TEXAS UPDATE!

 

By Chamberlain♦McHaney

 

TEXAS LAWYERS

 

 

“ONE MORE FOR THE ROAD”-- BEER SELLER SCORES VICTORY IN TEXAS SUPREME COURT:  TODAY, the Texas Supreme Court held by a 7-2 vote that the Texas Comparative Negligence Statute applies to Dram Shop Act actions against providers of alcoholic beverages to intoxicated patrons.

 

After spending the day cutting firewood while consuming a case and a half of beer, Roberto Ramos drove his truck to the local Mr Cut Rate convenience store and bought another twelve pack.  Ruiz then climbed into his truck, opened a can of beer, put the open beer can between his legs, and drove a few blocks down the road where he collided head-on with the Plaintiffs vehicle, severely injuring several of the occupants.  There was conflicting testimony about whether Ruiz actually drank any of the beer he purchased at Mr Cut Rate.   

 

The plaintiffs brought suit against Mr Cut Rate alleging it violated the Texas Dram Shop Act by selling beer to Ruiz, an already obviously intoxicated person.  When Mr Cut Rate attempted to implead Ruiz as a contribution defendant and a responsible third party, the trial court refused to allow it.  The case went to trial and the plaintiffs recovered a judgment against Mr Cut Rate in the amount of $35 million.  The court of appeals affirmed.  You got to sell a lot more beer to cover that…or at least change your name to No More Cut Rate Here.

 

Mr Cut Rate appealed to the Texas Supreme Court arguing that the lower courts erred in refusing to allow it to bring Ruiz into the case as a responsible third party and contribution defendant.  The Supremes agreed, holding that the Texas Comparative Negligence Statue applied to Dram Shop cases and the jury should be free to decide whether, and to what degree, the drunk and the beer seller are comparatively responsible for the accident.  The majority said that the Legislature had made the policy decision that innocent plaintiffs, suing the intoxicated patron and the liquor provider, could be burdened with the risk of a drunk’s insolvency.  The case was remanded for new trial with instructions to the trial court to allow the jury to compare the responsibility of the drunk and the beer seller.

 

Chief Justice Jefferson dissented and wrote that under the majority’s construction of the Dram Shop Act, the alcohol provider may avoid liability precisely because its patron was so "obviously intoxicated" and such a "clear danger" that selling him “one for the road” could not have caused or contributed to the harm his intoxication later caused.  The Chief reasoned that the Court should hold that the Legislature has imposed a form of vicarious liability on a dram shop for the acts of its intoxicated customer.  Because the shop’s conduct is statutorily irrelevant in relation to the plaintiff’s injury, no legitimate basis exists for comparing its responsibility with that of the intoxicated person.  F.F.P. Operating Partners L.P. v. Duenez  (Tex. Nov 3, 2006).

 

           

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David E. Chamberlain

Chamberlain♦McHaney

Austin & San Antonio

512-474-9124

visit us at  www.chmc-law.com.