Glover ex rel. Glover v. Jackson State University

ON MOTION FOR REHEARING

DICKINSON, Justice,

for the Court.

¶ 1. The motion for rehearing is denied. The original opinions are withdrawn, and these opinions are substituted therefor.

¶ 2. This fourteen-year-old case has a curious and interesting history which will not end with today’s decision. The matter presented for review is a summary judgment granted to Jackson State University (“JSU”) in a suit for damages caused to a fourteen-year-old girl who was raped by two fifteen-year-old boys on JSU’s campus. The issue presented and briefed by the parties is whether JSU bears any legal responsibility for the rapes.

FACTUAL BACKGROUND

¶ 3. The National Youth Sports Program (“NYSP”) was established in 1969 for the purpose of providing sports programs for economically disadvantaged children across the United States. The NYSP operates under the auspices of the National Collegiate Athletic Association to administer federal funding and provide guidelines to 160 institutions of higher education which, in turn, host and operate the programs.

¶ 4. For several years up to and including 1993, JSU hosted, staffed, and operated a NYSP program on its campus. JSU employee L.V. Donnell served as Activity Director of the 1993 NYSP program at JSU. Lohorace Cannada and Chris Chase, both fifteen years old, had participated in the program at JSU for several years. Both boys had been involved in numerous fights on the NYSP bus and on the JSU campus. In 1992, Cannada was expelled from the NYSP program because of his fighting. Chase also had been involved in numerous fights, prompting the staff to threaten to expel him from the program.

¶ 5. The NYSP bus was leased to JSU by C.H. Epps, and was driven by the driver for the NYSP program, Douglas Luster, who picked up the children each day. Luster also worked in the NYSP program on the JSU campus as a Senior Aide. Luster testified that he was aware of the two boys’ violent history. He also testified that his most important job was to supervise the children in the NYSP program. JSU had instructed that, once the children got on the bus, he was responsible for delivering the children to JSU, and that the program was responsible for the children from the time they boarded the bus.

¶ 6. On Monday, June 14, 1993, the children were assembled in the Athletic and Assembly Center (“AAC”) on the JSU campus. One of the boys approached Luster to inform him that a girl was in the boys’ restroom. Luster went to the hallway outside the restroom and found fourteen-year-old Malikah Glover and another girl standing outside the boys’ restroom. When both girls denied being in the boys’ restroom, Luster ordered everyone to clear the hallway, but conducted no further investigation, even though the boy who had reported the incident continued to insist that the girls were not telling the truth. Cannada was later to testify that he and Glover had, in fact, been in the boys’ bathroom having sex on that occasion.

¶ 7. Cannada testified that, at around 7:00 a.m. on the morning of Friday, June 18, 1993, the bus (with Luster driving) picked him up in front of his house to take him to the program. Chase and Glover were on the bus. Cannada stood next to Luster, and they talked as he drove the bus to the JSU campus. In addition to Luster’s knowledge that both Cannada and Chase had a violent history, the record also reflects that, during the ten months preceding the rape, sixty-three crimes were reported to have occurred on the JSU campus, twenty-one of which were violent crimes and four of which were rape and sexual battery.

¶ 8. According to Cannada, Luster arrived on campus with the children around 7:30 a.m. and dropped them off at the AAC building, where the boys’ restroom incident had occurred on the previous Monday. However, upon learning that he had dropped the children off at the wrong building, he told them to get back on the bus. Luster did not notice that Glover, Cannada, and Chase did not get back on the bus. Leaving the three children behind unattended and unsupervised, Luster drove away, taking the other children to the old gym, where the children were supposed to be. Soon thereafter, Cannada and Chase took Glover into a building and raped her. After Glover reported the rape, Cannada and Chase were arrested, and both boys pleaded guilty.

¶ 9. Notwithstanding that its own bus driver had left the three children on campus, unattended and unsupervised, JSU informed parents by letter dated June 21, 1993, (three days after the rape occurred) that they should not drop off their children on the JSU campus before 10:30 a.m. because JSU had no supervision or security prior to that time. Furthermore, the NCAA informed JSU by letter dated June 28, 1993, that it was in violation of federal guidelines with respect to proper staffing of the NYSP program at JSU.

PROCEDURAL HISTORY

¶ 10. The procedural history of this case was set forth in meticulous detail seven years ago in Presiding Justice Waller’s majority opinion in Glover v. Jackson State Univ., 755 So.2d 395 (Miss.2000) (“Glover I ”). Glover filed suit against numerous defendants, including Epps, Luster, and JSU. All the defendants have been dismissed by summary judgment and collateral estoppel, with the exception of JSU, and this Court reversed the summary judgment granted to JSU, and remanded to the trial court

for a determination of the liability of JSU, such liability being contingent upon whether JSU had in effect a policy of liability insurance which would cover a tort suit for Glover’s injuries.

Id. at 404-05. In reaching its conclusion, the Glover I majority noted that Glover’s injuries

occurred on June 18, 1993, prior to the waiver of sovereign immunity for the state and its political subdivisions. The Tort Claims Act took effect in April, 1993, but immunity was not waived for the state until July 1, 1993. Therefore, this case is governed by Gressett v. Newton Separate Mun. Sch. Dist., 697 So.2d 444 (Miss.1997). In Gressett, this Court held that a school district was immune from suit in a tort that arose after the April 1993 date of the Mississippi Tort Claims Act, but before immunity was waived for the state’s political subdivisions on October 1, 1993. Id. at 446.

However, our holding in Gressett is tempered by the recent decision in Lincoln County Sch. Dist. v. Doe, 749 So.2d 943 (Miss.1999), where we held that, pursuant to § 11-46-16(2) of the Tort Claims Act, a governmental entity which has in effect a policy of liability insurance which covers the tort sued upon will waive immunity to the extent of the liability coverage.

755 So.2d at 400.

¶ 11. In briefing Glover I, JSU did not deny that a policy of liability insurance was in force, but rather argued that the policy “was not provided for or approved by the Board of Trustees of State Institutions of Higher Learning,” but that it “was provided by the National Youth Sports Program as part of the agreement between it and JSU.” Id. at 401. This Court rejected JSU’s argument, finding that such approval was not required for the waiver of immunity provided under Section 11-46-16(2) of the Mississippi Code. Id. The Glover I Court then pointed out that “the issue of whether the insurance policy in dispute would cover Glover’s injuries was not addressed by the trial court and, therefore, [was] not properly before this Court....” Id. Thus, we remanded “to the trial court for such a determination.” Id.

¶ 12. With respect to the suit against Luster and Epps, the Glover I majority noted:

Before Glover’s third complaint was filed, Epps’ liability insurance carrier, National Fire & Marine Insurance Company, filed a declaratory judgment action (Civil Action No. 3:96cvl76BN) in the United States District Court for the Southern District of Mississippi, Jackson Division, against Epps d/b/a Ace Rental Service, Luster and Glover. National Fire claimed that its policy did not provide coverage to Epps for the payment or defense of Glover’s claims in state court. United States District Judge William H. Barbour, Jr., granted National Fire’s motion for summary judgment, ruling that National Fire was not liable to Glover and had no duty to defend Epps and Luster in the state actions. Judge Barbour stated, “Glover has submitted no evidence that the bus driver could have foreseen that the male students on the bus would rape Glover when he transported the youths to the wrong location. In the present case, the Court finds that no jury could reasonably find that the intervening criminal act was foreseeable.” National Fire & Marine Ins. Co. v. Epps, et al., No. 3:96cv176BN (S.D.Miss.), aff'd mem., 127 F.3d 35 (5th Cir.1997). After the federal court made the ruling, Epps and Luster added res judicata and/or collateral estoppel claims to their motions for summary judgment pending in state court. Judge Hilburn granted all the defendants’ motions for summary judgment, from which ruling Glover appeals. Judge Hilburn denied the motion to change the dismissal of the consolidated cases to one with prejudice and/or award attorney fees, from which ruling defendants appeal. The cases were consolidated on appeal to this Court.

Glover I, 755 So.2d at 397-98. Because of the federal court’s decision, the Glover I majority held that this Court was collaterally estopped from allowing the case to go to trial against Epps and Luster.

¶ 13. The remand in Glover I was handed down on January 27, 2000. We are not told what transpired over the next five years, but on July 8, 2005, JSU filed a new motion for summary judgment which failed to address this Court’s instruction in Glover I regarding liability insurance coverage. JSU’s motion presented to the trial court deals with only the issues of proximate cause and foreseeability.

¶ 14. We find it curious that, seven years after the remand opinion was handed down, the single issue this Court presented in Glover I for determination (“whether the insurance policy in dispute would cover Glover’s injuries”) remains unaddressed. This is particularly so since the opinion in Glover I was attached to JSU’s motion for summary judgment.

¶ 15. The trial court granted summary judgment to JSU, holding that (1) Glover’s injuries were not foreseeable; (2) JSU was not the proximate cause of- Glover’s injuries; and (3) the boys’ actions were su-perceding, intervening causes, thereby releasing JSU from liability for its negligence. On appeal, Glover asserts only one error: that the -trial court erred in granting summary judgment for JSU.

¶ 16. Although we are today (for reasons unrelated to liability insurance) reversing the trial court’s grant of summary judgment on the issues presented, and remanding this matter for trial, the issue of whether Glover’s injuries were covered under the liability insurance policy, so as to waive its immunity, remains unresolved. As clearly indicated by this Court’s decision in Glover I, should it be determined that Glover’s injuries were not covered by the policy, this appeal — including the judicial resources at the trial and appellate levels and the attorney fees expended— was pointless and unnecessary.

ANALYSIS

¶ 17. The only issue presented is whether the trial court erred in granting summary judgment to JSU. Thus, we begin our analysis with a review of the rules which govern summary judgment and a discussion of the standard for reversal of a trial court’s grant of summary judgment.

I.

¶ 18. Whatever doubt exists as to the appropriate application of summary judgment in a particular case, the necessity for (and wisdom of) a rule allowing early resolution of meritless cases is almost universally admitted. Summary judgment in Mississippi is governed by Rule 56 of the Mississippi Rules of Civil Procedure, which clearly and unambiguously provides that summary judgment “shall be rendered forthwith ... [if] there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.” Miss. R. Civ. P. 56(c) (emphasis added). In Simmons v. Thompson Machinery of Mississippi, Inc., this Court held:

Of importance here is the language of the rule authorizing summary judgment “where there is no genuine issue of material fact.” The presence of fact issues in the record does not per se entitle a party to avoid summary judgment. The court must be convinced that the factual issue is a material one, one that matters in an outcome determinative sense ... the existence of a hundred contested issues of fact will not thwart summary judgment where there is no genuine dispute regarding the material issues of fact.

Simmons, 631 So.2d 798, 801 (Miss.1994) (emphasis omitted) (citing Shaw v. Burchfield, 481 So.2d 247, 252 (Miss.1985)).

¶ 19. If one is to faithfully apply the Rule’s requirements to a particular case, the inescapable conclusion follows that the court must grant summary judgment unless — as to each material issue of disputed fact raised by the moving party — the record demonstrates at least the minimum quantum of evidence sufficient to justify a determination in favor of the non-moving party by a reasonable juror.

¶ 20. It is not enough to say (as many do) that summary judgment should be denied because evidence will, or might, be developed later in discovery — or at trial. It also is not enough to say that summary judgment should be granted because the evidence is slim and unpersuasive.

¶ 21. Thus, in today’s appeal, we look only to learn whether, as to each issue raised by JSU, there exists a factual question to be determined by the finder of fact. Because the trial judge who granted summary judgment will also sit as the finder of fact, it is important to distinguish the trial judge’s duty in reviewing the summary judgment motion from his duty as the trier of fact.

¶ 22. Pursuant to an Order of this Court, Rule 56 went into effect in substantially its current form on January 1, 1981. Two years later, writing for a unanimous Court at its “first opportunity to consider the office of the motion for summary judgment under Rule 56 ...,” Justice Robertson provided an excellent and often-cited analysis. Brown v. Credit Center, Inc., 444 So.2d 358, 360 (Miss.1983). “The argument that there exists no genuine triable issue of material fact is the functional equivalent of a request for a peremptory instruction.” Id. at 362. The trial judge must review the matters properly presented “in the light most favorable to the party against whom the motion has been made.” Id. Furthermore, courts

must be sensitive to the notion that summary judgment may never be granted in derogation of a party’s constitutional right to trial by jury. Miss. Const, art. 3, § 31 (1890). On the other hand, there is no violation of the right of trial by jury when judgment is entered summarily in cases where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. There is no right to trial by jury in such cases.

Id. Furthermore, “[w]hen doubt exists whether there is a fact issue, the non-moving party gets its benefit.” Id. And finally, the Brown Court cited with approval a “leading commentary on Federal Rule 56:”

If there is to be error at the trial level it should be in denying summary judgment and in favor of a full live trial. And the problem of overcrowded calendars is not to be solved by summary disposition of issues of fact fairly presented in an action. 6 Moore’s Federal Practice § 56-15[1 — 2] p. 56-435 (1982).

Id. at 363.

¶ 23. In granting summary judgment to JSU, the trial court correctly held that “[t]he central question before the [trial court] at this stage of the proceedings is whether the plaintiff has brought forward any fact or evidence upon which the trier of fact could legitimately find that her alleged rape was foreseeable by JSU officials.” It is firmly established in our jurisprudence that we review de novo a trial court’s grant of summary judgment. See e.g. Nygaard v. Getty Oil Co., 918 So.2d 1237, 1240 (Miss.2005); Leffler v. Sharp, 891 So.2d 152, 156 (Miss.2004).

II.

¶ 24. In order to fully apply the standard of review in this case, we begin by clearly defining the issues JSU raised with the trial court in its Motion for Summary Judgment (“Motion”). This will set the parameters for the search for material issues of triable fact.

¶ 25. In its Motion, JSU stated: “In order to survive summary judgment’ and succeed on her claim, the plaintiff must show that the acts of the assailants were foreseeable and the alleged negligence of the defendant proximately caused the plaintiffs injuries.” JSU then stated that “the défendant’s conduct must then cause the loss, by natural and continuous sequence, unbroken by any intervening causes.” Stated differently, JSU claims it was entitled to summary judgment because (1) Glover’s injuries were not foreseeable; (2) JSU’s alleged negligence was not the proximate cause of Glover’s injuries; and (3) the criminal acts of Chase and Cannada were superceding, intervening causes of Glover’s injuries, thereby absolving JSU of any responsibility.

¶ 26. JSU did not argue in its Motion that it was entitled to summary judgment on the issues of (1) whether it was negligent; (2) whether it is vicariously liable for the negligence of its bus driver, Doug Luster; or (3) whether Glover suffered damages when she was raped by Cannada and Chase. And although JSU does dispute Glover’s contention that Luster left the children at the wrong location, all three children testified otherwise, requiring this Court (for purposes of summary judgment) to accept as true the children’s version.

¶ 27. On motion for rehearing, JSU reminds us that, in Glover I, this Court held itself bound by the federal court’s ruling, that is, that the rape was unforeseeable to Luster. JSU argues that we are now bound by both collateral estoppel and the “law of the case,” which prohibits us from finding that Glover’s rape was foreseeable to Luster. As will be discussed later, whether or not Luster should have foreseen a rape is not the issue before us. Rather, we are required to- determine whether a fact-question exists as to JSU’s negligence.

¶ 28. In analyzing this summary judgment appeal, we are bound to accept that Luster knew that the boys had a propensity toward illegal behavior, and that the campus was a dangerous place to leave children unattended. For purposes of analyzing the grant of summary judgment, we must accept that Luster was acting within the course and scope of his employment at JSU. Consequently, we must accept, for summary judgment purposes, that JSU possessed the same knowledge as Luster. It now falls upon us to analyze whether JSU’s knowledge (both direct and imputed), coupled with its conduct, creates a triable issue of fact as to Glover’s claims against JSU. Because of their intertwined and dependent relationship, proximate cause and foreseeability will be discussed together.

III.

¶ 29. No citation of authority is necessary for the proposition that, to recover for injuries in a negligence claim, a plaintiff must prove that the defendant was negligent, and that such negligence was the proximate cause, or a proximate contributory cause, of the injuries. The legal definition of negligence is fairly sim-pie, universally applied, and likewise needs no citation of authority. Negligence is doing what a reasonable, prudent person would not do, or failing to do what a reasonable, prudent person would do, under substantially similar circumstances. The simplicity of this definition of negligence obscures the complexity of the concept of proximate cause.

¶ 30. Upon careful review of our precedent, which has applied numerous proximate cause analyses to various factual settings, we find the law of proximate cause requires some clarification.

¶ 31. For a particular damage to be recoverable in a negligence action, the plaintiff must show that the damage was proximately caused by the negligence. In order for an act of negligence to proximately cause the damage, the fact finder must find that the negligence was both the cause in fact and legal cause of the damage. Dobbs, The Law of Torts, § 180 at 443 (2000).

¶ 32. A defendant’s negligence is the cause in fact of a plaintiffs damage where the fact finder concludes that, but for the defendant’s negligence, the injury would not have occurred. Stated differently, the cause in fact of an injury is “that cause which, in natural and continuous sequence unbroken by any efficient intervening cause, produces the injury and without which the injury would not have occurred.” Gulledge v. Shaw, 880 So.2d 288, 293 (Miss.2004).

¶ 33. A defendant’s negligence which is found to be the cause in fact of a plaintiffs damage will also be the legal cause of that damage, provided the damage is the type, or within the classification, of damage the negligent actor should reasonably expect (or foresee) to result from the negligent act. Dobbs, The Law of Torts, § 180 at 443.

¶ 34. We recently considered the issue of proximate cause where a bus driver, delivering an elderly lady to a day-care center, assisted the lady off the bus, but left her unattended in the parking lot. City of Jackson v. Estate of Stewart ex rel. Womack, 908 So.2d 703 (Miss.2005) She fell, hitting her head on the pavement, and later suffered a stroke. Id. at 706-07. The plaintiff presented expert testimony that the defendant’s negligence was the eause-in-fact of the stroke, which in turn, caused the lady to suffer pneumonia and urinary tract infections. However, we made it clear that the defendant’s negligence must not only be the cause in fact of these injuries and damages, but also the legal cause, that is, the damages must also have been a reasonably foreseeable consequence of the defendant’s negligence. We defined the issue presented as “whether a stroke is the type of damage which reasonably should be anticipated (or foreseen before the fact) as a result of negligently allowing an elderly person to fall in a parking lot.” Id. at 713, Smith v. United States, 284 F.Supp. 259 (S.D.Miss.1967) (citing Donald v. Amoco Prod. Co., 735 So.2d 161 (Miss.1999); Williams, 183 Miss. 723, 185 So. 234 (1938)).

¶ 35. The plaintiffs expert testified that the fall could have caused the stroke, and the stroke, in turn, could have caused the lady to suffer pneumonia and urinary tract infections. City of Jackson, 908 So.2d at 713. The plaintiff argued that, because some injury should have been anticipated as a result of the negligent act of allowing the lady to fall, the defendant was liable for all damages caused, regardless of whether they were foreseeable. Unpersuaded by this argument, this Court stated:

Although [plaintiffs expert] offered a great deal of testimony concerning whether the fall ... caused the stroke, and whether the stroke caused [the lady’s] other numerous maladies, he offered no testimony which sheds light on the question of whether stroke was a foreseeable risk or expected consequence of the fall.

Id. at 714.

¶ 36. On the other hand, the defendant’s expert, directly addressing the foreseeability of the stroke, testified:

It would be extremely uncommon, almost unheard of for a minor fall to cause a stroke ... any minor head trauma should not cause a stroke.... I am saying that head trauma per se is not really cause for strokes. It’s not a precipitating factor for strokes, you know.

Id. at 714-14. Therefore, the issue was not whether the fall caused the stroke, or whether the defendant reasonably could have foreseen that some type of damage would occur as a result of the fall. Rather, the issue was whether stroke was within the type or category of damages reasonably caused by trauma to the head. We stated:

In order to recover damages related to the stroke ... the Estate must show more than negligent conduct which resulted in damages; it must show not only that the stroke resulted from the fall and that the fall resulted from a defendant’s negligence, but also that a stroke is a reasonably foreseeable consequence of the alleged negligent act. That is, the estate must show that where one negligently allows a person like [the plaintiff] to fall, stroke is a type of damage that is reasonably probable to occur.

Id. at 712 (emphasis added). In holding there could be no recovery for damages related to the stroke, we stated:

It should certainly be anticipated that negligently allowing an elderly person to fall in a parking lot could lead to many kinds of injuries including a broken arm, cuts, bruises, or even concussion. The exact injury need not be expected, anticipated or even contemplated. But those are injuries brought about by trauma. A stroke is not an injury but rather a medical condition which (according to [defendant’s] unrebutted testimony) is not an anticipated result of trauma.

Id. at 715.

¶ 37. We reiterate today that, in satisfying the requirement of foreseeability, a plaintiff is not required to prove that the exact injury sustained by the plaintiff was foreseeable; rather,. it is enough to show that the plaintiffs injuries and damages fall within a particular kind or class of injury or harm which reasonably could be expected to flow from the defendant’s negligence. Id.; see also -Gulledge, 880 So.2d at 293.

¶ 38. To illustrate, one who negligently drives an automobile reasonably should foresee that his or her negligence could be expected to cause certain kinds or categories of damages. Such categories would of course -include (among others) traumatic injury, medical, bills, lost wages, and pain and suffering. And in order to recover a particular damage (such as compensation for a broken leg or reimbursement for an MRI), the plaintiff will not be required to prove the tortfeasor actually contemplated that his or her negligence would lead to a broken leg or an MRI. To the contrary, the plaintiff -will be allowed to recover for all injuries and damages reasonably expected to result from automobile accidents. However, if the accident also caused the plaintiff to miss a flight to London and, consequently, miss attending an auction and a once-in-a-lifetime opportunity to purchase a rare piece of art, the negligent automobile driver ordinarily would not be liable for such unforeseeable damages. This is so because they are not included within the type or category of damages a tortfeasor ordinarily should expect or foresee would result from careless driving.

¶ 39. This leads us to three questions: (1) whether JSU should have foreseen that its negligence reasonably could be expected to lead to some type or category of injury and damage and, if so, (2) whether the injuries and damages suffered by Glover were within that type or category and, if so, (3) whether JSU’s negligence must be disregarded because of an intervening, superseding cause. Addressing these questions will require a closer look at the facts surrounding JSU’s negligent act. It bears repeating that, in rendering its decision today, this Court is required to view all evidence in the light most favorable to the plaintiff.

III.

¶ 40. On the day the rapes occurred, JSU knew that both Chase and Cannada had violent tendencies. Cannada had been expelled from the program in a previous year for fighting. JSU also knew of the accusations that Glover had been inside the boys’ rest room, suggesting some kind of sexual activity. A reasonable fact-finder could certainly conclude that, had JSU conducted a thorough investigation, it would have learned that Glover had been in the restroom having sex with Can-nada.

¶ 41. We are of the opinion that — given JSU’s knowledge of both the boys’ violent tendencies, coupled with the sixty-three crimes which were reported to have occurred on the JSU campus during the three months prior to the rape — a fact-finder could find that JSU failed to provide adequate supervision and security on its premises. In addition, we find that a reasonable fact-finder could conclude that, because of inadequate security and supervision, JSU should have foreseen that some harm could come to Glover, and that the type of harm was sexual activity and/or violence. As discussed before, although the specific harm of forcible rape may not have been contemplated by JSU, rape is nonetheless both a violent and sexual act; and our law requires only that the defendant foresee that some violent act or impermissible sexual act might occur, not the particular violent or sexual act.

¶42. For these reasons, we find that the facts presented — when viewed in the light most favorable to Glover’s case— could lead a reasonable juror to find that Glover’s injuries and damages were a foreseeable consequence of JSU’s negligence. Thus, we further find that summary judgment was inappropriate.

IV.

¶ 43. JSU’s argument that the rape was an intervening, superceding cause of Glover’s damages has no merit. Our precedent clearly establishes that, where the intervening cause of injury was foreseeable, it cannot supercede the liability of the defendant. See, e.g., Southland Mgmt. Co. v. Brown, 730 So.2d 43 (Miss.1998). Because a reasonable fact-finder could conclude that JSU was fully aware that Chase and Cannada both had violent tendencies, and that Glover had been in the boys’ restroom having sex with one of the boys in the program, summary judgment based upon the doctrine of intervening, superceding cause is inappropriate.

¶ 44. Accordingly, we hold that Glover has produced sufficient evidence to escape summary judgment, and this matter is remanded for trial.

¶ 45. REVERSED AND REMANDED.

DIAZ, P.J., AND RANDOLPH, J., CONCUR. LAMAR, J., CONCURS IN PART AND IN RESULT. WALLER, P.J., CONCURS IN RESULT ONLY WITH SEPARATE WRITTEN OPINION JOINED IN PART BY RANDOLPH, J. EASLEY, J.,. DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY SMITH, C.J., AND CARLSON, J. GRAVES, J., NOT PARTICIPATING.

APPENDIX

Proximate Cause — Mississippi Precedent

¶ 46. In reviewing this Court’s plentiful precedent on proximate cause, we are struck by the numerous and sometimes facially inconsistent proclamations. One easily could argue this Court’s definition of proximate cause in one case to establish the incorrectness of another. This facial inconsistency appears to result from this Court’s reference in many prior cases to only so much of the law of proximate cause as was necessary to decide the case then pending before the Court.

¶ 47. For instance, in M & M Pipe and Pressure Vessel Fabricators, Inc. v. Roberts, 531 So.2d 615 (Miss.1988), this Court said:

In determining whether the actor’s negligence was the proximate cause of the injury, it is not necessary that the actor should have foreseen the particular injury that happened; it is enough that he [or she] could have foreseen that his [or her] conduct could cause some injury.

Id. at 618 (citing Cumberland Tel. & Tel. Co. v. Woodham, 99 Miss. 318, 332, 54 So. 890, 891 (1911)). This language often is cited literally, and is argued to mean that, so long as a defendant reasonably should foresee that his or her negligent conduct could cause some injury, the defendant will be liable for any and all injury flowing from the negligence, regardless of the type or category. of those additional injuries, and regardless of how remote or unforeseeable they may be.

¶ 48. However, in Mauney v. Gulf Refining Co., 193 Miss. 421, 9 So.2d 780, 781 (1942), this Court divided injuries resulting from negligent conduct into two classifications: those which are reasonably foreseeable (for which a plaintiff may recover), and those which are not reasonably foreseeable (for which a plaintiff may not recover). Specifically, the Mauney Court held:

The settled law in this state may be summarized in the form of a diagram, as follows: The area within which liability is imposed is that which is within the circle of reasonable foreseeability using the original point at which the negligent act was committed or became operative, and thence looking in every direction as the semidiameters of the circle, and those injuries which from this point could or should have been reasonably foreseen as something likely to happen are within the field of liability, while those which, although foreseeable, were foreseeable only as remote possibilities, those only slightly probable, are beyond and not within the circle, — in all of which time, place and circumstances play their respective and important parts.

Id. at 780-81. Thus, by excluding from recovery damages from injuries which are “foreseeable only as remote possibilities,” Mauney calls into question the notion from M & M Pipe, which, many argue, declares such damages are indeed recoverable.

¶ 49. In reaching its decision, the Mau-ney Court attempted to reconcile what appears to be conflicting language from Gulf Refining Co. v. Williams, 183 Miss. 723, 185 So. 234 (1938), by stating:

In [Williams], it was pointed out that in speaking of possible results as applied to foreseeability it has not been meant to include only those more apt to happen than not to happen, but embraces those which the negligent actor should have foreseen as something likely to happen, although the likelihood may not amount to a comparative probability....

Mauney, 9 So.2d at 781. Any fair reading of this language leads to the conclusion that, at least from the Mauney Court’s perspective, the Williams Court did not equate the terms “more apt to happen,” “likely to happen,” and “comparative probability.”

¶ 50. To complicate matters, the Mau-ney Court gleaned from Williams still another test for foreseeability, which states “that more than a remote possibility is necessary to fulfill the requirements of the rule of liability,- — that the likelihood which furnishes the essential ligament between the negligence and the injury must be one of weight and moment.” Mauney, 9 So.2d at 781.

¶ 51. A more clear and concise analysis is found in Gulledge v. Shaw, 880 So.2d 288 (Miss.2004), which recognized and applied, in part, the Mauney approach. Chief Justice Smith, speaking for the Gulledge Court, stated:

The fact that an injury rarely occurs, or has never happened, is insufficient to protect the actor from a finding of negligence. If some injury is to be anticipated, this Court will find liability even if the particular injury could not be foreseen .... However, “[r]emote possibilities do not constitute negligence from the judicial standpoint.” That is, we do not charge the actor with a “prevision or anticipation which would include an unusual, improbable, or extraordinary occurrence, although such happening is within the range of possibilities.” (citing Mauney).

Id. at 293 (citations omitted, emphasis in original).

¶ 52. Thus, we are left to reconcile the language of M & M Pipe, which would allow recovery for unforeseeable injuries (so long as some injury is foreseeable); the language of Mauney, which precludes recovery not only for unforeseeable injuries, but also for injuries which, although foreseeable, were remote possibilities; and the language of Williams, which held that foreseeable damages are those which are likely to occur, although not necessarily probable.

¶ 53. Then we must consider the considerable line of cases extending back to 1936, holding that

[t]he proximate cause of an injury is that cause which, in natural and continuous sequence, unbroken by any efficient intervening cause, produced the injury, and without which the result would not have occurred; or, as otherwise stated, there must be an efficient causal connection between the negligence complained of and the injury, and that connection must be a natural and continuous sequence unbroken by any other cause.

Thompson v. Miss. Cent. R.R. Co., 175 Miss. 547, 166 So. 353-54 (1936). Thus, the proximate-cause test announced in Thompson ignores the foreseeability inquiry altogether, and looks only to the causal connection between the negligence and the injury.

¶ 54. To confuse matters even more, this Court has quoted with approval the following provision from a legal treatise:

“If the actor’s conduct is a substantial factor in bringing about harm to another, the fact that the actor neither foresaw nor should have foreseen the extent of the harm or the manner in which it occurred does not prevent him from being liable.” Section 435, Restatement, Law of Torts.

Matthews v. Thompson, 231 Miss. 258, 95 So.2d 438, 448 (1957). This Restatement analysis ignores both Mauney’s foreseeability requirement and Thompson’s continuous-sequence-and-causation test, and instead merely requires that the negligence be a “substantial factor” in bringing about the damage.

¶ 55. Finally, in Wyeth Laboratories, Inc. v. Fortenberry, this Court recognized that proximate cause in a negligence claim requires proof that the defendant’s negligence was both a cause in fact and a legal cause of the plaintiffs injuries. Fortenberry, 530 So.2d 688, 691 (Miss.1988) However, the Fortenberry Court, approving the “but-for” approach to proximate cause, required only a finding that the negligent act caused the damage (cause in fact) and a finding that, but for the negligence, the damage wouldn’t have occurred. The For-tenberry discussion of proximate cause includes no discussion of the requirement of foreseeability. Id.

¶ 56. These cases, and this Court’s current view of the requirements to show proximate cause, are included in part III to this opinion.

. The trial court characterized this violence as "adolescent horseplay.” This descriptive term seems hardly consistent with the court’s duty — when considering a summary judgment motion — to view the facts in the light most favorable to the non-moving party.

. Cannada is one of the two boys who later pleaded guilty to raping Glover on the Friday following the incident in the boys’ bathroom, leading to this lawsuit.

. See Glover I, 755 So.2d at 404-05.

. At the hearing on JSU's summary judgment motion, JSU’s counsel correctly informed the trial court that this Court remanded the case on the issue of immunity and “whether or not the insurance kept them in.” Having made this statement, however, JSU’s counsel made no further reference to the issue. Glover’s counsel told the trial court that the case was sent back by the Supreme Court tó be tried on the issue of liability, with no mention of the required determination of insurance coverage.

. We often hear parties argue that summary judgment should be defeated where there is a genuine issue as to an important fact. This is not so. There may exist many important factual issues, the resolution of which will not determine the prevailing party. A genuine issue as to a material fact is one which, absent its resolution at trial in favor of the non-moving party, will result in a judgment for the moving party. See Simmons, 631 So.2d at 801.

. Although Rule 56(c) provides that such record evidence may include the "pleadings, depositions, answers to interrogatories and admissions on file, together with ... affidavits," a party defending summary judgment "may not rest upon the mere allegations or denials of his [or her] pleadings.” Miss. R. Civ. P. 56(e).

. Ordinarily the "finder of fact” would be a jury but, as is true in this case, the trial judge, in addition to applying the law, often sits as the fact-finder. All cases filed under the Mississippi Tort Claims Act must be tried to a judge without a jury. Miss.Code Ann. § 11-46-13(1) (Rev.2002).

.- It is noteworthy that the issue before the federal court was not the liability of Luster or Epps, but rather whether Epps’s insurance policy required the insurance company to provide Epps a defense to the suit.

. An employee’s knowledge is imputed to his employer. 30 C.J.S. Employer-Employee § 211 (1992); see also Restatement (Third) of Agency § 5.03 (2006) (Illustration 5-7); Southport Little League v. Vaughan, 734 N.E.2d 261, 275 (Ind.App.2000) (holding that employees of Little League had sufficient knowledge, imputed to the organization, to raise red flags about child molestation by volunteer); Bourgois v. Montana-Dakota Utils. Co., 466 N.W.2d 813, 817 (N.D.1991) (acknowledging that “corporations know facts because those facts are in the minds of corporate officers or agents’’); Sulik v. Central Valley Farms, 95 Idaho 826, 828, 521 P.2d 144, 146 (1974) (concluding that, if employee was in fact an .agent of farm corporation, then his knowledge would be imputed to corporation).

. For a discussion of this Court’s various applications and interpretations of proximate cause, see Appendix A, hereto.

. The test is slightly different in cases where a plaintiff's injuries are brought about by the negligence of more than one tortfeasor. In such cases, the test is whether the negligence of a particular tortfeasor was a substantial factor in bringing about the harm. Dobbs, The Law of Torts, § 171 at 415.

. We again point out that twenty-one of these reported crimes were violent, and four were reports of rape and sexual battery.

. We find little support for the Mauney Court's distinction. Every dictionary consulted yields similar definitions for an event which is “apt” to happen, "likely” to happen, and "probably” will happen.