Isaac Sparrow and Sabrina Sparrow Green VS Whitney Wheeler, State Farm Mutual Automobile Insurance Company, C.B., Inc., d/b/a Reggie's and XYZ Insurance Company
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NUMBER 2010 CA 0021 ISAAC SPARROW SABRINA SPARROW GREEN VERSUS WHITNEY WHEELER STATE FARM MUTUAL AUTOMOBILE XYZ INSURANCE COMPANY C LLC DBA REGGIE B S INSURANCE COMPANY Judgment Rendered June 11 2010 Appealed from the Nineteenth Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana Docket Number 528 673 The Honorable Todd W Hernandez Judge Presiding Joseph R McMahon III Metairie LA Counsel for PlaintiffsAppellants Isaac Sparrow Sabrina Sparrow Green William C Helm Baton Rouge LA Counsel for Defendant Appellee Triumvirate of Baton Rouge DBA Fred Bar s Grill BEFORE WHIPPLE HUGHES AND WELCH JJ Inc WHIPPLE J Plaintiffs Isaac Sparrow and Sabrina Sparrow Green appeal from a summary judgment granted by the trial court in favor of defendant Triumvirate of Baton Rouge Inc da Fred Bar Fred b s s which dismissed plaintiffs claims against Fred with prejudice For the following reasons we affirm s FACTS AND PROCEDURAL HISTORY On the evening of Friday June 18 2004 and early morning hours of Saturday June 19 2004 Whitney Wheeler an LSU student who was eighteen years of age drove her 2003 Chevrolet Monte Carlo to Fred Bar in Baton s Rouge where she met with friends to socialize While out with friends Wheeler consumed so much alcohol at Fred that she did not remember leaving the bar s that night At some point in the evening she apparently left the bar as she recalled driving her vehicle around the back of a McDonald Restaurant After s exiting the McDonald parking lot Wheeler drove her vehicle head on into Isaac s s Sparrow vehicle Sparrow and his mother Sabrina Sparrow Green who came upon the accident shortly after it occurred filed a petition for damages on January 26 2005 naming Wheeler and her insurer State Farm Mutual Automobile Insurance Company Fred Bar and its insurer C LLC da Reggie and its insurer s B b s and John Doe and his insurer as defendants therein s Fred filed a motion for summary judgment on February 23 2007 contending that Fred sdid not sell or serve any alcohol to Wheeler on the night of the accident and that plaintiffs accordingly could not establish that it breached any duty In support Fred attached Wheeler s sdeposition testimony where she stated that she did not purchase any drinks but that r offered to buy andom guys Some of the defendants were named in plaintiffs amended petition for damages filed on September 6 2005 2 her drinks Plaintiffs filed an opposition to Fred motion for summary s judgment contending that based on the deposition testimony of Marc Fraioli the owner and manager of Fred material facts remained as to whether Fred s s neglected its duty not to provide alcohol to a minor By judgment dated May 1 2007 the trial court denied Fred motion for summary judgment s On June 15 2009 Fred reurged its motion for summary judgment In s addition to Wheeler deposition testimony Fred also submitted and relied upon s s a Request for Admissions of Fact and Responses to Admissions of Fact wherein plaintiffs admitted that they had no eye witnesses to 1 testify that any of s Fred employees served alcohol to Wheeler and 2 support the contention that anyone transferred alcoholic drinks to Wheeler in plain view ofFred semployees On September 14 2009 the trial court heard arguments on the motion and on October 2 2009 issued a Ruling granting Fred motion for summary judgment s and finding that no evidence exist in the record that the defendant sic s s breached any duty owed to plaintiff A judgment conforming to the trial s s court ruling was signed on November 5 2009 Plaintiffs then filed the instant appeal contending that the trial court erred in finding that there was a lack ofevidence to show that Fred breached its duty s to prevent alcohol from being furnished to Wheeler and that summary judgment was proper DISCUSSION Summary Judgment A motion for summary judgment is a procedural device used to avoid a full scale trial where there is no genuine factual dispute Sanders v Ashland Oil Inc 96 1751 La App I Cir 6 696 So 2d 1031 1034 writ 97 20 denied 971911 La 10 703 So 2d 29 It should be granted only if the 97 31 pleadings depositions answers to interrogatories and admissions on file 3 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 LSAC P C art 966 The summary judgment procedure is designed to secure the just speedy and inexpensive determination ofevery action and is now favored LSAC P C art 966 The initial burden continues to remain with the mover to show 2 A that no genuine issue of material fact exists Ifthe moving party points out that there is an absence of factual support for one or more elements essential to the adverse party claim action or defense then the nonmoving party must s produce factual support sufficient to satisfy his evidentiary burden at trial LSA C art 966 If the nonmoving party fails to do so there is no P 2 C genuine issue of material fact and summary judgment should be granted LSA P C arts 966 and 967 Berzas v OXY USA Inc 29 La App 2d Cir 835 97 24 9 699 So 2d 1149 1153 1154 Appellate courts review summary judgments de novo under the same criteria that govern the trial court consideration of whether summary judgment s is appropriate Bezet v Original Library Joe Inc 2001 1586 2001 1587 s La App 1 Cir 11 838 So 2d 796 800 Because it is the applicable 02 08 substantive law that determines materiality whether or not a particular fact in dispute is material can be seen only in light of the substantive law applicable to the case Rambo v Walker 972371 La App 1 Cir 11 722 So 2d 86 51 98 6 88 writ denied 98 3030 La 1736 So 2d 840 99 29 The substantive law applicable in the instant case is the law regarding the liability of alcohol vendors or providers to minors A vendor of alcoholic beverages has a duty to refrain from selling or serving alcohol to minors See Berg v Zummo 20001699 La 4786 So 2d 708 716 see also Coate 01 25 v Mughal Brothers Inc 36 La App 2 Cir 1 836 So 2d 1229 754 nd 03 29 ll 1233 writ denied 2003 0923 La 5 843 So 2d 1136 and Crutchfield v 03 16 Landry 2003 0969 La App 4 Cir 3 870 So 2d 371 389 writ denied 04 17 2004 1295 La 9882 So 2d 1128 When a bar serves alcohol to a minor 04 24 and that minor causes damage to another because of his intoxication LSAR S 1 2800 9 does not immunize it from liability nor is it absolutely liable instead the court must determine whether the vendor violated general negligence principles applying the traditional dutyrisk analysis Berg v Zummo 786 So 2d at 714 Stewart v Daiquiri Affair Inc 20081804 La App I Cir 520 09 13 So 3d 1041 1046 writ denied 20091337 La 10 So 3d 477 19 09 16 Thus under the dutyrisk 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 ssubstandard conduct was a causeinfact of the plaintiff injuries the causeinfact element s 4 the defendant substandard conduct was a legal cause of the plaintiff s s injuries the scope of liability or scope of protection element and 5 actual damages the damages element Berg v Zummo 786 So 2d at 715 716 citing Roberts v Benoit 605 So 2d 1032 1051 La 1991 on rehearing A negative answer to any of the elements of the dutyrisk analysis prompts a determination of no liability Crutchfield v Landry 870 So 2d at 387 Here Fred candidly acknowledges that it had a duty to refrain from s selling or serving alcoholic beverages to minors With reference to the next 2I 1986 the Louisiana Legislature enacted LSAR 9 entitled Limitation S 2800 1 of liability for loss connected with sale serving or furnishing of alcoholic beverages which places the responsibility for and consequences of intoxication on the intoxicated person by legislatively mandating and providing that it is the consumption of alcohol rather than the sale service or furnishing of alcohol that is the proximate cause of any injury inflicted by an intoxicated person Berg v Zummo 786 So 2d at 714 However this immunity is only provided for damages resulting from the sale or service of alcohol to persons over the age for the lawful purchase of alcohol Berg v Zummo 786 So 2d at 714 5 element in the dutyrisk analysis the breach of duty element Fred contends that s it did not breach its duty to refrain from selling or serving alcohol to minors and more importantly that plaintiffs cannot establish that Fred breached this duty s In support of its motion for summary judgment Fred presented s the uncontradicted testimony of Wheeler that she did not pay for any drinks at Fred s but that random guys purchased drinks for her As noted above Fred also s submitted its Request for Admissions of Fact and plaintiffs Responses to Admissions of Fact wherein plaintiffs admitted that they had no witnesses to 1 testify that any of Fred employees served alcohol to Wheeler and 2 support s the contention that anyone transferred alcoholic drinks to Wheeler in plain view of Fred employees s Thereafter the burden of proof shifted to the plaintiffs to produce factual support sufficient to satisfy their evidentiary burden at trial i that Fred e s breached its stated duty not to serve or sell alcohol to Wheeler on the night of the accident See Spears v Bradford 940892 94 0893 La App V Cir 3 95 652 So 2d 628 632 33 Plaintiffs clearly failed to do so Rather than showing that they could meet their evidentiary burden of proving at trial that Fred s breached a duty owed herein plaintiffs argue that the trial court should have imposed a heightened duty on the vendor Specifically plaintiffs argue that even ifFred did not sell or serve alcohol to Wheeler Fred s shad a duty to ensure that she did not otherwise obtain alcohol while in the bar Specifically plaintiffs contend that vendors have a duty to do everything in their power to prevent alcoholic beverages from being famished to minors To the extent that plaintiffs ask this court to create and impose a heightened duty herein we find no support and decline to do so See Colgate v Mughal Brothers Inc 36 La App 2nd Cir 1 836 So 2d at 1233 34 and 754 03 29 rol Crutchfield v Landry 2003 0969 La App 4 Cir 3 870 So 2d at 387 04 17 90 Thus because plaintiffs admittedly cannot make the necessary showing to establish that Fred sold or served alcohol to Wheeler on the night of the s accident and thus failed to conform its conduct to the appropriate standard the trial court correctly determined that the defendant was entitled to judgment in its favor as a matter of law This assignment oferror lacks merit CONCLUSION For the above and foregoing reasons the November 5 2009 judgment of the trial court dismissing plaintiffs claims against Triumvirate of Baton Rouge Inc da Fred Bar is affirmed b s All costs associated with this appeal are assessed to the plaintiffs appellants Isaac Sparrow and Sabrina Sparrow Green AFFIRMED 3 I Colgate v Mughal Brothers Inc the plaintiff similarly argued that the vendor sduty to refrain from selling or serving alcohol to minors should be extended where a witness saw a minor take two glasses of beer from the main bar counter but saw no money exchange hands between the bartender and minor The Second Circuit Court of Appeal disagreed While acknowledging the vendor duty to refrain from selling or serving alcohol to minors in s determining how the minor obtained alcohol while in the bar the court further noted that robabilities p surmises speculations and conjectures are insufficient to prove negligence by a preponderance of the evidence Colgate v Mughal Brothers Inc 836 So 2d at 1234 The court further noted that the minor actions of taking two glasses of beer from the bar were s insufficient to show that the vendor served the alcohol in breach of its duty Colgate v Mughal Brothers Inc 836 So 2d at 1234 Notably the court held that without evidence to rule out possibilities such as someone of drinking age purchasing drinks for a minor or that the minor fraudulently obtained a bracelet indicating that she was twentyone years of age and able to purchase drinks plaintiffs claims were merely speculative Colgate v Mughal Brothers Inc 836 So 2d at 1234 see also Crutchfield v Landry 870 So 2d at 386390 where the court of appeal reversed a finding of liability on the Holiday Inn where the facts surrounding how and when the minor obtained drinks at a Holiday Inn bar were speculative 7
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