62 So. 3d 166
La. Ct. App.2011Background
- Plaintiffs allege Boomtown served alcohol to Dale Bourgeois, who later died in a single-vehicle crash after leaving the Boomtown casino.
- Bourgeois's autopsy showed a blood alcohol level of .290%, well above the legal limit.
- Plaintiffs claim a cocktail waitress policy requiring serving every 20-30 minutes violated 26:90(2).
- Boomtown moved for summary judgment, asserting immunity under 9:2800.1 and lack of proximate cause.
- The trial court granted summary judgment in favor of Boomtown, ruling no liability as a matter of law.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether 26:90(2) breach creates private liability. | Bourgeois argues a duty exists from 26:90(2) to prevent intoxication. | Boomtown relies on 9:2800.1 immunizing licenses from off-premise injuries. | Immunity under 9:2800.1 bars liability; no private duty under 26:90(2). |
| Whether 9:2800.1 precludes duty-risk analysis. | Boomtown still owes a duty despite 9:2800.1. | 9:2800.1 eliminates proximate-cause analysis for off-premise injuries. | 9:2800.1 eliminates duty-risk inquiry; no liability as a matter of law. |
| Whether Boomtown's conduct constitutes force triggering exception to 9:2800.1. | Policy evidence shows coercive serving practices amounting to forcing consumption. | Evidence does not prove customers were forced to drink. | Policy excerpts do not establish forcing consumption; 9:2800.1 applies. |
Key Cases Cited
- Hines v. Garrett, 876 So.2d 764 (La. 2004) (duty/risk analysis standard and summary judgment review)
- Lazard v. Foti, 859 So.2d 656 (La. 2003) (duty is a question of law; duty-risk analysis governs negligence claims)
- Smith v. Our Lady of the Lake Hosp., Inc., 639 So.2d 730 (La. 1994) (definition of material facts and standard for summary judgment)
- Paternostro v. Wells Fargo Home Mortg., Inc., 30 So.3d 45 (La. App. 5 Cir. 2009) (summary judgment burden shifting under La. C.C.P. Art. 966)