Successful Defense

Doug Fletcher, David Colley, and Richard Harwell successfully defended the granting of summary judgment to the client and subsequent appeal in a Dram Shop case. The plaintiffs had filed suit against the client’s establishment, alleging that the establishment had overserved one of its employees and a customer. The customer had asked to see the employee, who was on duty at the time. After drinking and talking, the two allegedly became severely intoxicated, at which point an argument broke out. The customer struck the employee who hit his head on the ground and later died of his injuries.
On behalf of the deceased employee and themselves, the plaintiffs sued the client for wrongful death, negligence per se, and negligent hiring, supervision, and retention. In addition to overserving alcohol the plaintiffs argued the client failed to provide adequate security. We filed special exceptions on behalf of the client, asserting that the plaintiffs were limited to a Dram Shop liability claim. After the trial court granted the special exceptions, we filed a motion for summary judgment due to the lack of evidence of the Dram Shop elements and moved to strike the plaintiffs’ evidence. The trial court struck the plaintiffs’ evidence and granted the motion for summary judgment.
On appeal, the plaintiffs argued that the Dram Shop Act did not apply, asserting that their claims were not covered by the Dram Shop Act. This was due to the decedent’s status as an employee, relying on two Supreme Court decisions in which the Supreme Court had ruled there was a separate duty to employees independent of the Dram Shop Act. We argued that the decisions were distinguishable and that the Dram Shop Act had been amended since the two decisions had been issued, rendering them inapplicable to the facts of this case. 
The El Paso Court of Appeals agreed and adopted much of our brief, then ruled that the trial court correctly granted our special exceptions and dismissed the common law negligence claims. The appellate court then concluded that there was no evidence of the Dram Shop elements. Specifically, the court concluded that there was no evidence that it was apparent to the client that the individuals were obviously intoxicated to the extent they presented a danger to themselves or others, or that the intoxication was a proximate cause of the damages suffered. Finding no evidence of the Dram Shop elements, the appellate court affirmed the granting of summary judgment and dismissal of our client.

In the Court of Appeals’ opinion, there was emphasis on proving all of the elements to establish liability under the Dram Shop statute. The first element, with which everyone is familiar, is there has to be evidence that at the time the individual was served that he was obviously intoxicated which, of course, means the person presented a danger to themselves or others. 

The second element, which most people forget, is that it has to be proved that the intoxication was a proximate cause of the damages suffered. In other words, it is not just enough to show that the person was intoxicated at the time of the accident which caused the injuries or death, but that the person’s intoxication was a proximate cause of the actual accident. Normally, when it involves the intoxicated person operating an automobile the proximate cause is assumed, although it really should not be. When you have the intoxicated person involved in activity which results in injury or death (or the injury or death to another person) the potential defense strategy could be to show that the person was going to do this, intoxicated or not. Even when a vehicle is involved, perhaps the claimants or plaintiffs are going to need to use an expert on intoxication to indicate that the person’s actions and the resulting accident were caused by the intoxicated state. In the future we will keep a close eye on this in the numerous Dram Shop cases that we defend.

Thank you!


Katy Link | Marketing Director
Fletcher, Farley, Shipman & Salinas, LLP
9201 N. Central Expressway, 6th Floor
Dallas, TX 75231
2530 Walsh Tarlton Lane, Ste 150
Austin, TX 787