1

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

ELECTRONIC CITATION: 2004 FED App. 0059P (6th Cir.)

File Name: 04a0059p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

JAMES KELLNER and LAURI

KELLNER, individually and as

next kin of Michael W.

Kellner, deceased; LAURI

KELLNER, individually and as

natural parent and next of kin

of Shawn June, a minor,

Plaintiffs-Appellants,

v.

BUDGET CAR AND TRUCK

RENTAL, INC., et al.; COMCAR

INDUSTRIES, INC., a/k/a M.D.

Transport Systems, Inc.,

Defendants,

CLAY HYDER TRUCKING

LINES, INC.; M.D. TRANSPORT

SYSTEMS, INC.; JOHN ZAFFER,

Administrator of the Estate of

Christopher N. Zaffer,

Defendants-Appellees.

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No. 02-5314

Appeal from the United States District Court

for the Eastern District of Tennessee at Knoxville.

2 Kellner, et al. v. Budget Car

and Truck Rental, et al.

No. 02-5314

No. 00-00336—Curtis L. Collier, District Judge.

Argued: September 17, 2003

Decided and Filed: February 26, 2004 

Before: BOGGS, Chief Judge; KRUPANSKY and CLAY,

Circuit Judges.

_________________

COUNSEL

ARGUED: PaulT. Gillenwater, GILLENWATER,NICHOL

& AMES, Knoxville, Tennessee, H. Forrest Horne, Jr.,

JONES, MARTIN, PARRIS & TESSENER, PLLC, Raleigh,

North Carolina, for Plaintiffs. Michael J. King, WOOLF,

McCLANE, BRIGHT, ALLEN & CARPENTER, Knoxville,

Tennessee, for Defendants. ON BRIEF: Paul T.

Gillenwater, GILLENWATER, NICHOL & AMES,

Knoxville, Tennessee, for Plaintiffs. Michael J. King, Tony

R. Dalton, WOOLF, McCLANE, BRIGHT, ALLEN &

CARPENTER, Knoxville, Tennessee, for Defendants.

_________________

OPINION

_________________

KRUPANSKY, Circuit Judge. James and Lauri Kellner,

appearing individually and as next of kin, have appealed the

district court’s summary dismissal of their negligence suit

against three party-defendants – John Zaffer, administrator of

the estate of Christopher Zaffer (“Zaffer”), M.D. Transport

Systems, Inc. (“MDTS”) and Clay Hyder Trucking Lines, Inc.

(“CHTL”) – arising from a motor vehicle accident on the

Tennessee interstate. The Kellners have contended that

defendants negligently and proximately caused the accident
No. 02-5314 Kellner, et al. v. Budget Car

and Truck Rental, et al.

3

1

Zaffer owned the parked and disabled 1991 Freightliner commercial

truck-tractor struck by Rupe. In 1999 Zaffer had leased his tractor to

appellee M.D. Transport Systems and had begun hauling freight for

MDTS; however, at the time of the accident Zaffer was hauling a load for

defendant-appellee Clay Hyder Trucking Lines, Inc.

2

Appellants contend that Zaffer’s tractor-trailer was stopped one foot

from the fog line which separates the travel lanes of the interstate from the

emergency breakdown lane. The evidence indicates that the rig was at

least one foot from the line and may, perhaps, have been further, but the

impact of the accident moved the truck several feet making estimations

difficult. 

by leaving a tractor-trailer parked in the emergency

“breakdown” lane along the shoulder of the interstate. For the

reasons discussed below, this Court affirms the order of

summary judgment.

On the morning of October 23, 1999, Christopher Zaffer

was driving his tractor-trailer westbound on Interstate 40 in

Jefferson County, Tennessee, when his rig began

experiencing mechanical problems and became disabled.1

Zaffer drove the vehicle into the emergency lane of the

interstate and there is no dispute between the parties that both

Zaffer’s tractor and trailer were completely within the

“breakdown” lane with no portion of the rig protruding into

or overlapping onto the travel lanes of the interstate.

2

Zaffer placed the orange-triangle warning devices required

by Tennessee statute and federal regulation behind the tractortrailer to signal to approaching traffic that his rig was

disabled. The weather conditions were clear and the roadway

was dry. The section of I-40 on which Zaffer’s rig became

disabled provided three lanes for motorists traveling either

east or west. According to record testimony the tractortrailer could be seen by approaching westbound motorists

from a distance of at least 1,000 feet. 

4 Kellner, et al. v. Budget Car

and Truck Rental, et al.

No. 02-5314

 Zaffer was under or near the tractor-trailer, shortly before

3:30 p.m., when Diane Rupe was driving westbound on I-40

in a Ford truck with a 24-foot cargo box, rented from Budget

Car & Truck Rental, Inc. (“Budget”). Behind the Ford truck,

Rupe towed a minivan. In the passenger cab, along with

Rupe, were her grandsons Michael Kellner and Shawn June,

ages 1 and 10 respectively. 

Tragically, the Budget truck driven by Rupe left the far

right travel lane of traffic, moved into the emergency lane,

and collided with Zaffer’s parked tractor-trailer. As a result

of the collision, Michael Kellner, Rupe and Zaffer were

killed, while Shawn June sustained injuries requiring

hospitalization. 

On June 6, 2000, plaintiffs-appellants James and Lauri

Kellner, the parents of Michael Kellner and Shawn June, filed

a negligence complaint in the district court against MDTS and

Comcar Industries (“Comcar”). Appellants later amended

their complaint to add as defendants: Zaffer’s estate, CHTL,

Jeannie Denniston – the administrator of the estate of Diane

Rupe – and State Farm Insurance Company (“State Farm”),

Rupe’s uninsured/underinsured motorist insurance carrier.

On September 20, 2000, the parties agreed by stipulation to

dismiss Comcar from the action.

On November 29, 2001, Zaffer, MDTS and CHTL filed a

motion for summary judgment; State Farm filed a motion for

summary judgment on December 14, 2001. On February 11,

2002 in a memorandum and order, the district court granted

defendants’ motions, concluding that, as a matter of law, the

defendants’ actions were not the proximate cause of the
No. 02-5314 Kellner, et al. v. Budget Car

and Truck Rental, et al.

5

3

The plaintiffs did not respond to State Farm’s motion for summary

judgment. State Farm’s potential for liability rested solely on the

testimony of a witness who speculated that Rupe had to take evasive

action to avoid a vehicle swerving toward Rupe on her left and causing

her to strike the tractor-trailer. This testimony was later recanted by the

witness as pure speculation and no corroborating testimony emerged to

support the witness’s earlier statement. Because the plaintiffs did not

contest State Farm’s position the court granted the State Farm motion and

dismissed State Farm from the lawsuit. See E.D. TN. LR 7.2 (“Failure to

respond to a motion may be deemed a waiver of any opposition to the

relief sought.”). 

4

On March 22, 2002, because there were other claims and crossclaims remaining for adjudication in the instant case, the Clerk of the

Sixth Circuit entered an Order for the plaintiffs to show cause why their

appeal should not be dismissed for lack of a final appealable order. The

show cause order was withdrawn on May 6, 2002 after the district court

approved a settlement of all remaining claims in the action, leaving the

only remaining issues in the case as those between appellees and

appellants. Gillis v. United States Dep’t of Health and Human Serv., 759

F.2d 565, 568-69 (6th Cir. 1985) (an appeal from an order disposing of

fewer than all claims in a civil action invokes appellate jurisdiction if final

judgment is entered in the underlying action during the pendency of the

appeal).

appellants injuries and damages.

3

 On February 25, 2002,

appellants filed a timely notice of appeal to this Court.

4

This Court reviews de novo the order granting summary

judgment to appellees Zaffer, MDTS and CHTL. See Virts v.

Consolidated Freightways Corp. of Delaware, 285 F.3d 508,

516 (6th Cir. 2002). 

As the forum state, Tennessee precedent provides that a

plaintiff bringing a negligence action must prove: “(1) a duty

of care owed by the defendant to the plaintiff; (2) conduct

falling below the applicable standard of care amounting to a

breach of that duty; (3) an injury or loss; (4) causation in fact;

and (5) proximate, or legal cause.” Bennett v. Putnam

County, 47 S.W.3d 438, 443 (Tenn. Ct. App. 2000) (quoting

6 Kellner, et al. v. Budget Car

and Truck Rental, et al.

No. 02-5314

McClenhan v. Cooley, 806 S.W.2d 767, 774 (Tenn. 1991)).

See also McCall v. Wilder, 913 S.W.2d 150, 153 (Tenn.

1995); Bradshaw v. Daniel, 854 S.W.2d 865, 869 (Tenn.

1993). Recovery in a negligence action may occur only if the

plaintiff can prove that the defendants’ conduct was negligent

and was the proximate cause of plaintiffs’ injury. Tennessee

Trailways, Inc. v. Ervin, 438 S.W.2d 733, 735 (Tenn. 1969);

Lancaster v. Montesi, 390 S.W.2d 217, 220 (Tenn. 1965).

Tennessee courts have repeatedly stated that negligence is not

presumed from the mere fact of an accident or injury.

Williams v. Jordan, 346 S.W.2d 583, 586 (Tenn. 1961); De

Glopper v. Nashville Ry. & Light Co., 134 S.W. 609, 611

(Tenn. 1911); Armes v. Hulett, 843 S.W.2d 427, 432

(Tenn.Ct.App.1992).

In the instant case, the district court determined that as a

matter of Tennessee law a reasonable jury could conclude that

Zaffer had breached his duty by not moving the rig to a safer

location in the five hours prior to the accident. However, in

granting the motion for summary judgment the court

concluded that, as a matter of law, none of the movants –

Zaffer, MDTS, or CHTL – provided the proximate cause of

the accident. 

Based upon the undisputed facts that Zaffer’s rig rested

completely off the active traffic lanes of the interstate and was

plainly visible for a distance of over 1,000 feet, the district

court reasoned that “a reasonable jury would have to conclude

Rupe could see the rig prior to the accident.” Consequently,

the court concluded that Rupe’s actions in leaving the travel

lanes and crashing into Zaffer’s rig were the proximate cause

of plaintiffs’ losses. In so deciding, the court relied upon

Carney v. Goodman, 270 S.W.2d 572, 576 (Tenn. Ct. App.

1954), which concluded that “the negligence of one in

obstructing the highway by a standing vehicle was superseded

by another's negligence in running into such vehicle, and that

the latter's negligence was the proximate cause of the

accident.” See also Dunnivant v. Nafe, 334 S.W.2d 717, 719
No. 02-5314 Kellner, et al. v. Budget Car

and Truck Rental, et al.

7

(Tenn. 1960). Thus, in the instant case, while the district

court concluded that a reasonable jury could find Zaffer

negligent in not removing his rig from the shoulder of the

interstate before the accident occurred, the court nevertheless

held that plaintiff Rupe had provided the proximate cause

pursuant to the standard determined in Carney: “Did the

driver running into the standing vehicle see it in time to

enable him, by use of due care, to avoid the collision? If he

did not, his negligence is merely a contributory cause; if he

did, his negligence is the proximate cause.” Carney v.

Goodman, 270 S.W.2d at 576.

Further, the district court stated that through Carney

“Tennessee [has] adopted a special rule about proximate

causation in standing vehicle cases such as the present one.”

While the general rule in Tennessee, that the foreseeability of

an intervening, superseding act presents a jury question, the

Carney court adopted a special rule in standing vehicle cases,

which the district court applied in the present case, noting that

“[u]nder this rule it is unforeseeable as a matter of law

someone would drive into a plainly visible standing vehicle.”

The Carney opinion noted that “[t]he operator of a vehicle

that crashes into a vehicle negligently left standing in an

unsuitable stopping place provides the proximate cause of any

resulting injuries if she could see the standing vehicle in time

to avoid a collision.” Id. 

On appeal, the plaintiffs aver that summary judgment is

inappropriate in the instant case where facts regarding the

foreseeability requirement of proximate causation are in

dispute. Specifically, the appellants maintain that Zaffer’s

negligence was the proximate cause of the tragic accident

because, by parking his disabled vehicle on the shoulder of

the interstate and not moving it during the five hours

preceding the accident, Zaffer could foresee through the

exercise of reasonable diligence that injury or loss could or

would occur. However, appellants’ reliance upon such a

broad definition of foreseeability fails to comport with

8 Kellner, et al. v. Budget Car

and Truck Rental, et al.

No. 02-5314

5

§ 55-8-158. Stopping or parking on roadways

(a) Upon any highway outside of a business or residential

district, no person shall stop, park, or leave standing any vehicle,

Tennessee negligence law and, consequently, fails to prove

that the district court erred in granting summary judgment to

appellees.

Pursuant to Tennessee negligence law, once it is

determined that the defendant owed the plaintiff a legal

obligation to conform to a reasonable person standard of

conduct, i.e., a duty--the question becomes whether defendant

failed to exercise reasonable care under the circumstances,

i.e., whether defendant breached the duty. In a negligence

action, the standard of conduct is always the same. It is a

standard of reasonable care in light of the apparent risk. See

Pittman v. Upjohn Co., 890 S.W.2d 425, 428 (Tenn. 1994)

(“As in all cases, there is a duty to exercise reasonable care

under the circumstances.”); Bradshaw v. Daniel, 854 S.W.2d

at 870 (“All persons have a duty to use reasonable care to

refrain from conduct that will foreseeably cause injury to

others.”). If defendant does not exercise reasonable care,

defendant has breached the duty. Doe v. Linder Const. Co.,

Inc., 845 S.W.2d 173, 178 (Tenn. 1992).

Upon this court’s review, the record evidence indicates that,

contrary to the district court’s determination, Zaffer did not

breach any duty of care. Tennessee has codified the standard

of care for parking a disabled vehicle by making certain

conduct illegal and by requiring drivers of commercial

vehicles to take certain safety precautions when their vehicles

break down. Vehicles left standing on “any highway outside

of a business or residential district” must be parked off of the

“paved or main-traveled part of the highway” and must be

positioned to allow “a clear view of [the vehicle] from a

distance of 200 feet. Tenn. Code Ann. § 55-8-158 (1998)5;
No. 02-5314 Kellner, et al. v. Budget Car

and Truck Rental, et al.

9

whether attended or unattended, upon the paved or main-traveled

part of the highway when it is practicable to stop, park or so

leave such vehicle off such part of the highway, but in every

event an unobstructed width of the highway opposite a standing

vehicle of not less than eighteen feet (18') shall be left for the

free passage of other vehicles, and a clear view of such stopped

vehicles shall be available from a distance of two hundred feet

(200') in each direction upon such highway.

(b)(1) This section shall not apply to the driver of any vehicle

which is disabled while on the paved or main-traveled portion of

a highway in such manner and to such extent that it is impossible

to avoid stopping and temporarily leaving such disabled vehicle

in such position.

Tenn. Code § 55-8-158.

see also Fergus v. Action Cartage & Distrib., 1990 WL

43463, *6 (Tenn. Ct. App. April 17, 1990) (unpublished)

(explaining the “main-traveled part of the highway” does not

include the shoulder). Drivers of disabled commercial

vehicles must place warning devices specified distances

behind their vehicles. See Tenn. Code § 55-9-103. While

neither Tennessee law nor federal regulations limit the

amount of time a disabled commercial vehicle may remain on

the side of a roadway, Tennessee statute permits vehicles to

be towed only after they have been immobile or unattended

for at least twelve hours. See Tenn. Code § 55-16-111 (“[A]

vehicle may not be towed without authorization by the owner

of the vehicle until twelve (12) hours have passed since it was

first observed to be immobile or unattended unless such

vehicle is creating a hazard.”). 

The district court found that none of the defendants

breached a statutory or regulatory duty of care owed to the

plaintiffs. The evidence disclosed that Zaffer did not violate

any of Tennessee’s traffic provisions relating to disabled

vehicles. Additional testimony by the Tennessee Highway

Patrol also indicated that, as a practice, they do not remove

abandoned vehicles from the shoulder of the interstate until

10 Kellner, et al. v. Budget Car

and Truck Rental, et al.

No. 02-5314

6

See also Carr v. Ozburn-Hessey Storage Co., 1996 WL 383295

(Tenn. Ct. App. July 10, 1996) (unpublished), in which the State appellate

court dismissed a case similar to the one at bar, noting: 

forty-eight hours after the vehicles were first observed. Zaffer

had been on the shoulder of the interstate no longer than five

and a half hours according to the appellants’ own expert and

he had not abandoned the tractor-trailer. 

However, the district court concluded that Zaffer had

breached his common-law duty of care, predicated on its

reading of Maddux v. Bush, No. 86-183-II, 1987 WL 4845

(Tenn. Ct. App. May 27, 1987) (unpublished). In Maddux,

the court discussed the common law standard of care for a

motorist who stops a vehicle in the road. Maddux opined

that it was not necessarily negligent to temporarily stop a

vehicle on a road for a legitimate purpose, but the driver had

the duty to select a suitable stopping place and to give

adequate warning to other motorists when necessary.

According to Maddux, the suitability of a stopping place

depended on a number of factors, including whether the

vehicle was reasonably capable of being moved to a safer

location. 

In the instant case, the district court found a genuine issue

existed with regard to whether Zaffer could have moved his

rig to a safer location. However, this Court is persuaded

otherwise and concludes that defendants’ actions did not

result in the breach of a duty of care. The question of whether

a vehicle can reasonably be moved to a safer location should

be asked when, as was the case in Maddux, the vehicle has

been parked in a dangerous location such as in the roadway.

 The rule that gives rise to this question states that “a driver

should not stop his vehicle in a dangerous place when it can

be moved to safer one.” Id. at *3 (citing Barr v. Charley, 387

S.W.2d 614, 616 (Tenn. 1954) (car with flat tire was left

parked partially in roadway at night)).6 Consequently, Zaffer
No. 02-5314 Kellner, et al. v. Budget Car

and Truck Rental, et al.

11

It is the opinion of this court that the undisputed facts establish

that Ms. Carr's negligence was greater than that of Mr. Guffy.

No reasonable jury could find that Mr. Guffy, who drove a

heavily loaded truck approximately twenty to twenty-five miles

per hour on an uphill slope from an almost complete stop, was

more negligent than Ms. Carr, who failed to notice a fully lit

tractor-trailer on a familiar, unobstructed stretch of highway in

clear weather until it was too late to avoid crashing into it. The

evidence that Ms. Carr's negligence was equal to or greater than

that of Mr. Guffy is overwhelming. Reasonable minds could not

differ as to the legal conclusions that must be drawn. Therefore,

the issue of apportionment of fault was properly withdrawn from

the jury and determined by the court as a matter of law.

did not breach his common-law duty of care pursuant to

Maddux when he parked his rig completely off the travel

lanes, in a highly visible position, and placed warning devices

behind his tractor-trailer in compliance with state regulations.

A breach of defendants’ duty of care is an essential element

of the Kellners’ claim in this negligence action. Summary

judgment is appropriate when an essential element of

negligence is missing. Doe, 845 S.W.2d at 183. In this case,

the Kellners presented no proof as to how the defendants

breached their duty to maintain proper clearance on the travel

lanes of the interstate when parking their disabled vehicle. In

failing to do so, the Kellners have failed to prove an essential

element of their negligence claim and cannot demonstrate a

prima facie case of negligence. Consequently, this court

concludes that, as a matter of law, defendants did not breach

any statutory or common-law duty. 

Moreover, consonant with the district court’s

determination, defendants’ actions were not the proximate

cause of the plaintiffs’ injuries. To sustain proximate cause,

a plaintiff must prove “(1) the tortfeasor’s conduct must have

been a ‘substantial factor’ in bringing about the harm being

complained of; and (2) there is no rule or policy that should

relieve the wrongdoer from liability because of the manner in

12 Kellner, et al. v. Budget Car

and Truck Rental, et al.

No. 02-5314

7

The facts proving foreseeability included proof that industry

standards had called for installation of the safety bars omitted by the State,

proof that the State’s own plans for construction of the highway in

question called for the safety barriers, and proof that the State had notice

of six accidents at the same location during the three years preceding the

specific incident in Goodermote.

which the negligence had resulted in harm; and (3) the harm

giving rise to the action could have reasonably been foreseen

or anticipated by a person of ordinary intelligence and

prudence.” McClenhan v. Cooley, 806 S.W.2d at 775. See

also Lowery v. Franks, 1997 WL 566114 (Tenn. Ct. App.

Sept. 10, 1997) (unpublished) at *5. “[P]roximate causation

is a jury question unless the uncontroverted facts and

inferences to be drawn from them make it so clear that all

reasonable persons must agree on the proper outcome.” Id.

See also Waste Mgmt. Inc. of Tennessee v. South Cent. Bell

Tel. Co., 15 S.W.3d 425, 430 (Tenn. Ct. App. 1997)

(discussing proximate cause as a policy decision by the

judiciary to deny liability for otherwise actionable conduct by

requiring courts to define the boundary of legal liability using

mixed considerations of logic, common sense, justice, policy,

and precedent).

The appellants rely upon the discussion of proximate cause

and foreseeability in Goodermote v. State of Tennessee, 856

S.W.2d 715 (Tenn. Ct. App. 1993) for support of the

proposition that the district court erred in applying the Carney

test to the present case. Such reliance is, however, misplaced.

Goodermote involved a single-car accident in which the

vehicle veered off the highway and rolled down an

embankment, injuring the plaintiff. In that case, the court

concluded that the State’s failure to install safety features

along the highway was the proximate cause of plaintiff’s

injury because the State should have reasonably foreseen that

a driver could leave the roadway and sustain injuries as a

result of an omitted safety feature.7 The court concluded that:
No. 02-5314 Kellner, et al. v. Budget Car

and Truck Rental, et al.

13

[T]he plaintiff is not required to show that the State could

foresee the specific facts of the accident before plaintiff

can recover . . . . It was necessary only that the plaintiff

establish that the State could have foreseen the general

manner in which the injury or loss occurred . . . There is

no requirement that a cause, to be regarded as the

proximate cause of an injury, be the sole cause, the last

act, or the nearest to the injury, provided it is a

substantial factor in producing the end result . . . . We

think that the evidence clearly shows that the negligence

of the State in failing to follow its own plans regarding

installing a safety barrier was a substantial factor in

producing the injuries which the plaintiff sustained.

Goodermote, 865 S.W.2d at 72. While the Goodermote court

correctly stated the general rule for determining proximate

cause in Tennessee, pursuant toCarney, the State had adopted

a specific rule for determining proximate cause and

foreseeability in claims involving standing vehicles, such as

the instant case. Carney, 270 S.W.2d at 63-64. 

Appellants have further contended that since Zaffer could

foresee the possibility that a car would leave its lane and

strike his rig then his actions were the proximate cause of the

accident. Appellants’ broadly construed notion of

foreseeability leads, however, to logical absurdities and fails

to comport with Tennessee judicial precedent. Thus, under

the appellants’ scheme a driver legally traveling in her own

lane, who is hit by another vehicle that crossed into that

driver’s lane, could be held liable for negligence because it

was foreseeable that vehicles leave their lanes of traffic. 

Tennessee precedent construes foreseeability more

narrowly than plaintiffs suggest. In Underwood v.

Waterslides of Mid-America, 823 S.W.2d 171, 180 (Tenn. Ct.

App. 1991), the court discussed foreseeability in the context

of a superseding, intervening cause:

14 Kellner, et al. v. Budget Car

and Truck Rental, et al.

No. 02-5314

The essence of the rule as to independent intervening

cause is whether the subsequent successive acts and

injuries were probable and therefore to be anticipated. . . .

Our Supreme Court has explained that the test of liability

under the law of intervening cause requires a person to

anticipate or foresee what would normally happen; one

is not required to anticipate and provide against what is

unusual or unlikely to happen, or that which is only

remotely possible.

Id. at 180. Pursuant to this standard, the district court

correctly determined it was not foreseeable, within the

meaning of Tennessee law, that Rupe, with an extended

unobstructed view of Zaffer’s tractor-trailer, would leave

three travel lanes of interstate and strike the rig that was

parked completely within the emergency breakdown lane.

The appellants have additionally argued that the district

court erred in applying the Carney test because the

subsequent decision in McIntyre v. Ballentine, 833 S.W.2d 52

(Tenn. 1992), altered Tennessee negligence law by replacing

contributory negligence with a system of comparative fault.

Yet, as the Tennessee Supreme Court has emphasized, “the

question is: assuming that both plaintiff and defendant have

been found guilty of negligent conduct that proximately

caused the injuries, was the fault attributable to plaintiff

equal to or greater than the fault attributable to the

defendant.” Eaton v. McLain, 891 S.W.2d 587, 590 (Tenn.

1994). Because this court has determined that the defendants’

actions were not negligent, the issue of comparative fault is

inapplicable. 

Moreover, in light of Eaton’s directive, it is important to

note that while the district court failed to consider

comparative negligence in its determination, it did not need

to do so because the district court did not conclude that Zaffer

was “guilty of negligent conduct that proximately caused the

injuries.” Id. Instead it only concluded that a fair-minded
No. 02-5314 Kellner, et al. v. Budget Car

and Truck Rental, et al.

15

jury could have found that Zaffer’s rig was reasonably

capable of being moved to a safer location. This was a

finding of a possible breach of duty and not a finding of

proximate cause. Consequently, under Eaton, a comparative

negligence analysis was not legally necessary to the district

court’s grant of summary judgment.

In light of the aforementioned, this Court concludes that the

defendants’ actions did not give rise to a breach of a duty of

care and that as a matter of law Rupe’s actions provided the

proximate cause of plaintiffs’ losses and, therefore, affirms

the district court’s grant of summary judgment.