The Honorable Scott O. Wright, United States District Judge 1

for the Western District of Missouri.

____________

No. 95-3492

____________

Mary Ann Horn, As Surviving *

Spouse of James F. Horn, Sr., *

Deceased, Individually and on *

behalf of his Children and *

Next of Kin, and as the *

Personal Representative of *

his Estate, *

*

Appellant, *

*

v. * Appeal from the United States

* District Court for the

B.A.S.S., doing business as * Western District of Missouri

B.A.S.S. National Federation, *

Inc.; Texas B.A.S.S. Federation,*

Inc., a Texas Corporation; *

Missouri B.A.S.S. Anglers *

Sportsman Society Chapter *

Federation, doing business as *

Missouri B.A.S.S. Federation, *

Inc., *

*

Appellees. *

____________

 Submitted: March 15, 1996

 Filed: July 8, 1996

____________

Before McMILLIAN, BEAM and HANSEN, Circuit Judges.

____________

McMILLIAN, Circuit Judge.

Mary Ann Horn (plaintiff) appeals from a final order entered in the

United States District Court for the Western District of Missouri granting 1

summary judgment in favor of B.A.S.S., Inc.,
 Dunlap reached a settlement with Horn and is no longer a

2

party in the present case.

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Texas B.A.S.S. Federation, Inc., and Missouri B.A.S.S. Anglers Sportsman

Society Chapter Federation (defendants), and dismissing her action for the

wrongful death of her husband James F. Horn, Sr. Horn v. B.A.S.S., Inc.,

No. 94-4386-CV-C-5 (W.D. Mo. Sept. 7, 1995). For reversal, plaintiff

argues the district court erred in holding defendants owed no duty of care

to Horn. For the reasons discussed below, we affirm the judgment of the

district court.

BACKGROUND

Defendants organize commercial fishing tournaments and had scheduled

a fishing tournament at the Lake of the Ozarks, Missouri, on June 15-17,

1994. Defendants had designated June 12-14, 1994, as tournament “practice”

days. In order to prevent “scouting,” contestants were not allowed to fish

on the lake for the 14 days before the tournament except for the three

tournament practice days. Contestants were not required to do anything on

the tournament practice days other than register for the tournament on the

first and second tournament practice days. On June 13, 1994, one of the

tournament practice days, Horn was killed when a boat operated by Robert

Dunlap, a resident of Texas and a tournament contestant, collided with

2

Horn’s boat. Horn was not participating in the tournament. The accident

occurred during the late afternoon. According to Dunlap’s deposition, he

had finished practicing for the day and was returning home. He was

approaching a fuel pier and had been looking to his right and watching

another boat and some jet skis. He did not notice Horn’s boat off to his

left, until just before the collision, when it was about 60’ away. Dunlap

attempted to turn his boat to the left, which is the wrong way according

to boating safety regulations. It is undisputed that Dunlap’s failure to

keep a proper lookout contributed to cause the fatal accident. 
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Plaintiff filed this wrongful death action against defendants in

federal district court. Federal jurisdiction was based on diversity of

citizenship. Plaintiff alleged that defendants negligently organized the

tournament by failing to protect the public from tournament-related

hazards, in particular, the reckless operation of high-speed fishing boats

by tournament contestants. Defendants moved for summary judgment, arguing

that plaintiff could not establish, as a matter of law, that they had a

duty to protect Horn or that they caused Horn’s death. The district court

held that defendants lacked sufficient control over a tournament contestant

on a practice day and thus had no duty to protect Horn. Slip op. at 6.

This appeal followed. 

DISCUSSION

For reversal, plaintiff argues the district court erred in holding

that defendants, as the organizers of a public event on public waters, had

no duty to take reasonable precautions to protect the public from

foreseeable risks of harm. Plaintiff also argues the district court erred

in granting summary judgment because there were disputed issues of material

fact as to the foreseeability of the risk of harm, cause and defendants’

degree of control over tournament contestants on practice days. Defendants

argue the district court correctly granted summary judgment in their favor

because plaintiff could not establish as a matter of law either duty or

causation. For the reasons discussed below, we affirm the judgment of the

district court but on a theory different from that employed by the district

court. E.g., B.B. v. Continental Insurance Co., 8 F.3d 1288, 1291 (8th

Cir. 1993) (noting court of appeals can affirm on basis other than those

employed by trial court). We hold plaintiff failed as a matter of law to

establish causation. 

We review a grant of summary judgment de novo. The question before

the district court, and this court on appeal, is whether the
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record, when viewed in the light most favorable to the non-moving party,

shows that there is 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(c); e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Where

the unresolved issues are primarily legal rather than factual, summary

judgment is particularly appropriate. E.g., Crain v. Board of Police

Comm’rs, 920 F.2d 1402, 1405-06 (8th Cir. 1990). 

As noted above, the district court applied Missouri substantive law.

Jurisdiction over this matter is founded on diversity, and, because the

district court was located in Missouri, we look to that state’s choice of

law rules to determine which body of substantive law to apply. E.g.,

Schoffman v. Central States Diversified, Inc., 69 F.3d 215, 219 n.10 (8th

Cir. 1995). We review the district court’s choice of law analysis de novo.

E.g., Birnstill v. Home Savings of America, 907 F.2d 795, 797 (8th Cir.

1990). 

For tort (and contract) claims, Missouri courts apply the “most

significant relationship” test found in the Restatement (Second) of

Conflict of Laws § 145 (1971). E.g., Dorman v. Emerson Electric Co., 23

F.3d 1354, 1358 (8th Cir.) (citing Galvin v. McGilley Memorial Chapels, 746

S.W.2d 588, 590 (Mo. Ct. App. 1987)), cert. denied, 115 S. Ct. 428 (1994).

“Under this test, the identity of the state having the most significant

relationship will depend upon the nature of the cause of action and upon

the particular legal issue in dispute.” Id. 

In an action for a personal injury, the local law of the

state where the injury occurred determines the rights

and liabilities of the parties, unless, with respect to

the particular issue, some other state has a more

significant relationship . . . to the occurrence and the

parties, in which event the local law of the other state

will be applied.
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Restatement (Second) of Conflict of Laws § 146. “This formulation

essentially establishes a presumption that the state with the most

significant relationship is the state where the injury occurred . . . .”

Dorman v. Emerson Electric Co., 23 F.3d at 1358. “In cases in which the

injury and the conduct causing the injury occur in the same state, the

Restatement [(Second) of Conflict of Laws] principles are easy to apply.”

Id., citing Restatement (Second) of Conflict of Laws § 146 comment. d

(noting that, subject only to rare exceptions, local law of state where

conduct and injury occurred will be applied). In the present case, the

conduct, the accident and the injury occurred in Missouri. We hold the

district court correctly determined, under Missouri choice of law rules,

that Missouri had the most significant relationship to the accident and the

parties and thus correctly applied Missouri substantive law. 

To prove a negligence claim under Missouri law, the plaintiff must

establish 

(1) [a] legal duty on the part of the defendant to

conform to a certain standard of conduct to protect

others against unreasonable risks; (2) a breach of that

duty; (3) a proximate cause between the conduct and the

resulting injury; and (4) actual damages to the

claimant’s person or property.

Hoover’s Dairy, Inc. v. Mid-America Dairymen, Inc., 700 S.W.2d 426, 431

(Mo. 1985) (banc); see, e.g., Zafft v. Eli Lilly & Co., 676 S.W.2d 241, 244

(Mo. 1984) (banc). “‘But for’ [causation] is an absolute minimum for

causation because it is merely causation in fact.” Callahan v. Cardinal

Glennon Hospital, 863 S.W.2d 852, 862 (Mo. 1993) (banc).

Proximate cause requires something in addition to

a “but for” causation test because the “but for”

causation test serves only to exclude items that are not

causal in fact; it will include items that are causal in

fact but that would be unreasonable to base liability
 But cf. Archer v. Outboard Marine Corp., 908 S.W.2d 701, 702 3

(Mo. Ct. App. 1995) (rejecting claim that bass tournaments on

public lakes present an unreasonable danger of injury to the public

due to reckless operation of high-speed fishing boats).

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upon because they are too far removed from the ultimate

injury or damage. . . . 

. . . [T]he injury must be a reasonable and

probable consequence of the act or omission of the

defendant. This is generally a “look back” test but, to

the extent it requires that the injury be “natural and

probable,” it probably includes a sprinkling of

foreseeability. To the extent the damages are

surprising, unexpected, or freakish, they may not be the

natural and probable consequences of a defendant’s

actions. If the facts involved an extended scenario

involving multiple persons and events with potential

intervening causes, then the requirement that the

damages that result be the natural and probable

consequence of defendant’s conduct comes into play and

may cut off liability.

Id. at 865 (citations omitted); see, e.g., Ashley v. R.D. Columbia Assocs.,

54 F.3d 498, 501 (8th Cir. 1995) (applying Missouri law). 

We hold plaintiff could not establish as a matter of law that

defendants’ conduct in organizing the tournament-- the emphasis on

“breakneck” speed and the lack of tournament safety precautions-- actually

caused the fatal accident. Even assuming for purposes of analysis that

defendants, as the organizers of the tournament, had a duty to protect the

public from tournament-related hazards, in particular, the reckless

operation of high-speed fishing boats by tournament contestants, and that 3

defendants breached that duty, plaintiff could not establish any causal

connection between that breach and the accident under the undisputed facts.

Rather, the cause of the accident was Dunlap’s conduct, that is, his

failure to keep a proper lookout. It was undisputed that Dunlap was not

engaged in any tournament-related activity when the accident occurred. Not

only did the accident occur on a practice day when defendants had no

control over tournament contestants, it was
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undisputed that Dunlap had already finished practicing and was returning

home at the time the accident occurred. It was also undisputed that, at

the time the accident occurred, he was not racing his boat or timing

himself and thus was not engaged in a “timing run” to see how long it would

take to travel from a fishing spot to the tournament check-in point, which

was located several miles away from the accident site. 

Accordingly, we affirm the judgment of the district court.

A true copy.

Attest:

 CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.