Case: 13-60557 Document: 00512705011 Page: 1 Date Filed: 07/21/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 21, 2014
No. 13-60557
Lyle W. Cayce
Clerk
JOANNE GLENN, Individually and as Administratrix of the Estate of
Christopher Thomas Glenn and Administratrix of the Estate of Bryan Lee
Glenn; DANIEL LEE GLENN,
Plaintiffs–Appellants,
v.
IMPERIAL PALACE OF MISSISSIPPI, L.L.C., a Nevada Limited Liability
Company; IP HOLDINGS, INCORPORATED, a Nevada Corporation;
ENGELSTAD FAMILY FOUNDATION; BOYD GAMING CORPORATION, a
Nevada Corporation,
Defendants–Appellees.
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 1:12-CV-227
Before SMITH, BENAVIDES, and CLEMENT, Circuit Judges.
PER CURIAM:*
Daniel Glenn and Joanne Glenn filed suit against the defendants,
Imperial Palace of Mississippi, L.L.C., IP Holdings, Inc., Englestad Family
Foundation, and Boyd Gaming Corporation. The Glenns alleged, among other
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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things, that the defendants’ negligence in serving alcohol to their son Bryan
and failing to render aid to Bryan at the Imperial Palace Casino Resort and
Spa caused Bryan’s death from alcohol poisoning. The defendants moved to
dismiss the case under Federal Rule of Civil Procedure 12(b)(6), and the
district court granted the motion. The Glenns appealed. We affirm on all
counts.
FACTS AND PROCEEDINGS
Joanne Glenn, her sons Christopher and Bryan, and their friend Pam
Rogers-Seamster travelled to Biloxi, Mississippi to settle a legal claim and
search for a place to live. They arrived midday at the Imperial Palace Casino
Resort and Spa (“IP” or “the Casino”) and the four checked into a single hotel
room. The complaint alleges that Bryan Glenn “was impaired by severe
physical and psychological injuries,” including traumatic brain injury and
significant lower back injuries, due to a four-wheeler accident and an
automobile accident. Bryan took prescribed medications for pain, agitation
and psychosis, severe anxiety, and sleep.
Upon arriving at the Casino, Bryan immediately began playing
blackjack and consuming two free drinks at a time, which continued
throughout the afternoon and evening. By 5:00 or 5:30 p.m., Bryan was
“heavily and visibly intoxicated,” was “unable to speak without slurring his
words,” “could not sit up and was falling out of his chair to the floor, [and was]
dropping his money and chips.” Joanne, Christopher, and Pam tried to
convince Bryan to stop drinking, and repeatedly asked the Casino staff to stop
serving Bryan alcohol. They mentioned that he was “on medications and not
supposed to drink.” They also asked a security guard and the “pit boss” behind
the blackjack tables to stop the Casino staff from serving Bryan alcohol, but
both said there was nothing they could do.
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The Casino continued serving Bryan two free drinks at a time until 10:00
p.m., when an employee told Bryan that they would no longer serve him
alcohol. Bryan then left the blackjack tables, proceeded to the Casino’s “Chill
Lounge,” and was served more alcoholic drinks there. After Pam asked the
bartender at the Chill Lounge to stop serving Bryan, the bartender stated that
Bryan “already had three drinks and he’s only been in here 15 minutes. I can
see how intoxicated he is and I’m not going to serve him much more.”
At approximately 10:30 or 10:45 p.m., Joanne and Christopher left the
Casino to take Bryan’s uncle—who was at the Casino for dinner—home. The
trip took approximately two hours, partly because they had to help the uncle—
a paraplegic—into bed. When Joanne and Christopher returned, Bryan was
no longer in the Chill Lounge. Pam asked the doorman where Bryan was, and
he explained that security guards had escorted Bryan to his hotel room because
he “was just way too intoxicated.” When she asked if the doorman was certain
that Bryan had been escorted to the room, the doorman replied, “No, all I know
is that he was escorted out of here. He was just way too intoxicated, he fell out
of his chair twice and we can’t have that here.”
Joanne, Christopher, and Pam went to the room to look for Bryan.
Joanne discovered him lying half on the floor and half in the bathtub, facing
the toilet, with his pants around his ankles. Pam—a trained EMR—then
observed that one of the palms of his hands was bluish, realized he was
deprived of oxygen, and immediately began performing CPR. She performed
CPR for twenty minutes until the Casino medic arrived, but the medic told her
to keep going, since the medic did not have a mouthpiece. Pam continued
giving CPR for another twenty minutes before other medics arrived. Bryan
was taken to the hospital and pronounced dead at 3:19 a.m. According to an
autopsy, he died of “alcohol poisoning combined with his medications.”
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Daniel and Joanne Glenn sued the defendants, Imperial Palace of
Mississippi, L.L.C., IP Holdings, Inc., Englestad Family Foundation, and Boyd
Gaming Corporation (collectively “IP”). The first amended complaint 1 asserted
the following claims, individually and on behalf of the estates of their son
Bryan and their later-deceased son Christopher: (1) negligence in serving
alcohol; (2) negligence in failing to render aid; (3) negligent infliction of mental
distress on the estate of Christopher and on Joanne; and (4) breach of fiduciary
duty. The Glenns sought compensatory and punitive damages, as well as an
accounting, disgorgement, and the imposition of a constructive trust. The
defendants filed a motion to dismiss under Rule 12(b)(6) for failure to state a
claim, which the district court originally denied. The defendants then filed a
motion for reconsideration. After additional briefing, the district court granted
the motion for reconsideration, vacated its order denying the motion to dismiss,
and dismissed the case under Rule 12(b)(6). The Glenns appealed.
STANDARD OF REVIEW
This court reviews de novo a district court’s dismissal under Rule
12(b)(6), accepting all well-pleaded facts as true and viewing those facts in the
light most favorable to the plaintiffs. Doe v. Covington Cnty. Sch. Dist., 675
F.3d 849, 854 (5th Cir. 2012) (en banc). To survive a Rule 12(b)(6) motion to
dismiss, plaintiffs must plead enough facts to state a claim for relief that is
plausible on its face. Id. (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). A claim has facial plausibility when the plaintiffs plead factual
content that allows the court to draw the reasonable inference that the
defendant is liable for the conduct alleged. Id. (citing Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009)). Our task, then, is to determine whether the plaintiff has
1 The amended complaint was filed on the same day as the original to correct the
delineation of certain parties. No substantive changes were made to the facts alleged or the
claims asserted.
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stated a legally cognizable claim that is plausible, not to evaluate the plaintiff’s
likelihood of success. Id. (citing Lone Star Fund V (U.S.), L.P. v. Barclays Bank
PLC, 594 F.3d 383, 387 (5th Cir. 2010)).
In this diversity dispute, Mississippi law governs, and this court reviews
a district court’s interpretation of state law de novo. See Erie R.R. Co. v.
Tompkins, 304 U.S. 64, 78 (1938); Am. Bankers Ins. Co. of Fla. v. Inman, 436
F.3d 490, 492 (5th Cir. 2006). “To determine issues of state law, we look to
final decisions of the state’s highest court, and when there is no ruling by that
court, then we have the duty to determine as best we can what the state’s
highest court would decide.” James v. State Farm Mut. Auto. Ins. Co., 743 F.3d
65, 69 (5th Cir. 2014) (internal quotation marks omitted).
DISCUSSION
I. Mississippi law prohibits a decedent’s estate from recovering in
a wrongful death action when decedent’s death resulted from his
own voluntary intoxication.
The first issue is whether the district court erred in dismissing the
Glenns’ claim that the defendants negligently served alcohol to Bryan. As with
any negligence claim, the Glenns must allege: (1) a duty owed by the defendant
to the plaintiff; (2) a breach of that duty; (3) damages; and (4) proximate cause.
Grisham v. John Q. Long V.F.W. Post, No. 4057, Inc., 519 So. 2d 413, 416 (Miss.
1988). The Glenns allege that IP—by continuing to serve Bryan after he was
visibly intoxicated—violated several criminal statutes and gaming regulations,
rendering IP negligent per se. IP counters that Bryan is not within the class
of citizens protected by these statutes and regulations, and therefore lacks a
cause of action under Mississippi law. In dismissing the Glenns’ complaint,
the district court explained that the “Mississippi Supreme Court has made
clear [in Bridges v. Park Place Entm’t, 860 So. 2d 811 (Miss. 2003)] that ‘the
Legislature did not intend to include adults who voluntarily become
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intoxicated and subsequently injure themselves as a result of that intoxication
as members of the protected class within [§ 67-3-73].’” We agree.
Mississippi common law has long held that there is “no action for
damages in the selling or giving away of intoxicating liquors.” Munford, Inc.
v. Peterson, 368 So. 2d 213, 215 (Miss. 1979); see also Boutwell v. Sullivan, 469
So. 2d 526, 529 (Miss. 1985) (noting that “neither Mississippi statutes nor the
common law impose liability” against hosts who supplied intoxicating liquor to
persons who were, or became, intoxicated and subsequently injured third
party). “Where there is no statute pertaining to a subject, the common law
prevails.” Munford, 368 So. 2d at 215. The Glenns argue that the common law
does not apply because their claims are based on Mississippi statutes and
regulations that forbid the sale of alcohol to intoxicated persons. But the mere
existence of a statute does not automatically create liability; the would-be
plaintiff must be part of the class protected by the statute. “If the statute is
not construed to cover the plaintiff, or the particular type of harm, many courts
have held that its violation is not even evidence of negligence, and can have no
effect on liability at all.” Cuevas v. Royal D’iberville Hotel, 498 So. 2d 346, 347-
48 (1986). Thus, absent a statute that (1) creates damages liability (2) for a
class of plaintiffs that includes Bryan Glenn, IP cannot be liable for injuries
caused by serving Bryan liquor.
The Supreme Court of Mississippi first allowed damages for sales of
alcohol in Munford, Inc. v. Peterson. In Munford, defendant sold alcohol to a
group of underage boys in violation of Mississippi Code Annotated § 67-3-53(b).
368 So. 2d at 214-15. Finding that § 53(b) “was adopted for the protection of
the general public, including persons such as” the underage child (Peterson)—
who purchased beer and was later killed in an drunken car accident—the court
determined that violating § 53(b) constituted negligence per se. Id. at 216, 217.
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This allowed Peterson—as an individual protected under the statute—to
recover damages.
The court cabined Munford several years later in Cuevas. 498 So. 2d
346. In Cuevas, a hotel guest became intoxicated at the hotel and fell over a
railing. She brought suit under Mississippi Code Annotated § 67-1-83(1),
which makes it a crime to sell alcohol to “any person who is visibly intoxicated.”
Id. at 347. While reiterating that Munford’s holding that parties protected by
the statute—such as third parties injured by intoxicated individuals or first-
party minors (in the case of a statute prohibiting sale of alcohol to minors)—
fall within the class of citizens protected under such statutes, it adhered to the
common law rule by refusing to allow the intoxicated individual herself to bring
an action for damages against suppliers of alcohol. In reaching this decision,
the court found that the legislature did not “intend[] to impose liability upon a
dispenser of intoxicants to an adult individual . . . who voluntarily consumes
intoxicants and then, by reason of his inebriated condition, injures himself.”
Id. at 348. The court thus held that the alleged violation of § 67-1-83(1) did not
entitle Cuevas to recover because—even if she was visibly intoxicated and
served alcohol in violation of the statute—her intoxication was voluntary,
placing her outside the class of individuals entitled to recover under § 67-1-83.
In 1987—the year after Cuevas was decided—the Mississippi
Legislature passed Mississippi Code Annotated § 67-3-73, which provides:
(1) The Mississippi Legislature finds and declares that the
consumption of intoxicating beverages, rather than the sale or
serving or furnishing of such beverages, is the proximate cause
of any injury, including death and property damage, inflicted
by an intoxicated person upon himself or upon another person.
(2) Notwithstanding any other law to the contrary, no holder of
an alcoholic beverage . . . permit . . . who lawfully sells or
serves intoxicating beverages to a person who may lawfully
purchase such intoxicating beverages, shall be liable to such
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person or to any other person . . . for any injury suffered off the
licensed premises . . . because of the intoxication of the person
to whom the intoxicating beverages were sold or served. . . .
(4) The limitation of liability provided by this section shall not
apply . . . when it is shown that the person making a purchase
of an alcoholic beverage was . . . visibly intoxicated.
In the most recent decision of the Mississippi Supreme Court on this
issue, Bridges v. Park Place Entertainment, the court considered the interplay
between its previous decisions and § 67-3-73. 860 So. 2d 811 (Miss. 2003).
After consuming alcohol served to him by a casino, Bridges left the casino with
his wife and later tried to escape his wife’s car as she was driving. Id. at 812.
When Bridges’s wife pulled over to the shoulder of the highway, he exited the
car, walked onto the highway, was struck by a car, and sustained serious
injuries. Id. Bridges brought suit against the casino, alleging it negligently
served him alcohol after he was visibly intoxicated in violation of § 67-1-83(1).
Id. at 813. Bridges argued that even if the passage of § 67-3-73 limited the
casino’s liability, subsection (4) of § 67-3-73 meant that the casino could still
be liable since Bridges was visibly intoxicated when served and thus was also
in the protected class under § 67-3-73(4). Id. at 815.
The court rejected these arguments, explaining that Cuevas held that
adults who voluntarily consume alcohol and injure themselves were not in the
protected class of § 67-1-83. As with § 67-1-83, the court did “not perceive the
Legislature as having intended to include those same individuals in the same
protected class of section 67-3-73.” Id. at 816. It reasoned:
In adopting Miss. Code Ann. § 67-3-73, the Legislature had
the opportunity to clearly state whether adults who voluntarily
consume alcoholic beverages and then injure themselves as a
result of that intoxication were members of the protected class
thus enabling them to bring suit against vendors . . . . However,
the Legislature did not take this opportunity; therefore, this
Court’s holding in Cuevas clearly applies to the present case.
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Id. Accordingly, the Bridges court affirmed the dismissal on the grounds that
plaintiff had no cause of action. Id. at 818. Because Bryan—like the plaintiffs
in Cuevas and Bridges—became voluntarily intoxicated and injured himself,
he does not fall within the class of protected individuals entitled to bring suit
against IP for serving a visibly intoxicated individual.
The Glenns challenge the district court’s ruling on several grounds. They
first assert that because the Casino served Bryan when he was visibly
intoxicated, the limitation on liability in § 67-3-73 does not apply. They further
argue that Cuevas does not apply because it “addressed only MISS. CODE ANN.
§ 67-1-83 (1982) and whether the Legislature intended by this specific statute
to protect adult intoxicants.” This is incorrect. Bridges unambiguously held
that an adult who voluntarily becomes intoxicated and then injures himself
because of that intoxication cannot bring a first-party suit, even if the adult
was served when visibly intoxicated. 860 So. 2d at 818 (“We find that the
Legislature did not intend to include adults who voluntarily become
intoxicated and subsequently injure themselves as a result of that intoxication
as members of the protected class within Miss. Code Ann. § 67-3-73.”)
(emphasis added).
The Bridges court acknowledged that § 67-3-73(2) limits liability in
certain circumstances and that § 67-3-73(4) provides that the limitation of
liability no longer applies if the person is visibly intoxicated when served. Id.
at 816. Nonetheless, the court held that because adults who become
voluntarily intoxicated are not within the class protected under § 67-3-73, they
cannot bring first-party claims under that statute. Id. Section 67-3-73(4)
removes § 67-3-73(2)’s absolute prohibition against server liability if it can be
shown that the intoxicated individual was visibly intoxicated when served. It
does not bring the intoxicated individual himself within the class protected by
the statute.
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Ultimately, the exact interpretation of these provisions is irrelevant. As
the court stated in Bridges, “if the vendor sells intoxicating beverages . . . to a
person who is visibly intoxicated, that limitation of liability shall no longer
apply. But to whom shall the permit holder be liable?” 860 So. 2d at 817
(emphasis added). There is no doubt that the permit holder shall not be liable
to the intoxicated person himself. Id. at 816 (“we do not perceive the
Legislature as having intended to include [adults who voluntarily consume
alcohol and then injure themselves] in the same protected class of section 67-
3-73”). Bryan Glenn was an adult who became voluntarily intoxicated and
injured himself because of that intoxication. So even if he was served while
visibly intoxicated, he cannot establish negligence per se under § 67-3-73. 2
The Glenns’ second argument is that their claim for injuries sustained
on the premises are not foreclosed by Bridges because Bridges did not address
claims for injuries on the premises, and the limitation on liability in § 67-3-
73(2) only applies to injuries “off the licensed premises.” But the fact that
Bryan was injured on the premises does not mean that they can recover.
Although Bridges involved injuries off the premises, the court never indicated
that its holding depended on that fact. Also, Cuevas—which involved injuries
sustained on the premises—was reaffirmed as “sound law” in Bridges, despite
the passage of § 67-3-73. Id. at 818. While § 67-3-73(2) only limits liability
when injuries are “suffered off the licensed premises,” the Glenns still face two
other obstacles to recovery: (1) § 67-3-73(1) provides that consuming alcohol
2 Some examples of how these sections interact may be beneficial. If A gets drunk at
B’s establishment—but does not appear intoxicated—and then smashes C’s car, B is not
liable for that damage. § 72(2). But if A gets drunk at B’s establishment and is visibly
intoxicated, C may be able to bring suit against B. § 72(4). Because § 67-3-73(1) makes it
clear that the proximate cause of any damage A inflicts upon himself or others is his own
consumption—not B’s service—there is no scenario in which A may recover from B. This
interpretation brings the statute in full accord with the Supreme Court of Mississippi’s
decision in Bridges.
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rather than furnishing alcohol is the proximate cause of injuries inflicted by
the intoxicated person on himself, and (2) the Mississippi common law rule is
that non-statute-based claims based on the negligent service of alcohol cannot
succeed. See Cuevas, 498 So. 2d at 348. The Glenns cannot recover simply
because Bryan was injured on the premises.
The Glenns further contend that they can recover based on the Casino’s
violation of (1) a Mississippi Gaming Regulation, which allows disciplinary
action against casinos serving alcohol to visibly intoxicated persons, and (2)
Mississippi Code Annotated § 67-1-83(1), which prohibits the provision of
alcohol to habitual drinkers and users of narcotics. MISS. CODE ANN. § 67-1-
83(1); MISS. ADMIN. CODE 13-3:1.2. This argument also misses the mark.
Under Mississippi law, the violation of a regulation can constitute
negligence per se. Palmer v. Anderson Infirmary Benevolent Ass’n, 656 So. 2d
790, 796 (Miss. 1995). The Mississippi Gaming Regulations provide:
The [Mississippi Gaming] Commission deems any activity on
the part of any licensee . . . that is inimical to the public health,
safety, morals, good order and general welfare . . . to be an
unsuitable method of operation and shall be grounds for
disciplinary action by the Commission . . . . [T]he following
acts . . . may be determined to be unsuitable methods of
operation: . . .
(c) Complimentary service of intoxicating beverage in the
casino area to persons who are visibly intoxicated[.]
MISS. ADMIN. CODE 13-3:1.2.
But the Glenns have cited no Mississippi case holding that a violation of
this regulation constitutes negligence per se when the adult voluntarily
consumes alcohol and injures himself. Moreover, given that the Mississippi
Supreme Court has held that violating a statute prohibiting sales to someone
who is “visibly intoxicated” does not constitute negligence per se in similar
circumstances, see Cuevas, 498 So. 2d at 348-49, it is highly doubtful that the
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court would reach a different conclusion regarding this regulation, which only
provides for possible disciplinary action for providing alcohol to a “visibly
intoxicated” person.
The Glenns further assert that they can bring a negligence claim based
on the Casino’s violation of § 67-1-83(1), which also outlaws furnishing alcohol
“to any person who is known to habitually drink alcohol beverages to excess,
or to any person who is known to be an habitual user of narcotics or other habit-
forming drugs.” MISS. CODE ANN. § 67-1-83(1). But the complaint does not
allege facts putting the Casino on notice that Bryan was a habitual drinker or
user of narcotics. At most, the Casino had notice Bryan was “on a lot of
medication and not supposed to drink.” The Glenns also fail to allege facts
establishing that Bryan’s consumption of alcohol was not voluntary. The
complaint indicates that drinks were brought to Bryan or ordered by Bryan,
and that Bryan drank them without being forced to do so. 3
The Glenns final claim—reckless service of alcohol—also fails, as they
cite no Mississippi case permitting a cause of action for the reckless service of
alcohol. Just as here, the plaintiff in Bridges made allegations of intentional,
willful, wanton, and reckless conduct in hopes of recovering punitive damages.
Yet the court in Bridges affirmed dismissal for failure to state a claim. 860 So.
2d at 812. Thus, under Mississippi law, the Glenns cannot recover for the
reckless service of alcohol. Accordingly, they have not stated a claim based on
the negligent or reckless service of alcohol. The district court did not err in
dismissing these claims.
3 See Estate of White v. Rainbow Casino-Vicksburg P’ship, 910 So. 2d 713, 717-18
(Miss. Ct. App. 2005) (holding that consumption of alcohol was voluntary when the plaintiff
“was served [alcoholic] beverages by the [casino] staff a minimum of six times,” since there
was “no indication that [the plaintiff] consumed the beverages either under duress, or
involuntarily”).
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II. The district court correctly granted IP’s motion to dismiss the
Glenns’ failure to render aid claim.
The Glenns argue that the district court erred in dismissing their claim
that IP negligently failed to render aid to Bryan. They allege that IP failed to
render aid at two points in the evening: (1) when the Casino staff removed him
from the Casino and placed him alone in his room; and (2) when they failed to
respond adequately once alerted that Bryan was unconscious in his hotel. The
Glenns allege that IP’s duty to help Bryan independently arose under § 314A
(Special Relations Giving Rise to Duty to Aid or Protect), § 322 (Duty to Aid
Another Harmed by Actor’s Conduct), and § 324 (Duty of One Who Takes
Charge of Another Who Is Helpless) of the Second Restatement of Torts.
A. Restatement § 314A (Special Relations Giving Rise to Duty
to Aid or Protect).
The Glenns’ first argument is that “because a special relationship existed
between the Casino and the decedent, the Casino had a duty to render aid to
the decedent when it became apparent that he was in need of help.” IP’s
asserted special relationship is based upon § 314A of the Second Restatement
of Torts, which provides:
(1) A common carrier is under a duty to its passengers to take
reasonable action
(a) to protect them against unreasonable risk of
physical harm, and
(b) to give them first aid after it knows or has
reason to know that they are ill or injured, and
to care for them until they can be cared for by
others.
(2) An innkeeper is under a similar duty to his guests.
(3) A possessor of land who holds it open to the public is under
a similar duty to members of the public who enter in
response to his invitation.
(4) One who is required by law to take or who voluntarily takes
the custody of another under circumstances such as to
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deprive the other of his normal opportunities for protection
is under a similar duty to the other.
It is worth noting at the outset that the extent to which Mississippi has
adopted § 314A of the Second Restatement of Torts is unclear. In White v.
Rainbow Casino Vicksburg Partnership, L.P.¸ the Mississippi Court of Appeals
stated that “[a]s of this date, Mississippi has not adopted Section 314A of the
Restatement of Torts, Second.” 910 So. 2d 713, 719 (Miss. Ct. App. 2005). But
three years later, the Mississippi Supreme Court compared Mississippi tort
law favorably to § 314A. After first acknowledging that there is “scant
Mississippi law discussing a proprietor’s duty to render aid to one injured on
his premise,” Spotlite Skating Rink, Inc. v. Barnes, the court recounted the
requirements of § 314A and noted that § 314A’s “standard of care is consistent
with this Court’s holding” in a previous case. 988 So. 2d 364, 369 (Miss. 2008).
So while the Supreme Court of Mississippi may not have explicitly adopted §
314A, Mississippi premises liability law seems to track that provision and
Mississippi would very likely apply § 314A in determining IP’s duty to render
aid.
The Glenns allege that IP was negligent in its 314A duty in two
instances: (1) when it continued to serve him alcohol and failed to call a medic
before taking Bryan to his room; and (2) when it failed to provide timely
medical care once it realized he was ill. The pleadings are insufficient to
sustain either claim.
Section 314A required IP to provide “first aid after it kn[e]w or ha[d]
reason to know that [Bryan was] ill or injured, and to care for [him] until [he]
can be cared for by others.” Because there is no allegation that IP knew Bryan
was “ill,” IP’s alleged duty to provide aid was never triggered. While IP
certainly knew Bryan was heavily intoxicated, intoxication alone does not
constitute an “injury” or “illness” under § 314A. Ruling that § 314A’s “illness”
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requirement includes voluntary intoxication would require alcohol vendors to
call for medical assistance anytime a patron is visibly intoxicated. Such a rule
would eviscerate the Mississippi Supreme Court’s clear statement in Cuevas
that “we do not think the legislature intended to impose liability upon a
dispenser of intoxicants to an adult individual . . . who voluntarily consumes
intoxicants and then, by reason of his inebriated condition, injures himself.”
498 So. 2d at 348. Because mere intoxication does not constitute “illness”
under § 314A, IP had no duty to provide aid to Bryan.
The Glenns’ second argument—that IP was negligent once it learned of
Bryan’s illness in the room—also fails. There is no doubt that—because Bryan
was an invitee—IP had a duty to render aid once it knew he was sick. But
whether IP’s medic arrived within a reasonable time or not is ultimately
irrelevant to the inquiry, as the Glenns cannot establish causation. In
Grisham, the Supreme Court of Mississippi found that—even though the
defendants breached their affirmative duty to aid plaintiff once they learned
that she had been injured on their premises—the plaintiff “made absolutely no
showing that this omission on the part of the V.F.W. resulted in any
aggravation of her injuries. Therefore, she has failed to show any damages
arising from the breach.” 519 So. 2d at 417. The Glenns’ complaint states that
Pam—a certified EMR—began performing CPR on Bryan immediately upon
discovering him in the room and continued performing CPR until the
ambulance arrived. IP’s medic would have done nothing different had she
arrived earlier, which is clear from the fact that she did nothing different after
arriving. Because the Glenns cannot establish that IP’s allegedly
unreasonable response time contributed to Bryan’s death, the district court’s
dismissal of that claim is affirmed.
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B. Restatement § 322 (Duty to Aid Another Harmed by Actor’s
Conduct).
The Glenns’ second argument is that “the Casino had a duty to render
aid to the decedent because its conduct”—serving Bryan alcohol—“contributed
to his peril,” regardless of whether that conduct was “innocent or in breach of
some other duty underlying fault.” IP’s purported duty is based upon § 322 of
the Second Restatement of Torts, which states:
If the actor knows or has reason to know that by his conduct,
whether tortious or innocent, he has caused such bodily harm to
another as to make him helpless and in danger of further harm,
the actor is under a duty to exercise reasonable care to prevent
such further harm.
The use of this section to find IP liable appears to be foreclosed by the
statutory sections discussed earlier. Unlike § 314A and § 324, § 322 requires
that IP’s actions caused Bryan’s harm. Under Mississippi law, the proximate
cause of bodily harm resulting from intoxication is the consumption—not the
provision or sale—of alcohol. Bryan’s consumption—not any action by IP—
caused his harm. IP therefore had no duty, and no liability, under § 322.
C. Restatement § 324 (Negligent Rescue).
The Glenns’ final theory of recovery asserts that IP is liable for
“assum[ing] control of a helpless Bryan and help[ing] him to his room, where
he was left alone” and eventually died. Restatement § 324 states that:
One who, being under no duty to do so, takes charge of
another who is helpless adequately to aid or protect himself is
subject to liability to the other for any bodily harm caused to him
by
(a) the failure of the actor to exercise reasonable
care to secure the safety of the other while
within the actor’s charge, or
(b) the actor’s discontinuing his aid or protection, if
by so doing he leaves the other in a worse
position than when the actor took charge of him.
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Case: 13-60557 Document: 00512705011 Page: 17 Date Filed: 07/21/2014
No. 13-60557
Whatever the merit of this contention, the Glenns’ amended complaint
does not contain a claim of negligent rescue; that allegation was raised for the
first time, briefly, in the Glenns’ response to IP’s motion to dismiss. There is
nothing in the record to indicate that the district court construed this new
theory of recovery as an amendment to the complaint and the Glenns did not
argue in that court or on appeal that it should have done so. “It is a well worn
principle that the failure to raise an issue on appeal constitutes waiver of that
argument.” United States v. Griffith, 522 F.3d 607, 610 (5th Cir. 2008). The
Glenns’ negligent rescue claim is not properly before us and thus we need not
address it. See Leverette v. Louisville Ladder Co., 183 F.3d 339, 342 (5th Cir.
1999) (“The Court will not allow a party to raise an issue for the first time on
appeal merely because a party believes that he might prevail if given the
opportunity to try a case again on a different theory.”) (internal quotation
marks and citation omitted).
III. The district court correctly granted IP’s motion to dismiss the
Glenns’ negligent infliction of emotional distress claims.
The only remaining claims that the Glenns argue should not have been
dismissed are counts three and four of the complaint—negligent infliction of
emotional distress on the estate of Christopher and on Joanne because they
suffered harm from having to witness Bryan’s death. Both parties agree that
these claims are derivative of the negligence claims based on service of alcohol
and failure to render aid, and cannot succeed unless there is an underlying,
legally cognizable tort. Because the Glenns’ underlying claims fail, the district
court did not err in dismissing the derivative negligent infliction of emotional
distress claims.
CONCLUSION
For the foregoing reasons, the decision of the district court is
AFFIRMED.
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