Daniel E. Collins v. Dien Duc Huynh, Mohammed Ali Makki

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

04-255

DANIEL E. COLLINS

VERSUS

DIEN DUC HUYNH, MOHAMMED ALI MAKKI, ET AL.

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. 20014557
HONORABLE PATRICK LOUIS MICHOT, DISTRICT JUDGE

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ELIZABETH A. PICKETT
JUDGE

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Court composed of John D. Saunders, Billie Colombaro Woodard, Michael G.
Sullivan, Glenn B. Gremillion and Elizabeth A. Pickett, Judges.

AFFIRMED.

James Patrick MacManus
Attorney at Law
225 West Main Street
Lafayette, LA 70501
(337) 234-1720
Counsel for Plaintiff/Appellant:
Daniel E. Collins

James P. Doherty, III
Voorhies & Labbe
P. O. Box 3527
Lafayette, LA 70502
(337) 232-9700
Counsel for Defendants/Appellees:
Dien Duc Huynh
Mohammed Makki,
Votuyetnga Thi
Jermac of Lafayette, Inc. D/B/A Lipsticks

Pickett, Judge.

FACTS

Daniel Collins was a patron at Lipsticks, a strip club in Lafayette, on the night

of September 6, 2000, and into the early morning hours of September 7. According

to his petition, Collins “had been drinking heavily, and was drunk, [having] drunk

both drinks which he had purchased himself and drinks which were given to him free

of charge by the business.” While intoxicated, Collins attempted to climb a ladder

into the crow’s nest housing the disc jockey’s booth. He was unsuccessful and fell

off the ladder, breaking his leg. Employees of Lipsticks took Collins to the hospital,

where he was treated. Collins alleges that someone from Lipsticks informed him that

they would pay for his treatment, including surgery that he needed. On the morning

of the surgery, however, he was informed that the club would not pay for the surgery.

The surgery was delayed, resulting in more serious injury to Collins’ leg.

Collins filed this suit against Lipsticks, A Gentleman’s Club, Dien Duc Huynh

and Vo Tuyetnga Thi, the owners of the building where Lipsticks is located, and

Mohammed Makki, Jermac of Lafayette, Inc., Huynh and Thi, the owners of Lipsticks

(hereinafter collectively refered to as “defendants”). He alleged that the ladder

created a hazardous condition, that the defendants failed to properly supervise Collins

in his inebriated condition, that they failed to protect him from further harm after he

fell, and that they failed to provide medical care after promising they would.

Following discovery, the defendants filed a Motion for Summary Judgment. The trial

court heard arguments on the motion on September 22, 2003. At the conclusion of

the hearing, the trial court found that Collins’ intoxication put the case squarely under

the auspices of La.R.S. 9:2800.1. The statute provides immunity to licensed

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providers of alcohol for the injuries caused by an intoxicated patron to himself or

others, and thus the defendants could not be held liable for Collins’ injuries. The trial

court granted summary judgment and this appeal followed.

ASSIGNMENTS OF ERROR

The appellant, David Collins, does not include in his brief “a specification or

assignment of alleged errors relied upon,” as required by the Uniform Rules for the

Courts of Appeal, §2-12.4. In his “Summary of the Argument,” he alleges that

[t]he Court has misapplied Louisiana law as to those facts it has
addressed; specifically, La.R.S. 9:2800.1(A) does not preclude another
“proximate cause” of an injury and thus does not give any immunity to
a bar owner without further reading of the statute, specifically,
paragraphs B and C. Paragraphs B and C reference immunity for
damages, but only “. . . off the premises . . . .”

DISCUSSION

Appellate courts review summary judgments de novo under the same criteria

that govern the trial court's consideration of whether a summary judgment is

appropriate. Schroeder v. Bd. of Supervisors of La. State Univ., 591 So.2d 342

(La.1991). The mover is entitled to judgment if the pleadings, depositions, answers

to interrogatories and admissions on file, together with supporting affidavits, if any,

show there is no genuine issue of material fact and the mover is entitled to judgment

as a matter of law. La.Code Civ.P. art. 966(B).

The statute at issue in this case is La.R.S. 9:2800.1, which states in its entirety:

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

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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.

C. (1) Notwithstanding any other law to the contrary, no social
host who serves or furnishes any intoxicating beverage 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
served or furnished.

(2) No social host who owns, leases, or otherwise lawfully
occupies premises on which, in his absence and without his consent,
intoxicating beverages of either high or low alcoholic content are
consumed by 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 who consumed the intoxicating beverages.

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.

A cursory examination of the statute indicates that Section C applies only to social

hosts, while Section B applies to vendors of alcohol holding a permit under the

relevant statutes. In the instant case, Collins has sued a vendor, and makes no

argument that Lipsticks was a social host. Thus, Section C is inapplicable.

The trial court, relying on the federal district court’s ruling in Davis v. Players

Lake Charles Riverboat, Inc., 74 F.Supp.2d 675 (W.D.La. 1999), found that the issues

of premises liability could not be reached because Collins admitted he was

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intoxicated; therefore, La.R.S. 9:2800.1 applied. In Davis, a patron of a gambling

riverboat in Lake Charles who had a .30 BAC was injured when she fell down a

staircase. She sued in federal court. The court granted summary judgment after

finding that Davis had no complaints about the staircase and that the injury was

caused by her own drinking. Finding that La.R.S. 9:2800.1 applied, the court

dismissed the suit.

The federal district court’s analysis was incomplete. Section B clearly states

that the vendor of alcoholic beverages is only immune from liability “for any injury

suffered off the premises.” See Zapata v. Cormier, 2002-1801 (La.App. 1 Cir.

6/27/03), 858 So.2d 601. Section A merely states the legislative declaration that

consumption, rather than the serving, of alcoholic beverages is the proximate cause

of an injury inflicted by the intoxicated person on himself or third parties. The effect

of this declaration is to exclude the furnishing of alcohol as a proximate cause of

injuries inflicted by an intoxicated person on himself or others. The party furnishing

alcohol may, however, be held liable for injuries caused by a defect in the premises.

Here, the facts are clear that the injury to Collins occurred on the defendants’

premises. Thus, the defendants are not immune to the extent that Collins may have

been injured as a result of defects in the premises.

In his oral reasons for ruling, the trial court stated that there are material issues

of fact on the issue of premises liability. Reviewing the record de novo, we find that

the record does not support that contention. While the plaintiff’s Petition for

Damages alleges defects in the premises, there is no evidence in the record supporting

that claim. The defendants’ memorandum in support of summary judgment and the

supporting affidavit and exhibits are made a part of the record. Likewise, the

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defendants’ reply to the plaintiff’s memorandum in opposition to summary judgment

is made a part of the record. However, the record does not include the plaintiff’s

memorandum in opposition to summary judgment, which included some evidence

supporting their claims of premises liability. As a court of record, we cannot consider

evidence that was not filed into the record in the trial court. Butler v. DePuy, 04-101

(La.App. 3 Cir. 6/9/04), 876 So.2d 259. There is no evidence in the record that would

support a finding that the defendants’ premises were a proximate cause of the

plaintiff’s injuries.

Accordingly, the trial court’s judgment is affirmed on different grounds.

AFFIRMED.

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