Tracey D. Kulka v. Shag II, Inc. D/B/A the Bulldog Pool Hall" "

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

12-398

TRACEY D. KULKA
VERSUS
SHAG II, D/B/A
“THE BULLDOG POOL HALL”,
ABC INSURANCE COMPANY, AND
JAMES R. GAUTREAUX

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. C-2010-1288, DIVISION “E”
HONORABLE HERMAN C. CLAUSE, DISTRICT JUDGE
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JAMES T. GENOVESE
JUDGE

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Court composed of John D. Saunders, Elizabeth A. Pickett, and James T.
Genovese, Judges.

AFFIRMED.

Blake R. David
Jerome H. Moroux
Broussard & David, LLC
Post Office Box 3524
Lafayette, Louisiana 70502-3524
(337) 233-2323
COUNSEL FOR PLAINTIFF/APPELLANT:
Tracey D. Kulka

William H. Eckert
Helen H. Babin
Ungarino & Eckert, LLC
Suite 1280 Lakeway Two
3850 North Causeway Boulevard
Metairie, Louisiana 70002
(504) 836-7556
COUNSEL FOR DEFENDANTS/APPELLEES:
Shag II Inc. d/b/a The Bulldog Pool Hall
and James R. Gautreaux

John Kevin Stockstill
Stockstill & Webre, LLC
102 Versailles Boulevard, Suite 310
Lafayette, Louisiana 70501
(337) 237-5051
COUNSEL FOR DEFENDANT/APPELLEE:
Shag II Inc. d/b/a The Bulldog Pool Hall
and James R. Gautreaux

Sidney W. Degan, III
Travis L. Bourgeois
Mary K. Cryar
Degan, Blanchard & Nash
400 Poydras Street, Suite 2600
New Orleans, Louisiana 70130
(504) 529-3333
COUNSEL FOR DEFENDANTS/APPELLEES
Certain Underwriters at Lloyd’s, London

Michael J. Remondet, Jr.
Donovan J. O’Pry, II
Jeansonne & Remondet
Post Office Box 91530
Lafayette, Louisiana 70509
(337) 237-4370
COUNSEL FOR DEFENDANT/APPELLEE:
LCM Foods, LLC d/b/a The Ground Patti

GENOVESE, Judge.

In this wrongful death and survival action, Plaintiff, Tracey D. Kulka,

appeals the trial court‟s grant of summary judgment in favor of Defendants, Shag

II, Inc., d/b/a The Bulldog Pool Hall, and James R. Gautreaux. For the reasons that

follow, we affirm.

FACTS AND PROCEDURAL HISTORY

Plaintiff, Tracey Kulka, is the mother of Kaine Kulka, who either fell or

jumped out the bed of a pickup truck being driven by his cousin, Samuel Kulka,

and was struck by a hit-and-run vehicle and killed as a result of this series of

events. Ms. Kulka filed this wrongful death and survival action against Shag II,

Inc., d/b/a The Bulldog Pool Hall, James R. Gautreaux (collectively “The

Bulldog”), and others. Ms. Kulka claims that The Bulldog knowingly sold alcohol

to Kaine, a person under the lawful age to purchase alcohol,1 until he became very

intoxicated. She asserts liability against The Bulldog on the grounds that the fatal

1
Louisiana Revised Statues 26:90(A)(1) provides as follows:

A. No person holding a retail dealer‟s permit and no agent, associate,
employee, representative, or servant of any such person shall do or permit any of
the following acts to be done on or about the licensed premises:

(1)(a) Sell or serve alcoholic beverages to any person under the age of
twenty-one years, unless such person submits any one of the following:

(i) A valid, current, Louisiana driver‟s license which contains a
photograph of the person presenting the driver‟s license.

(ii) A valid, current, driver‟s license of another state which contains a
photograph of the person and birth date of the person submitting the driver‟s
license.

(iii) A valid, current, special identification card issued by the state of
Louisiana pursuant to R.S. 40:1321 containing a photograph of the person
submitting the identification card.

(iv) A valid, current, passport or visa issued by the federal government or
another country or nation, that contains a permanently attached photograph of the
person and the date of birth of the person submitting the passport or visa.

(v) A valid, current, military or federal identification card issued by the
federal government containing a photograph of the person and date of birth of the
person submitting the identification card.

injuries sustained by Kaine were the result of The Bulldog illegally serving him

alcohol and that the subsequent debilitating intoxication led to his death.

The facts in this case are generally not in dispute. It was established that on

the night of the accident, Kaine Kulka, Samuel Kulka (Kaine‟s cousin), Nathaniel

Kozma, and Eric Kozma went to The Bulldog. Each of them had their

identification checked at the door of the bar. Samuel, Nathaniel, and Eric were all

over the age of twenty-one and were given white wristbands. Kaine, who was

eighteen years of age, was given an “underage,” white and yellow wrist band.

After entering The Bulldog, Kaine went to the bar. He ordered an alcoholic

beverage, was repeatedly served alcoholic beverages, and began to actively engage

in binge drinking. It is undisputed that Kaine consumed alcohol to the point of

extreme intoxication.

Samuel testified that, while at The Bulldog, Kaine became “sloppy” and “out

of control.” Therefore, he moved Kaine from a booth where he had been

participating in drinking games and “doing shots” to a bench where Samuel and the

others were playing pool. Kaine “passed out” on the floor. Later, as Samuel was

dragging Kaine outside, employees of The Bulldog informed Samuel that Kaine

would not be allowed back in the bar and that Kaine had a tab that needed to be

paid.

Once outside, Samuel initially placed Kaine in the cab of his truck; however,

more than once, Kaine exited the vehicle and ran through the parking lot. Samuel

then put Kaine in the bed of the truck, where he remained passed out while the

others went back into The Bulldog to drink beer and play pool. Periodically,

Samuel, Nathaniel, and Eric would return to the truck to check on Kaine. When

Samuel saw that Kaine had begun vomiting, he informed Nathaniel and Eric that

he was going to take Kaine home.
2

Samuel left The Bulldog with Kaine in the bed of the truck with the tailgate

closed and locked. He was traveling on Highway 90 in the direction of Broussard,

Louisiana, when he stopped at a gas station. It was then that Samuel noticed that

Kaine was no longer in the bed of his truck. After calling Nathaniel and Eric to tell

them that Kaine was not in the truck, Samuel began retracing his route. While

doing so, and approximately four miles from The Bulldog, Samuel saw vehicles

parked near a body that was on the road. Samuel stopped, saw Kaine lying on the

roadway, and learned that he was dead. It is unknown whether Kaine fell or

jumped from the bed of the truck. According to the autopsy results, Kaine had a

blood alcohol content of 0.272% at the time of his death.2

The summary judgment evidence further reveals that Steven Wesley Perry

was driving down Highway 90 at 1:20 a.m. when he saw a body lying in the

roadway. Mr. Perry swerved to avoid hitting the body and turned into a gas station

to call 911. As Mr. Perry was on the phone with the 911 dispatcher, he witnessed a

pickup truck strike what turned out to be Kaine‟s body.

The Bulldog filed a Motion for Summary Judgment “on the grounds that the

risk that Kaine Kulka would fall or jump out of the bed of a pickup truck and be

run over by a hit-and-run driver is beyond the scope of the duty imposed upon

Defendants.” At the hearing on the Motion for Summary Judgment, the trial court

reasoned as follows:

Of course, this is not an easy one, but it - - I‟ve looked at it and looked
at it hard, and I‟m still convinced that there‟s an absence of proof of
some of the essential elements of duty/risk analysis and that,
specifically, the problem with the intervening cause. And on that
basis, I‟ll grant the Motion[] for Summary Judgment. It‟s not to say
that another court may disagree, because it‟s [sic] some real questions,
but I‟m satisfied that there was an intervention of causation, in a

2
Although Kaine was not driving the truck, we note that, pursuant to La.R.S. 14:98, the legal
limit for operating a vehicle is a blood alcohol concentration of 0.08%, and that Kaine‟s blood
alcohol concentration level was more than three times that amount.
3

sense. The placing of a drunk cousin - - [a]nd it‟s hard to say that, but
it‟s the truth - - and the failing to take proper care of the cousin[] of
the deceased - - now deceased person, failure to put him in a safe
position within the truck, rather than leaving him in the body of the
truck, which, in fact, ultimately led to his death. So I find that it‟s an
intervening cause[] which mandates that summary judgment be
granted.
The trial court, therefore, granted The Bulldog‟s Motion for Summary Judgment,

and Ms. Kulka appealed.

ASSIGNMENTS OF ERROR

On appeal, Ms. Kulka presents the following assignments of error for our

review:

1. The [trial] court erred in granting The Bulldog‟s Motion for
Summary Judgment.

2. As the moving party, The Bulldog failed to carry its burden of
proof that no genuine issue of material fact existed as to The
Bulldog‟s responsibility in causing Kaine Kulka‟s death.

LAW AND DISCUSSION

Our Louisiana Supreme Court has instructed us on the standard
of review relative to a motion for summary judgment as follows:
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.
Duncan v. U.S.A.A. Ins. Co., [06-363 (La.11/29/06)],
950 So.2d 544, [see La.Code Civ.P.] art. 966. A
summary judgment is reviewed on appeal de novo, with
the appellate court using the same criteria that govern
the trial court‟s determination of whether summary
judgment is appropriate; i.e. whether there is any
genuine issue of material fact, and whether the movant
is entitled to judgment as a matter of law. Wright v.
Louisiana Power & Light, [06-1181 (La.3/9/07)], 951
So.2d 1058[ ]; King v. Parish National Bank, [04-337
(La.10/19/04)], 885 So.2d 540, 545; Jones v. Estate of
Santiago, [03-1424 (La.4/14/04)], 870 So.2d 1002[.]
Samaha v. Rau, 07-1726, pp. 3-4 (La.2/26/08), 977 So.2d 880,
882-83 (footnote omitted). Louisiana Code of Civil Procedure Article
966(C)(2) 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
4

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,
but rather to point out to the court that there is an absence
of factual support for one or more elements essential to
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 satisfy his
evidentiary burden of proof at trial, there is no genuine
issue of material fact.
Gabriel v. Louisiana Organ Procurement Agency, 10-251, p. 5 (La.App. 3 Cir.

10/6/10), 48 So.3d 1192, 1195, writ denied, 10-2515 (La. 1/7/11), 52 So.3d 887.

Cases involving claims for injuries allegedly resulting from the consumption

of alcohol require an application of the duty/risk analysis. Berg v. Zummo,

00-1699 (La. 4/25/01), 786 So.2d 708 (quoting Gresham v. Davenport, 537 So.2d

1144 (La.1989)). The Berg court explained that analysis as follows:

[U]nder the duty/risk analysis, the plaintiff must prove five separate
elements: (1) the defendant had a duty to conform his conduct to a
specific standard (the duty element); (2) the defendant failed to
conform his conduct to the appropriate standard (the breach of duty
element); (3) the defendant‟s substandard conduct was a cause-in-fact
of the plaintiff‟s injuries (the cause-in-fact element); (4) the
defendant‟s substandard conduct was a legal cause of the plaintiff‟s
injuries (the scope of liability or scope of protection element); and,
(5) actual damages (the damages element). Roberts v. Benoit, 605
So.2d 1032, 1051 (La.1991) (on rehearing).

Id. at 715-16.

Duty

“A threshold issue in any negligence action is whether the defendant owed

the plaintiff a duty. Whether a duty is owed is a question of law. Lemann v. Essen

Lane Daiquiris, Inc., 05-1095 (La.3/10/06), 923 So.2d 627, 632-33.” Rando v.

Anco Insulations Inc., 08-1163, p. 27 (La. 5/22/09), 16 So.3d 1065, 1086.

Undisputedly, The Bulldog had a duty to refrain from selling alcohol to Kaine, an

individual who was not of the age to legally purchase alcohol. Thus, the duty

element on the part of The Bulldog was established.

5

Breach

Kaine, who was not of the legal age to purchase alcohol, was allowed to and

did purchase alcohol at The Bulldog on the night of his accident. Thus, the second

element, i.e., the failure of The Bulldog to conform its conduct to the appropriate

standard, was established. Therefore, a breach of the duty by The Bulldog was

established.

Cause-In-Fact

“As well established in the jurisprudence, the cause-in-fact issue is a

question of fact. Ambrose v. New Orleans Police Dep’t Ambulance Service,

93-3099 (La.7/5/94), 639 So.2d 216, 221 (holding that cause-in-fact is a question

of fact); Peterson v. Gibraltar Sav. & Loan, 98-1601 (La.5/18/99), 733 So.2d

1198.” Id. at 1087. Our supreme court explained the element of cause-in-fact as

follow:

There can be more than one cause-in-fact of an accident as long
as each cause bears a proximate relation to the harm that occurs and it
is substantial in nature. A plaintiff seeking to recover under either
negligence or strict liability theories must prove that the negligent act
or defect complained of was a cause-in-fact of the injury. Davis v.
State Farm Ins. Co., 558 So.2d 636 (La.App. 1 Cir.1990).

....

In Dixie Drive It Yourself System v. American Beverage Co., 242 La. 471, 137 So.2d 298 (1962), we stated that “conduct is a
cause-in-fact of harm to another if it was a substantial factor in
bringing about that harm.” Id. at 302. Elaborating on that
pronouncement of law, we stated negligent conduct is a substantial
factor if the harm would not have occurred without the conduct, i.e.,
but for defendant‟s conduct, plaintiff would not have sustained injury.
Thereby, we equated the two concepts of substantial factor and
necessary antecedent. Malone, Ruminations on Dixie Drive It
Yourself Versus American Beverage Company, 30 La.L.Rev. 363,
373 (1970).

Id. at 1088-89.

6

Applying the foregoing to the facts in this case, we find that but for The

Bulldog‟s action of illegally selling alcohol to Kaine to the point of his debilitating

intoxication, he would not have been passed out in the back of a truck for this

accident to have occurred in the manner that it did. Therefore, we conclude that

the illegal sale of alcohol by the Bulldog was a cause-in-fact of Kaine‟s death.

Legal Cause

The concept of legal cause was also explained by the Rando court wherein it

stated as follows:

“Regardless if stated in terms of proximate cause, legal cause,
or duty, the scope of the duty inquiry is ultimately a question of policy
as to whether the particular risk falls within the scope of the duty.”
Roberts v. Benoit, 605 So.2d 1032, 1044 (La.1991). “The scope of
protection inquiry asks „whether the enunciated rule or principle of
law extends to or is intended to protect this plaintiff from this type of
harm arising in this manner.‟” Faucheaux v. Terrebonne Consol.
Gov’t, 615 So.2d 289, 293 (La.1993). Although we have
unequivocally stated “the determination of legal cause involves a
purely legal question,” Todd v. State, Dept. of Social Services,
96-3090 (La.9/9/97), 699 So.2d 35, 39, this legal determination
depends on factual determinations of foreseeability and ease of
association. See Perkins v. Entergy Corp., 98-2081 (La.App. 1 Cir.
12/28/99), 756 So.2d 388, 410, affirmed, 00-1372 (La.3/23/01), 782
So.2d 606.

....

A risk may not be within the scope of a duty where the
circumstances of the particular injury to the plaintiff could not be
reasonably foreseen or anticipated, because there was no ease of
association between that risk and the legal duty. Todd v. State
Through Social Services, 96-3090 (La.9/9/97), 699 So.2d 35; Hill v.
Lundin & Associates, Inc., 260 La. 542, 256 So.2d 620 (1972). The
extent of protection owed by a defendant to a plaintiff is made on a
case-by-case basis to avoid making a defendant an insurer of all
persons against all harms. Todd, 699 So.2d at 39.

Id. at 1088-93.

In the case at bar, an exact timeline of the events between Kaine being

placed in the back of Samuel‟s truck and the time of the hit-and- run accident is not

known. Samuel testified that it was “[a]fter eleven, late elevens, early twelves”
7

when he drug Kaine out of the bar. Thereafter, Kaine was placed in the cab of

Samuel‟s truck twice; but, according to Samuel, he “kept getting out of the truck

and running around in the parking lot.” He estimated that it took fifteen to twenty

minutes for them to get Kaine “under control.” The decision was then made to put

Kaine in the bed of the truck. Once Kaine was asleep in the bed of the truck,

Samuel moved his vehicle to another location in the parking lot so that he was

better able to see his truck from inside the bar. Samuel, Nathaniel, and Eric then

returned to the bar. Both Samuel and Nathaniel stated that they took turns going

outside to check on Kaine, but their recollections were somewhat different.

Samuel testified that he did so twice; whereas, Nathaniel estimated that they each

took approximately ten-to-fifteen minute turns, and he estimated this was done

four or five times. During this time, Kaine remained passed out in the back of the

truck. It was only after Samuel noticed that Kaine had vomited on himself in and

on the bed of the truck that he decided to take him home.

It cannot be determined from the record exactly what time Samuel left the

premises of The Bulldog with Kaine in the bed of the truck. At one point, Samuel

stated that after leaving Kaine in the bed of the truck, they remained inside The

Bulldog for another thirty to forty-five minutes. Later, he estimated it to be

approximately 12:30 a.m. when he left The Bulldog with Kaine. Yet, the credit

card receipt signed by Samuel, which he stated was done upon his leaving the bar,

was signed at 10:37 p.m. The hour that can be determined with certainty is the 911

call which was placed at 1:20 a.m.

Therefore, based upon the record, at least an hour and a half had elapsed

from The Bulldog‟s illegal sale of alcohol to the time of Kaine‟s accident.3

3
This is true if we assume Samuel‟s estimate to be correct that it was approximately
midnight that he took Kaine out of the bar.
8

Notably, based on the evidence presented, two and a half hours could have elapsed

in that interim.4 Additionally, the choice to place Kaine in the bed of Samuel‟s

truck was the decision of Samuel, Nathaniel, and Eric.5 This decision was made

despite the obvious degree of intoxication of Kaine and was done so that they

could return to the bar to continue to drink beer and play pool. It was only after

Samuel found Kaine in “a pile of puke” that he decided to take him home.

Moreover, it was Samuel‟s decision to leave Kaine passed out in the bed of the

truck and to proceed to drive home.

Therefore, Kaine‟s death does not satisfy the foreseeability requirement of

the duty/risk analysis because there is no ease of association between the risk and

The Bulldog‟s legal duty not to sell alcohol to an underage person. Although the

sale of alcohol by The Bulldog was a cause-in-fact of Kaine‟s death, The Bulldog

could not have reasonably foreseen that its actions would have led to (1) Kaine

being placed in the bed of a pickup truck while he was passed out for an

undetermined length of time; (2) Samuel driving down the roadway with Kaine in

the bed of the truck; (3) Kaine either falling or jumping from the bed of the truck;

(4) Kaine landing and remaining in a lane of travel on the roadway; and, (5) Kaine

being struck and killed by a hit-and-run driver. Kaine‟s death, which occurred at

least an hour and a half, and possibly as much as two and a half hours, after the

sale of alcohol ceased, and which occurred approximately four miles from the

premises, was too far removed from the scope of The Bulldog‟s duty. For these

reasons, we find that the illegal sale of alcohol to Kaine by The Bulldog was not

the legal or proximate cause of Kaine‟s death.

4
This is true if we assume that Kaine was removed from the bar at 10:37 p.m. as
evidenced by the credit card receipt.
5
According to Nathaniel, in an effort to subdue Kaine and put him in the bed of the truck,
one of them used a wrestling maneuver to “choke him out” and render him unconscious “for a
few seconds.”
9

We find the jurisprudence cited by the parties to be distinguishable from the

instant matter. We note that some of the cited jurisprudence involves liability

sought to be imposed on “social hosts” for the service of alcohol to minors. St.

Hill v. Tabor, 542 So.2d 499 (La. 1989); Gresham, 537 So.2d 1144 (Gresham also

involved a minor supplying alcohol to other minors). However, in the case at bar,

The Bulldog was not a “social host.” In some of the cases, the resulting injury

occurred on or in close proximity to the premises where the alcohol was supplied.

Millett ex. rel. Millet v. Treasure Chest Casino, L.L.C., 02-1096 (La.App. 5 Cir.

3/25/03), 844 So.2d 175; Comeaux v. Wranglers Night Club, 04-951 (La.App. 3

Cir. 12/8/04), 889 So.2d 464. However, in the case at bar, Kaine‟s death did not

occur on or in close proximity to the premises. Lastly, in Berg, 786 So.2d 708, the

intoxicated underage patron was the driver of the vehicle, and the injury occurred

in front of the bar. While we agree with Ms. Kulka that “nowhere in Berg does

the Louisiana Supreme Court address the temporality between the service of the

alcohol and the commission of the act[,]” we find that such facts are pertinent to

the question of foreseeability and that Berg is not binding precedent preventing the

grant of summary judgment.

In accordance with La.Code Civ.P. art. 966(C)(2), The Bulldog initially

bears the burden of proof in its Motion for Summary Judgment. However, since

the burden of proof at trial of the essential elements of the duty/risk analysis would

be upon Ms. Kulka, The Bulldog was required “to point out to the court that there

is an absence of factual support for one or more elements essential to [her]

claim[.]” Id. Thereafter, in order to avoid summary judgment, it was incumbent

upon Ms. Kulka “to produce factual support sufficient to establish that [she] will

be able to satisfy [her] evidentiary burden of proof at trial[.]” Id.

10

Based upon the undisputed facts in this summary judgment proceeding, we

find that the risk in this case was not within the scope of The Bulldog‟s duty and

that Kaine‟s death could not have been reasonably foreseen or anticipated because

there was no ease of association between that risk and the legal duty. Though The

Bulldog breached its legal duty not to sell alcohol to underage persons, it is not

foreseeable that a person would put his cousin, who was drunk, passed out, and had

vomited on himself, in the back bed of his pickup truck, lock the tailgate of the

truck, and then allow this inebriated person to be driven under those conditions for

some four miles before he either jumped or fell out of the bed of the truck, as a

result of which he was run over by a hit-and-run driver and died. For the foregoing

reasons, we find that Ms. Kulka failed to prove the essential element of legal cause

under the duty/risk analysis as to The Bulldog. Therefore, The Bulldog was

entitled to judgment as a matter of law.6

DECREE

For the foregoing reasons, the trial court‟s grant of summary judgment in

favor of Defendants, Shag II, Inc. d/b/a The Bulldog Pool Hall and James R.

Gautreaux is affirmed. All costs of these proceedings are assessed to Tracey D.

Kulka.

AFFIRMED.

6
Although the trial court reached this result based upon a theory of “intervening cause,”
we agree that the element of “legal cause” was not established in this case.
11