Texas courts have reinterpreted Dram Shop Act in recent years

In a May 9 suit filed in Jefferson County District Court, a father blamed two establishments in downtown Beaumont's Crockett Street Entertainment District for letting his intoxicated daughter get behind the wheel and become involved in a crash that took her life.

The father filed the suit under the Dram Shop Act, which is designed to stop the sale of alcohol to an already intoxicated patron.

A dram shop is any drinking establishment where alcoholic beverages are sold. The term relates back to a time when a tavern served patrons by the measurement of a dram, or one-eighth of a fluid ounce.

The first regulated dram shops began in Texas in 1895, with the passage of the state's first dram shop act. The statute was thereafter revised in 1914, and it was later repealed by revision and omission in 1919.

A significant decision in 1987 opened the door to Dram Shop Act lawsuits.

In El Chico v. Poole, the Texas Supreme Court first imposed a duty on alcohol providers to not serve persons "it knows or should know are intoxicated."

According to a 2005 article on the Texas Young Lawyers Association Web site, the Poole decision relaxed proximate causation requirements. A week after the court's decision in Poole, the legislature's Dram Shop Act became effective.

Section 2.02 of the Texas Alcoholic Beverage Code, otherwise known as the Dram Shop Act, states that "Providing, selling, or serving an alcoholic beverage may be made the basis of a statutory cause of action…upon proof that: 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 the intoxication of the recipient of the alcoholic beverage was a proximate cause of the damages suffered."

The Legislature made the Dram Shop Act an exclusive remedy for dram shop claims and increased the plaintiff's burden on liability by requiring proof of "obvious intoxication" and proof that the drunk was a "clear danger."

In addition, the Dram Shop Act tied proximate causation not to the dram shop's conduct but to the drunk's intoxication.

But a case involving a drunk driver made its way to the Texas Supreme Court and opened the Dram Shop Act up for interpretation once again.

The Duenez family filed a negligence suit against F.F.P. Operating Partners and one of its stores after a clerk sold a 12-pack of beer to Roberto Ruiz, who had already consumed a case and a half of beer.
Ruiz then drove his truck into the Duenezes' car, injuring all five members of the family.

The Duenezes sued F.F.P. and F.F.P. filed a cross-action naming Ruiz as a responsible third party.

In a partial summary judgment, the trial judge ruled that Texas Civil Practice & Remedies Code Chapter 33 Proportionate Responsibility Statute did not apply but that the Dram Shop Act's exclusive remedy provision did apply.

According to a Texas Lawyer article written in 2006, Chapter 33 makes parties responsible only for their proportionate share of damages awarded, while the Dram Shop Act assigns all liability to providers of alcohol.

At trial, the jury found for the Duenezes, awarding $35 million, making F.F.P. liable for the full amount of the judgment under the Dram Shop Act, even though Ruiz caused the accident.

An appeals court affirmed the trial court and upheld the jury verdict.

On Sept. 3, 2004, in F.F.P. Operating Partners, L.P. v. Duenez, the Texas Supreme Court held in a 5-4 decision that under Chapter 33, a licensed alcohol seller is liable for the percentage of responsibility that the jury assigns to it as well as for the percentage of responsibility that the jury assigns to the drunk driver.

F.F.P. filed a motion for rehearing, and between the time the first opinion was issued and the time rehearing was granted, three members of the five-member majority in the first Duenez opinion left the Supreme Court.

The new court withdrew its prior Duenez opinion and issued a new opinion on Nov. 3, 2006.

This time, the 7-2 majority found that imposing liability on the dram shop for the conduct of the drunk conflicted with the Proportionate Responsibility Statute, and held that the dram shop should only be held jointly and severally responsible it is more than 50 percent responsible.

"The legislative intent to protect the public and provide a potential remedy against an alcohol provider does not equate to a guarantee of recovery against a provider by an injured party," Justice Dale Wainwright wrote for the majority.

The dissenting votes were cast by Chief Justice Wallace Jefferson and Justice Harriet O'Neill.

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