Insight

Louisiana Second Circuit Applies Anti-Dram Shop Statute to Grant Summary Judgment

Published on: February 5, 2024

Louisiana’s “anti-dram shop” statute, La. R.S. 9:2800.1, limits the ability of a claimant to hold a provider of alcohol liable for damages resulting from the acts of an intoxicated patron. Subsection A of the statute declares that the consumption of intoxicating beverages, rather than the sale, serving, or providing of those beverages, is the proximate cause of any injury or property damage that the consumer may cause. Under Subsection B, anyone who lawfully serves alcohol to a person of legal age is provided immunity for any injury caused by the consumer that occurs “off the premises.” This immunity extends to sellers of alcohol and social hosts.

The Louisiana Second Circuit recently examined these provisions of this statute in Rugg v. Horseshoe Entertainment, et. al. The plaintiff alleged she was injured when an intoxicated patron (John Doe) fell onto her at a hotel bar. She alleged that the defendant, which operated a casino bar, was liable because it ignored multiple complaints about John Doe’s drunken state prior to the incident and failed to escort him out.

The defendant moved for summary judgment, arguing that Louisiana’s anti-dram shop statute prevented any finding of liability on its part. In opposing the summary judgment, the plaintiff argued that the statute did not rule out liability because the injury occurred on the premises.

The Second Circuit determined that the immunity afforded in Subsection B of the statute was not available because, as the plaintiff argued, the injury occurred on the premises. However, Subsection A of the statute, which declares the consumption, not the serving, of alcohol is the proximate cause of injury inflicted by an intoxicated person, still applied.

Under these circumstances, the Court held it had to determine whether the bar owner violated general negligence principles. In conducting this analysis, the court was required to focus on two issues: 1) whether the alcohol provider acted reasonably under the circumstances, and 2) whether the alcohol provider took any “affirmative acts” that increased the chances of the incident.

The Court of Appeal granted summary judgment under the facts of the case. The court found no evidence in the record that Horseshoe acted unreasonably leading up to the incident. Testimony indicated that the complaints about John Doe’s behavior arose after the incident occurred, not before. Similarly, the court reasoned that the failure to escort John Doe out of the bar was not an “affirmative act” that increased the risk of the incident because the record did not indicate Horseshoe had any reason to do so prior to the injury.

In conclusion, the court noted “that in no case will the serving of alcohol be held as the proximate cause of a tort in which alcohol was involved.” Therefore, the plaintiff had to show Horseshoe did something more to cause her injury than just serve John Doe alcohol. Because the plaintiff failed to do so, summary judgment was granted. Under these facts, Louisiana’s dram shop statute still applied to protect the defendant provider of alcohol, even though the injury occurred on its premises and the statutory immunity was not available.

References:

La. R.S. 9:2800.1

Mechelle Rugg v. Horseshoe Entertainment, et al., 55,239 (La. App. 2 Cir. 1/10/24), 2024 WL 104143.

Posted by:

Disclaimer

Keogh Cox & Wilson, Ltd. provides this blog as a public service for general information only. The materials contained herein may not reflect the most current legal developments or even express the opinion of all or even most of Keogh Cox attorneys. Such material does not constitute legal advice or form any attorney-client relationship. Keogh Cox and all contributing author(s) expressly disclaim all liability to any person with respect to the contents of this Web site and Blog and expect that no reliance will be made upon the information provided.

Continue Reading

Explore legal perspectives on the issues shaping Louisiana's key industries and courtrooms.

Insight

Louisiana COVID-19 Immunity Laws

In response to the COVID-19 pandemic, the Louisiana legislature enacted and modified several statutes to limit the liability of individuals, businesses, and government agencies for exposure claims. However, the immunity is not absolute. While the immunity applies to “ordinary” negligence claims, it does not apply where acts are grossly negligent, wanton, or involve reckless misconduct. Further, as a condition to the protection afforded, the entity must show substantial compliance with the applicable COVID-19 procedures established by government authorities.

La. R.S. 9:2800.25, entitled “Limitation of liability for COVID-19” (the general immunity statute) provides that no person, business, or government entity shall be liable for injury or death resulting from exposure to COVID-19 through the performance of its business operations unless the entity failed to substantially comply with at least one set of procedures established by the federal, state, or local agency that governs the business operations, or the injury was caused by gross negligence or wanton, reckless misconduct. With respect to employer immunity, the statute provides that, regardless of whether an employee’s COVID-19 illness is covered under workers’ compensation law, the employee shall have no tort-based remedy against his employer unless the exposure was caused by an intentional act.

The exception to immunity in the general immunity statute calls into question the type of conduct that would rise to a level of gross negligence. Gross negligence is defined in Louisiana case law as “willful, wanton, reckless conduct that falls between intent to do wrong and ordinary negligence,” “lack of even slight care and diligence,” and “utter, complete or extreme lack of care.” While the definition does not provide a bright line rule, it reflects that the conduct must move well beyond simple negligence to defeat immunity.

For a business seeking to manage the risks arising from COVID-19, some best practices emerge: (1) monitor the COVID-19 procedures of government authorities to keep informed of the latest recommended or mandated procedures, (2) institute compliance protocols, (3) document and administer those procedures to show compliance, and (4) most obviously, avoid actions or omissions that may be construed as grossly negligent, wanton, or reckless.

Mary Anne Wolf is an engineer/attorney with a construction background who represents design professionals, contractors and others in construction litigation. She also gives seminars on the subject. She enjoys travel, yoga and encouraging her husband in his gardening and cooking endeavors.

Insight

Is Timing Everything Where Workers Compensation Benefits are Forfeited Based on Fraud? It Depends…

In Moran v. Rouse's Enterprises, LLC, 19-2392019(La. App.5Cir. 12/26/19)- - - So. 3d - - -, the Louisiana Fifth Circuit held that thereis a forfeiture of all benefits when a worker’s compensation claimant commitsfraud, regardless of when the fraudulent conduct occurs. The court declined tofollow opinions from the First and Third Circuits concluding otherwise.

In Moran, the claimant obtained treatment for injuries toher back, right knee, and right shoulder after a slip and fall at work forRouses supermarket. In her deposition, the claimant Moran testified that sheexperienced knee pain only once before her fall; it was “years ago” and not“serious.” Moran also claimed that she experienced no prior shoulder or backpain. However, medical records established:

• Complaintsof knee pain on at least 8 separate occasions between 2012 and the job injury;

• Complaintsof right knee, right wrist, and back pain after a slip and fall in 2013; and

• A rightshoulder impingement diagnosis 2 months before the on-the-job accident.

Rouses and its workers compensation carrier affirmativelyalleged a violation of La. R.S. 23:1208, Louisiana’s workers compensation fraudstatute, following the claimant’s deposition. Paragraphs “A” and “E” of section1208 provide in pertinent part:

A. It shallbe unlawful for any person… to willfully make a false statement orrepresentation… for the purpose of obtaining or defeating any benefit orpayment under…this Chapter.

***

E. Anyemployee violating this Section shall… forfeit any right to compensationbenefits under this Chapter.

As part of their fraud defense, the defendants specificallydenied responsibility for all worker’s compensation benefits, i.e. benefitsthat that might have otherwise been due both before and after the fraudulentdeposition testimony.

Following trial, the workers compensation judge determinedthat Moran carried her burden of proving the occurrence of on-the-job injuryand disability. Nevertheless, the trial court also ruled that the claimant madefalse statements for the purpose of obtaining workers compensation benefits inviolation of section 1208, thereby forfeiting the right to both the pre andpost-deposition benefits that she was claiming.

On appeal, Moran argued that the forfeiture requirement ofsection 1208 applies prospectively only. Moran cited opinions from theLouisiana First and Third Circuits. After addressing the statute and the caselaw, the Moran court affirmed the decision of the workers compensation judgefinding that the forfeiture of benefits provided for in of Section 1208 isclear and unambiguous. The opinion states that “…if the legislature hadintended to limit the application … it would have clearly expressed that in thestatute.”

There are no Louisiana Supreme Court opinions which specifically address whether the Section 1208 forfeiture applies retroactively or prospectively only. Given the defined split in the Louisiana appellate courts, the issue is ripe for consideration by the state’s highest court.

Ed is a Keogh Cox partner who litigates Worker’s Compensation, automobile and premises liability as well as subrogation claims. He is an avid runner and enjoys traveling with his wife Jennifer and their three children.

Insight

Louisiana Expands Definition of Medical Malpractice Under the LMMA

Louisiana courts traditionally have ruled claims of administrative negligence fell outside of the purview of the Louisiana Medical Malpractice Act (LMMA). Courts found the LMMA applied strictly to cases “arising from medical malpractice.” In cases where Plaintiffs argued medical administrative failure, courts applied general tort law. This meant that the LMMA’s key protections— the statutory cap on damages and the requirement for a pre-suit medical review panel— did not apply to claims based on alleged administrative failures.

The following cases illustrate this point:

In LaCoste v. Pendleton Methodist Hosp., Plaintiff alleged a hospital failed to maintain its life-support equipment and implement emergency evacuation plans.^
In Blevins v. Hamilton Med. Ctr., Inc., Plaintiff alleged the hospital failed to provide him with equipment in proper working condition, to keep his bed in lowest position with wheels locked, and to properly instruct him on proper use and safety of his bed.*
In Scio v. University Med. Mgmt. Corp., Plaintiff alleged the defendant failed to implement policies to ensure that follow up appointments were properly communicated.^^
In Billeaudeau v. Opelousas Gen. Hosp. Auth., Plaintiff alleged the hospital was negligent in its credentialing of a doctor in the emergency department.**

The Louisiana Supreme Court used the “Coleman factors” established in Coleman v. Deno^^^ to determine whether the alleged conduct in these cases could constitute “malpractice.” These factors assess (1) whether the alleged conduct is treatment-related, (2) whether expert testimony is required to examine the claim, (3) whether assessment of the patient’s condition was involved, (4) whether it involves a physician-patient relationship, (5) whether the injury would have occurred absent treatment, and (6) whether the act was intentional. Considering these factors in each of the cases outlined above, the Court found the LMMA did not apply.

However, recent legislative amendments expanded the LMMA’s scope and raise questions about how these cases would be decided now. Effective August 1, 2025, new amendments broaden the definitions of “health care” and “malpractice” under La. R.S. 40:1231.1 to include administrative and managerial actions that are necessary for delivering medical care. While the full text of the new statute should be considered when evaluating any pending or potential claims, a summary is provided here.

Under the amended statute:

“Health care” now includes any act, treatment, “administration, service, or care related to policies and procedures and the administration thereof, staffing, custodial services by licensed or certified staff…” Further, the amendment expressly provides that the definition of health care “includes all acts associated with the medical treatment of an individual, whether directly related to clinical care or performed in an administrative or managerial capacity necessary for the delivery of such care.”

Additionally, under the amendment, the definition of “malpractice” now explicitly covers all acts tied to staffing and expressly includes “all acts associated with the medical treatment of an individual, whether directly related to clinical care or performed in an administrative or managerial capacity necessary for the delivery of such care.”

These amendments suggest the cases outlined above may have been decided differently if they were filed today. However, it remains to be seen how courts will apply these changes moving forward.

References:

^ LaCoste v. Pendleton Methodist Hosp., LLC, 07-0008 (La. 9/5/07), 966 So. 2d 519.

* Blevins v. Hamilton Med. Ctr., Inc., 2007-127 (La. 6/29/07), 959 So. 2d 440, 442, 443.

^^ Scio v. University Med. Mgmt. Corp., 19-1319 (La. 10/21/19), 280 So. 3d 1135.

** Billeaudeau v. Opelousas Gen. Hosp. Auth., 2016-0846 (La. 10/19/16), 218 So. 3d 513, 515.

^^^ Coleman v. Deno, 2001-1517 (La. 1/25/02), 813 So. 2d 303, 316.