Mechelle Rugg v. Horseshoe Entertainment

Judgment rendered January 10, 2024.
Application for rehearing may be filed
within the delay allowed by Art. 2166,
La. C.C.P.

No. 55,239-CW

COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA

*****

MECHELLE RUGG Respondent

versus

HORSESHOE ENTERTAINMENT, Applicants
ET AL.

*****

On Application for Writs from the
Twenty-Sixth Judicial District Court for the
Parish of Bossier, Louisiana
Trial Court No. 160,323

Honorable Michael O. Craig, Judge

*****

KEAN MILLER LLP Counsel for Applicant,
By: Scott L. Zimmer Horseshoe Entertainment
Amanda M. Collura-Day

PARKER ALEXANDER LLC Counsel for Respondent,
By: Chad C. Carter Mechelle Rugg
Kevin David Alexander

*****

Before COX, STEPHENS, and ELLENDER, JJ.

STEPHENS, J.

This writ grant to docket arises from the 26th Judicial District Court,

Bossier Parish, the Honorable Michael O. Craig, presiding. The applicant,

Horseshoe Entertainment (“Horseshoe”), seeks review of the trial court’s

denial of its motion for summary judgment. For the following reasons, we

grant the writ, reverse the judgment of the trial court, and grant summary

judgment in favor of Horseshoe.

FACTS & PROCEDURAL HISTORY

On September 22, 2018, Mechelle Rugg entered the Horseshoe

Bossier City Hotel & Casino in Bossier City, Louisiana. The hotel and

casino are owned and operated by Horseshoe. As the evening progressed,

Mrs. Rugg and her husband made their way to the hotel bar, Whiskey

Roadhouse. Mrs. Rugg testified in her deposition that she noticed a visibly

intoxicated individual, John Doe, on the dance floor when she entered the

bar. She stated in her deposition that the way John Doe was dancing and

stumbling prompted her to think the man was intoxicated. Mrs. Rugg said

she observed John Doe dancing with a woman, but once the song ended,

John Doe disappeared from Mrs. Rugg’s view.

At some point after that, John Doe fell onto Mrs. Rugg, which

allegedly caused her to sustain serious injuries to her head, back, arms, and

neck. In her deposition testimony, Mrs. Rugg alleged that several ladies

helped her and her husband after John Doe fell on her. Mrs. Rugg related

that these ladies said they had “been asking them for hours to get him out of

here.” However, affidavits in the record contained statements by two

Whiskey Roadhouse employees that they received no complaints about John

Doe or his behavior prior to him falling onto Mrs. Rugg.

On August 29, 2019, Mrs. Rugg filed a petition for damages against

Horseshoe, John Doe, and unidentified insurance companies (i.e., “ABC”

and “XYZ”). Mrs. Rugg alleged in her petition that John Doe fell on her

because he was too intoxicated to stand or balance. On May 19, 2021, the

trial court granted Mrs. Rugg’s motion for leave to file an amended petition

to add her husband as a plaintiff for his loss of consortium claim. On June 3,

2021, Mrs. Rugg filed a motion for partial summary judgment and urged that

no genuine issues of material fact existed as to John Doe’s or Horseshoe’s

liability. In response, Horseshoe filed a cross-motion for summary judgment

and an opposition to Mrs. Rugg’s motion for partial summary judgment.

After a hearing held on August 16, 2021, the trial court denied Mrs. Rugg’s

motion for summary judgment.

On July 29, 2022, Horseshoe filed a “re-urged” motion for summary

judgment asserting that Mrs. Rugg could not establish that Horseshoe owed

Mrs. Rugg a duty to protect her from the negligent acts of John Doe. In

opposition, Mrs. Rugg argued that Horseshoe’s employees failed to act in a

timely manner to remove John Doe from the premises when they knew or

should have known of his level of impairment and inability to steady

himself. Horseshoe responded and reiterated its contention that businesses

do not need to protect against unforeseeable or unanticipated criminal acts

by independent third persons.

The trial court did not hold a hearing on this issue but instead decided

the motion on briefs. On March 1, 2023, the trial court denied Horseshoe’s

motion for summary judgment and determined that Mrs. Rugg raised

genuine issues of material fact in her opposition. Horseshoe immediately

filed a notice of intent to apply for supervisory review and filed its writ
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application on March 30, 2023. This Court granted the writ for arguments

on May 2, 2023, and instructed the parties to address in brief to what extent,

if any, La. R.S. 9:2800.1 and accompanying jurisprudence is applicable to

this case.

DISCUSSION

Horseshoe contends that La. R.S. 9:2800.1 legally prevents any

finding of liability on the part of Horseshoe because John Doe’s

consumption of intoxicating beverages, rather than the sale or serving of

such beverages, is the sole and proximate cause of any injury inflicted on

Mrs. Rugg. Furthermore, Horseshoe urges that the trial court erred when it

denied Horseshoe’s summary judgment motion because it owed no duty to

Mrs. Rugg. Even if Horseshoe owed a duty to Mrs. Rugg, it argues that the

duty was not breached.

In response, Mrs. Rugg urges that the trial court correctly found

genuine issues of material fact existed that preclude summary judgment.

First, Mrs. Rugg contends that La. R.S. 9:2800.1 does not rule out

Horseshoe’s liability because Mrs. Rugg’s injury occurred on the premises.

Similarly, Mrs. Rugg argues that she will be able to establish proof for all of

the elements that are essential to her negligence claim.

A motion for summary judgment is a procedural device used when

there is no genuine issue of material fact for all or part of the relief prayed

for by a litigant. Samaha v. Rau, 07-1726 (La. 2/26/08), 977 So. 2d 880;

Driver Pipeline Co. v. Cadeville Gas Storage, LLC, 49,375 (La. App. 2 Cir.

10/1/14), 150 So. 3d 492, writ denied, 14-2304 (La. 1/23/15), 159 So. 3d

1058. Summary judgment procedure is designed to secure the just, speedy,

and inexpensive determination of every action, except those disallowed by
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La. C.C.P. art. 969(A)(2). The procedure is favored and shall be construed to

accomplish those ends. Id.

Appellate courts review motions for summary judgment de novo,

using the same criteria that govern the trial court’s consideration of whether

summary judgment is appropriate. Leisure Recreation & Ent., Inc. v. First

Guaranty Bank, 21-00838 (La. 3/25/22), 339 So. 3d 508; Peironnet v.

Matador Res. Co., 12-2292 (La. 6/28/13), 144 So. 3d 791; Elliott v.

Continental Casualty Co., 06-1505 (La. 2/22/07), 949 So. 2d 1247; Reynolds

v. Select Properties, Ltd., 93-1480 (La. 4/11/94), 634 So. 2d 1180; Davis v.

Whitaker, 53,850 (La. App. 2 Cir. 4/28/21), 315 So. 3d 979.

A motion for summary judgment shall be granted if the motion,

memorandum, and supporting documents show there is no genuine issue as

to material fact and the mover is entitled to judgment as a matter of law. La.

C.C.P. art. 966(A)(3). A material fact is one that potentially ensures or

precludes recovery, affects the ultimate success of the litigant, or determines

the outcome of the dispute. Because it is the applicable substantive law that

determines materiality, whether a particular fact in dispute is material for

summary judgment purposes can be seen only in light of the substantive law

applicable to the case. Jackson v. City of New Orleans, 12-2742 (La.

1/28/14), 144 So. 3d 876; Richard v. Hall, 03-1488 (La. 4/23/04), 874 So. 2d

131.

On a motion for summary judgment, the burden of proof rests with the

mover. La. C.C.P. art. 966(D)(1). 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
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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. Id.

The area of civil law dealing with liability for damages caused by

intoxicated persons as a result of the consumption of alcoholic beverages is

commonly called “dram shop” liability. On June 6, 1986, Louisiana enacted

La. R.S. 9:2800.1, its first “anti-dram shop” statute. La. R.S. 9:2800.1

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.
...

The determination of whether a vendor/host is liable to an intoxicated

patron injured as a result of their own intoxication or to third-parties injured

because of the negligence of an intoxicated patron involves a two-part

analysis: (1) whether the vendor/host is immunized by La. R.S. 9:2800.1,

and, if not, (2) whether the vendor/host can be liable under general

negligence principles. Mayhorn v. McKinney, 34,789 (La. App. 2 Cir.

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6/20/01), 793 So. 2d 225, citing, Godfrey v. Boston Old Colony Insurance

Company, 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. It is, therefore, only after a

determination is made that the above statute (and the immunity it affords) is

inapplicable to a given case that the duty/risk analysis of a general

negligence issue becomes relevant. Mayhorn, supra.

In cases where immunity under La. R.S. 9:2800.1 does not apply,

courts must determine the duty that was owed and if it was breached. To

make this determination, courts have generally considered the same two

questions considered by Louisiana courts prior to adoption of La. R.S.

9:2800.1, which are (1) whether the vendor acted as a reasonable person

under the circumstances of the case, and (2) whether the vendor committed

any affirmative acts to increase the peril to the intoxicated person. Godfrey,

supra.

In determining whether liability exists, the court must determine

whether the bar owner violated general negligence principles. Wimberly v.

Giglio, 46,000 (La. App. 2 Cir. 1/26/11), 57 So. 3d 389, citing, Colgate v.

Mughal Bros., Inc., 36,754 (La. App. 2 Cir. 1/29/03), 836 So. 2d 1229, writ

denied, 03-0923 (La. 5/16/03), 843 So. 2d 1136. Aside from the duty and

breach elements as addressed above, the following three elements must also

be proven by the plaintiff: 1) that the defendant’s affirmative act was a

cause-in-fact of the plaintiff’s injuries; 2) that the defendant’s affirmative act

was a legal cause of the plaintiff’s injuries; and 3) that the plaintiff incurred

actual damages. A negative answer to any of the elements of the duty/risk

analysis prompts a no-liability determination. Wimberly, supra, citing,

Stroik v. Ponseti, 96-2897 (La. 9/9/97), 699 So. 2d 1072.
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In the instant matter, we find that the trial court improperly denied

Horseshoe’s motion for summary judgment. The analysis begins with

whether immunity under La. R.S. 9:2800.1(B) applies to Horseshoe. We

find it does not. In order for Subsection (B) to apply, the injury suffered

must occur off the premises from where the alcohol is provided. In this

matter the fall in question, which allegedly resulted in Mrs. Rugg’s injuries,

occurred in the Whiskey Roadhouse bar area. Therefore, immunity under

La. R.S. 9:2800.1(B) does not exist for Horseshoe. Because immunity does

not exist under Subsection (B), Subsection (A) requires a basic duty/risk

analysis for the second step, focusing on two questions: (1) whether

Horseshoe acted reasonably under the circumstances of the case, and (2)

whether Horseshoe committed any affirmative acts to increase the chances of

the incident in question.

Nothing in the record suggests that Horseshoe acted unreasonably

under the circumstances of this case, and Mrs. Rugg has failed to provide

evidence that shows otherwise. Mrs. Rugg has not presented anything to

show that John Doe demonstrated he was a threat prior to his fall. In her

deposition, Mrs. Rugg stated that the women helping her to her feet after the

fall stated that others were asking for John Doe to be escorted out. However,

no evidence or testimony suggests this to be the case. Affidavits from the

employees at Whiskey Roadhouse instead provided that no one reported

John Doe or requested that he be removed from the premises. Most notably,

the facts presented by Mrs. Rugg in her opposition and brief primarily focus

on John Doe’s behavior after he fell on her. Mrs. Rugg also admitted that

she did not bring John Doe’s intoxication to the attention of any of

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Horseshoe’s employees. Therefore, it cannot be said that Horseshoe acted

unreasonably in this case.

Similarly, Mrs. Rugg failed to provide evidence to establish that

Horseshoe committed any affirmative act or acts to increase the chances of

the incident in question. Mrs. Rugg asserts that Horseshoe failed to remove

John Doe from the bar area. However, the failure of Horseshoe to escort

John Doe from the premises is not an affirmative act. As previously stated,

Mrs. Rugg did not present evidence to demonstrate Horseshoe had a reason

to eject John Doe from the bar prior to the fall.

In this matter, Mrs. Rugg cannot establish the essential elements of her

claim, and the trial court erred in denying Horseshoe’s motion for summary

judgment. While Horseshoe is not awarded immunity under La. R.S.

9:2800.1(B), Subsection (A) provides that in no case will the serving of

alcohol be held as the proximate cause of a tort in which alcohol was

involved. Because of this, Mrs. Rugg would need to show that Horseshoe

did something to cause Mrs. Rugg’s injury aside from simply serving John

Doe alcohol. Here, Mrs. Rugg failed to produce evidence that suggested

Horseshoe did something other than serving John Doe alcohol that resulted

in him falling on her. As such, Mrs. Rugg cannot prove the cause-in-fact

element for her negligence claim. Therefore, the trial court incorrectly

denied Horseshoe’s summary judgment motion.

For the reasons expressed above, we grant Horseshoe’s writ

application, reverse the judgment of the trial court, and grant Horseshoe’s

motion for summary judgment, dismissing Mrs. Rugg’s claims. Costs of this

appeal are assessed to Mechelle Rugg.

WRIT GRANTED; JUDGMENT REVERSED.
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