The opinion
STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT
17-932
ZACHARY ZAUNBRECHER, INDIVIDUALLY AND ON BEHALF OF HIS
DECEASED FATHER, MICHAEL BLAKE ZAUNBRECHER
VERSUS
MARISSA MARTIN, JEREMY PONTHIEUX, AND NATHAN PONTHIER
**********
ON WRIT OF CERTIORARI FROM THE
TWELFTH JUDICIAL DISTRICT COURT,
AVOYELLES PARISH, STATE OF LOUISIANA
CIVIL SUIT NO. 2013-9544, DIV. “B”
WILLIAM J. BENNETT, PRESIDING JUDGE
**********
JOHN E. CONERY
JUDGE
**********
Court composed of Sylvia R. Cooks, John E. Conery, and Van H. Kyzar, Judges.
Cooks, J. concurs and assigns reasons.
MOTION TO STRIKE WRIT APPLICATION OF MARISA MARTIN
DENIED; MOTION TO STRIKE EXHIBITS D AND I OF PLAINTIFFS’
OPPOSITION GRANTED; WRIT GRANTED AND MADE
PEREMPTORY.
Charles A. Cerise, Jr.
Edwin C. Laizer
Kellen J. Matthews
Louis C. LaCour, Jr.
ADAMS AND REESE, LLP
701 Poydras Street, Suite 4500
New Orleans, Louisiana 70139
(504) 581-3234
COUNSEL FOR DEFENDANT/APPLICANT:
Marissa Martin
Amanda G. Clark
4981 Bluebonnet Blvd.
Baton Rouge, Louisiana 70809
(225) 928-5400
COUNSEL FOR DEFENDANTS/APPLICANTS:
Jeremy Ponthieux
Nathan Ponthier
Robert M. Marionneaux, Jr.
MARRIONNEAUX LAW FIRM
660 St. Ferdinand Street
Baton Rouge, Louisiana 70802
(225) 330-6679
COUNSEL FOR PLAINTIFF/RESPONDENT:
Zachary Zaunbrecher, individually and on behalf of his deceased
father, Michael Blake Zaunbrecher
Duncan McKeithen
Michael T. Johnson
JOHNSON, SIEBENEICHER & INGRAM
2757 Highway 28 East
Pineville, Louisiana 71360
(318) 484-3911
COUNSEL FOR RESPONDENTS:
The Estate of Leo David
Liberty Mutual Insurance Company
CONERY, Judge.
Defendants/Relators, Marissa Martin, Nathan Ponthier, and Jeremy
Ponthieux, seek supervisory writs from the judgment of the Twelfth Judicial District
Court, Parish of Avoyelles, the Honorable William J. Bennett presiding, which
denied their motion for summary judgment on the issue of statutory immunity
provided by La.R.S. 9:2800.1, the Louisiana Anti-Dram Shop Statute. For the
following reasons, Ms. Martin’s, Mr. Ponthier’s, and Mr. Ponthieux’s writs are
granted and made peremptory. All claims made against Ms. Martin, Mr. Ponthier,
and Mr. Ponthieux by Respondents, Zachary Zaunbrecher, individually and on
behalf of his deceased father, Michael Blake Zaunbrecher, the Estate of Leo David,
and Liberty Mutual Insurance Company, are dismissed with prejudice at
Respondents’ costs.
Respondents’ motion to strike the writ application of Marissa Martin is denied.
Defendants’ motion to strike Exhibits D and I of Plaintiff’s opposition is granted.
STATEMENT OF THE CASE
This wrongful death suit arises out of a fatal automobile accident that occurred
on July 11, 2013, involving Michael Blake Zaunbrecher, the father of Plaintiff,
Zachary Zaunbrecher, and Leo J. David. Zachary Zaunbrecher (Mr. Zaunbrecher)
initially filed suit, both individually and on behalf of his deceased father, Michael,
against the Estate of Leo J. David, his insurer, Liberty Mutual Insurance Company,
and Louisiana Farm Bureau, the uninsured motorist insurer of Michael Zaunbrecher.
Plaintiff’s petition alleged that Mr. David had a blood alcohol level of .21, and due
to his intoxication, he negligently lost control of his vehicle, crossed the center line
of La. Highway 1 in Avoyelles Parish, and ran head on into Michael Zaunbrecher’s
vehicle, causing his death. Mr. Zaunbrecher later amended his petition to add as
defendants the Tunica-Biloxi Gaming Authority, d/b/a/ Paragon Casino Resort,
(Paragon) and three of its employees in their individual capacities: Ms. Martin, a
bartender, and Mr. Ponthier and Mr. Ponthieux, security guards (collectively,
employee defendants). Plaintiff claims that Ms. Martin negligently overserved an
already intoxicated Mr. David, and that the security guards failed to take steps to
prevent Mr. David from leaving the casino in an obviously intoxicated state
constituting a contributing cause of the accident and damages to Mr. Zaunbrecher.
Paragon and the employee defendants answered the petition and filed exceptions of
lack of subject matter jurisdiction, no cause of action and lis pendens. 1 Paragon
Casino was owned and operated by the Tunica-Biloxi tribe, and the tribe claimed
sovereign immunity prohibited claims in Avoyelles Parish District Court for the
casino and its employee defendants.
On May 18, 2015 the trial court held a hearing on the defendants’ exception
of lack of subject matter jurisdiction based on tribal sovereign immunity, granted the
defendants’ exception and dismissed Mr. Zaunbrecher’s claims against Paragon and
the employee defendants. Mr. Zaunbrecher filed a timely appeal with this court.
On appeal, a panel of this court held the doctrine of sovereign immunity
applied to the Tunica-Biloxi Gaming Authority d/b/a/ Paragon Casino Resort,
thereby affirming the dismissal of Paragon. However, the panel found that the
doctrine of sovereign immunity did not apply to its employees named in their
individual capacities and reversed the trial court’s ruling dismissing Ms. Martin, Mr.
Ponthier, and Mr. Ponthieux. See Zaunbrecher v. Estate of David, 15-769 (La.App.
3 Cir. 12/9/15), 181 So.3d 885, writ denied, 16-49 (La. 2/26/16), 187 So.3d 1002.
1
Suit was also filed in the Tunica-Biloxi Tribal Court where it remains pending.
2
Certiorari was then denied by the Supreme Court in Tunica-Biloxi Gaming Authority
v. Zaunbrecher, 85 U.S. 3521, 85 U.S. 3522, 137 S.Ct. 2091 (2017). The suit against
the employee defendants was remanded to state district court for further proceedings.
On August 23, 2017, the employee defendants filed a motion for summary
judgment seeking (for the first time) dismissal of the entirety of the suit against them
based on statutory immunity provided by La.R.S. 9:2800.1. On September 27, 2017,
the employee defendants’ motion for summary judgment was heard and ultimately
denied by the trial court. On October 12, 2017, the employee defendants filed this
application for supervisory writs seeking reversal of the trial court’s ruling denying
their motion for summary judgment and requesting expedited consideration due to
the jury trial that was scheduled for October 31, 2017.
The dismissal of Paragon from the original case addressed only the doctrine
of sovereign immunity of the Tunica-Biloxi nation, the owner of the Paragon Casino.
This writ is the first time this court has addressed the statutory immunity granted by
La.R.S. 9:2800.1 in relation to the three remaining defendants in their individual
capacities.
While the original writ in CW-17-932 was pending before this court, on
October 13, 2017, the trial court denied the employee defendants’ motion to continue
the jury trial. On October 17, 2017, the employee defendants notified this court of
the trial court’s decision to deny the continuance and on October 30, 2017, sought a
stay of the jury trial, which was also denied by the trial court. The employee
defendants then filed an emergency writ, in docket number CW-17-1015, seeking a
stay of the jury trial pending consideration of their application for supervisory writs.
A Stay Order was issued by this court on October 31, 2017, in docket number CW-
17-1015. We also instructed the parties to submit supplemental briefs and allowed
3
the parties until November 15, 2017, to request oral argument in the original docket
number CW- 17-932. A timely oral argument request was made by the employee
defendants, and oral argument was fixed for January 24, 2018, pursuant to La.Code
Civ.P. art. 966(H) which states, “On review, an appellate court shall not reverse a
trial court’s denial of a motion for summary judgment and grant a summary
judgment dismissing a case or a party without assigning the case for briefing and
permitting the parties an opportunity to request oral argument.”
SUPERVISORY RELIEF
“A court of appeal has plenary power to exercise supervisory jurisdiction
over district courts and may do so at any time according to the discretion of the
court.” Herlitz Constr. Co., Inc., v. Hotel Investors of New Iberia, Inc., et al, 396
So.2d 878, 878 (La.1981) (per curium). “This general policy, however, should not
be applied mechanically.” Id. Thus, when the trial court’s ruling:
is arguably incorrect, when a reversal will terminate the litigation, and
when there is no dispute of fact to be resolved, judicial efficiency and
fundamental fairness to the litigants dictates that the merits of the
application for supervisory writs should be decided in an attempt to
avoid the waste of time and expense of a possibly useless future trial on
the merits.
Id.
This case involves the determination of a question of law as to whether the
employee defendants are entitled to qualified immunity from this lawsuit under a
specific statute. The “immunity” operates not as a defense to liability, but as a
complete bar to the suit itself. In determining the question of qualified immunity,
the United States Supreme Court has ruled that the defendant has an entitlement to
avoid the costs and expense of standing trial. Mitchell v. Forsyth, 472 U.S. 511, 105
4
S.Ct. 2806 (1985). We issued a stay order on October 31, 2017 (with one dissent)
in CW-1015 precisely for that reason.
Further, this court’s supervisory jurisdiction may also be exercised to reverse
a trial court’s denial of a motion for summary judgment and to enter summary
judgment in favor of the mover. Csaszar v. Nat’l Cas. Co., et al., 14-1273 (La.App.
3 Cir. 11/4/15), 177 So.3d 807, writ denied, 15-2221 (La. 1/25/16), 185 So.3d 752.
Motion To Strike Ms. Martin’s Writ Application
In his opposition to the October 12, 2017 writ filed on behalf of the employee
defendant Marissa Martin by her counsel Amanda Clark, Mr. Zaunbrecher, the
Estate of Leo David, and Leo David’s insurer, Liberty Mutual, (hereafter
Respondents), argue that the writ filed on behalf of Ms. Martin should be stricken
from the record based on the signing of an October 5, 2017 motion to substitute
counsel of record for Ms. Martin submitted by Charles A. Cerise, Jr. to the trial court
making him counsel of record for Ms. Martin.
In her reply to this court, Ms. Clark clearly states that she had full authority
from Ms. Martin to appear as her appellate counsel when she filed a notice of intent
to seek supervisory writs on behalf of Ms. Martin and the other employee defendants
on September 27, 2017, and to file the initial writ application on October 12, 2017.
Further, Ms. Clark urges that a party may engage separate appellate and trial counsel,
which she indicates is the case in this litigation. 2 Respondents cite no statutory
authority or jurisprudence to support their request to strike Ms. Martin’s writ based
on Ms. Clark’s appearance as appellate counsel. There is no evidence in the record
before us that Ms. Clark was not authorized to appear as appellant counsel for Ms.
2
We note that Ms. Martin now has separate appellate counsel as Mr. Cerise now represents
her, while Ms. Clark remains appellate counsel for Mr. Ponthier and Mr. Ponthieux.
5
Martin and file this writ on her behalf. We deny Respondents’ motion to strike Ms.
Martin’s writ filed by Ms. Clark.
Motion To Strike The Affidavit of Ms. Shirley Rachal/ Written Stipulation
On October 20, 2017, Respondents filed a brief in opposition to the defendants’
writ with this court and attached new evidence that was not filed with the lower court
in opposition to the summary judgment, namely Exhibit D, the Affidavit of Shirley
Rachal, dated October 18, 2017, and Exhibit I, a “Written Stipulation,” also dated
October 18, 2017. The Exhibit I stipulation pertained to insurance coverage for the
acts of the employee defendants.3
On October 24, 2017, the employee defendants filed a motion to strike the
October 18, 2017 affidavit of Shirley Rachal as well as the written stipulation
pertaining to insurance coverage. Neither exhibit was offered or introduced into the
record in the lower court in opposition to the employee defendants’ motion for
summary judgment.
In their motion to strike, the employee defendants stated:
In accordance with the Uniform Rules of Court, Defendants
submitted a copy of the entire trial court record with their Writ
Application, including Plaintiff’s opposition to the summary judgment
and all exhibits submitted therewith to the district court and a copy of
the transcript of the hearing on Motion for Summary Judgment.
The written stipulation and the affidavit of Ms. Rachal are both dated October
18, 2017. The hearing on the employee defendants’ motion for summary judgment
had already been heard on September 26, 2017. Therefore, Exhibit D, the Affidavit,
3
This case now has a somewhat unusual procedural posture as there is no longer pending
in state court a claim against Paragon, their employer, under the theory of respondeat superior.
Rather the employee defendants are being sued in their individual capacities. Their alleged
negligent acts are nonetheless covered by an insurance policy issued to Paragon, as shown in
Exhibit I. Most Louisiana cases do not discuss the applicability of La.R.S. 9:2800.1 immunity for
individual employees for the obvious reason that respondeat superior applies in those cases.
6
and Exhibit I, the Written Stipulation, could not have been properly introduced into
evidence in opposition to the employee defendants’ motion for summary judgment
and could not have been considered by the trial court in its denial of the employee
defendants’ motion for summary judgment.
The Louisiana Supreme Court in Denoux v. Vessel Mgmt. Servs., Inc., 07-
2143 (La. 5/21/08), 983 So.2d 84, 88 (citations omitted) addressed this same issue:
Evidence not properly and officially offered and introduced
cannot be considered, even if it is physically placed in the record.
Documents attached to memoranda do not constitute evidence and
cannot be considered on appeal.
Appellate courts are courts of record and may not review
evidence that is not in the appellate record, or receive new evidence.
In Harris v. Aetna Ins. Co., 509 So.2d 486, 489 (La.App. 3 Cir. 1987), a panel
of our court stated: “[T]his court will only review issues which have been submitted
to the trial court and raised in specifications or assignments of error, unless the
interest of justice clearly requires otherwise. Rule 1-3, Uniform Rules, Courts of
Appeal.” Accordingly, this court’s examination of these two exhibits is beyond the
scope of this writ application, and the motion to strike filed on behalf of the
employee defendants is hereby granted.
ON THE MERITS
Standard of Review
Appellate courts review motions for summary judgment de novo, using the
identical criteria that govern the trial court’s consideration of whether summary
judgment is appropriate. Samaha v. Rau, 07-1726 (La. 2/26/08), 977 So.2d 880.
The reviewing court, therefore, is tasked with determining whether “the motion,
memorandum, and supporting documents show that there is no genuine issue as to
7
material fact and that the mover is entitled to judgment as a matter of law.” La.Code
Civ.P. art. 966(A)(3).
Louisiana Code of Civil Procedure Article 966(D)(1)(2) further provides:
(1) The burden of proof rests with the mover. Nevertheless, if the
mover will not bear the burden of proof at trial on the issue that is before
the court on the motion for summary judgment, the mover’s burden on
the motion does not require him to negate all essential elements of the
adverse party’s claim, action, or defense, but rather to point out to the
court the absence of factual support for one or more elements essential
to the adverse party’s claim, action, or defense. The burden is on the
adverse party to produce factual support sufficient to establish the
existence of a genuine issue of material fact or that the mover is not
entitled to judgment as a matter of law.
(2) The court may consider only those documents filed in support of or
in opposition to the motion for summary judgment and shall consider
any documents to which no objection is made. Any objection to a
document shall be raised in a timely filed opposition or reply
memorandum.
This court’s supervisory jurisdiction may also be exercised to reverse a trial
court’s denial of a motion for summary judgment and to enter summary judgment in
favor of the mover. Csaszar, 177 So.3d 807.
In Roy v. Kyrles, Inc., 07-1605, p. 4 (La.App. 3 Cir. 5/14/08), 983 So.2d 975,
978, a panel of our court held that the legislature further clarified the burden of proof
in enacting La.Code Civ.P. art. 966(C)(2) (now 966(D)(1)(2)) and stated:
This amendment parallels the language of Celotex Corp. v. Catrett, 477
U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The amended article
places the initial burden of proof on the mover of the motion for
summary judgment. If the mover meets this initial burden, the burden
of proof then shifts to the nonmoving party that has the burden of proof
on this particular issue at trial. This nonmoving party then must put
forth evidence that shows he or she will be able to meet that burden at
trial. If the nonmoving party cannot, then the motion for summary
judgment should be granted. Marist & Lemmon, Louisiana Civil Law
Treatise: Civil Procedure § 6.8 (1999).
8
Oral argument was requested and granted in accordance with La. Code
Civ.P. art. 966(H).
Statutory Immunity Pursuant to Louisiana Revised Statutes 9:2800.1
The employee defendants argue they are entitled to summary judgment based
on statutory immunity granted under La.R.S. 9:2800.1 (emphasis added) (footnotes
omitted), which provides in pertinent part:
A. The legislature finds and declares that the consumption of
intoxicating beverages, rather than the sale or serving or
furnishing of such beverages, is the proximate cause of any
injury, including death and property damage, inflicted by an
intoxicated person upon himself or upon another person.
B. Notwithstanding any other law to the contrary, no person
holding a permit under either Chapter 1 or Chapter 2 of Title
26 of the Louisiana Revised Statutes of 1950, nor any agent,
servant, or employee of such a person, who sells or serves
intoxicating beverages of either high or low alcoholic content to
a person over the age for the lawful purchase thereof, shall be
liable to such person or to any other person or to the estate,
successors, or survivors of either for any injury suffered off the
premises, including wrongful death and property damage,
because of the intoxication of the person to whom the
intoxicating beverages were sold or served.
....
D. The insurer of the intoxicated person shall be primarily liable
with respect to injuries suffered by third persons.
E. The limitation of liability provided by this Section shall not apply
to any person who causes or contributes to the consumption of
alcoholic beverages by force or by falsely representing that a
beverage contains no alcohol.
Ms. Martin, the bartender, was an employee of Paragon, the holder of the
permit to serve alcohol, and clearly has statutory immunity. The two security guards,
Mr. Ponthier and Mr. Ponthieux, were also employees of Paragon. Though they did
not directly serve alcohol to Mr. David, they are nevertheless entitled to statutory
9
immunity as “agent[s], servant[s], or employee[s]” of the permit holder, Paragon,
who was the defined “person” holding the necessary license to sell alcohol.
Respondents nevertheless have argued that La.R.S. 9:2800.1 is somehow
ambiguous and only applies to those who actually sell or serve alcohol, and not to
managers, bouncers, and security guards such as Mr. Ponthier and Mr. Ponthieux.
The title of the statute itself incudes the language: “Limitation of liability for
loss connected with sale, serving, or furnishing of alcoholic beverages”
(emphasis added). Respondents insist that the qualifying phrase in Section B of the
statute, “who sells or serves intoxicating beverages[,]” somehow makes the statute
ambiguous and, under the rules of strict construction against limitations in qualified
immunity statutes, immunity should not apply to the security guards in this case.
If the legislature had intended for immunity to apply only to the ‘“person”
holding the permit,’ it would not have added the additional language ‘nor any agent,
servant, or employee of such person,’” to the statute. To read the statute otherwise
would defeat the whole purpose of the statute and lead to absurd consequences. In
order to defeat statutory immunity, all a plaintiff would have to do, as in this case, is
plead the negligence of an employee not directly involved in the “sale, serving, or
furnishing of alcohol.”
To the contrary, legislative intent was made clear in the first paragraph of the
statute itself: “A. The legislature finds and declares that the consumption of
intoxicating beverages, rather that the sale or serving or furnishing of such
beverages, is the proximate cause of any injury, including death and property
damage, inflicted by an intoxicated person upon himself or upon another person.”
La.R.S. 9:2800.1(A). Louisiana Civil Code Article 9 states, “When a law is clear
and unambiguous and its application does not lead to absurd consequences, the law
10
shall be applied as written and no further interpretation may be made in search of
the intent of the legislature.” Louisiana Civil Code Article 10 states, “When the
language of the law is susceptible of different meanings, it must be interpreted as
having the meaning that best conforms to the purpose of the law.” See Aucoin v.
Rochel, 08-1180 (La.App. 1 Cir. 12/23/08), 5 So.3d 197, writ denied, 09-122 (La.
3/27/09), 5 So.3d 143; Tregre, 224 So.3d 1234; Roy, 983 So.2d 975.
Therefore, in concise terms, the legislature has taken away any application of
the duty-risk analysis in a determination of fault in a situation such as the one at
issue before this court and squarely placed the responsibility for the consumption of
alcohol on the individual consuming the alcohol, in this case Mr. Leo David.
The “Affirmative Acts” Argument
Respondents further argued that statutory immunity under La.R.S. 9:2800.1
did not control the cause of action against the employee defendants, citing alleged
genuine issues of material fact as to “affirmative acts” of negligence they argue were
not intended to be covered by the statute.
Moreover, tenacious counsel for Respondents has forcefully argued that it is
our duty as an appellate court to rule as a matter of public policy that casinos and
their employees should not have immunity under La.R.S. 9:2800.1. Counsel argued
that the casino’s policies require their employees to intentionally push alcohol on
casino patrons to encourage overindulgence and lower inhibitions, arguably to
increase gambling profits, and this practice led to Mr. Zaunbrecher’s unfortunate
death due to the intoxication of Mr. David. Counsel insists that we should not
countenance these actions and should create an exception for “affirmative acts” and
a “casino exception” to La.R.S. 9:2800.1 immunity and hold the employee
defendants accountable.
11
While we appreciate “zealous advocacy,” respectfully, we decline counsel’s
invitation and find that such decisions are for the legislature to decide. Many of the
arguments present in this case were presented to the legislature when it enacted
La.R.S. 9:2800.1 in 1986.
As noted by counsel in Ms. Martin’s supplemental brief to this court in
Footnote 29:
The “affirmative acts” discussion has some parallels to the
discussion in the Louisiana Senate Committee Minutes reflecting the
committee’s rejection of an attempt to add a “gross negligence”
exception to the statute. The Senate Committee rejected a “gross
negligence” exception because the exception would have swallowed
the rule and defeated the intent of the statute, which was to place the
responsibility on the individual consuming alcohol. See May 27, 1986
Senate Committee on Judiciary B meeting minutes, at pp. 8-10,
particularly comments of Representative Hainkel at page 9, copy
attached as Exhibit 1. Likewise, any effort to manufacture an
“affirmative acts” exception that is not in the statute would, as a
practical matter, frustrate the purpose of the statute, as every case would
then become an exercise in artful pleading, and cases like this, where
immunity should be clear, would have to go to trial. The legislature
drew a bright line on purpose and that bright line should be enforced.
Obviously, the legislature has had thirty-one years to craft exceptions to the
statute and has failed to incorporate any additional exceptions. We must apply the
clear and unambiguous law as written and as has been uniformly interpreted by the
various appellate courts since the statute was enacted. To do otherwise would
undermine the purpose for which the statute was enacted and “would have
swallowed the rule and defeated the intent of the statute, which was to place the
responsibility on the individual consuming alcohol.” See Mtg. Min. of the Sen.
Comm. on Judiciary B, May 27, 1986, pp. 8-10, (House Bill No. 2155 by
Representative D’Gerolamo).
We find that in light of the statutory immunity provided by La.R.S. 9:2800.1,
the only material issues of fact in this case are:
12
1. Paragon had a valid permit to sell and serve alcoholic beverages.
2. Marissa Martin, Jeremy Ponthieux, and Nathan Ponthier were employees
of Paragon at all times pertinent.
3. Mr. David was far beyond the legal age to purchase alcohol.
4. The fatal accident occurred as a result of a collision caused by the
intoxication of Mr. David, who had a blood alcohol content of .21. The
collision occurred off the premises of Paragon, some fifty to fifty-five
minutes after Mr. David left the casino property at location some seven to
nine miles from the casino on Highway 1 when Mr. David crossed the
center line and collided head on into the vehicle being driven by Mr.
Michael Zaunbrecher, plaintiff’s father, resulting in both men’s death.
The trial court focused its ruling on possible issues of fact that are not relevant
to application of the statute: 1) Whether Ms. Martin served an obviously intoxicated
man; 2) Whether the policies of the casino required service of a minimum number
of drinks per hour resulting in overserving Mr. David and allowing him to become
intoxicated and leave the casino in an obviously intoxicated state; and 3) Whether
the security guards properly followed rules and procedures or committed
independent acts of negligence by failing to properly supervise an “intoxicated
patron,” allowing him to drive away from the casino while in an “obviously
intoxicated state.”
The trial court stated in its reasons for ruling:
I don’t have a problem with your argument about the dram shop, I mean
it is what it is, but my issue that I have with this whole thing on
summary judgement [sic] is the allegation _ _ _ brought up by the
plaintiff that was a duty risk analysis concerning the casino’s
instructions to its employees, it’s [sic] handbook, it’s [sic] rules, it’s
[sic] regulations, I think I read where someone testified they have to
serve 33 drinks in a [sic] hour, or 44 drinks in a [sic] hour, whatever it
may be, so outside of the dram shop, does that create a genuine issue of
material fact as to the disapplication [sic] of a duty risk analysis on just
basic negligence saying you’re telling them how to operate and you’re
not operating that way and so if you don’t do what you’re told and don’t
do it in the way that you’re instructed, do they still get the benefit of
that anti dram shop act?
13
In conclusion, the trial court stated:
I mean anti-dram shop it is what it is, but there’s an issue of fact as to
whether A, Ms. Martin poured alcohol to a man obviously intoxicated
whether the policies of a casino saying serve so many drinks an hour
whatever it is, it[’]s an issue of fact, I’m saying it makes you lose, but
there’s an issue of fact, there’s an issue of fact as to whether these two
security guards properly followed rules, procedures and committed any
acts of negligence outside of the dram shop, now if the dram shop is
found to be a total and complete immunity, it’s not qualified as Mr.
MARIONEAUX said, and basically they can do whatever they want,
they can hand him alcohol while he’s turning the key to start his [car],
and I understand that but under the, and I’m just, I’m not saying you’re
wrong in the law, I’m just saying there’s a genuine issue of material
fact on all of these issues that precludes summary judgement [sic], I’m
[sic] saying plaintiff wins, absolutely not, I’m just saying there’s an
issue of fact, and Ms. Martin got [sic] to be deposed, that’s simple…
After oral argument, the trial court stated on the record that it was unaware of
what the uncontradicted video evidence4 introduced by the employee defendants
showed with respect to Ms. Martin and based its decision to deny the summary
judgment to her on Respondents’ unsupported allegations that “Ms. Martin served
alcohol to this man after he was allegedly intoxicated.” In fact, a thorough review of
the uncontradicted video evidence introduced at the summary judgment hearing
demonstrates that Ms. Martin was clearly identified as serving Mr. David one beer
at 5:45 pm. She may have served up to 4 beers between 5:45 pm and 11:01 pm,
when she clocked out as shown by her time card in evidence (Exhibit K-1).
In essence, the trial judge based its denial of the summary judgment on
plaintiff’s unsupported allegations of so called “affirmative acts” which the trial
judge believed to be an exception to La.R.S. 9:2800.1 immunity. No such exception
is contained in the statute itself, and such an exception is not supported by any
jurisprudential interpretations of the statute.
4
Exhibit K-1
14
The “affirmative acts” exception argued by Respondents was discussed in
footnote 3 of the decision by the Louisiana Supreme Court in Berg v. Zummo, 00-
1699, p. 3 (La. 4/25/01), 786 So.2d 708, 719, which stated:
This Court has never addressed, nor do we address today, whether the
bar owner can be liable in spite of La. R.S. 9:2800.1 for taking an
affirmative act which increases the peril to an intoxicated adult patron
under the pre-La. R.S. 9:2800.1 reasoning of Thrasher v. Leggett[, 373
So.2d 494 (La.1979).] In Mayo v. Hyatt Corp. 896 F.2d 47 (5th Cir.
1990), the United States Fifth Circuit Court of Appeal; held that under
La. R.S. 9:2800.1, “the sole duty of a seller of alcoholic beverages is to
avoid taking ‘affirmative acts which increase the peril to an intoxicated
person.’” 898 F.2d at 49 (citing Thrasher v. Leggett, supra).
Prior to the enactment of La.R.S. 9:2800.1 in 1986, there were a few Louisiana
cases that analyzed the liability of bar owners/their employees, and even social hosts,
based on a duty risk analysis that independent acts of negligence on the part of
persons serving alcohol to obviously intoxicated persons who may have caused harm
to third persons.
The supreme court in Thrasher, 373 So.2d at 496-97 (footnote omitted),
thoroughly considered the issue and held:
There is, and should be, no absolute liability imposed upon an
alcoholic beverage retailer for the consequences of a patron’s
intoxication. As this Court observed in Lee [v. Peerless, 248 La. 982,
183 So.2d 328 (1966)], Louisiana has never had a civil damage or
“dramshop” statute. Regardless of whether the prohibition of R.S.
26:88(2) is purely and simply criminal in nature or has attendant civil
consequences the cause more proximate to an injury to an inebriated
patron which results from his intoxication is the consumption of the
alcohol and not the sale. There is a real element of contributory
negligence implicit in this situation. There is therefore no need to
consider the bar owner’s conduct under a duty-risk analysis.
Shortly thereafter, the legislature adopted La.R.S. 9:2800.1.5
5
See Godfrey v. Boston Old Colony Ins. Co., 97-2568 (La.App. 4 Cir. 5/27/98), 718 So.2d
441, writ denied, 98-2487 (La. 11/20/98), 729 So.2d 563, for a thorough historical discussion of
the liability of persons serving alcohol to intoxicated persons and the historical foundation of
La.R.S. 9:2800.1. The court in Godfrey was careful to point out in that case that the immunity
statute did not apply, as Mr. Godfrey was still a minor and the claim was exempted from the statute.
15
The statute was enacted for the express purpose of making it clear that the
only exceptions to the statutory immunity provided in La.R.S. 9:2800.1 are those
mentioned in the statute itself, i.e. serving someone alcohol when they are underage,
or by force, or by “falsely representing that a beverage contains no alcohol.” La.R.S.
9:2800.1(E).
Since the passage of La.R.S. 9:2800.l in 1986, Louisiana courts have strictly
interpreted the statutory immunity law as written and have upheld summary
judgments or exceptions in favor of defendants in a variety of fact situations. See
Tregre v. Champagne, 16-681 (La.App. 5 Cir. 7/30/17), 224 So.3d 1234, writ
denied, 17-1477 (La. 11/13/17), 230 So.3d 208; Aucoin, 5 So.3d 197; Bourgeois v.
Boomtown, LLC of Delaware, 10-553 (La.App. 5 Cir. 2/15/11), 62 So.3d 166;
Bertrand v. Kratzer’s Country Mart, 563 So.2d 1302 (La.App. 3 Cir.), writ denied,
569 So 2d. 959 (La.1990); Roy, 983 So.2d 975; Morris v. Bulldog BR, LLC, 13-1861,
(La.App. 1 Cir. 6/6/14), 147 So.3d 1122; Comeaux v. Lemmons, 10-651 (La.App. 3
Cir. 12/8/10) (unpublished opinion); Zapata v. Cormier, 02-1801 (La.App. 1 Cir.
6/27/03), 858 So.2d 601; and Alvarenga v. Mills, 01-872, (La.App. 4 Cir. 5/10/02),
818 So.2d 1017, writ denied, 02-1610, (La. 9/30/02), 825 So.2d 1197.
We have thoroughly reviewed the record in its entirety and have determined
there are no disputed issues of material fact that might give rise to a lawful exception
to the immunity provided by the statute at issue.
Actions Of The Bartender Ms. Martin
Even if there were an “affirmative acts” exception to La.R.S. 9:2800.1,
summary judgment is still appropriate based on the uncontroverted evidence
introduced in support of the motion. It is uncontested that Ms. Martin, an employee
of Paragon, began her shift as a bartender at Paragon Bar No. 2 at 4:00 p.m. on July
16
10, 2013. At approximately 5:31 p.m., the uncontradicted video evidence introduced
by the employee defendants establishes that Mr. David arrived at the Paragon
Casino, parked his vehicle in the back of the parking lot, and proceeded into the front
entrance. He can be seen walking through the lobby to Bar No. 2, where Ms. Martin
is working.
At approximately 5:45 p.m. Ms. Martin is seen on the video with dark hair
and a white towel in her pocket serving Mr. David a beer. She was identified by Mr.
Larry Robertson, the Banquets Manager at Paragon, in his deposition. Mr. David
was served another beer at approximately 6:07 p.m. by an unknown bartender at Bar
No. 2, who was not Ms. Martin. Mr. David left Bar No. 2 and proceeded to play
blackjack, where he is served a beer by the waitress serving the blackjack tables.
Mr. David did not return to Bar No. 2 until approximately 9:14 p.m., where he is
served another beer. He returned to the blackjack tables and is shown on the video
at approximately 10:35 p.m. playing blackjack with no visible impairment
discernable on the video. The evidence is undisputed that Ms. Martin clocked out at
11:01 p.m. and left (See Exhibit K-1, time card). There is no evidence showing that
Ms. Martin served Mr. David after 11:01 pm.6
6
Respondents allege that Ms. Martin served Mr. David through the “wee hours of morning,”
based on the question to Mr. Robertson, the Banquets Manager at Paragon at his deposition:
Q: All right, At bar number (2) two on July 10th and July the 11th, in the wee
morning hours of July 10th and July 11th, who did you notice was working
the bar there? (emphasis added).
A: Marissa Martin and part of it I saw Peggy Williams.
Q: I’m sorry, Peggy who?
A: Williams.
Q: Peggy Williams. And as you watched that video footage of bar number (2)
two and Ms. Martin and Ms. Williams, did you see them serving Leo David
alcoholic beverages?
A: Yes.
17
Based on the uncontradicted summary judgment evidence we find that Ms.
Martin did not “overserve” Mr. David, even if statutory immunity did not apply.
Even assuming she did, the collision in question occurred eight hours after her shift
ended and is too attenuated to be a proximate cause of the accident at issue. Thrasher,
373 So.2d 494.
Actions of Mr. Ponthieux-First Security Guard
At approximately 4:22 a.m., the uncontradicted summary judgment evidence
shows that Mr. David was playing the slot machines and sitting next to a woman
with whom he appears to be engaged in a conversation. Mr. Ponthieux calls Mr.
David over and speaks briefly to him. The video does not show that Mr. David is
unruly, agitated, or harassing anyone.7 After a brief conversation lasting about two
minutes, Mr. David returns to the same slot machine and continues playing. The
only unusual thing about Mr. David’s appearance on the video is that his shorts
appear to be wet in some manner.
In his deposition testimony introduced by employee defendants in support of
their motion for summary judgment, Mr. Ponthieux testified that his only
Q: Thank you sir. That’s the particular video that you were looking at
yesterday, correct?
A: Yes.
Q: And focused on any other bar where Mr. David was served?
A: No. there was - from what I saw, there was no other bar he was at.
The question included the names of two employees, Ms. Martin and Ms. Peggy Williams,
and did not clarify whether Ms. Martin actually served alcohol to Mr. David after 11:00 p.m. on
July 10th. The actual uncontradicted evidence shows Ms. Martin served Mr. David only until 11:00
p.m. then clocked out. There is no genuine issue of material fact in light of the objective
uncontradicted time card and video evidence.
7
Ms. Shirley Rachel’s “Affidavit,” Exhibit D attached to plaintiff’s opposition brief, has
been stricken from the record. However, even if it were in evidence, it does not create a “material
issue of fact”, as La.R.S. 9:2800.1 has no “affirmative acts” exception to its application.
18
involvement with Mr. David was at 4:22 a.m., as confirmed by the uncontradicted
video footage. Mr. Ponthieux testified in his deposition that he was asked to check
on the patron in the slot machine areas because of a possibility that the stool he was
sitting on may have been “wet” due to what respondents have alleged to be self-
urination or defecation. Mr. Ponthieux testified that Mr. David did not show any
signs of intoxication. Mr. Ponthieux spoke with Mr. David in response to the
complaint made about the “wet spot” on a chair, and, according to Mr. Ponthieux,
Mr. David responded he had spilled a drink, either hot chocolate or coffee. During
the brief encounter, Mr. Ponthieux testified he did not smell urine or feces, but as
previously stated, he did notice that Mr. David’s shorts displayed a wet spot of some
kind.
The 4:22 a.m. encounter was the only interaction by Mr. Ponthieux with Mr.
David that is in evidence. Even if there were an “affirmative acts” exception to the
statute, there are no “material issues of fact” demonstrating negligence on the part
of Mr. Ponthieux. Again, the collision occurred seven to nine miles from the Paragon
Casino, and some fifty to fifty-five minutes after Mr. David left the casino and
approximately two and one-half hours after Mr. Ponthieux spoke with Mr. David.
The collision was too far removed in time to show that any actions or inaction by
Mr. Ponthieux was the proximate cause of the collision occurring at approximately
7:00 a.m. Thrasher, 373 So.2d 494; Roy, 983 So.2d 975.
Actions of Mr. Ponthier-Second Security Guard
The uncontradicted video evidence shows that Mr. Ponthier encountered Mr.
David at 6:01 a.m. on July 11, 2013, while Mr. David was playing a slot machine.
The video shows the two men standing and talking, and then Mr. David walks away
unescorted.
19
Mr. Ponthier likewise testified in his deposition that he observed no signs of
intoxication, i.e. slurring, staggering, or vomiting, in his brief encounter with Mr.
David at 6:01 a.m. His testimony is confirmed by the video footage, which shows
Mr. David walking away from Mr. Ponthier and exiting the front door of the casino
alone at 6:04 a.m., then walking unescorted to his vehicle at the far end of the casino
parking lot with no visible signs of impairment. At 6:07 a.m., he backs out of the
parking space, and at 6:08 a.m., exits the casino property and prepares to make a left
turn, with his blinker light flashing. At 6:09 a.m., Mr. David turns left on Highway
1 and heads southbound. Again, the fatal collision between Mr. David’s vehicle and
that of Mr. Zaunbrecher’s father occurred seven (7) to nine (9) miles in the opposite
direction, some fifty to fifty-five minutes after Mr. David had left the Paragon
parking lot. There is no evidence in the record as to where Mr. David may have
gone after he left the casino premises or whether he consumed alcohol, either in his
truck or at another establishment. The only relevant fact is that the collision occurred
“off the premises” of Paragon as required for application of the statutory immunity
outlined in La.R.S. 9:2800.1.
According to their uncontradicted deposition testimony, neither Mr.
Ponthieux or Mr. Ponthier instructed Mr. David to leave the casino, nor did either
man “forcibly eject” Mr. David or escort him to his vehicle prior to the accident as
alleged in Respondents' petition. Their uncontradicted deposition testimony, as
corroborated by the video evidence, was that Mr. David showed no obvious signs of
intoxication when he left the casino. Respondents’ allegations that Mr. David was
forcibly ejected from the casino in an obviously intoxicated state and was escorted
to his car by Mr. Ponthier and Mr. Ponthieux are not supported by any evidence filed
20
in opposition to the uncontradicted deposition and video evidence filed by the
employee defendants.
Respondents’ Failure To Create A Material Issue Of Fact For Trial
Respondents have failed to produce any evidence to dispute the testimony of
the security guards and video footage of Mr. David, which covers the time of his
arrival at the Paragon Casino at approximately 5:30 p.m. on July 10, 2013, until his
departure at 6:04 a.m. on July 11, 2013, all of which was submitted into evidence in
support of the employee defendants’ motion for summary judgment. Likewise, there
is uncontradicted evidence in the form of Ms. Martin’s time card showing she
clocked out at 11:01 p.m., approximately seven hours before Mr. David left the
casino and eight hours before the automobile collision in question.
The law is clear that “[M]ere speculation will not defeat a motion for summary
judgment, and conclusory allegations, improbable inferences, and unsupported
speculation are insufficient to support a finding that a genuine issue of material fact
exists.” Kinch v. Our Lady of Lourdes Reg’l Med. Ctr., 15-603, pp. 7-8 (La.App. 3
Cir. 12/9/15), 181 So.3d 900, 905.
Statutory Immunity Applies
Even if the record contained any support for the allegations of Respondents
that Mr. David was somehow overserved by the bartender Ms. Martin, or by the
gaming table waitresses, who are not named as employee defendants, or that the
security guards Mr. Ponthier and Mr. Ponthieux forcibly ejected him from the casino
knowing that he was going to drive on a highway in an intoxicated state, statutory
immunity nonetheless applies.
In Tregre, 224 So.3d 1234, a patron of Boogie’s Lounge, LLC, Mr. Dallas
Veillon, was drinking at Boogie’s located next to a busy highway and was forcibly
21
ejected from the lounge by the bar’s employees in an obviously intoxicated state
with the knowledge that he was highly intoxicated and was going to drive his vehicle
on that highway. Shortly after being ejected from the lounge, Mr. Veillon got into
his car and proceeded southbound on La. Highway 52. St. Charles Parish deputy
sheriff Jeff Watson, while in the course and scope of his employment, was traveling
northbound. Mr. Veillon attempted to make a left turn directly in the path of Deputy
Watson and was struck by Deputy Watson’s vehicle, which then entered the
southbound lane and hit Mr. Tregre’s vehicle head on. Deputy Watson was killed
in the accident, and Mr. Tregre suffered serious injuries.
Both Mr. Tregre and the wife of Deputy Watson filed suit against Mr. Veillon,
Boogie’s, and its owner/manager. In opposition to a motion for summary judgment
filed by Boogie’s and its owner, plaintiffs did not contend that La.R.S. 9:2800.1 did
not apply, but instead contended, as in this case, that Boogie’s, through the actions
of its employees, “had a duty to avoid committing affirmative acts, which they
allege caused or contributed to the accident at issue.” Tregre, 224 So.3d at 1240
(emphasis added). Similar to the allegations in this case, the petitions filed by Mrs.
Watson and Mr. Tregre alleged:
[T]hat immediately prior to the accident, employees of Boogie’s
forcibly ejected Mr. Veillon from the bar, which is next to a busy
highway, with the knowledge that he was intoxicated and was going to
drive on the roadways in an inebriated condition. They further alleged
that the bartender working at the time [of the incident] did not have a
valid license to serve alcohol.
Id.
In affirming the trial court’s summary judgment in favor of Boogie’s and its
owner, the fifth circuit panel stated:
However, by enacting La.R.S. 9:2800.1, the legislature has found that
the consuming of alcohol is the proximate cause of injury inflicted by
22
an intoxicated person. The statutorily provided exceptions to this
limitation of liability apply only to any person who causes or
contributes to the consumption of alcoholic beverages by force or by
falsely representing that the beverage has no alcohol, or when alcoholic
beverages are provided or sold to a minor. (footnote omitted).
Id.
The appellate court in Boogie’s held that there was no “affirmative acts”
exception to statutory immunity and further that there was no requirement under the
statute that the bartender be licensed. The permit holder was “Boogie’s,” therefore,
Boogie’s and its owner and employees were immune from tort liability as the
provisions of La.R.S. 9:2800.1 applied. The supreme court denied writs in Tregre,
229 So.3d 927, and Tregre, 230 So.3d 208. At this writing, this case is the latest
interpretation of the statutory immunity by our courts, with writs being denied on
November 13, 2017.
The transcript of the trial court’s oral reasons in this case demonstrate that the
trial court clearly recognized that La.R.S. 9:2800.1 was applicable to the employee
defendants. However, the trial court expressed concern about Paragon's purported
“quota policy” for its slot machine servers that required them to serve a certain
number of drinks per hour and the possible application of the duty/risk analysis for
“affirmative acts” that may have caused Mr. David to become intoxicated. Plaintiff
alleged that Ms. Martin was obligated to follow “casino policy” and intentionally
“overserved” Mr. David, who was “obviously intoxicated.” The uncontradicted
video evidence shows that Ms. Martin served him at least one beer and, possibly, up
to four beers between 5:45 p.m. when he approached Bar No. 2, until around 11:01
p.m., when she clocked out. Factually, she did not “overserve” Mr. David, who was
in an auto accident eight hours after she clocked out at work and fifty minutes after
23
Mr. David left the casino, when he collided with Mr. Michael Zaunbrecher some
seven to nine miles away on Highway One.
In his uncontradicted discovery deposition introduced in evidence, the
Paragon Banquet Manager, Mr. Robertson, testified that the “quota system” referred
to by the court only applies to the waitresses serving drinks while patrons are on the
gaming floor, including non-alcoholic drinks, and not to bartenders such as Ms.
Martin.
The issue of whether a “quota system” for the service of alcohol triggered the
application of the duty/risk analysis to a casino (and by analogy, its employees) was
also recently addressed by a panel of the fifth circuit in Boomtown, 62 So.3d 166.
That case involved a wrongful death action against the Boomtown Casino alleging
that the service of alcoholic beverages to Mr. Bourgeois was the “proximate and
legal cause of his death” in a one car accident which occurred shortly after he left
the casino. Mr. Bourgeois' blood alcohol level was .29%, and his intoxication was
allegedly the cause of the accident at issue.
As in this case, the plaintiffs claimed that “Boomtown’s alleged cocktail
server policy, which plaintiffs alleged required servers to bring alcoholic drinks to
customers every 20 to 30 minutes or face disciplinary action, including possible
termination,” amounted to independent, affirmative acts of negligence not covered
by the statute. Id. at 168.
The court of appeal in Boomtown found that La.R.S. 9:2800.1 applied.
Further the statute “eliminates the need for a duty/risk analysis,” based on the
following reasoning:
On July 9, 2007, the date of plaintiff’s accident, Boomtown
possessed a valid alcohol permit and the decedent was of a lawful age
to consume alcoholic beverages. The accident occurred off premises
24
and resulted from Mr. Bourgeois’ own intoxication. As these facts are
unequivocally established, Boomtown is immunized by this statute
from tort liability. Since the legislature has for public policy reasons
eliminated legal or “proximate cause” in a case of this type,
Boomtown’s act of serving alcohol is not the proximate cause of the
decedent's death and absent this essential legal element, plaintiffs’ case
fails as a matter of law.
Boomtown, 62 So.3d at 171.
The appellate court in Boomtown also addressed the issue that the requirement
that the cocktail waitresses serve a certain number of drinks each hour somehow
constituted “force”, which was an exception to statutory immunity under La.R.S.
9:2800.l(E). In other words, the policy of requiring “cocktail waitresses to serve
customers every 20 to 30 minutes” somehow was forcing Boomtown customers to
drink alcohol. Boomtown, 62 So.3d at 172.
As in this case, there was no testimony to support the plaintiffs’ conclusion
“that customers were forced to accept an alcoholic drink every 20 to 30 minutes or
were forced to drink one that was served.” Id. (emphasis added). Thus, the court
concluded that Mr. Bourgeois was not “forced” to consume alcohol. The court held
that Boomtown was statutorily immune from liability under La.R.S. 9:2800.1 and
affirmed the summary judgment in favor of the defendants.
Respondents in this case did not even allege that Mr. David was “forced” to
drink alcohol. The uncontradicted facts in this case show that Mr. David was not
“forced” to accept any alcohol or “drink one” that was served. We find that the
record is clear that the “force” exception to the immunity provided by La.R.S.
9:2800.1 likewise does not apply in this case and agree with the reasoning in
Boomtown. In short, there is no “casino exception” to the statutory immunity
provided by La.R.S. 9:2800.1.
25
Application Of The Training Of Employees and Handbooks
Respondents also argue that Paragon’s internal policies and Paragon’s training
materials establish an individual duty on the part of the security officers to
protect the public from intoxicated patrons.
The employee defendants, Ponthieux and Ponthier, argue that training on
alcohol awareness for trainee security personnel does not create a legal duty to guests
off premises on the part of an individual employee protected by the statutory
immunity of La.R.S. 9:2800.1. They argue that the legislature did not include any
such exception in the statute, but instead, the Louisiana Alcohol and Tobacco
Control (ATC) established the Responsible Vendor Program (RVP). The
Responsible Vendor Program requires employers serving alcohol to create training
materials, testing and to issue RVP cards to all servers handling alcohol. “Effective
January 1, 2000, all vendors shall participate in the program.” La.R.S. 26:939.
The RVP Guidelines are contained on the ATC public website and require
that servers monitor behavioral signs of intoxication, and if they determine that there
are signs of intoxication, including slurred speech, slow reactions, and impaired
judgment, they are to arrange for a taxi, offer food or a non-alcoholic beverage.
Paragon’s guidelines were taken from the RVP Guidelines as confirmed in the
deposition of Erin Chapman, Paragon’s AAT trainer, and submitted into evidence in
support of the employee defendants’ motion for summary judgment. At the time of
the encounter of both Mr. Ponthieux and Mr. Ponthier with Mr. David in the Paragon
Casino in the early morning hours of July 11, 2013, both security guards were RVP
cardholders, as required by La.R.S. 26:939.
26
Respondents have not been able to provide any jurisprudence that excludes
security officers from the statutory immunity provided by La.R.S. 9:2800.1 as
employees of alcohol vendors. In addition to Tregre, 224 So.3d 1234, and
Boomtown, 62 So.3d 166, previously addressed in this opinion, this circuit, in Roy,
983 So.2d 975, extended La.R.S. 9:2800.1 statutory immunity to the owner,
manager, and bartender of the defendant bar, and affirmed the summary judgment
granted by the trial court. As in this case, plaintiffs/respondents argued that
continuing to serve alcoholic beverages, after the 3:00 a.m. parish mandated closing
time, to an obviously intoxicated person of a lawful age (Mr. Roy was twenty-one)
and an obviously intoxicated person who was under the lawful age (Mr. Parsley was
twenty), established by La.R.S. 14:93.11 and 14:93.12, was a violation of a state
statute and a parish ordinance and thus defeated the statutory immunity provided by
La.R.S. 9:2800.1.
Mr. Roy and Mr. Parsley were drinking at Kyrles bar, also located in
Avoyelles Parish. Both were served more alcoholic beverages after they appeared
intoxicated and after the parish closing time of 3:00 a.m. Both then left the bar in a
vehicle owned and being driven by Mr. Roy and were involved in a one vehicle
accident. Mr. Roy was killed, and Mr. Parsley was injured. Mr. Roy’s parents sued
Kyrles and Mr. Juneau, the manager of Kyrles, claiming that the bartenders
overserved drinks to the two young men and employees of Kyrles allowed them to
leave the bar and drive away, knowing they were intoxicated.
Writing for the court, Judge Saunders addressed these issues and stated:
For La.R.S. 9:2800.1 to apply: (1) the bar owner must hold a
permit under either Chapter 1 or Chapter 2 of Title 26 of the Louisiana
Revised Statutes; (2) the bar owner or its personnel served alcoholic
beverages to a person over the lawful drinking age; (3) the purchaser
27
suffered and/or caused another to suffer an injury off the bar’s premises;
and (4) the injury was caused by the purchaser’s intoxication. Zapata
v. Cormier, 02-1801 (La. App. 1 Cir. 6/27/03), 858 So.2d 601.
Here, all four elements are met. Kyrles established that it is
licensed by both the state and the parish to serve alcoholic beverages
on its premises. Roy was over the legal drinking age of twenty-one
established by La.R.S. 14:93.11 and 14:92.12. Plaintiffs allege that
Roy and Parsley were injured off Kyrles’ premises. Those injuries
suffered were as a result of Roy driving the vehicle while intoxicated.
Plaintiffs argue that La.R.S. [9:]2800.1 does not apply to the case
at bar since defendants allegedly sold alcoholic beverages to Roy after
he became intoxicated and after the parish-mandated closing time.
Plaintiffs contend that these sales were made in violation of state and
parish law and, thus, unlawful. As such, plaintiffs conclude that since
the sales were unlawful, Roy cannot be of lawful age to make these
purchases and, therefore, La.R.S. 9:2800.1 does not apply.
This argument lacks merit as it is contrary to the plain text of
La.R.S. 9:2800.1. The phrase “over the age for the lawful purchase
thereof” describes the person whom need be served alcohol in order for
the immunity to apply. The statute requires compliance with only two
laws: the one requiring a permit under Title 26 of the Revised Statutes,
and the one establishing this state’s legal drinking age. It does not
require the bar to comply with every statute, regulation, or ordinance
governing the sale or service of alcohol.
Moreover, this court, in Bertrand v. Kratzer’s Country Mart, 563
So.2d 1302 (La.App. 3 Cir.), writ denied, 569 So.2d 959 (La.1990),
held that a defendant’s service of alcohol to an intoxicated person does
not make a defendant liable for damages resulting from an accident
caused by the person’s intoxication. The result in Bertrand was based
upon our supreme court’s precedent set in Thrasher v. Leggett, 373
So.2d 494 (La.1979), and Saunders v. Hercules Sheet Metal, Inc., 385
So.2d 772 (La.1980). The enactment of La.R.S. 9:2800.1 is, in effect,
a codification of these cases and it encompasses the observance that the
state has a clear goal “in narrowing the scope of liability of tavern
keepers and social hosts and in allocating consequences of irresponsible
drinking to the person doing the drinking.” Schulker v. Roberson, 91-
1228 (La.App. 3 Cir. 6/5/96), 676 So.2d 684, 688.
Accordingly, we find that the trial court correctly granted defendants’
motion for summary judgment. Plaintiffs cannot prove an essential
element to its theory of recovery, that the defendants’ conduct was the
legal cause of their damages, due to the statutory immunity granted to
the defendant under La.R.S. 9:2800.1. As such, we affirm the trial
court’s judgment.
28
Roy, 983 So.2d at 979-80.
The first circuit noted in Morris, 147 So.3d at 1124: “We find the statutory
language of [La.R.S.] 9:2800.1 to be clear and unambiguous, leaving no room for
interpretation beyond the ordinary meaning of the words employed.” See also
Comeaux v. Lemmons, 10-651 (La.App. 3 Cir. 12/8/10) (unpublished opinion);
Zapata, 858 So.2d 601; and Alvarenga, 818 So.2d 1017.
We find that there is no exception created by the statute for alleged
independent negligence of employees of the permit holder, i.e. security guards,
bartenders, and floor waitresses, who somehow allegedly violate in house guidelines
or state statutes as to serving alcohol or handling intoxicated patrons.
Moreover, as previously stated, La.R.S. 9:2800.1(B) (emphasis added) clearly
states:
B. Notwithstanding any other law to the contrary, no person
holding a permit under either Chapter 1 or Chapter 2 of Title 26 of
the Louisiana Revised Statutes of 1950, nor any agent, servant, or
employee of such a person, who sells or serves intoxicating
beverages of either high or low alcoholic content to a person over
the age for the lawful purchase thereof, shall be liable to such
person or to any other person or to the estate, successors, or
survivors of either for any injury suffered off the premises,
including wrongful death and property damage, because of the
intoxication of the person to whom the intoxicating beverages were
sold or served.
The duties imposed on permit holders and their employees under Title 26 of
the revised statutes do have consequences, such as the loss of the permit to sell
alcohol pursuant to La.R.S. 26:90, or loss of a RVP card to those serving alcohol
under La.R.S. 26:935. But as held in Tregre and Roy, those statutes do not in any
way limit statutory immunity under La.R.S. 9:2800.1.
29
Moreover, the uncontradicted video footage and testimony in evidence in
support of the employee defendants’ motion for summary judgment directly
contradicts the mere allegations made in Respondents’ petition. Even if the
circumstances did show that Mr. David was overserved by Ms. Martin, or other
casino employees, and forcibly ejected from the Paragon Casino and escorted to his
vehicle by the two security guards, Mr. Ponthier and Mr. Ponthieux, as alleged by
Respondents with no evidence to support their claims, based on the clear wording of
La.R.S. 9:2800.1 and the jurisprudence noted above, the employee defendants would
still be entitled to the statutory immunity provided by the statute. The Louisiana
Legislature and cases interpreting La.R.S. 9:2800.1 have made it clear that,
“Notwithstanding any law to the contrary,” the responsibility for intoxication falls
squarely on the shoulders of the intoxicated individual, in this case Mr. David.
La.R.S. 9:2800.1(B).
For the foregoing reasons we find that the trial court erred as a matter of law
in failing to grant summary judgment pursuant to La.R.S. 9:2800.1 and afford
statutory immunity to the employee defendants, Ms. Martin, Mr. Ponthier, and Mr.
Ponthieux.
CONCLUSION
We reverse the trial court’s denial of the motion for summary judgment and
enter summary judgment in favor of the Defendants/Relators, Marissa Martin,
Nathan Ponthier, and Jeremy Ponthieux, dismissing the claims of Respondents,
Zachary Zaunbrecher, individually and on behalf of his deceased father, Michael
Blake Zaunbrecher, the Estate of Leo David, and Liberty Mutual Insurance
Company with prejudice at their cost. All costs of the supervisory writs are assessed
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to Respondents, Zachary Zaunbrecher, individually and on behalf of his deceased
father, Michael Blake Zaunbrecher, the Estate of Leo David, and Liberty Mutual
Insurance Company.
MOTION TO STRIKE WRIT APPLICATION OF MARISSA MARTIN
DENIED; MOTION TO STRIKE EXHIBITS D AND I OF PLAINTIFFS’
OPPOSITION GRANTED; WRIT GRANTED AND MADE PEREMPTORY.
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Cooks, J. concurs.
I concur to write, after viewing the video evidence as urged to do by
Plaintiff’s counsel, it is apparent in all of the video footage presented that
counsel for plaintiff’s characterization of Mr. David’s condition in the casino,
and of his departure from the casino property an hour before the fatal accident,
are wholly unsupportable. It is clear Mr. David was not escorted to his vehicle
but can clearly be seen leaving the casino building of his own accord,
unassisted by anyone. He is seen walking quite a distance directly to his
vehicle and driving away in a normal manner.
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