K.R. Borries v. Grand Casino Of Mississippi, Inc. Biloxi
187 So. 3d 1042
| Miss. | 2016Background
- Grand Casino operated a licensed floating casino barge on the Mississippi Gulf Coast; Mississippi Gaming Commission regulations required non‑self‑propelled gaming barges to be moored to withstand a 15‑foot storm surge.
- In 1999 Grand Casino added an eight‑million‑pound unlicensed barge (Lady Luck) to its mooring system.
- During Hurricane Katrina (Aug. 29, 2005) the Grand Casino and/or the Lady Luck broke free and struck the Schooner Pier, damaging property being constructed by K.R. Borries (Borries Construction).
- Borries sued Grand Casino for negligence and gross negligence; Grand Casino moved for summary judgment, relying on expert affidavits that its mooring complied with the Gaming Commission standard and that Katrina’s surge exceeded the design limits.
- Borries submitted expert affidavits contending Grand Casino should have designed moorings to withstand historic maximum surges (e.g., Hurricane Camille) and that the mooring failed before reaching the licensed 15‑foot limit; the parties’ experts offered conflicting opinions.
- The circuit court granted summary judgment for Grand Casino (also finding Katrina an Act of God); the Mississippi Supreme Court reversed, holding the conflicting expert proof created triable issues for a jury.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Grand Casino breached its duty to take reasonable precautions to protect nearby property | Borries: Grand Casino negligently designed/moored barges — should have used Camille’s historic surge as the design benchmark; adding Lady Luck required new moorings | Grand: Complied with Gaming Commission 15‑ft standard; mooring met/exceeded required design and Katrina’s surge exceeded any foreseeable event | Reversed summary judgment — expert conflict created a "battle of the experts" and a genuine issue of material fact for the jury |
| Whether Hurricane Katrina is an Act of God absolving Grand Casino of liability | Borries: If negligence made damage foreseeable/preventable, Act of God defense fails | Grand: Katrina was unforeseeable and an Act of God; even stricter moorings would not have prevented the damage | Court: Act of God is an affirmative defense; because triable issues exist whether reasonable care could have prevented the harm, the defense cannot support summary judgment |
Key Cases Cited
- Eli Inv., LLC v. Silver Slipper Casino Venture, LLC, 118 So. 3d 151 (Miss. 2013) (compliance with Gaming Commission does not automatically shield a casino from negligence liability; expert battles can create jury issues)
- Davis v. Hoss, 869 So. 2d 397 (Miss. 2004) (summary‑judgment review is de novo)
- Rein v. Benchmark Constr. Co., 865 So. 2d 1134 (Miss. 2004) (elements of negligence require duty and breach be shown first)
- Foldes v. Hancock Bank, 554 So. 2d 319 (Miss. 1989) (nonmovant cannot defeat summary judgment with an affidavit that directly contradicts prior testimony without explanation)
- McFarland v. Entergy Miss., Inc., 919 So. 2d 894 (Miss. 2006) (Act of God defense applies only to extraordinary natural events unforeseeable in the locality)
- City of Jackson v. Brummett, 80 So. 2d 827 (Miss. 1955) (Act of God doctrine defined; no liability where damage could not have been prevented by reasonable care)
- Bay Point High & Dry, LLC v. New Palace Casino, LLC, 46 So. 3d 821 (Miss. Ct. App. 2010) (compliance with Gaming Commission standards supported summary judgment where prior storm history made a 15‑ft surge the foreseeable maximum)