* Pursua nt to 5 TH C IR

. 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this opinion should not be published and is not precedent except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 5 TH C IR

. R. 47.5.4. United States Court of Appeals

Fifth Circuit



## FILED

November 3, 2003

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

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 home2

and used it to store a variety of personal items, including guns,

f amily 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 cou rt’s grant of summary judgment d e

novo

. Mowbray v. Cameron County, Tex.

, 274 F.3d 269, 278 (5th Cir.

2001). Summ ary judgment is appropriate only when the record

i ndicates "no genuine issue as to any material fact and that the

moving party is entitled to judgment as a matter of law." F E D

. R.

C IV

. P. 56. " Q uestions 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 defective3

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 actio n under

Mississippi state law, M ISS

. C ODE A NN

. § 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 prop erty. Accordingly, we

find the district court properly granted summary judgme nt 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, t he 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 neg ligence proximately caused the injury to the4

Fitzgeralds’ property, we find that the negligence claim against

the defendant was properly dismissed.

In dismissing the fraud c laim, 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. S ee

, 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 ha ve 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 distre ss 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 distre ss. Under

Mississippi law, a plaintiff must show intent to cause em otional

distress to prevail on an intentional infliction of emotional

distress claim. S ee

, 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

dep osition containing the admission was “taken prior to5

[Fitzgerald’s] consultation with an expert that was able to explain

to [him] that [a Liberty sales brochure] containe d 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. S ee

, 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.