IN THE SUPREME COURT OF MISSISSIPPI
NO. 2011-CA-00819-SCT
ELI INVESTMENTS, LLC, A MISSISSIPPI
LIMITED LIABILITY COMPANY
v.
SILVER SLIPPER CASINO VENTURE, LLC, A
DELAWARE LIMITED LIABILITY COMPANY;
SILVER SLIPPER GAMING, LLC, A LIMITED
LIABILITY COMPANY; AND BROADWATER
DEVELOPMENT, LLP
DATE OF JUDGMENT: 05/13/2011
TRIAL JUDGE: HON. ROGER T. CLARK
COURT FROM WHICH APPEALED: HARRISON COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT: ROBERT T. SCHWARTZ
JEFFREY W. BERTUCCI
LAURENCE E. BEST
ATTORNEYS FOR APPELLEES: JOEL J. HENDERSON
EDWARD D. LAMAR
NATURE OF THE CASE: CIVIL - PROPERTY DAMAGE
DISPOSITION: REVERSED AND REMANDED - 07/25/2013
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE WALLER, C.J., CHANDLER AND KING, JJ.
WALLER, CHIEF JUSTICE, FOR THE COURT:
¶1. Eli Investments, LLC, sued Silver Slipper Casino Venture, LLC, and Silver Slipper
Gambling, LLC (collectively “Silver Slipper”), and Broadwater Development, LLC, to
recover for damages sustained to Eli’s Biloxi hotel when Silver Slipper’s casino allided 1 with
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An “allision” refers to contact between a vessel and a stationary object, such as a
pier. This is compared to “collision,” which refers to contact between two moving vessels.
it during Hurricane Katrina. The trial court granted Silver Slipper’s and Broadwater’s
motions for summary judgment. Eli now appeals the trial court’s grant of summary judgment
to Silver Slipper. Finding that Eli has presented a genuine dispute of material fact regarding
Silver Slipper’s negligence, we reverse the trial court’s grant of summary judgment to Silver
Slipper and remand for further proceedings.
FACTS & PROCEDURAL HISTORY
¶2. In April of 2005, Silver Slipper purchased the President Casino, a casino barge, and
entered into a lease of the tidelands 2 and fast lands 3 making up the Broadwater Beach Marina
area in Biloxi, Mississippi, from Broadwater Development, LLC.4 The President Casino was
not employed as a mobile vessel, but was secured to the marina by a mooring system of six
four-legged mooring “dolphins” and permanent couplings. This system was designed to
allow the casino to rise securely with the tide to a height of between fifteen and twenty feet
above normal tide levels.
¶3. On August 28, 2005, the Mississippi Gaming Commission ordered Silver Slipper to
close the President Casino to prepare for the imminent landfall of Hurricane Katrina. At that
Black’s Law Dictionary 83 (8th ed. 2004). “Allide” is the verb form of “allision.”
2
“Tidelands” refers to land between the high-water and low-water tide lines that is
uncovered by the natural ebb and flow of tidal waters. Black’s Law Dictionary 893 (8th ed.
2004).
3
“Fast lands” refers to the land above the high-water tide line and that, when flooded
by a government project, is subjected to a governmental taking. Black’s Law Dictionary
1520 (8th ed. 2004).
4
Silver Slipper Casino Venture, LLC, maintained the casino property, including the
moorings that secured the casino’s barge. Silver Slipper Gaming, LLC, operated the casino
to ensure compliance with Gaming Commission regulations.
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time, operations at the President Casino were discontinued, patrons were escorted from the
casino, all utilities were disconnected, and the barge’s access ramp was raised.
¶4. Hurricane Katrina made landfall on the Mississippi Gulf Coast in the morning hours
of August 29, 2005. The hurricane’s peak storm surge and peak wind gusts occurred nearly
simultaneously around the time of landfall. The storm surge in Biloxi reportedly reached a
height of twenty-five feet above mean sea level, but was higher in some areas. During the
storm surge, the President Casino barge floated free of its moorings and traveled roughly one
mile in a west-northwesterly direction, finally alliding with and coming to rest on top of the
Biloxi Beachfront Hotel, which was owned by Eli. Eli claims the allision destroyed the
hotel’s main building and caused extensive damage to other parts of the hotel.
¶5. In 2007, Eli filed suit against Silver Slipper and Broadwater for negligence and gross
negligent conduct. Eli claimed Silver Slipper had failed to maintain the casino barge properly
prior to and during Hurricane Katrina. Eli also claimed that Broadwater had failed to properly
maintain the dock site and mooring system that it leased to Silver Slipper.
¶6. In 2010, Silver Slipper and Broadwater moved for summary judgment. In support of
its motion, Silver Slipper claimed that any duty it owed to Eli was set by Gaming
Commission regulations. Because the President Casino met these mooring requirements,
Silver Slipper contended it had met its duty to Eli. Silver Slipper also asserted the “Act of
God” defense, arguing that it could not have prevented through any reasonable measures the
damage caused by Hurricane Katrina’s unprecedented storm surge and wind gusts.
¶7. The trial court granted summary judgment to Silver Slipper, finding that Silver Slipper
had taken reasonable precautions to prevent foreseeable injuries to nearby property owners
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by complying with the Gaming Commission’s licensing regulations. In addition, the court
found that Katrina was an “‘Act of God,’ unforeseeable in its fury and the destruction it
caused.” The trial court also granted summary judgment to Broadwater. Eli did not appeal
the grant of summary judgment in favor of Broadwater.
¶8. Eli timely appealed to this Court the trial court’s grant of summary judgment to Silver
Slipper. Eli raises the following issues:
I. Whether the circuit court erred in holding that no genuine issues
of material fact existed regarding Silver Slipper’s breach of its duty
to take reasonable precautions to protect those in close proximity
of the President Casino.
II. Whether the circuit court erred by applying the Act of God Defense
to Silver Slipper, given the questions of fact raised by Eli regarding
Silver Slipper’s negligence.
STANDARD OF REVIEW
¶9. A trial court’s grant of summary judgment is reviewed de novo. Davis v. Hoss, 869
So. 2d 397, 401 (Miss. 2004). Summary judgment is proper “if the pleadings, depositions,
answers to interrogatories and admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and the moving party is entitled to a
judgment as a matter of law.” Miss. R. Civ. P. 56(c). The evidence must be viewed in the
light most favorable to the party opposing the motion. Davis, 869 So. 2d at 401.
DISCUSSION
¶10. To prove negligence, the plaintiff has the burden to establish (1) the existence of a
duty owed to it by the defendant; (2) a breach of that duty; (3) a causal connection between
the breach of duty and the alleged injury to the plaintiff; and (4) injury and damages. Rein
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v. Benchmark Constr. Co., 865 So. 2d 1134, 1143-44 (Miss. 2004). If a triable issue of fact
regarding each of these elements exists, then summary judgment must be reversed. Lyle v.
Mladinich, 584 So. 2d 397, 399 (Miss. 1991).
¶11. The existence vel non of a legal duty is a question of law to be decided by the court.
Rein, 865 So. 2d at 1143. Here, the trial court correctly found that Silver Slipper “owed a
duty to owners in close proximity to take reasonable measures to prevent foreseeable injuries
in the event of a hurricane.” It is also clear from the record that the President Casino’s
unmooring caused damage to Eli’s property. The question, then, is whether Eli offered
sufficient evidence to create a dispute of fact as to whether Silver Slipper breached that duty
to take reasonable measures to prevent foreseeable harm to Eli.
I. Whether the circuit court erred in holding that no genuine issues
of fact existed regarding Silver Slipper’s breach of its duty to take
reasonable precautions to protect those in close proximity to the
President Casino.
¶12. Whether the defendant breached its duty to the plaintiff is a question of fact. Lyle,
584 So. 2d at 400. The standard of care applicable to negligence cases is whether the
defendant “acted as a reasonable and prudent person would have under the same or similar
circumstances.” Donald v. Amoco Prod. Co., 735 So. 2d 161, 175 (Miss. 1999) (citations
omitted). The defendant must take reasonable measures to remove or protect against
“foreseeable hazards” that he knows about or should know about in the exercise of due care.
Millers of Jackson, Meadowbrook Road, Inc., v. Newell, 341 So. 2d 101, 103 (Miss. 1976).
¶13. Viewing the evidence in the light most favorable to Eli, as this Court must do when
reviewing a grant of summary judgment, we find that Eli has offered sufficient proof to
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create a genuine dispute of material fact regarding Silver Slipper’s breach of its duty to take
reasonable precautions to protect those in close proximity to the President Casino during
Hurricane Katrina. Eli provided the trial court with the affidavit of Greg S. Perkin, P.E., who
inspected the President Casino’s mooring system after Hurricane Katrina. Perkin opined that
the storm surge caused by Hurricane Katrina was foreseeable to Silver Slipper in light of
prior storm history in the Gulf of Mexico, and that Silver Slipper failed to consider what
would happen if the casino barge encountered a significant storm surge. Perkin’s opinion
was supported by statistics from the National Oceanic and Atmospheric Administration citing
at least three hurricanes with storm surges of greater than fifteen feet in the Mississippi Gulf
Coast prior to Hurricane Katrina. Second, Perkin opined that the moorings typically used to
restrain a vessel in position along a dock in a marina were not sufficient to restrain the
President Casino if it encountered a significant storm surge, as experienced along the
Mississippi Gulf Coast during prior hurricanes.
¶14. In response, Silver Slipper provided the court with the affidavit of Henry R. Seawell,
III, P.E, who inspected the President Casino and its mooring system in 2005. Seawell opined
that the President Casino was adequately moored to comply with Mississippi Gaming
Commission Regulation II(B)(10). The regulation requires that all floating casino barges be
moored “to withstand a Category 4 hurricane with 155 mile per hour winds and 15 foot tidal
surge” as a condition of licensure. Miss. Admin. Code 13-1-3:II-B, § 10. Next, Seawell
opined that it would not have been feasible to attempt to move the casino to a safe harbor,
due to the minimal amount of time between the first hurricane warning and Hurricane
Katrina’s landfall. Finally, Seawell opined that the President Casino did not float free from
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its moorings until some time after Hurricane Katrina’s storm surge reached higher than
fifteen feet, which was higher than the Gaming Commission regulations protected against.
Nothing in Seawell’s affidavit contradicts Perkin’s assertion that the meteorological effects
of Hurricane Katrina were foreseeable to Silver Slipper.
¶15. We find that Seawell’s and Perkin’s differing opinions established a “battle of the
experts” on the issue of whether Silver Slipper took reasonable steps to secure the President
Casino to prevent foreseeable harm to nearby property owners. This Court has held that the
winner in a battle of the experts is to be decided by the jury. Hill v. Mills, 26 So. 3d 322, 330
(Miss. 2010). Moreover, Silver Slipper’s alleged compliance with Gaming Commission
regulations does not automatically shield it from liability. “[S]tate boards and commissions
are creatures of statute and have no powers other than those delegated to [them] by the
Legislature.” Howard v. Estate of Harper, 947 So. 2d 854, 859 (Miss. 2006) (citing
Masonite Corp. v. State Oil & Gas Bd., 240 So. 2d 446, 449 (Miss.1970)). It is clear that
Regulation II(B)(10) was enacted merely as a condition of licensure, not as a conclusive
standard of care for all casinos in all circumstances.
¶16. Silver Slipper has offered evidence that it acted reasonably under the circumstances.
Eli has offered competing evidence that Silver Slipper failed to moor the President Casino
adequately to withstand Hurricane Katrina. “Issues of fact sufficient to require denial of a
motion for summary judgment obviously are present where one party swears to one version
of the matter in issue and another says the opposite.” Mantachie Natural Gas Dist. v.
Mississippi Valley Gas Co., 594 So. 2d 1170, 1172 (Miss. 1992) (quoting Clark v. Moore
Mem’l United Methodist Church, 538 So. 2d 760, 762 (Miss. 1989) (internal citations
7
omitted)). Because Eli has shown a genuine dispute of material fact concerning a breach of
Silver Slipper’s duty, we hold that the trial court erred in granting summary judgment to
Silver Slipper.
II. Whether the circuit court erred by applying the Act of God defense
to Silver Slipper, given the questions of fact raised by Eli regarding
Silver Slipper’s negligence.
¶17. The trial court found that Silver Slipper was excused from liability for damages to
Eli’s property because Hurricane Katriana was an “Act of God,” unforeseeable in the
destruction it caused. Eli argues that the Act of God defense is not available to Silver Slipper
because Silver Slipper’s negligence served as the intervening cause of Eli’s damages.
¶18. The Act of God defense is an affirmative defense to the element of causation. “No
one is liable for an injury proximately caused by an act of God[.]” City of Jackson v.
Brummett, 80 So. 2d 827, 829 (Miss. 1955). An Act of God is an injury due exclusively to
forces of nature, without human intervention, which could not have been prevented by the
use of due care and reasonable foresight. Brummett, 80 So. 2d at 829. The Act of God
defense applies to “events in nature so extraordinary that the history of climatic variations
and other conditions in the particular locality affords no reasonable warning of them.”
McFarland v. Entergy Mississippi, Inc., 919 So. 2d 894, 904 (Miss. 2004). However, an
injury which could have been prevented through the use of ordinary care is not an Act of God
which would remove the tortfeasor from liability. City of Hattiesburg v. Hillman, 76 So.
2d 368, 370 (Miss. 1954).
¶19. We have found that there exists a genuine dispute of material fact as to whether Silver
Slipper was negligent in mooring the President Casino adequately to withstand Hurricane
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Katrina. If a jury finds that Silver Slipper, through the exercise of reasonable care, could
have prevented the damage to Eli’s property, the Act of God defense will not apply. See
Biloxi Yacht Club, Inc. v. Grand Casinos of Mississippi, Inc.-Biloxi (denying defendant’s
motion for summary judgment based on Act of God defense when a dispute of fact existed
as to whether defendant was negligent in designing its casino barge’s moorings.)
Accordingly, we find that Silver Slipper is not entitled to summary judgment based on the
Act of God defense.
CONCLUSION
¶20. The trial court erred in granting summary judgment in favor of Silver Slipper because
Eli presented sufficient evidence to create a genuine dispute of material fact as to whether
Silver Slipper breached its duty to take reasonable measures to prevent foreseeable harm to
nearby property owners. Accordingly, this Court reverses the trial court’s grant of summary
judgment and remands this case to the Harrison County Circuit Court for further proceedings.
¶21. REVERSED AND REMANDED.
DICKINSON AND RANDOLPH, P.JJ., LAMAR, KITCHENS, CHANDLER,
PIERCE, KING AND COLEMAN, JJ., CONCUR.
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