97-2568 La.App. 4 Cir. 5/27/98, Godfrey v. Boston Old Colony Ins. Co.

• Decision Date: 27 May 1998
• Citation: 718 So.2d 441
• Parties: 97-2568 La.App. 4 Cir
• Court: Court of Appeal of Louisiana — District of US

Page 441

718 So.2d 441

97-2568 La.App. 4 Cir. 5/27/98

John S. GODFREY v. BOSTON OLD COLONY INSURANCE COMPANY, et al.

No. 97-CA-2568.

Court of Appeal of Louisiana Fourth Circuit.

May 27, 1998.

Rehearing Denied Aug. 31, 1998.

Patrick M. Files, Jarrell E. Godfrey, Jr., The Godfrey Firm, New Orleans, for Plaintiff/Appellant.

Charles W. Schmidt, III, Robert D. Peyton, Joseph M. Guillot, Christovich & Kearney, New Orleans, for Interstate Fire & Casualty Company and LJN, Inc., d/b/a Waldo's.

Darleen M. Jacobs, New Orleans, for Defendant/Appellee Craig Napoli.

William F. Wessel, Raymond R. Egan, III, Wessel & Associates, New Orleans, Amicus Curiae.

Before ARMSTRONG, PLOTKIN and JONES, JJ.

[97-2568 La.App. 4 Cir. 1] PLOTKIN, Judge.

This appeal raises the issue of whether a bar, its owner, and/or it insurer may, under any circumstances, be held liable for injuries suffered by a 19-year-old patron in an automobile accident, which accident occurred after the patron left the bar in an intoxicated condition, while he was a guest passenger in an automobile driven by another 19-year-old bar patron. The trial court granted a motion for summary judgment in favor of the bar and its owner, finding that the plaintiff's consumption of alcohol was the proximate cause of his injuries. Additionally, the trial court found that the bar owner took no affirmative steps to increase the plaintiff's peril. For the reasons which follow, we reverse the trial court judgment dismissing the patron's claim against the owner/vendor and remand for further proceedings consistent with this decision.

Facts

Plaintiff John Godfrey, along with his friends, Ricky Price and Jack Counce, arrived at Waldo's Bar, defendant, some time between 9:30 p.m. and 11:30 p.m., [97-2568 La.App. 4 Cir. 2] September 20, 1991. The record indicates that Mr. Godfrey and Mr. Price had been together, drinking alcohol, throughout the day; both Mr. Godfrey and Mr. Price were 19 years old at the time. Several witnesses testified by deposition that Mr. Godfrey and Mr. Price each had at least one drink while at Waldo's.

Around 12:15 a.m. the next morning, September 21, 1991, Mr. Godfrey was escorted out of the bar by a Waldo's employee, purportedly because of his intoxication and because he kicked a make-shift television stand in the bar. Outside of the bar, Mr. Craig Napoli, the owner of Waldo's, approached Mr. Godfrey and the small group that had gathered around him to inquire about the altercation; Mr. Napoli apparently knew Mr. Godfrey as a regular customer.

By deposition, Mr. Napoli testified that he asked Mr. Godfrey to hand over his car keys, but that Mr. Godfrey told Mr. Napoli that he was not driving. Moreover, according to Mr. Napoli's deposition, Mr. Godfrey was surrounded by a "conglomeration of people"; those people assured Mr. Napoli that Mr. Godfrey was not driving. Although he testified that Mr. "Godfrey was drunk," he stated as follows concerning the other people:

I felt relatively sure all these people seemed to be coherent, none appeared to be, you know, in a drunken stupor--you know, where I wouldn't feel safe with him getting home. I mean, all of these people seemed to be relatively sober.

Mr. Napoli then returned to the bar.

Mr. Price had driven Mr. Godfrey and Mr. Counce to Waldo's that evening. After the incident at Waldo's, Mr. Price, Mr. Godfrey, Mr. Counce and another friend, Ben Noveck, returned to Mr. Price's car; Mr. Price was the driver. During the drive home from Waldo's, Mr. Price's vehicle turned over in a curve of Palmetto Street near the Orleans/Jefferson Parish line. Mr. Price was killed in the accident, while Mr. Godfrey suffered injuries rendering him a quadriplegic. [97-2568 La.App. 4 Cir. 3] Mr. Godfrey was reported to have had a blood alcohol level of .29% at the time; the Orleans Parish Coroner's Office reported that Mr. Price's blood alcohol level was .13%.

Mr. Godfrey filed suit against Waldo's and Mr. Napoli, as well as Waldo's insurer, Interstate Fire & Casualty Insurance Co. (hereinafter referred to collectively as "Waldo's"), asserting Waldo's liability for his injuries based on the service of alcohol to the 19-year-old Mr. Godfrey. Mr. Godfrey also claims that Waldo's is liable because Mr. Napoli committed an affirmative act by which he assumed responsibility for Mr. Godfrey's welfare, and because Waldo's increased the peril to Mr. Godfrey by ejecting him from the bar and allowing him to leave with an allegedly intoxicated driver.

Waldo's filed a motion for summary judgment, asserting the immunity provided by LSA-R.S. 9:2800.1. The trial court entered summary judgment, stating as follows:

The court finds that it is the consumption of alcohol, rather than the sale of such beverage, that is the proximate cause of any injury inflicted by the intoxicated person upon himself or another person.

The court further finds that Napoli took no affirmative steps to increase the peril of the plaintiff and, [in] fact, took steps to protect him.

On appeal, Mr. Godfrey assigns two issues for review: ¹

[97-2568 La.App. 4 Cir. 4] 1. Whether the decision granting the Motion for Summary Judgment based on the conclusion that the "dram shop" immunity statute, LSA-R.S. 9:2800.1, applies to the sale of alcoholic beverages to those under the legal age for the purchase thereof is in accord with the laws of Louisiana?

2. Whether the decision granting the Motion for Summary Judgment on the factual finding that the Defendants did not commit any affirmative acts to increase the peril to an intoxicated patron but "took steps to protect him" was in error?

I. Standard for deciding motion for summary judgment

Appellate courts review summary judgment decisions de novo. Walker v. Kroop, 96-0618 (La.App. 4 Cir. 7/24/96), 678 So.2d 580, 583. The appellate court, like the trial court, should uphold a summary judgment decision only when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issues of material fact and that the mover is entitled to judgment as a matter of law." LSA-C.C.P. art. 966(B). "Facts are material if they potentially insure or preclude recovery, affect a litigant's ultimate success, or determine the outcome of the legal dispute." Id. (citation omitted).

Louisiana Code of Civil Procedure article 966 was amended in 1996 to state that summary judgments are favored. The article was amended again in 1997 to clarify issues concerning the movant's burden of proof. Subparagraph C(2) of article 966 provides:

The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant's burden on the motion does not require him to negate all essential elements of the adverse party's claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to [97-2568 La.App. 4 Cir. 5] satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.

LSA-C.C.P. art. 966 C(2).

This Court explicated the 1997 amendment to La. C.C.P. article 966 in Cressionie v. Liberty Mutual Ins. Co., 98-0534 (La.App. 4 Cir. 4/8/98), 711 So.2d 364, stating as follows:

Procedurally, under the 1997 amendments to the summary judgment law, La. C.C.P. art. 966, a court's first task on a motion for summary judgment remains the same--to determine whether the moving party's supporting documents--pleadings, depositions, answers to interrogatories, admissions and affidavits--are sufficient to resolve all material factual issues. La. C.C.P. art. 966(B). If the court finds that a genuine issue of material fact exists, summary judgment must be denied. Walker v. Kroop, 95-0618 (La.App. 4 Cir. 7/24/96), 678 So.2d 580, 584.

However, if the court finds, based on the evidence presented by the movant, that no genuine issues of material fact exist, the party opposing the motion for summary judgment is required to "produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial." La. C.C.P. art. 966(C)(2). In meeting his burden of proof, the movant is expressly not required "to negate all the essential elements of the adverse party's claim, action or defense," but only "to point out to the court that there is an absence of factual support for one or more elements." Id. Once the movant has met his burden and the burden shifts to the party opposing the motion, the non-moving party is not allowed to rely on the allegations of his pleadings in opposition to a properly-supported motion for summary judgment. Oakley v. Thebault, 96-0937 (La.App. 4 Cir. 11/18/96), 684 So.2d 488.

Id. at 366.

In the instant case, Mr. Godfrey claims that Waldo's failed to prove both elements necessary to support the granting of a summary judgment. Mr. Godfrey claims that Waldo's is not entitled to judgment as a matter of law under LSA-R.S. 9:2800.1 and that a genuine issue of material fact remains concerning whether [97-2568 La.App. 4 Cir. 6] Waldo's committed an affirmative act which increased the peril caused by the intoxication.

II. "Dram shop" liability

The area of civil law dealing with the liability of sellers of alcoholic beverages for damages caused by persons who become intoxicated as a result of the consumption of those alcoholic beverages is commonly called "dram shop" ² liability. Although the first dram shop laws in this country were passed in the late 1840's as a result of the Temperance Movement, such laws did not play a major role in the development of modern tort law until the 1970's, when the movement against drinking and driving began. Comment, "Responsible Service of Alcohol: A Way to Reduce Injuries and Protect Against Liability," 19 Golden Gate U.L.Rev. 279, 281 (1989); Daphne D. Sipes, "The Emergency of Civil...