Moore, et al v. New Gaming Cap Prt

United States Court of Appeals
Fifth Circuit
F I L E D
August 6, 2003
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 02-31087
_______________
DIANE MOORE
AND
BRENT MOORE,
Plaintiffs-Appellants,
VERSUS
NEW GAMING CAPITAL PARTNERSHIP, ETC.; ET AL.,
Defendants,
HORSESHOE ENTERTAINMENT,
Defendant-Appellee.
_________________________
Appeal from the United States District Court
for the Western District of Louisiana
m 01-CV-1822
_________________________

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Before DAVIS, SMITH, and DUHÉ,
Circuit Judges.
PER CURIAM:*
Diane and Brent Moore, the surviving wife
and son of Franklin Moore, appeal a summary
judgment for Horseshoe Entertainment in this
wrongful death suit. Reviewing the summary
judgment de novo, Dickey v. Baptist Mem.
Hosp., 146 F.3d 262, 264 (5th Cir. 1998), we
affirm.
Mr. Moore spent an evening drinking on a
riverboat casino operated by Horseshoe. He
exited the casino and fell from a deck into the
river. Several casino employees saw him and
tried to save him by sounding a “man over-
board” alarm, throwing him a life ring, and
launching rescue boats. Despite their efforts,
Mr. Moore tragically drowned. Autopsy re-
ports placed his blood alcohol level at roughly
0.25, over twice the legal limit in Louisiana.
The Louisiana legislature has declared that
“consumption of intoxicating beverages, rather
than the sale or serving or furnishing of such
beverages, is the proximate cause of any
injury, including death . . ., inflicted by an in-
toxicated person upon himself . . . .” LA. REV.
STAT. § 9:2800.1(A). This law “unambigu-
ously places the responsibility for the con-
sequences of intoxication on the intoxicated
person, and expressly disclaims ‘dramshop’ lia-
bility.” Mayo v. Hyatt Corp., 898 F.2d 47, 48
(5th Cir. 1990); see also Berg v. Zummo, 786
So. 2d 708, 714 (La. 2001) (same). Section
9:2800.1(A) therefore appears to give
Horseshoe absolute immunity here.
Plaintiffs argue, however, that
§ 9:2800.1(B) creates an exception to this
seeming rule of absolute immunity for injuries
suffered on a vendor’s premises. Section
9:2800.1(B) states that “no person . . . who
sells or serves intoxicating beverages . . . to a
person over the age of lawful purchase there-
of, shall be liable to such person or . . . to [his]
estate, successors, or survivors . . . for any
injury suffered off the premises, including
wrongful death . . ., because of the intoxi-
cation of the person . . . .” LA. REV. STAT.
§ 9:2800.1(B) (emphasis added).
Though the Supreme Court of Louisiana
might recognize an exception to § 9:2800.1(A)
for injuries suffered on a vendor’s premises,1
we need not address the question, because Mr.
Moore’s injury would no t fit within any such
exception. The injury Mr. Moore suffered,
and for which plaintiffs have sued, is the
drowning, not the fall. The drowning occurred
in the river, which is off the premises of the
casino.
Thus, the sole proximate cause of Mr.
Moore’s death was his own intoxication, not
the casino’s provision of alcohol. See LA.
REV. STAT. § 9:2800.1(A) (stating that “con-
sumption of intoxicating beverages . . . is the
proximate cause of any injury, including death
. . ., inflicted by an intoxicated person upon
himself ”). “This complete failure of proof on
an essential element of plaintiffs’ case ‘neces-
sarily renders all other facts immaterial.’”
Mayo, 898 F.2d at 49 (quoting Celotex Corp.
* Pursuant to 5TH CIR. R. 47.5, the court has
determined that this opinion should not be pub-
lished and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
1 Cf. Berg, 786 So. 2d at 714 (recognizing that
§ 9:2800.1(B) creates an exception to
§ 9:2800.1(A) for serving alcohol to minors).

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v. Catrett, 477 U.S. 317, 323 (1986)).2
The judgment is AFFIRMED.
2 We also need not address whether a vendor
may be liable, notwithstanding § 9:2800.1(A), for
“affirmative acts which increase the peril to an
intoxicated person.” Mayo, 898 F.2d at 49
(quoting Thrasher v. Leggett, 373 So. 2d 494, 497
(La. 1979)). In Mayo, we held that this is the “sole
duty of a seller of alcoholic beverages.” Id. The
Supreme Court of Louisiana may have undermined
this portion of Mayo by expressly noting but
declining to adopt or reject it. Berg, 786 So. 2d at
714 n.13.
Even assuming Mayo properly interpreted
Louisiana law, plaintiffs have not offered evidence
of any affirmative acts increasing the peril to Mr.
Moore. Plaintiffs allege that Mr. Moore fell from
a restricted-access deck not equipped with
surveillance cameras. They do not assert that this
particular deck was more likely to attract in-
toxicated patrons or less secure against falls than
were other decks. Rather, they allege that the un-
monitored nature of this deck increased the like-
lihood that possible rescuers would not notice if a
patron fell overboard. Yet, the facts as stated in
the complaint belie this theory: Plaintiffs ac-
knowledge that, after Mr. Moore fell, a Horseshoe
employee observed him “[s]hortly thereafter” and
radioed to another employee, who arrived “a few
seconds later.” The employees then took several
reasonable but unsuccessful steps to save Mr.
Moore’s life.

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