded at oral argument that the

scaffold did not cause his injury. See Scordino, 662 So. 2d at

642-43 (for strict liability, plaintiff must prove “injury resulted

from” product defect). 

3.

Obviously, in that summary judgment was proper against Woods’

negligence claim, that for gross negligence cannot survive. See

West Cash & Carry Bldg. Materials of McComb, Inc. v. Palumbo, 371

So. 2d 873, 877 (Miss. 1979) (gross negligence requires showing

reckless indifference) (quoting Teche Lines, Inc. v. Pope, 166 So.

539, 540 (Miss. 1936)).

4.

Finally, because Geneva Woods’ loss of consortium claim is

derivative of her husband’s, see Alldread v. Bailey, 626 So. 2d 99,

101 (Miss. 1993), her claim fails as well.

III.

For the foregoing reasons, the judgments are 

AFFIRMED.