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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________________
No. 99-60919
__________________________
ROSE M. THOMAS, Individually and as
Administratrix of the Estate of Erica
Renee Thomas, Deceased, and the Heirs
at Law of Erica Renee Thomas, Deceased,
Plaintiff-Appellant,
versus

THE GREAT ATLANTIC AND PACIFIC TEA
COMPANY, INC., doing business as
Sav-A-Center,
Defendant-Appellee.
___________________________________________________
Appeal from the United States District Court
for the Southern District of Mississippi
___________________________________________________
November 27, 2000
Before KING, Chief Judge, RICHARD D. CUDAHY,* and WIENER, Circuit
Judges.
WIENER, Circuit Judge:
Plaintiff-Appellant Rose M. Thomas ("Thomas"), the mother of
five-year-old Erica Renee Thomas who was killed by a drunk driver
late one afternoon, brought this "dram shop" action against
Defendant-Appellee The Great Atlantic & Pacific Tea Co., Inc.
("Sav-A-Center"), a retail business that sold alcoholic beverages
* Circuit Judge of the Seventh Circuit, sitting by
designation.

to the visibly intoxicated driver approximately two hours before
the tragic accident. The district court granted Sav-A-Center's
motion for summary judgment after concluding that Thomas's case was
infirm on the element of causation. On appeal, Thomas argues that
she
adduced
enough
summary
judgment
evidence,
albeit
circumstantial, to raise a genuine issue of material fact regarding
causation.1 Agreeing with Thomas that summary judgment was
improvidently granted, we reverse and remand.
I.
Facts and Proceedings
At 5:15 p.m. on November 22, 1995, Carol Kientz, while driving
under the influence of alcohol, struck and killed young Erica as
she was walking alongside the road near her home. That morning, at
approximately 11 a.m., Kientz and her boyfriend (now husband)
Rickey Lea purchased a six-pack of beer from an Exxon convenience
store. According to Lea, Kientz drank two of these beers between
11 a.m. and 12:30 p.m. Lea averred that the couple then went to
the home of Kientz's mother, where they remained for several hours.
Lea claims that, although beer and liquor were available, neither
he nor Kientz drank any alcoholic beverages while they were there.
Two hours before the accident, at approximately 3:15 p.m.,
1 Thomas further contends that the district court erred in
denying her "motion for reconsideration of final judgment," which
was correctly treated by the district court as a motion to alter or
amend under Fed.R.Civ.P. 59(e). Because we agree with Thomas on
her first point of error, we need not reach the question of the
district court's denial of her Rule 59(e) motion.
2

Donna Kay Walker, a Sav-A-Center employee, sold Kientz a package of
beer.2 Even though Mississippi law prohibits the sale of alcoholic
beverages "to any person who is visibly intoxicated,"3 Walker
nevertheless sold Kientz the beer, after which Walker told Kientz
that "I hope [you are] not driving, and if [you are], be careful."
After leaving the Sav-A-Center, Kientz and Lea stopped by the
home of a friend, Derrick Breerwood, on their way to the Tax
Assessor's office. According to Lea, Kientz had nothing to drink
while at Breerwood's home. At approximately 4:45 p.m., Kientz and
Lea arrived at the Tax Assessor's office where two employees
observed that Kientz was extremely intoxicated. These employees
described Kientz as "sloppy drunk," "staggering," "stumbling," and
as having "slurred speech." When Kientz and Lea left the Tax
Assessor's office, they purchased more beer, this time at a
convenience store "like a Magic Mart." Lea maintains, however,
2The amount of beer sold to Kientz is in dispute. According
to Kientz's deposition testimony and affidavit, she purchased a
twelve-pack of Old Milwaukee. The Sav-A-Center cashier, Donna
Walker, likewise testified that she sold Kientz a twelve-pack.
Lea, however, testified that a six-pack of Michelob Dry was
purchased. The receipt indicates only that "Old Milwaukee cans"
were purchased for the price of a six-pack.
3 MISS. CODE ANN. � 67-1-83 (1991). See also MISS. CODE ANN.
� 67-1-53, which prohibits the sale of alcohol "to any person
visibly or noticeably intoxicated." Mississippi's "dram shop"
statutes do provide a safe harbor for licensed sellers of alcohol
who legally sell alcoholic beverages to persons who, due to
intoxication, cause injury, death, or property damage. See MISS.
CODE ANN. � 67-1-73. Thomas's suit is predicated on the illegal
sale of alcohol to a "visibly intoxicated" person, however, so the
statutory limits on liability are inapplicable.
3

that although he was drinking heavily throughout the day, Kientz
had imbibed only two of the beers purchased at the Exxon store that
morning and that she had nothing else alcoholic to drink throughout
the course of the four-to-six-hour period leading up to the fatal
accident. According to Lea, Kientz drank none of the Sav-A-Center
beer, none of the magic Mart beer, and nothing alcoholic at either
her mother's house or Breerwood's house.
Kientz and Lea drove away from the "Magic Mart," in separate
vehicles. Minutes later, at 5:15 p.m., Kientz struck and killed
Erica. All that took place in November 1995.
Kientz was charged with and subsequently pleaded guilty to
felony driving while under the influence for causing Erica's death.
In January 1999, Kientz was sentenced to five years in prison.
As administratrix of Erica's estate and representative of her
heirs at law, Thomas filed a complaint in the Circuit Court of
Harrison County, Mississippi. The complaint alleges that Sav-A-
Center was negligent in selling alcoholic beverages to Kientz in
violation of MISS. CODE ANN. �� 67-1-83, 67-3-53, and 67-3-73, and
that this negligence proximately caused or contributed to the death
of Erica Thomas. Sav-A-Center timely removed the case to federal
court based on diversity jurisdiction.4
After completion of discovery, Sav-A-Center moved for summary
judgment, contending that Thomas could not prove causation, an
4See 28 U.S.C. �� 1332(a), 1441(a)-(b).
4

essential element of her case. Sav-A-Center asserted more
specifically that Kientz did not drink any of the beer sold to her
by its employee, that as such the admittedly illegal sale of
alcohol could not have contributed to Kientz's intoxication, and
that the beer sold to Kientz by Sav-A-Center thus could not have
been a substantial factor in the death of Erica Thomas.
Mississippi's "dram shop" act makes clear that the consumption
of alcoholic beverages, and not the sale, service, or furnishing of
such beverages, is the proximate cause of any injury inflicted by
an intoxicated person upon himself or another person.5 Mississippi
thus requires a showing that the intoxicated person actually
consumed the alcoholic beverages before liability will attach to
the seller of the beverages. Mississippi's dram law thereby
differs from those of other states, such as Texas, which do not
explicitly require proof of actual consumption.6
As noted, the court granted Sav-A-Center's motion for summary
judgment and subsequently denied Thomas's Rule 59(e) motion for
5See MISS. CODE ANN. � 67-3-73.
6See, e.g., TEX. AL. BEV. � 2.02(b) ("Providing, selling, or
serving an alcoholic beverage may be made the basis of a statutory
cause of action under this chapter . . . upon proof that (1) at the
time the provision occurred it was apparent to the provider that
the individual being sold, served, or provided with an alcoholic
beverage was obviously intoxicated to the extent that he presented
a clear danger to himself and others; and (2) the intoxication of
the recipient of the alcoholic beverage was a proximate cause of
the damages suffered."); see also Smith v. Sewell, 858 S.W.2d 350,
355 (Tex. 1993) (noting that in order for liability to attach to a
seller of alcoholic beverages, the intoxication of the recipient of
the beverages must be the proximate cause of the injury).
5

reconsideration. This appeal ensued.
II.
Analysis
I. Standard of Review
We review a grant of summary judgment de novo, applying the
same well-known standard as the district court.7 When reviewing a
grant of summary judgment, we must review the record as a whole,
but must disregard all evidence favorable to the moving party that
the jury is not required to believe.8 That is, we give credence to
evidence favoring the nonmoving party as well as that evidence
supporting the moving the party that is uncontradicted and
unimpeached, at least to the extent that such evidence comes from
disinterested witnesses.9
B. Issues
This appeal presents the narrow question whether direct
evidence, however suspect it may be, inevitably trumps
circumstantial evidence for purposes of summary judgment.
Specifically, we must decide whether a defendant is entitled to
summary judgment when the plaintiff has adduced strong
circumstantial evidence to establish an essential element of her
7See Morris v. Covan World Wide Moving, Inc., 144 F.3d 377,
380 (5th Cir. 1998).
8See Reeves v. Sanderson Plumbing Products, Inc., ___
U.S.___,120 S.Ct. 2097, 2110 (2000) (citations omitted).
9See id.
6

claim, and the defendant, in contrast, has offered evidence that,
although direct, is weak or highly suspect. Under the instant
circumstances, we answer that question in the negative and rule
that sufficient summary judgment evidence exists in the record for
a jury to resolve the issue of causation in favor of Thomas,
particularly in light of the apparent mendacity of the witnesses on
whose testimony Sav-A-Center relies.
1. Thomas's Proof of Negligence by Circumstantial Evidence
Under well-established Mississippi law, negligence may be
proved by circumstantial evidence, provided that the circumstances
are sufficient to take the case "out of the realm of conjecture and
place it within the field of legitimate inference."10 If proof of
causation is to be established circumstantially, the evidence must
be sufficient to make the plaintiff's asserted theory probable, not
merely possible; and it is usually for the trier of fact to say
whether the proffered circumstantial evidence meets this test.11
As the issue of proximate or contributing causation is likewise one
for the trier of fact, summary judgment is improper when the
plaintiff has advanced enough circumstantial evidence to take her
claims out of the realm of "mere conjecture" and plant them in the
10See K-Mart Corp. v. Hardy, 735 So.2d 975, 981 (Miss. 1999).
11See Leflore County v. Givens, 754 So.2d 1223, 1230 (Miss.
2000).
7

solid ground of "reasonable inference."12
Lacking a witness who was in the company of Kientz and Lea at
all relevant times, Thomas must rely on circumstantial evidence to
demonstrate the existence of a jury question on causation.
Specifically, Thomas maintains that Kientz could not possibly have
reached the level of intoxication at which she appeared to be at
the Tax Assessor's office unless she had consumed some of the beer
purchased at the Sav-A-Center. In support of her argument, Thomas
points to (1) the testimony of third-party witnesses to demonstrate
that Kientz was considerably more intoxicated at the Tax Assessor's
Office than at the Sav-A-Center; (2) the deduction that Kientz's
blood alcohol level had to have been sufficiently high at the time
of the accident to warrant a felony charge of driving under the
influence; (3) the fact that Kientz had a strong incentive to lie
in her affidavit, which was obtained while she was awaiting trial
on charges grounded in the very same fact questions; (4) the
testimony of Kientz to the effect that she has to consume a "little
more than a [twelve]-pack" before anyone can tell that she has been
drinking, and that two beers would not affect her; and (5) the
testimony of Kientz and Lea that Kientz did not drink any alcohol
after leaving the Sav-A-Center despite the availability or
acquisition of such beverages.
We are persuaded that Thomas's circumstantial evidence is
12See, e.g., Snapp v. Harrison, 699 So.2d 567, 570 (Miss.
1997).
8

sufficient to establish the existence of a genuine issue of
material fact whether Kientz consumed any of the beer purchased at
the Sav-A-Center. Specifically, we conclude that Thomas has shown
a basis in the evidence from which a jury could reasonably infer
that Kientz's level of intoxication increased throughout the
afternoon, that Kientz must have consumed a large volume of alcohol
to have been as visibly drunk as she was by late afternoon, and
that such volume must have consisted in significant part of some of
the Sav-A-Center beer, which could only have been consumed by
Kientz during the time between its 3:15 p.m. sale at the Sav-A-
Center and Erica's death two hours later.
2. Credibility of Sav-A-Center's Witnesses
Sav-A-Center nevertheless insists that its direct evidence
incontrovertibly establishes that Kientz did not drink any of the
beer purchased from the Sav-A-Center on the day of the accident.
We disagree. Mississippi law identifies the consumption of
alcoholic beverages, and not its sale, as the proximate cause of
any injury inflicted by an intoxicated person.13 Therefore, argues
Sav-A-Center, by presenting direct evidence that Kientz did not
consume any of the Sav-A-Center beer, it has demonstrated a
complete failure of proof concerning an essential element of
Thomas's claim. Sav-A-Center asks us, in effect, to manufacture a
per se direct evidence rule that would create a much safer harbor
13See MISS. CODE ANN. � 67-3-73.
9

for purveyors of alcoholic beverages than the Mississippi
legislature has seen fit to provide. This we cannot do.
Sav-A-Center's direct evidence consists solely of (1) Kientz's
affidavit, in which she avers that "I did not drink beer purchased
from the Sav-A-Center store, or any other beverage containing
alcohol, purchased at the Sav-A-Center store on November 22, 1995,"
and (2) the deposition testimony of Lea, which corroborates
Kientz's affidavit. Thomas, however, has adduced evidence that
seriously undermines both the testimony of Lea, who was Kientz's
boyfriend and future husband and who admits to having been drinking
heavily throughout the day of the fatal accident, and the affidavit
of Kientz, which was obtained while she was under indictment and
awaiting trial. Thomas points out correctly that with a criminal
trial approaching, any admission by Kientz to drinking a
substantial amount of beer ---- particularly the Sav-A-Center beer,
which would have to have been consumed within the two-hour period
immediately preceding the accident ---- would have severely
jeopardized any chance Kientz had of prevailing at her criminal
trial. Kientz's credibility thus becomes highly suspect; she was
anything but an entirely disinterested witness despite the fact
that she is not a party to Thomas's civil action. Similarly, given
his own heavy drinking prior to and during all critical times and
his close personal relationship to the drunk driver, Lea's
credibility would be subjected to skeptical scrutiny by any finder
of fact.
10

Of course, mere "metaphysical doubt" about material facts is
insufficient to preclude a grant of summary judgment.14 And, just
as plainly, a motion for summary judgment cannot be defeated solely
by conclusional allegations that a witness lacks credibility.15
Nevertheless, when the circumstances are conducive to lying, well-
supported suspicion of mendacity may serve as a legitimate basis
for the factfinder's reasonable inferences concerning the ultimate
facts at issue.16 Here, Kientz's own testimony ---- not to mention
the fact that her blood alcohol level was sufficiently high to
warrant a felony charge of driving under the influence ----
undermines any realistic likelihood that (a) she was not drunk or
(b) she was as drunk as she appeared ---- and getting drunker by the
hour ---- but had consumed only two beers some four to six hours
earlier and nothing thereafter.
Conversely, if Kientz's and Lea's testimony is credible,
significant portions of it severely compromise Sav-A-Center's own
"alternate source of alcohol" theory. Both Kientz and Lea
maintained that, after she drank two of the beers purchased from
the Exxon store between 11 a.m. and 12:30 p.m. on the day of the
14See Matsushita Elect. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 587 (1986).
15See, e.g., Curl v. International Business Mach. Corp., 517
F.2d 212, 214 (5th Cir. 1975)
16See Reeves, 120 S.Ct. at 2108 (noting that it is permissible
for the trier of fact to infer the ultimate fact of discrimination
from the falsity of the employer's explanation, particularly if
"disbelief is accompanied by suspicion of mendacity").
11

accident and some five hours before it occurred, Kientz did not
drink any alcohol, from any location, at any time. In addition,
Kientz herself stated that she would have to consume a "little more
than a [twelve]-pack" before someone could tell she had been
drinking, and that two beers would not affect her; yet witnesses at
the Sav-A-Center and the Assessor's Office testified that she was
visibly inebriated, and more so at the Assessor's Office than when
she bought the beer at the Sav-A-Center. We agree with Thomas that
when questions about the credibility of key witnesses loom as large
as they do here, summary judgment is inappropriate.
In reversing summary judgment and remanding for trial, we
decide only that Thomas has presented sufficient summary judgment
evidence to withstand Sav-A-Center's motion for summary judgment;
we take no position on Thomas's ultimate ability to prove her case
by a preponderance of the evidence. We are satisfied that when
circumstantial evidence supporting the nonmoving party is this
strong, and the only direct evidence supporting the moving party is
this suspect, the merits of plaintiff's case ---- hinging here on the
element of causation ---- must be determined by a trier of facts.
III.
Conclusion
For the reasons explained above, the district court's grant of
summary judgment is reversed, and the case is remanded for further
proceedings consistent with this opinion.
12