Estate of White v. Rainbow Casino-Vicksburg P'ship, LP

910 So. 2d 713, 2005 WL 589882
CourtCourt of Appeals of Mississippi
DecidedMarch 15, 2005
Docket2003-CA-01947-COA
StatusPublished
Cited by10 cases

This text of 910 So. 2d 713 (Estate of White v. Rainbow Casino-Vicksburg P'ship, LP) is published on Counsel Stack Legal Research, covering Court of Appeals of Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Estate of White v. Rainbow Casino-Vicksburg P'ship, LP, 910 So. 2d 713, 2005 WL 589882 (Mich. Ct. App. 2005).

Opinion

910 So.2d 713 (2005)

The ESTATE OF Muriel Alice WHITE, by Alfred J. WHITE, Individually and as Executor: Alfred J. White, Appellant
v.
RAINBOW CASINO-VICKSBURG PARTNERSHIP, L.P., Appellee.

No. 2003-CA-01947-COA.

Court of Appeals of Mississippi.

March 15, 2005.

*714 Wren Carroll Way, Vicksburg, attorney for appellant.

John H. Holloman, Jackson, Franklin Alan Garrison, attorneys for appellee.

Before LEE, P.J., GRIFFIS, and ISHEE, JJ.

LEE, P.J., for the Court.

FACTS

¶ 1. This appeal arises from the tragic death of Muriel White. Around 10:20 a.m. on September 5, 2001, Muriel and her husband, Alfred White, visited the Rainbow Casino in Vicksburg. Like many casinos, Rainbow serves its guests complimentary alcohol while they gamble. While Muriel gambled, Rainbow employees served her six eight-ounce servings of beer. Alfred also served Muriel six eight-ounce servings of beer. Security cameras at the casino recorded the last beer served to her by a casino employee at 1:56 p.m. The camera recorded Muriel as she won a jackpot at the machine she had been playing at 2:51 p.m., and minutes later the camera recorded White serving Muriel a beer at 2:53 p.m. At 2:55 p.m., the machine Muriel had been playing was re-set. Muriel cashed out her money from the machine and walked down the aisle to another machine, where she pulled up a chair, sat down, and began playing. White and his wife conversed twice as Muriel gambled, and White changed machines. At 3:37 p.m., Muriel fainted or passed out, striking her head as she plummeted to the floor. Casino personnel attended Muriel, placed *715 her in a wheelchair, and gave her a cloth and ice for her head. White, who did not see his wife fall, attended to Muriel briefly, and then went to get their car. Muriel refused the casino's offer to call an ambulance, but she was supervised by casino employees while they waited for White to return with their car. After the accident Muriel was conversational, alert, and able to hold the ice pack on her head without assistance.

¶ 2. White and Muriel went home, where Muriel exited the vehicle, traversed the house, and changed into her nightgown and slippers, all without assistance from her husband. White last recalls speaking to his wife that evening around 5:30 p.m. At 7:00 a.m. the next morning, White went to Muriel's room to wake her and found that the door was locked. Using a screwdriver to open the door, White discovered Muriel's body in her bed. The coroner's report estimated that Muriel passed away between 11:00 p.m. September 5 and 1:00 a.m. September 6. The coroner's report also reflects that Muriel died as a result of aspirating on her own vomit. White did not grant permission for an autopsy, however a toxicology report indicted the presence of both alcohol and Valium. Furthermore, a post-mortem brain scan revealed that Muriel had normal brain functions, and that she did not have any fractures in her skull.

PROCEDURAL HISTORY

¶ 3. Alfred White, as executor of his wife's estate, filed a civil action against Rainbow on July 19, 2002. On June 13, 2003, Rainbow filed its motion for summary judgment. White did not respond to the motion for summary judgment in a timely manner, and the trial court struck White's response.[1] The trial court granted Rainbow's motion for summary judgment, and the case was dismissed on August 4, 2003. It is from this dismissal that White now appeals. Contrary to Mississippi Rules of Appellate Procedure Rule 28(a)(3), the appellant's brief does not include a statement of issues presented for review by this Court.[2] Despite this non-conformity, this Court will address the issues gleaned from the arguments of the brief as follows: (1) whether the trial court erred in granting summary judgment regarding White's claims, which stem from Mississippi Code Annotated Sections 67-3-53(b) (Rev.2001), 67-3-73, (Rev.2001) and 67-1-83(1) (Rev.2001); and (2) whether the trial court erred in granting summary judgment regarding White's claims that Rainbow failed to provide reasonable medical care and assistance.

STANDARD OF REVIEW

¶ 4. This Court's standard of review for a motion for summary judgment is well-settled, and is stated as follows:

This Court employs a de novo standard of review of a lower court's grant or denial of summary judgment and examines all the evidentiary matters before it-admissions in pleadings, answers to interrogatories, depositions, affidavits, etc. The evidence must be viewed in the light most favorable to the party against whom the motion has been made. If, in this view, there is no genuine *716 issue of material fact and, the moving party is entitled to judgment as a matter of law, summary judgment should forthwith be entered in his favor. Otherwise, the motion should be denied. 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. In addition, the burden of demonstrating that no genuine issue of fact exists is on the moving party. That is, the non-movant should be given the benefit of the doubt.

Williamson ex rel. Williamson v. Keith, 786 So.2d 390, 393 (¶ 10) (Miss.2001).

I. DID THE TRIAL COURT ERR IN GRANTING SUMMARY JUDGMENT ON CLAIMS BASED UPON MISSISSIPPI CODE ANNOTATED SECTIONS 67-3-53(b), 67-3-73, AND SECTION 67-1-83(1)?

¶ 5. Three Mississippi statutes apply to the case at bar, all addressing the illegality of selling alcohol to particular people. Section 67-3-53(b) of the Mississippi Code provides in pertinent part as follows:

it shall be unlawful for the holder of a permit authorizing the sale of beer or light wine or for the employee of the holder of such a permit ... [t]o sell, give or furnish any beer or light wine to any person visibly or noticeably intoxicated, or to any insane person, or to any habitual drunkard, or to any person under the age of twenty-one (21) years.

¶ 6. The Mississippi Supreme Court reviewed this statute in Munford v. Peterson, 368 So.2d 213 (Miss.1979). In Munford, the parents and brothers of a minor passenger who died as a result of an automobile accident brought a wrongful death suit against the driver and the seller of the alcoholic beverages. A verdict was entered against the seller, and the seller appealed. The supreme court determined that section 67-3-53(b) was adopted for the protection of the general public, including persons such as the minor decedent. The court also held that Munford was guilty of negligence per se in selling alcoholic beverages to the minors, and if that negligence proximately caused or contributed to the minor's death and injury, the plaintiffs were entitled to recover. "The general public was held to be a protected class and decedent Peterson, a minor, was a member of that protected class." Cuevas v. Royal D'Iberville Hotel, 498 So.2d 346, 348 (Miss.1986) (discussing Munford, 368 So.2d 213).

¶ 7. Also applicable in this case is Mississippi Code Annotated Section 67-1-83(1) (Rev.2001), which provides:

(1) It shall be unlawful for any permittee or other person to sell or furnish any alcoholic beverage to any person who is known to be insane or mentally defective, or to any person who is visibly intoxicated, or to any person who is known to habitually drink alcoholic beverages to excess, or to any person who is known to be an habitual user of narcotics or other habit-forming drugs....

¶ 8.

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Bluebook (online)
910 So. 2d 713, 2005 WL 589882, Counsel Stack Legal Research, https://law.counselstack.com/opinion/estate-of-white-v-rainbow-casino-vicksburg-pship-lp-missctapp-2005.