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January 31, 1996, Decided
For MARGARET JOYCE MAIN as Administratrix of the Estate of David C. V. Yamas Deceased SHERYL KATHERINE-ANN VAVOSA PAUL MICHAEL MARTIN YAMAS plaintiffs: James D. Bell JAMES D. BELL & ASSOCIATES P.A. Jackson MS.
For OFFICE DEPOT INC. defendant: Robert A. Miller Susan Latham Steffey WATKINS & EAGER Jackson MS.
William H. Barbour Jr., CHIEF Justice
The Hon. Justice William H. Barbour Jr.

This cause is before Court on the Motion for Summary Judgment filed by the Defendant Office Depot Inc. ("Office Depot"). Having considered the Motion Plaintiffs' Response Defendant's Rebuttal all attachments and supporting and opposing memoranda Court finds that the Motion is well taken and should be granted.

I. Background

This case is a wrongful death action brought by the Plaintiffs for the alleged negligence of Office Depot which Plaintiffs assert was a proximate cause of the death of David C. V. Yamas. Although Yamas' death occurred on December 10 1993 the events which Plaintiffs allege contributed to that death began in early 1993. Prior to March 1993 Jon Kolniak typed a false name social security number and birth date on his computer then cut these letters and pasted them on the face of an old driver's license with scotch tape. Kolniak then took the doctored license to Office Depot seeking to have copies made of the document. Kolniak approached a white male in the copy center of Office Depot and requested two color copies of the front of the doctored license. The Office Depot employee complied with Kolniak's request and made the copies for which Kolniak was charged a fee.

It is undisputed that the policy of Office Depot was to refuse to make copies of documents such as drivers' licenses and certificates of title to motor vehicles. The User's Guide to the Kodak Color-Edge 1525 copier on which Kolniak's copies were made stated that some documents should not be copied and included in that list are drivers' licenses. At least one employee of Office Depot testified by deposition that he had been approached by teenagers requesting copies of drivers' licenses and that he had refused to make such copies. Dep. of Steven Carter at 22-23 attached as Exhibit 9 to Plaintiffs' Response. Barbara Jackson the manager of the Business Service Center *fn1 testified as to the content of the User's Guide. She also stated that a memo was placed on the wall near the copier stating that employees may refuse to copy any material that is objectionable or illegal and she understood this memo to prohibit the copying of drivers' licenses. Dep. of Barbara Jackson at 19-20 attached as Exhibit 8 to Plaintiffs' Response.

After obtaining these color copies Kolniak trimmed the paper placed the old license on a wide piece of clear tape placed a library card over the face of his old license then placed the color copy of the doctored license on top. Kolniak placed another piece of wide clear tape on top of the color copy then trimmed the edges of this creation to resemble a valid driver's license. See Exhibit 1 to Plaintiffs' Response. Kolniak then used this created document on numerous occasions to buy beer in and around the Jackson Mississippi area.

On the night that Yamas was killed Kolniak purchased beer *fn2 at the Shell gas station near the Ross Barnett Reservoir ("the Reservoir Shell"). According to Kolniak and Plaintiffs have offered no contrary evidence he did not use his fake identification to purchase the beer from the Reservoir Shell on December 10 1993. Kolniak stated in deposition testimony that he was only required to show identification on one occasion to buy beer at the Reservoir Shell and this occasion was months prior to the December purchase. The person who requested the identification was a middle aged woman with dark hair. Kolniak stated that on one other occasion another clerk asked him for identification when he was attempting to buy beer. However before he could show his identification the woman with the dark hair from whom Kolniak had previously purchased beer told the second clerk that Kolniak was old enough. August 2 1995 Kolniak Dep. at 14 attached as Exhibit 6 to Plaintiffs' Response. Ed Slaughter one of the operators of the Reservoir Shell disputes that Kolniak was only required to show his identification one time stating that he personally had required Kolniak to produce identification in order to buy beer. Slaughter further stated that he observed each person who worked behind the counter check Kolniak's identification on at least one occasion when Kolniak was purchasing beer. Affidavit of Ed Slaughter attached as Exhibit 3 to Plaintiffs' Response.

After Kolniak purchased beer at the Reservoir Shell on December 10 1993 he and Jefcoat went to a party where they each drank eleven or twelve beers. They left the party around 11:00 p.m. and drove to the Texaco station at Grant's Ferry Road and Lakeland Drive. While at the Texaco station Jefcoat saw Yamas and Smitty Pumphrey and learned that they needed a ride home. Jefcoat asked Kolniak if he would give Yamas and Pumphrey a ride and Kolniak agreed. After leaving the Texaco Kolniak drove down Castlewoods Boulevard and Bradford Drive at speeds in excess of 70 miles per hour. Both Yamas and Pumphrey requested that Kolniak slow down but he did not comply. Kolniak then lost control of the car and the car left the road striking a concrete utility pole. Yamas suffered severe injuries from which he later died. As a result of this incident Kolniak pled guilty to DUI homicide and was sentenced to fifteen years in prison.

II. Summary Judgment Standard

Rule 56 of the Federal Rules of Civil Procedure states in relevant part that summary judgment "shall be rendered forthwith if 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." Fed. R. Civ. P. 56(c). The United States Supreme Court has held that this language "mandates the entry of summary judgment after adequate time for discovery and upon motion against a party who fails to make a sufficient showing to establish the existence of an essential element to that party's case and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett 477 U.S. 317 322 91 L. Ed. 2d 265 106 S. Ct.2548 (1986); see also Moore v. Mississippi Valley State Univ. 871 F.2d 545 549 (5th Cir.1989); Washington v. Armstrong World Indus. 839 F.2d 1121 1122 (5th Cir.1988).

The party moving for summary judgment bears the initial responsibility of informing the district court of the basis for its motion and identifying those portions of the record in the case which it believes demonstrate the absence of a genuine issue of material fact. Celotex 477 U.S. at 323. The movant need not however support the motion with materials that negate the opponent's claim. Id. As to issues on which the non-moving party has the burden of proof at trial the moving party need only point to portions of the record that demonstrate an absence of evidence to support the non-moving party's claim. Id. at 323-324. The non-moving party must then go beyond the pleadings and designate "specific facts showing that there is a genuine issue for trial." Id. at 324.

Summary judgment can be granted only if everything in the record demonstrates that no genuine issue of material fact exists. The district court therefore must not "resolve factual disputes by weighing conflicting evidence . . . since it is the province of the jury to assess the probative value of the evidence." Kennett-Murray Corp. v. Bone 622 F.2d 887 892 (5th Cir.1980). Summary judgment is improper where Court merely believes it unlikely that the non-moving party will prevail at trial. National Screen Serv. Corp. v. Poster Exchange Inc. 305 F.2d 647 651 (5th Cir.1962).

III. Analysis

Plaintiffs assert that Office Depot violated Miss. Code Ann. 63-1-60 (rev. 1989) (effective July 1 1985) and that Defendant is therefore negligent per se. Alternatively Plaintiffs assert that Office Depot owed some common law duty to Yamas and that Defendant breached this duty. Furthermore according to Plaintiffs such negligence either by breach of the statute or common law was a proximate cause of the wrongful death of David Yamas. Office Depot asserts that it did not owe any statutory or common law legal duty to David Yamas and that even if a duty was owed Office Depot did not breach that duty. Furthermore Office Depot asserts that any alleged negligence of Office Depot could not possibly be the proximate cause of the death of David Yamas Plaintiffs' decedent.

Because this is a diversity case this Court is Erie *fn3 bound to follow Mississippi law. Because Mississippi has not specifically ruled on the issue presented in this case Court must apply general principles of Mississippi law to make an Erie guess concerning how the Mississippi courts would rule if presented with the specific issue in this case. In that regard the traditional elements of a claim for negligence are duty or standard of care breach of that duty or standard proximate cause and damages or injury. Lyle v. Mladinich .584 So. 2d 397 399 (Miss. 1991). Court will address the issues of duty breach and proximate cause. There is no question that Plaintiffs decedent was injured and subsequently died from those injuries.

A. Was Office Depot Negligent Per Se?

The question of whether Office Depot owed any duty to Plaintiffs' decedent is a question of law for Court. Doe v. Cloverleaf Mall 829 F. Supp.866 873 (S.D. Miss. 1993); Lyle 584 So. 2d at 400. To prove negligence per se under Mississippi law Plaintiffs must show that (1) Plaintiffs' decedent is a member of the class sought to be protected by the statute; (2) the resultant harm is of the type sought to be prevented by the statute; and (3) Office Depot violated the statute in question. U-Haul Co. v. White 232 So. 2d 705 708 (Miss. 1970). The first two elements are a question of duty and the third element concerns the breach of any duty owed. Because the facts are not in dispute in this case Court may decide the issue of duty. Furthermore because no reasonable juror could conclude otherwise Court may also determine whether any such duty was breached.

The statute at issue in this case is Miss. Code Ann. SEC. 63-1-60 which provides as follows:

(1) It shall be unlawful for any person:

(a) To display cause or permit to be displayed or have in his possession any fictitious fraudulently altered or fraudulently obtained driver's license;

(b) To display or represent any driver's license not issued to him as being his own driver's license;

(c) To photograph Photostat duplicate or in any way reproduce or alter any driver's license or facsimile thereof in such manner that it could be mistaken for a valid driver's license;

(d) To display or have in his possession any photograph Photostat duplicate reproduction or facsimile of a driver's license unless authorized by law; or

(e) To take a driver's license examination for another or to use any other name other than his own on the driver's license examination for another.

(2) Any person convicted of a violation of this section shall be guilty of a misdemeanor and shall be punished by a fine of not more than Five Hundred Dollars ($500.00) or by imprisonment for not more than thirty (30) days or by both such fine and imprisonment.

Miss. Code Ann. SEC. 63-1-60 (rev. 1989) (emphasis added). Specifically Plaintiffs assert that Office Depot violated subsection (1)(c) of the statute by making a color photocopy of Kolniak's doctored driver's license.

Plaintiffs assert that legislative intent should be determined from the affidavit of Paul Wells who authored subsection (1)(c) of the statute for the Mississippi Department of Public Safety to present to the Mississippi legislature for passage. Wells was a "legislative liaison" between the Department of Public Safety and the legislature and states in his affidavit that this particular subsection was designed to prevent businesses from photocopying drivers' licenses which would then enable minors to purchase alcoholic beverages. Affidavit of Paul Wells attached as Exhibit 4 to Plaintiffs' Response. Court finds however that the opinion of a lobbyist who was successful in getting the legislation passed is not helpful in determining the intent of the legislature in passing the law. Because Mississippi does not record any legislative history for laws passed by the Mississippi legislature Court must look to the language of the statute to determine the intent of the legislature.

The intent of the legislature must be determined by the total language of the statute and not from a segment considered apart from the remainder. . . . Also the intent of the legislature must be determined by studying words used in a statute in context.

McCluskey v. Thompson 363 So. 2d 256 259 (Miss. 1978) (citations omitted).

Court finds that Miss. Code Ann. SEC. 63-1-60 was designed to prevent persons from making and using fake or improper drivers' licenses. The statute is found in Title 63 of the Mississippi Code entitled Motor Vehicles and Traffic Regulations. The statute does not purport to prevent minors from purchasing alcoholic beverages and does not specifically state that it applies to businesses which have photocopying capability. Rather the statute is entitled "Alteration fraudulent use or fraudulent procurement of license; penalty." Miss. Code Ann. SEC. 63-1-60. Title 63 is known as the Highway Safety Patrol and Driver's License Law of 1938. Miss. Code Ann. SEC. 63-1-1. This title was amended in 1985 to add the provision which is now codified as Miss. Code Ann. SEC. 63-1-60 and the preface to that amendment states as follows:


1985 Miss. Laws Ch.479. Furthermore subsections (1)(a) (b) (d) and (e) are aimed toward preventing the holders or owners of drivers' licenses from misusing such licenses. Those subsections use such phrases as "have in his possession" in subsections 1(a) and (d) not issued to him in subsection 1(b) and "other than his own" in subsection (1)(e). It would not be consistent with the rest of this section for the Court to hold that subsection (1)(c) applies to businesses who could potentially copy a driver's license when all of the other sections of the statute apply only to the holders or owners of a driver's license. If the Mississippi legislature is so inclined it may rewrite the statute to address the potential liability of businesses such as Office Depot. However Court will not rewrite the statute to include within its purview businesses such as Office Depot. Court agrees with Office Depot that "the principle behind this legislation is to prevent abuse and misuse of the driver's license privilege by persons who hold the licenses not to regulate the conduct of businesses such as Office Depot." Defendant's Reply Brief at 3.

For these reasons Court finds that SEC. 63-1-60 was not designed to protect the Plaintiffs' and/or their decedent from the type of harm suffered in this case. The provisions of the statute are aimed at the holders and owners of drivers' licenses and not businesses such as Office Depot which might make a photocopy of a driver's license.

Court further finds that Plaintiffs and their decedent are not within the class of persons which the statute is designed to protect. The statute does not address any potential alcohol related injuries and certainly does not attempt to protect guest passengers from being injured by underage drunk drivers. Mississippi does have a law however which specifically prohibits the sale of alcoholic beverages to minors. See Miss. Code Ann. SEC.67-1-81 (rev. 1991). *fn4 Mississippi also has an Implied Consent Law which provides for the suspension of a person's license when (1) that person refuses to take a blood alcohol test when requested to do so by a law enforcement officer who has reason to believe that the person was driving while intoxicated or (2) the chemical testing of that person's breath indicates a blood alcohol level of .10% or more by weight volume of alcohol. Miss. Code Ann. SEC. 63-11-23 (rev. 1989). While Plaintiffs and their decedent are within the class of persons protected by the sale of alcohol to minors statute and the Implied Consent Law they are not within the protection of the statute in this case which is merely designed to prohibit holders and owners of drivers' licenses from misusing those licenses.

B. Did Office Depot Owe Any Common Law Duty to Plaintiffs' Decedent?

Plaintiffs assert that "Office Depot would be negligent under the facts of this case even in the absence of a statute forbidding the reproduction of driver's licenses." Plaintiffs' Memorandum in Response at 9. Thus Plaintiffs are attempting to impose some common law duty upon Office Depot to refrain from photocopying drivers' licenses to prevent underage drivers from constructing fake identification in order to purchase alcoholic beverages become drunk drive recklessly and cause the death of innocent persons. In this regard Plaintiffs filed a Supplemental Response to Motion for Summary Judgment attaching the affidavit of Nick Strickland of Strickland Quick Print Inc. as an expert witness. Strickland states as follows in his affidavit:

I instruct all store employees to make no color photocopies of drivers licenses stamps bonds or other official documents under any circumstances. The reason we have such restrictions is to avoid violation of Mississippi law. Another reason we have such restrictions is to prevent teenagers or others from using those copies to make false driver's license [sic]. In my opinion it would be beneath the standard of care expected of a reasonable printer to make a color copy of a drivers license for a teenager.

Affidavit of Nick Strickland attached to Plaintiffs' Supplemental Response to Motion for Summary Judgment.

The Mississippi Supreme Court has not addressed this issue. If presented with the question Court finds that the Mississippi Supreme Court would find that no such duty exists absent a change in the law enacted by the Mississippi legislature. Several Mississippi cases involving alcohol related injuries are instructive in this regard.

In Boutwell v. Sullivan .469 So. 2d 526 (Miss. 1985) Court addressed the issue of social host liability. In that case the Branans were invited to the Sullivans for a party and Billy Mack Sullivan had a keg of beer at this party from which he served his guests. Id. at 527. Thomas Newell Branan drank quite a bit of this beer and Sullivan continued serving beer to Branan after Branan became visibly intoxicated. Id. Branan left the party in his automobile and negligently ran into a motorcycle driven by Sidney F. Boutwell Jr. Id. Boutwell brought suit against the Sullivans alleging that they negligently served beer to Branan after he became visibly intoxicated. Id. Court declined to impose liability upon social hosts for the negligence of their guests in drinking and driving:

We recognize that there is a strong public policy to discourage driving while under the influence of intoxicating liquor. Also we are aware of the problems a host would encounter in trying to control his guests viz in many social situations a host is unable to keep an eye on his guests and to what extent they are imbibing; if the guest is the host's employer he may not be able to control him; a physical difference in size between host and guest would have bearing; in situations where the host and guest were friends even though few people were involved it might be difficult for the host to control his guests.

In the case sub judice neither Mississippi statutes nor the common law impose liability upon Sullivan. . . . We are of the opinion that this question which involves strong public policy and change of the law should be studied comprehensively and addressed by the Mississippi State Legislature.

Id. at 529.

In Cuevas v. Royal D'Iberville Hotel 498 So. 2d 346 (Miss. 1986) the plaintiff asserted that defendant violated Miss. Code Ann. SEC. 67-1-83(1) (1972) by serving her alcoholic beverages while she was visibly intoxicated. In her inebriated condition plaintiff fell over a railing and plunged thirty feet to the lobby floor sustaining serious injuries. Id. at 347. Court held that the public a third-party class whether minor or adult is protected under the statute from the negligent acts of an intoxicated person. Id. at 348.

However we do not think the legislature intended to impose liability upon a dispenser of intoxicants to an adult individual such as appellant here who voluntarily consumes intoxicants and then by reason of his inebriated condition injures himself. We further hold that such a person as appellant is excluded from the protected class

Id. at 348-49 (citations omitted).

Finally in Williams v. United States Fidelity & Guar. Co. 854 F.2d 106 (5th Cir.1988) the United States Court of Appeals for the Fifth Circuit concluded as follows:

Neither the Mississippi legislature nor its courts has imposed on employers a duty to supervise their premises so as to prevent employees from clandestinely consuming intoxicants or to prevent employees from going about their personal business in a state of inebriation.

Id. at 109. The Williams court relied in part on Munford v. Peterson 368 So. 2d 213 215 (Miss. 1979) which held that "under the common law there is no action for damages in the selling or giving away of intoxicating liquors."

Court finds that the Mississippi Supreme Court absent some statutory requirement to do so has been reluctant to extend liability in alcohol related injury cases to persons who are not directly involved in causing the injury. Court further finds that if presented with the question of imposing liability upon Office Depot in this case the Mississippi Supreme Court would decline to impose such liability under the common law. Court therefore holds that Office Depot owed no common law duty to Plaintiffs' decedent in this case to refrain from copying a doctored driver's license for Kolniak.

C. Is the Alleged Negligence of Office Depot A Proximate Cause of Yamas' Death?

Even if Court assumes that Office Depot owed a duty to Plaintiffs' decedent and that it somehow breached that duty *fn5 Court must still determine whether any triable issue of fact remains with regard to the proximate cause element. "Proximate cause is the connection between the breach of duty and damages and arises when the breach of a duty contributes to the injury." Lyle 584 So. 2d at 400 (citing Clayton v. Thompson .475 So. 2d 439 445 (Miss. 1985)). The Mississippi Supreme Court has addressed the issue of proximate cause and intervening causes:

Although one may be negligent yet if another acting independently and voluntarily puts in motion another and intervening cause which efficiently thence leads unbroken in sequence to the injury the later is the proximate cause and the original negligence is relegated to the position of a remote and therefore a non-actionable cause. Negligence which merely furnishes the condition or occasion upon which injuries are received but does not put in motion the agency by or through which the injuries are inflicted is not the proximate cause thereof.

Mississippi City Lines Inc. v. Bullock 194 Miss. 630 13 So. 2d 34 36 (Miss. 1943) cited with approval in Boyd v. Continental Baking Co. 887 F. Supp.913 916 (N.D. Miss. 1995); Foster by Foster v. Bass 575 So. 2d 967 982 (Miss. 1990); Glorioso v. YMCA 556 So. 2d 293 296 (Miss. 1989). The Mississippi court has also held that a "negligent act could not be said to be the proximate cause of an accident unless the accident could have been avoided in the absence thereof." Ward v. Valley Steel Products Co. 339 So. 2d 1361 1366 (Miss. 1976) (citation omitted). Plaintiffs have the burden of presenting sufficient evidence to create a genuine issue of material fact to present to the jury on the issue of proximate cause. Plaintiffs have failed to meet this burden.

Plaintiffs assert and Office Depot concedes that Kolniak obtained two color copies of the front of a doctored driver's license from Office Depot. Kolniak obtained these copies in early 1993 at least prior to March 1993. Kolniak used this fake identification on many occasions to purchase beer and had used the fake driver's license on at least one occasion and possibly more to purchase beer at the Reservoir Shell. Kolniak did not use the fake driver's license to purchase the beer which he consumed on December 10 1993 the night Yamas was killed. These undisputed facts reveal that the negligence of the Reservoir Shell in selling beer to Kolniak *fn6 and Kolniak's negligence in drinking and driving *fn7 are the proximate causes of the death of Yamas. These causes are intervening causes which serve to cut off any alleged negligence by Office Depot in providing Kolniak the means to construct a fake driver's license. As stated by the Ward court no reasonable juror could find that the accident which occurred could have been avoided if Kolniak had never obtained the color copies from Office Depot. Ward 339 So. 2d at 1366. Kolniak could have possibly obtained the beer without a fake driver's license; *fn8 he could have consumed someone else's beer on the night in question; or he could have obtained the beer in some other manner. There is no question that Kolniak had been drinking beer for a period of years before he ever constructed the fake driver's license which is the subject of this suit. In fact Kolniak had two previous DUI convictions when he was 16 years old (blood alcohol level of .18%) and when he was 17 years old (blood alcohol level of .17%). August 2 1995 Dep. Of Kolniak at 27-28. Court therefore finds that the fact that in early 1993 Office Depot made color photocopies of a doctored driver's license from which Kolniak constructed a fake driver's license could not be considered a proximate cause of the accident which resulted in the death of Yamas. For this reason Office Depot is entitled to judgment as a matter of law.

IV. Conclusion

Court finds that Office Depot owed no statutory or common law duty to Plaintiffs or their decedent under the circumstances of this case. Even if Office Depot owed such a duty Office Depot did not breach any such duty. Finally even if Office Depot owed a duty to Plaintiffs' and/or their decedent and even if Office Depot breached this duty such breach was not the proximate cause of the death of David Yamas.

IT IS THEREFORE ORDERED that the Motion for Summary Judgment filed by Office Depot should be and hereby is granted.

A separate Final Judgment consistent with this Opinion and Order will be entered on this date.

SO ORDERED this the 31st day of January 1996.

William H. Barbour Jr.



In accordance with the Opinion and Order entered on this date in the above styled and numbered cause of action all claims of the Plaintiffs against the Defendant Office Depot Inc. are hereby dismissed with prejudice and Final Judgment is hereby rendered in favor of the Defendant.


*fn1 The Business Service Center is the area where copiers including the color copier used to make copies for Kolniak are located in the Office Depot store.

*fn2 Mike Jefcoat was with Kolniak on December 10 1993 when Kolniak purchased beer at the Reservoir Shell although Jefcoat remained in the car while Kolniak made the purchase. Kolniak bought 24 beers 12 for himself and 12 for Jefcoat.

*fn3 See Erie R.R. v. Tompkins .304 U.S. 64 82 L. Ed. 1188 58 S. Ct..817 (1938).

*fn4 This statute provides in relevant part as follows:

Any permitted or other person who shall sell furnish dispose of give or cause to be sold furnished disposed of or given any alcoholic beverage to any person under the age of twenty-one (21) years shall be guilty of a misdemeanor and shall be punished by a fine of not less than five hundred dollars ($500.00) nor more than one thousand dollars ($1 000.00) for a first offense.

Miss. Code Ann. SEC. 67-1-81 (rev. 1991).

*fn5 Court will not address the issue of breach in any great detail. Court assumes for the purposes of this analysis that if any duty was owed by Office Depot that Office Depot breached the duty by copying Kolniak's doctored driver's license.

*fn6 Miss. Code Ann. SEC. 67-3-53 provides that any person who sells gives or furnishes beer or light wine to any person under the age of 21 is absolutely liable therefor. Thus the operators of the Reservoir Shell are negligent per se for selling beer to Kolniak because he was underage.

*fn7 After the accident Kolniak's blood alcohol level was .15%. August 2 1995 Dep. of Kolniak at 31. As stated previously Mississippi law provides that a person may not drive with a blood alcohol level of .10% or greater. Miss. Code Ann. SEC. 63-11-23 (rev. 1989).

*fn8 Kolniak testified that he had purchased beer from other stores prior to obtaining the fake driver's license. August 2 1995 Dep. of Kolniak at 19.