         IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                               NO. 2015-CA-00752-COA

TAMARA RAUSCH                                                              APPELLANT

v.

BARLOW WOODS, INC. (IMPROPERLY                                             APPELLEES
NAMED AS BEST WESTERN SEAWAY
INN/MICHAEL’S AND MICHAEL’S NIGHT
CLUB), SHULAR ENTERPRISES, INC., MLS,
INC., AND MICHAEL SHULAR

DATE OF JUDGMENT:                         04/08/2015
TRIAL JUDGE:                              HON. ROGER T. CLARK
COURT FROM WHICH APPEALED:                HARRISON COUNTY CIRCUIT COURT,
                                          FIRST JUDICIAL DISTRICT
ATTORNEY FOR APPELLANT:                   GREGORY W. HARBISON
ATTORNEYS FOR APPELLEES:                  EDWARD C. TAYLOR
                                          STEPHANIE GEE BEAVER
NATURE OF THE CASE:                       CIVIL - PERSONAL INJURY
TRIAL COURT DISPOSITION:                  GRANTED SUMMARY JUDGMENT IN
                                          FAVOR OF APPELLEES
DISPOSITION:                              AFFIRMED: 11/29/2016
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       EN BANC.

       GRIFFIS, P.J., FOR THE COURT:

¶1.    Tamara Rausch filed suit against Barlow Woods Inc., Shular Enterprises Inc., MLS

Inc., and Michael Shular as owners of Michael’s Nightclub (collectively “Michael’s”) for

negligently serving alcohol to a visibly intoxicated person in violation of Mississippi Code

Annotated section 67-3-73 (Rev. 2012), which proximately caused her injuries. The Harrison

County Circuit Court granted the motion for summary judgment filed by Michael’s. Because
we find Rausch failed to prove Michael’s served an intoxicated person and proximately

caused her injuries, we affirm the judgment.

                         FACTS AND PROCEDURAL HISTORY

¶2.    On July 7, 2007, Rausch, her sister, Linda Howard, her brother-in-law, Mark Howard,

and her cousin, James Rhodes, went to Michael’s for drinks. Rausch alleged that all four of

them drank earlier in the day and were intoxicated when they arrived at Michael’s. While

at Michael’s, Rausch testified that Mark bought the group numerous rounds of drinks over

the course of several hours. Rausch also alleged that the employees at Michael’s served

Mark alcoholic drinks while he was visibly intoxicated.

¶3.    Early in the morning on July 8, 2007, security personnel at Michael’s asked the group

to leave the premises due to Linda’s belligerent behavior. Rausch asserts that the group

attempted to remain at the club until a taxi arrived, but Michael’s employees insisted they

leave. The group then left in Mark’s truck, with Mark driving, James in the front passenger

seat, and Linda and Rausch in the back. Rausch and Linda then fought with each other in

the backseat. At some point, Rausch fell from the vehicle and the rear wheels ran over her,

causing significant injuries.

¶4.    On July 2, 2010, Rausch filed suit against Michael’s alleging that the club proximately

caused her injuries by negligently serving alcohol to Mark while he was visibly intoxicated.

Rausch asserted that Mark’s intoxication inhibited his reaction time in stopping his vehicle

and, absent his intoxication, she would not have suffered severe injuries.

¶5.    Rausch failed to pursue the case until the circuit-court clerk filed a motion to dismiss



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for want of prosecution on May 1, 2014. On November 26, 2014, Michael’s filed a motion

for summary judgment or, in the alternative, to dismiss for lack of prosecution. On March

6, 2015, the circuit court conducted a hearing on the motion. On April 8, 2015, the circuit

court granted the motion for summary judgment filed by Michael’s, finding that Rausch

failed to prove Michael’s proximately caused her injuries. Rausch now appeals.

                                STANDARD OF REVIEW

¶6.    “We review the grant or denial of a motion for summary judgment de novo, viewing

the evidence in the light most favorable to the party against whom the motion has been

made.” Karpinsky v. Am. Nat’l Ins., 109 So. 3d 84, 88 (¶9) (Miss. 2013). Further,

“‘[q]uestions concerning the construction of contracts are questions of law that are

committed to the court rather than questions of fact committed to the fact[-]finder.’ We, as

an appellate court, employ the de novo standard of review for questions of law.” Dalton v.

Cellular S. Inc., 20 So. 3d 1227, 1231 (¶8) (Miss. 2009) (quoting Facilities Inc. v.

Rogers-Usry Chevrolet Inc., 908 So. 2d 107, 110 (¶5) (Miss. 2005)).

                                        ANALYSIS

¶7.    Rausch asserts the circuit court erred when it found no genuine issue of material fact

existed with regard to whether Michael’s served Mark when he was visibly intoxicated and

whether Mark’s intoxication proximately caused Rausch’s injuries. We begin with Rausch’s

first contention.

¶8.    Rausch argues Michael’s negligently served alcohol to a visibly intoxicated Mark in

violation of Mississippi Code Annotated section 67-3-73. Section 67-3-73 generally grants



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immunity from liability to “any holder of an alcoholic beverage, beer or light wine permit,

or any agent or employee of such holder,” except under section 67-3-73(4) “when it is shown

that the person making a purchase of an alcoholic beverage was at the time of such purchase

visibly intoxicated.” Rausch contends the exception in section 67-3-73(4) applies because

employees at Michael’s served Mark alcoholic beverages while he was visibly intoxicated.

¶9.    Rausch supports her claim with her own testimony that Mark consumed numerous

alcoholic beverages before arrival and while at Michael’s. Also, Rausch stated that Mark

bought the group several rounds of beer and liquor throughout the course of the night and

purchased a final round of drinks approximately thirty minutes before the group left. Rausch

further relies on Officer Justin Branning’s deposition testimony and a report created by Dr.

James Norris.

¶10.   Officer Branning arrived on the scene of the accident and observed Mark. He testified

that Mark exhibited signs of intoxication, such as slurred speech, and he smelled of alcohol.

Officer Branning also charged Mark with a DUI when he registered breath-intoxilyzer

readings of 0.122 and 0.116 after the accident. Dr. Norris used Mark’s intoxilyzer results to

determine that Mark likely displayed signs of visible intoxication around the time he

purchased alcohol from Michael’s. This conclusion, however, is mere speculation as Dr.

Norris provided a list of possible signs of intoxication rather than any definitive indications.

Further, no witness other than Rausch testified to Mark’s visible intoxication at the time of

his purchase of alcohol. Without more, we cannot find that Michael’s served a visibly

intoxicated Mark to subject it to liability under section 67-3-73(4).



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¶11.   Even if Rausch sufficiently proved Michael’s served Mark alcohol while he was

visibly intoxicated, she must show the actions of Michael’s proximately caused her injuries.

Rausch contends that Mark’s intoxication caused him to refuse to pull over the truck when

Linda and Rausch fought and impaired his reaction time once Rausch fell from the vehicle.

Mark’s actions or inactions while intoxicated, according to Rausch, caused her injuries.

Michael’s counters that Rausch’s exit from the vehicle, either on her own accord or from

Linda’s actions, was not foreseeable or, in the alternative, constituted a superseding cause.

We agree with the position of Michael’s.

¶12.   To prove liability, Rausch must prove that Michael’s served as the proximate cause

of her injuries. “Proximate cause requires: (1) cause in fact; and (2) foreseeability.” Johnson

v. Alcorn State Univ., 929 So. 2d 398, 411 (¶48) (Miss. Ct. App. 2006) (quoting Ogburn v.

City of Wiggins, 919 So. 2d 85, 91 (¶21) (Miss. Ct. App. 2005)). “‘Cause in fact’ means that

the act or omission was a substantial factor in bringing about the injury, and without it the

harm would not have occurred.” Id. “Foreseeability means that a person of ordinary

intelligence should have anticipated the dangers that his negligent act created for others.”

Id. To survive summary judgment, Rausch bore the burden to show a dispute of material

facts regarding both elements of proximate cause.

¶13.   Looking first to the cause-in-fact prong, Rausch’s injuries were caused by the vehicle

running over her after she exited the backseat, which Rausch proved. Rausch, however, must

also have demonstrated that actions by Michael’s substantially contributed to the injury. As

previously stated, Rausch failed to establish the alleged negligence by Michael’s in serving



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a visibly intoxicated Mark. Further, Rausch did not demonstrate a connection between the

alleged negligence by Michael’s and her injuries, as Rausch’s ejection from the vehicle did

not implicate any act or omission by Mark. Rather Rausch either voluntarily exited the

vehicle or Linda caused Rausch to fall from the vehicle. Regardless, Rausch did not link the

acts or omissions of either Michael’s or Mark to her injuries.

¶14.   Rausch attempted to illustrate that Mark’s intoxication resulted in a delayed reaction,

which prevented him from avoiding hitting Rausch. To support this claim, Rausch relies on

a report by Sammy Green, an accident reconstructionist. Green attested that under normal

circumstances, Mark would have stopped the truck in 3.5 seconds after the door opened.

This reaction time, coupled with Rausch’s affidavit that stated the rear door remained open

for approximately five to ten seconds before she fell, led Green to conclude that the accident

would not have occurred but for Mark’s delayed reaction.

¶15.   But like Dr. Norris’s report, Green’s conclusions rely on speculation rather than

sufficient facts and reliable methods as required by Mississippi Rule of Evidence 702. Green

did not indicate his methods or how he arrived at his conclusion that Mark should have

stopped in 3.5 seconds. Also, only Rausch attested that she fell out of the vehicle after five

to ten seconds. No other evidence supports Green’s claim. Rausch, nevertheless, also

needed to demonstrate the foreseeability of her injuries.

¶16.   Arguably, Michael’s could anticipate injuries sustained in an automobile accident

based on the intoxication of the driver. However, “[a] person charged with negligence in

that he should have anticipated the probability of injury from an act done by him is not bound



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to a prevision or anticipation which would include an unusual, improbable[,] or extraordinary

occurrence, although such happening is within [the] range of possibilities.” City of Jackson

v. Estate of Stewart ex rel. Womack, 908 So. 2d 703, 712 (¶45) (Miss. 2005) (quoting Smith

v. United States, 284 F.Supp. 259, 261-62 (S.D. Miss. 1967)). Michael’s could not

reasonably foresee that Rausch and Linda would fight in the backseat of the vehicle and, as

a result, Rausch would fall from the vehicle and sustain injuries. Though an automobile

accident might fall within the range of possible injuries, this case is so unusual or

extraordinary that it is removed from the realm of foreseeabilty.

¶17.   Additionally, Michael’s argues Linda and Rausch’s fight and Rausch’s subsequent fall

constitute a superseding cause. “A superseding cause is an act of a third person or other

force which by its intervention prevents the actor from being liable for harm to another which

his antecedent negligence is a substantial factor in bringing about.” Green v. Dalewood

Prop. Owners’ Ass’n, 919 So. 2d 1000, 1008 (¶19) (Miss. Ct. App. 2005) (quoting

Restatement (Second) of Torts § 440 (1965)). “For such [an] intervening and super[s]eding

cause to extinguish the liability of the original actor, the cause must be unforeseeable.”

Newell v. S. Jitney Jungle Co., 830 So. 2d 621, 623 (¶9) (Miss. 2002) (citation omitted). This

Court considers the following six factors to determine whether an act constitutes a

superseding cause:

       (a) the fact that its intervention brings about harm different in kind from that
       which would otherwise have resulted from the actor’s negligence;

       (b) the fact that its operation or the consequences thereof appear after the event
       to be extraordinary rather than normal in view of the circumstances existing
       at the time of its operation;

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       (c) the fact that the intervening force is operating independently of any
       situation created by the actor’s negligence, or, on the other hand, is or is not
       a normal result of such a situation;

       (d) the fact that the operation of the intervening force is due to a third person’s
       act or to his failure to act;

       (e) the fact that the intervening force is due to an act of a third person which
       is wrongful toward the other and as such subjects the third person to liability
       to him; [and]

       (f) the degree of culpability of a wrongful act of a third person which sets the
       intervening force in motion.

Green, 919 So. 2d at 1008 (¶19).

¶18.   As previously discussed, Rausch’s injuries fell outside of the possible foreseeable

consequences to the actions of Michael’s. Likewise, the event was an extraordinary

occurrence that did not stem as a normal result from the alleged negligence by Michael’s.

As for the other factors, while Rausch could not state with certainty if Linda ejected her from

the vehicle, she did testify that she would not have voluntarily exited the moving vehicle.

If Linda did cause Rausch to fall from the vehicle, Linda qualifies as a third person who

acted in a wrongful manner toward Rausch and set “the intervening force in motion.” Id.

¶19.   Even if Linda did not push Rausch from the vehicle, the fight between Linda and

Rausch ultimately led to the incident regardless of who caused Rausch’s exit. Further, there

is evidence that Rausch voluntarily exited the vehicle. Officer Branning testified in his

deposition that Rausch told him at the scene that she tried to get out of the truck. Rausch,

in her deposition, stated she did not recall telling Officer Branning that she jumped out of the

truck, but attested in her affidavit that she did not jump. Rather, Rausch contends she was



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“pushed, kicked[,] or otherwise ejected” from the truck. If Rausch did jump from the

vehicle, she likewise fails to prove Michael’s is liable as Rausch, who admitted her own

intoxication, caused her injuries. See Bridges ex rel. Bridges v. Park Place Entm’t, 860 So.

2d 811, 818 (¶19) (Miss. 2003) (finding that adults who are voluntarily intoxicated who

injure themselves cannot bring suit against an establishment under dram-shop liability).

¶20.   Regardless of the manner of Rausch’s exit from the vehicle, she failed to prove

Michael’s served a visibly intoxicated Mark to incur liability under section 67-3-73(4) or that

Mark’s intoxication proximately caused Rausch’s injuries. As there was no genuine dispute

of material facts regarding these issues, this Court affirms the circuit court’s grant of

summary judgment.

¶21. THE JUDGMENT OF THE HARRISON COUNTY CIRCUIT COURT, FIRST
JUDICIAL DISTRICT, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE
ASSESSED TO THE APPELLANT.

    LEE, C.J., ISHEE AND FAIR, JJ., CONCUR. BARNES, WILSON AND
GREENLEE, JJ., CONCUR IN PART AND IN THE RESULT WITHOUT
SEPARATE WRITTEN OPINION. JAMES, J., DISSENTS WITH SEPARATE
WRITTEN OPINION, JOINED BY IRVING, P.J., AND CARLTON, J.

       JAMES, J., DISSENTING:

¶22.   The majority opinion states that the circuit court granted summary judgment because

of its finding that Rausch failed to prove that the actions of Michael’s Nightclub (Michael’s)

proximately caused Rausch’s injuries. Because I find that Rausch presented genuine issues

of material fact, I respectfully dissent.

¶23.   Rausch filed suit against Barlow Woods Inc. and Michael Shuler as owners of

Michael’s in the Circuit Court of Harrison County, Mississippi. The complaint alleged that


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Michael’s negligently served Mark alcoholic beverages while he was visibly intoxicated,

which violated Mississippi Code Annotated section 67-3-73 (Rev. 2012). Rausch also

alleged that Michael’s failed to follow its own alcoholic-beverage policy of ceasing to serve

visibly intoxicated patrons. Since Michael’s served visibly intoxicated patrons, allowed them

to drive, and failed to furnish transportation for them, there were genuine issues of material

fact that warranted a trial on the merits.

¶24.   At the hearing on the motion for summary judgment, Rausch testified that Mark

consumed numerous alcoholic beverages before arriving at Michael’s, and also that he was

visibly intoxicated while being served additional alcoholic beverages at Michael’s. To

support her contentions, Rausch relied on Officer Branning’s deposition testimony, which

established that Mark’s blood-alcohol level was well over the legal limit. Rausch bolstered

her claim with Dr. Norris’s accident-reconstruction report. Dr. Norris’s report asserts that

Mark’s blood-alcohol level established the likelihood that Mark was visibly intoxicated prior

to arriving at Michael’s. Rausch presented factual issues to be resolved by a jury.

¶25.   Summary judgment is appropriate where “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 that the moving party is entitled to a judgment

as a matter of law.” M.R.C.P. 56(c); see also Duckworth v. Warren, 10 So. 3d 433, 436 (¶9)

(Miss. 2009) (emphasis added). “The moving party has the burden of demonstrating that [no]

genuine issue of material fact exists, and the non-moving party must be given the benefit of

the doubt concerning the existence of a material fact.” Id. at 437 (¶9).



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¶26.   Since the moving party did not demonstrate that no genuine issue of material fact

existed, I would reverse and remand this case for trial.

       IRVING, P.J., AND CARLTON, J., JOIN THIS OPINION.




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