IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-60557

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.

United States Court of Appeals

Fifth Circuit

FILED

July 21, 2014

Lyle W. Cayce

Clerk

 

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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 complaint1 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 firstparty 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 habitforming 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: 16 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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 Case: 13-60557 Document: 00512705011 Page: 17 Date Filed: 07/21/2014