FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

OCTOBER 1, 2009

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 09-10894

Non-Argument Calendar

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D. C. Docket No. 07-22048-CV-MGC

RONALD DE JESUS PALMA,

JACQUELINE PALMA,

Plaintiffs-Appellants,

versus

BP PRODUCTS NORTH AMERICA, INC.,

Defendant-Appellee.

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Appeal from the United States District Court

for the Southern District of Florida

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(October 1, 2009)

Before CARNES, WILSON and PRYOR, Circuit Judges.

PER CURIAM:
Ronald and Jacqueline Palmas appeal the summary judgment in favor of BP

Products and against the Palmas’ complaint of negligence. The district court ruled

that the alleged negligence of BP was not the proximate cause of Ronald Palma’s

injuries. We affirm.

The Palmas’ complaint stems from personal injuries Ronald Palma received

after he confronted a man who damaged the Palmas’ vehicle while moving his

vehicle to an adjacent fuel pump at a BP gas station in Miami, Florida. The Palmas

drove their vehicle to the BP gas station and Ronald Palma walked into the

convenience store to prepay for gasoline. Meanwhile, a man driving a Nissan

Xterra sport utility vehicle attempted to siphon gas from two fuel pumps near the

Palmas’ vehicle. When Ronald returned to his fuel pump, the driver of the Nissan

demanded that Ronald share his gas, and Ronald refused politely. Ronald returned

to the store to collect his change, and another man succeeded in siphoning fuel

from a third pump and motioned for the driver of the Nissan to join him. The

Nissan struck the Palmas’ car en route to the third pump, but the driver of the

Nissan did not acknowledge the incident. Jacqueline Palma confronted the driver

of the Nissan, but he denied responsibility for the damage and cursed Jacqueline.

Jacqueline reported the incident to Ronald and he confronted the driver of the

Nissan. When the driver refused to discuss the matter, Ronald dialed 911 on his

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cellular telephone, and someone yelled, “[T]his asshole called the cops.” The

driver of the Nissan and two cohorts attacked Ronald, repeatedly punching him and

kicking him, and then fled. Ronald suffered a detached retina and lost vision in his

right eye.

The Palmas’ complaint alleged that the BP gas station was in a high crime

area and BP was negligent for failing to staff adequately the Miami gas station;

train personnel; provide personnel with adequate visibility of the gas station; warn

invitees of the danger posed by third parties; and install a security system to deter

crime. The complaint sought damages for the personal injuries to Ronald and the

loss of consortium to Jacqueline, but not for any property damage to their vehicle.

BP moved for summary judgment and argued that the incident was not foreseeable

and any negligence of BP was not the proximate cause of the personal injury to

Ronald Palma. The district court granted summary judgment in favor of BP.

We review a summary judgment de novo and view the evidence in the light

most favorable to the nonmoving party. Twin City Fire Ins. Co. v. Ohio Cas. Ins.

Co., 480 F.3d 1254, 1258 (11th Cir. 2007). Summary judgment should be entered

when there is no genuine issue of material fact and the moving party is entitled to

judgment as a matter of law. Fed. R. Civ. P. 56(c).

Under Florida law, which the parties agree applies, the alleged negligence of

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BP must be the proximate cause of the Palmas’ injuries for the Palmas to recover.

See Clay Elec. Coop., Inc. v. Johnson, 873 So. 2d 1182, 1185 (Fla. 2003) (listing

as an element of a cause of action based on negligence “[a] reasonably causal

connection between the conduct and the resulting injury”). The Supreme Court of

Florida has explained that foreseeability is crucial to evaluating proximate cause

and the absence of foreseeability can foreclose liability.

[W]e have said that harm is “proximate” in a legal sense if prudent

human foresight would lead one to expect that similar harm is likely

to be substantially caused by the specific act or omission in question.

In other words, human experience teaches that the same harm can be

expected to recur if the same act or omission is repeated in a similar

context. . . .

On the other hand, an injury caused by a freakish and

improbable chain of events would not be “proximate” precisely

because it is unquestionably unforeseeable, even where the injury may

have arisen from a zone of risk. The law does not impose liability for

freak injuries that were utterly unpredictable in light of common

human experience.

McCain v. Fla. Power Corp., 593 So. 2d 500, 503 (Fla. 1992). Although the issue

of foreseeability is ordinarily a question of fact for a jury to resolve, it may be

decided by a court “when facts are unequivocal, such as where the evidence

supports no more than a single reasonable inference.” Id.; see also Roberts v. Shop

& Go, Inc., 502 So. 2d 915, 917 (Fla. Dist. Ct. App. 1986) (“[F]oreseeability may .

. . be determined as a matter of law in the circumstance where, as here, the

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intervening act is merely possible rather than probable.”) (internal quotation marks

omitted).

The district court did not err when it granted summary judgment in favor of

BP. Any alleged negligence by BP was not the proximate cause of Ronald Palma’s

personal injuries. BP could not have forseen that a thief would damage Palma’s

vehicle and later assault Palma when he sought the assistance of law enforcement.

That chain of events was freakish and improbable.

The summary judgment in favor of BP is AFFIRMED.

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