Bourgeois v. Boomtown

• Decision Date: 15 February 2011
• Docket Number: No. 10–CA–553.,10–CA–553.
• Citation: 62 So.3d 166
• Parties: Jeffrey C. BOURGEOIS, individually and on behalf of Dale Bourgeois, Mark J. Bourgeois, individually and on behalf of Dale Bourgeois, Rebekah L. Bourgeois, individually and on behalf of Dale Bourgeois, and Renee B. Bourgeoisv.BOOMTOWN, LLC OF DELAWARE, Pinnacle Entertainment, Inc. of Delaware, M/V Boomtown Belle, II and Louisiana–1 Gaming, A Louisiana Partnership in Commendam.
• Court: Court of Appeal of Louisiana — District of US

62 So.3d 166

Jeffrey C. BOURGEOIS, individually and on behalf of Dale Bourgeois, Mark J. Bourgeois, individually and on behalf of Dale Bourgeois, Rebekah L. Bourgeois, individually and on behalf of Dale Bourgeois, and Renee B. Bourgeois
v.
BOOMTOWN, LLC OF DELAWARE, Pinnacle Entertainment, Inc. of Delaware, M/V Boomtown Belle, II and Louisiana–1 Gaming, A Louisiana Partnership in Commendam.

No. 10–CA–553.

Court of Appeal of Louisiana, Fifth Circuit.

Feb. 15, 2011.

[62 So.3d 168]

Richard J. Fernandez, Amber E. Cisney, L. Eric Williams, Attorneys at Law, Metairie, LA, for Plaintiffs/Appellants.Daryl A. Higgins, A. Mark Flake, Attorneys at Law, Gretna, LA, for Defendants/Appellees.Panel composed of Judges JUDE G. GRAVOIS, MARC E. JOHNSON, and ROBERT L. LOBRANO, Pro Tempore.JUDE G. GRAVOIS, Judge.

[5 Cir. 2] Plaintiffs, Jeffrey C. Bourgeois, et al,¹ appeal a summary judgment in favor of the defendants, Boomtown, L.L.C. of Delaware, Pinnacle Entertainment, Inc. of Delaware, M/V Boomtown Belle, II, and Louisiana–I Gaming, A Louisiana Partnership In Commendam, hereinafter sometimes collectively referred to as “Boomtown”, finding no liability as a matter of law for the death of Dale Bourgeois (“Mr. Bourgeois”).

On appeal, appellants argue the following assignments of error: 1) the trial court erred in disregarding defendants' alleged breach of LSA–R.S. 26:90 (serving alcohol to an intoxicated person); 2) the trial court erred in not finding that the defendants had a duty to avoid affirmative acts that increased the risk of peril to an [5 Cir. 3] intoxicated person (Mr. Bourgeois) and that the defendants breached that duty; and 3) the trial court erred in finding that the defendants' actions did not constitute force, and that the defendants were therefore not entitled to the protections of LSA–R.S. 9:2800.1. For the reasons that follow, we affirm.

FACTS

Plaintiffs filed a wrongful death action against the defendants, alleging that the defendants' serving of alcoholic beverages to Mr. Bourgeois was the proximate and legal cause of his death. The record and pleadings show that Mr. Bourgeois died in a single-car accident on Peters Road in Harvey, Louisiana, shortly after he left the Boomtown Casino on July 9, 2007. The record shows that Mr. Bourgeois, who was 56 years old, entered the casino on July 9, 2007 at approximately 5:26 p.m., and left the casino through an employee entrance at approximately 9:15 p.m. It is undisputed that Mr. Bourgeois drank alcoholic beverages while gaming at the casino, but the extent thereof has not been established. Autopsy records revealed that Mr. Bourgeois's blood alcohol level at the time of the autopsy was .290% g, well over the statutory limit of legal drunkenness.

The petition alleged that the cocktail waitress at the Boomtown casino violated LSA–R.S. 26:90(2) by serving alcoholic beverages to an intoxicated person (Mr. Bourgeois). The petition cited 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, as plaintiffs characterized the excerpted deposition testimony of Boomtown's waitress supervisor, offered in support of their petition.

[62 So.3d 169 , 5 Cir. 4]

ANALYSIS

Appellate courts review a district court's grant of summary judgment de novo, viewing the record and all reasonable inferences that may be drawn from it in the light most favorable to the non-movant. Hines v. Garrett, 04–0806 (La.6/25/04), 876 So.2d 764, 765. A motion for summary judgment should be granted only if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. LSA–C.C.P. art. 966.

A material fact is one that potentially insures or prevents recovery, affects a litigant's ultimate success, or determines the outcome of the lawsuit. Smith v. Our Lady of the Lake Hosp., Inc., 93–2512, p. 27 (La.7/5/94), 639 So.2d 730, 751. An issue is a genuine issue if it is such that reasonable persons could disagree; if only one conclusion could be reached by reasonable persons, summary judgment is appropriate as there is no need for trial on that issue. Id.

Summary judgment procedure is intended to make a just and speedy determination of every action. LSA–C.C.P. art. 966. It is favored and the procedure shall be construed to achieve this intention. Id. Under LSA–C.C.P. art. 966, the initial burden is on the mover to show that no genuine issue of material fact exists. If the moving party points out that there is an absence of factual support for one or more elements essential to the adverse party's claim, action or defense, the nonmoving party then must produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial. LSA–C.C.P. art. 966(C)(2). If the nonmoving party fails to do so, there is no genuine issue of material fact, and summary judgment should be granted. [5 Cir. 5] LSA–C.C.P. arts. 966 and 967; Paternostro v. Wells Fargo Home Mortg., Inc., 09–469 (La.App. 5 Cir. 12/8/09), 30 So.3d 45.

To determine whether liability exists under a negligence theory, the courts apply a duty-risk analysis. Under this analysis, the plaintiff must prove: 1) the conduct in question was the cause-in-fact of the resulting harm; 2) the defendant owed a duty of care to the plaintiff; 3) the requisite duty was breached by the defendant; and 4) the risk of harm was within the scope of protection afforded by the duty breached. Lazard v. Foti, 02–2888, p. 3 (La.10/21/03), 859 So.2d 656, 659. A negative answer to any of the elements of the duty/risk analysis requires a no-liability determination. Id. The question of whether a defendant owes a duty to the plaintiff is a question of law. Id.

First Assignment of Error

In their first...