                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                               F I L E D
                       In the                                  August 6, 2003

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


   *
     Pursuant to 5TH CIR. R. 47.5, the court has
                                                              1
determined that this opinion should not be pub-                 Cf. Berg, 786 So. 2d at 714 (recognizing that
lished and is not precedent except under the limited       § 9:2800.1(B) creates an exception to
circumstances set forth in 5TH CIR. R. 47.5.4.             § 9:2800.1(A) for serving alcohol to minors).

                                                       2
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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