Under Louisiana law, three Paragon Casino employees cannot be sued for allegedly over-serving a customer and allowing him to leave the premises in an obviously intoxicated condition that led to a fatal traffic accident, the 3rd Circuit Court of Appeal ruled last week.
The suit was filed by Zachary Zaunbrecher on behalf of his deceased father, Michael Blake Zaunbrecher. The suit is related to a July 11, 2013 accident in which Paragon customer Leo J. David crossed the center line of La. Hwy 1 and struck the Zaunbrecher vehicle an hour after leaving the casino. Both men died in the accident. David had a blood alcohol level of .21.
The suit was initially filed against the estate of Leo David, his insurer and Zaunbrecher’s underinsured motorist insurance policy. The plaintiffs later added the Tunica-Biloxi Gaming Authority, Paragon Casino Resort and employees Marissa Martin, Nathan Ponthier and Jeremy Ponthieux.
The Gaming Authority and casino were dismissed from the suit due to the tribe’s sovereign immunity.
The fight moved from state courts to federal courts over the issue of whether a tribe’s sovereign immunity covered its employees.
U.S. SUPREME COURT
The U.S. Supreme Court ruled last year that individual employees of a Native American-owned enterprise do not have immunity from being sued for their own acts that might be liable for injuries.
In August, the Paragon employees asked 12th Judicial District Judge William “Billy” Bennett to dismiss them from the lawsuit, citing the state’s “Anti-Dram Shop Statute.” Bennett denied the request Sept. 27. On Oct. 13, Bennett also denied a request to postpone a scheduled Oct. 31 jury trial of the suit.
The 3rd Circuit postponed the trial and held a hearing on the appeal on Jan. 24.
In writing the opinion for the three-judge panel, Judge John E. Conery wrote that state law {R.S. 9:2800.1 (B)} specifically protects a person holding a permit to serve alcoholic beverages from liability “for an injury suffered off the premises, including wrongful death and property damage, because of the intoxication of the person to whom the intoxicating beverages were sold or served.”
The beverage server or bar can face consequences for over-serving an intoxicated customer, such as loss of the permit to sell alcohol, but the “Anti-Dram Shop Law” puts the liability for becoming intoxicated, and for any damages as a result of that intoxication, on the intoxicated person.
In addition, the appellate judges noted the video footage of David’s time in the casino that night “directly contradicts” claims made in the lawsuit.
It had been claimed that David was over-served alcohol, forcibly ejected and escorted by security officers to his car, where he drove away and then later caused the fatal accident.
The ruling notes that even if the video evidence supported those allegations, the state law would still grant immunity from liability as a result.
Judge Sylvia R. Cooks wrote a brief comment in concurring with the decision, noting that the plaintiffs’ claims are “wholly unsupportable."
“It is clear Mr. David was not escorted to his vehicle, but can clearly be seen leaving the casino building of his own accord, unassisted by anyone,” she continued. “He is seen walking quite a distance directly to his vehicle and driving away in a normal manner.”
The other judge on the panel was Van Kyzar, whose election district includes Avoyelles Parish.
The plaintiffs were ordered to pay all costs of the proceedings.
The court ruling does not affect the right of the plaintiff to pursue the suit against the insurance companies.
It is possible the plaintiffs could appeal the 3rd Circuit ruling to the state Supreme Court, but attorneys for Zaunbrecher said they would not be making any comments concerning the case.