### 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 (plain tiff) appeals from a final order entered in the United States District Court for the Western District of Misso uri granting 1 summary judgment in favor of B.A.S.S., Inc.,

### Dunla p reached a settlement with Horn and is no longer a 2 

### party in the present case.
-2- Texas B.A.S.S. Federation, Inc., and Missouri B.A.S.S. Anglers Sportsman Society Chapter Federation (defendants), and dis missing 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, plaintif f argues the district court erred in holding defen dants 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 tourname nts 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 fis h
on the l ake for the 14 days before the tournament except for the thre e 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 Dunl ap, a resident of Texas and a tournament contestant, collided wit h

2 Horn’s boat. Horn was not participating in the tournament. The accident occurred during the l ate afternoon. According to Dunlap’s deposition, he had finis hed practicing for the day and was returning home. He wa s approaching a fuel pier and had been looking to his right and watchin g another boat and some jet skis. He did not notice Horn’s boat off to his left, until just before the collision, when it w as about 60’ away. Dunlap attempted to turn his boat to the left, which is the wrong way according to boating safety reg ulations. It is undisputed that Dunlap’s failure to keep a proper lookout contributed to cause the fatal accident.

### -3- Plai ntiff filed this wrongful death action against defendants i n fed eral district court. Federal jurisdiction was based on diversity o f citizenship. Plainti ff alleged that defendants negligently organized the tourn ament by failing to protect the public from tournament-relate d hazards, in particular, the reckless operation o f high-speed fishing boats by tournament contest ants. Defendants moved for summary judgment, arguing that pl aintiff 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 contestan t
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 e vent on public waters, had
no du ty to take reasonable precautions to protect the public fro m foreseeable risks of harm. Plaintiff also argue s the district court erred in granting summary judgment because there were disputed issues of materia l fact as to the foreseeability of the risk of harm, cause and defendants’ degree of control over tournament contestants on practice days. Defendant s argue the district court correctly granted summa ry judgment in their favor because p laintiff could not establish as a matter of law either duty o r causation. For the reasons discussed below, we affirm the judgment of the district court but on a theory different from that employed by the distric t court. E .g., B.B. v. Continental Insurance Co. , 8 F.3d 1288, 1291 (8t h Cir. 1993) (noting court of appeals can affirm on basis other than those employed by trial cou rt). 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

### -4-

record, when viewed in the light most favorable to the non-moving party, shows that there is n o genuine issue as to any material fact and that the moving party is entit led 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 un resolved issues are primarily legal rather than factual, summar y judgmen t is particularly appropriate. E.g., Crain v. Board of Polic e Comm’rs , 920 F.2d 1402, 1405-06 (8th Cir. 1990).
As noted above, the district court applied Miss ouri substantive law. Jur isdiction over this matter is founded on diversity, and, because th e district court was lo cated 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., Bir nstill v. Home Savings of America , 907 F.2d 795, 797 (8th Cir

. 1990).

For to rt (and contract) claims, Missouri courts apply the “mos t signi ficant relationship” test found in the Restatement (Second) o f 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 , 74 6 S.W.2d 588, 590 (Mo. Ct. App. 1987)), cert. deni ed , 115 S. Ct. 428 (1994). “Under this test, the identity of the state having the most significan t 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 stat e where the injury occurred determines the right s and lia bilities of the parties, unless, with respect to th e particular issue, some other state has a mor e significant relationship . . . to the occurrence and the parties, in which event the local law of the other state will be applied.

### -5-

Restatem ent (Second) of Conflict of Laws § 146. “This formulatio n essent ially establishes a presumption that the state with the mos t 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, th e Restatement [(Second) of Conflict of Laws] principles are easy to apply.” Id., citin g Restatement (Second) of Conflict of Laws § 146 comment. d (noting that, subject only to rare exceptions, local law of state wher e conduct a nd injury occurred will be applied). In the present case, th e conduct, the accident and the injury occurred in Missouri. We hold th e district court correctly determined, under Missouri choice of law rules, that Missouri had the most significant relationship to the accident and th e 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 t o conf orm to a certain standard of conduct to protec t others against unreasonable risks; (2) a breach of that duty; ( 3) a proximate cause between the conduct and the resul ting injury; and (4) actual damages to th e claimant’s person or property.

Hoo ver’s Dairy, Inc. v. Mid-America Dairymen, Inc. , 700 S.W.2d 426, 43 1 (Mo. 1985) (banc); see, e.g., Zafft v. Eli Lilly & Co. , 676 S.W.2d 241, 24 4 (Mo. 1984) (banc). “‘But for’ [causation] is an absolute minimum fo r causation because it is merely causation in fact.” Callahan v. Cardinal Glennon Hospital , 863 S.W.2d 852, 862 (Mo. 1993) (banc).

Proxim ate cause requires something in addition to a “bu t for” causation test because the “but for ” causation test serves only to excl ude items that are not causal in fact; it will include it ems that are causal in fact but that would be unreasonable to base liability

### But cf. Arc her v. Outboard Marine Corp. , 908 S.W.2d 701, 702 3 

### (Mo

. Ct. App. 1995) (rejecting claim that bass tournaments o n public lakes present an unreasonable danger of injury to the public due to reckless operation of high-speed fishing boats).
-6- upon be cause they are too far removed from the ultimate injury or damage. . . .

. . . [T]he injury must be a reasonable an d probabl e consequence of the act or omission of th e defendant. This is generally a “l ook back” test but, to the extent it requires that the injury be “natural an d prob able,” it probably includes a sprinkling o f fore seeability. To the extent the damages ar e surprising, unexpected, or freakis h, they may not be the natural and probable consequences of a defendant’ s actions. If the facts involved an extended scenari o involving multiple persons and events with potentia l inte rvening causes, then the requirement that th e damag es that result be the natural and probabl e conse quence of defendant’s conduct comes into play an d 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 p laintiff could not establish as a matter of law tha t defendants’ conduct in organizing the tournament-- the emphasis o n “breakneck” speed and the lack of tournament saf ety precautions-- actually caused the fatal accident. Even assuming for purposes of analysis tha t defendants, as the organizers of the tournament, had a duty to protect the public from tournament-related hazards, in particular, the reckles s operation of high-speed fishing boats by tournament contestants, and that 3 defend ants breached that duty, plaintiff could not establish any causa l connection between that breach and the accident under the undisputed facts

. Rath er, the cause of the accident was Dunlap’s conduct, that is, hi s failure to keep a proper lookout. It was undisputed that Dunlap was not engaged in any tournament-related activity when the accident occurred. No t only d id the accident occur on a practice day when defendants had n o control over tournament contestants, it was

### -7-

undisputed that Dunlap had already finished practicing and was returning home at the time the accident occurred. It was also undisputed that, at the ti me the accident occurred, he was not racing his boat or timin g himself and thus was not engaged in a “timing run” to see how long it woul d take to travel from a fishing spot to the tourna ment 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.