Del Lago Resort in Conroe

AUSTIN – In a case from "Houston's playground," the Texas Supreme Court must decide whether to hold a bar owner liable for injuries from a brawl.

The Supreme Court heard oral arguments Thursday, Dec. 6, in an appeal of a $1,478,283 verdict against Del Lago Golf Resort and Conference Center, in Conroe.

Their decision will clarify the duty of property owners, especially bar owners, to protect persons on their premises from criminal acts.

They reviewed a Montgomery County jury verdict holding Del Lago 51 percent responsible for permanent brain injuries that Bradley Smith suffered at the resort's Grandstand Bar in 2001.

A trial witness called the resort Houston's playground. It includes a golf course, a conference center, a 21 story hotel, permanent residences, 58 cottages, a beach and a marina, on 300 acres.

Friction between a wedding party and a Sigma Chi fraternity party sparked the brawl at closing time.

Someone put a headlock on Smith, a 29-year-old Sigma Chi brother, and drove his face into a wall.

Smith did not press criminal charges. He has stated that he does not know who attacked him, though Del Lago insists that he does know.

The jury found the brawl foreseeable, and faulted Del Lago's security staff for failing to prevent it.

The jury assessed damages at $2,874,000, but they pinned 49 percent of the blame on Smith himself.

Montgomery County District Judge Kathleen Hamilton presided over the trial.

Del Lago asked the Ninth District Court of Appeals, in Beaumont, to review the verdict.

Due to heavy caseload in the Ninth District, the Supreme Court transferred the appeal to the Tenth District, in Waco.

Last year, Tenth District Justices Bill Vance and Felipe Reya upheld the verdict.

They agreed it was foreseeable that an assault might occur and that someone would be harmed by a criminal act.

Vance wrote, "It is the jury's role to resolve conflicts in evidence, weigh the evidence, and judge the credibility of witnesses; we cannot substitute our opinion for the jury's."

He wrote, "The jury's apportionment of responsibility in this case reflects a fair and just weighing of conflicting evidence and the parties' positions."

Chief Justice Tom Gray dissented. He opened with a line from a bartender in a film, "As Good As It Gets," calling himself a moron pushing the last legal drug.

Gray wrote, "If our task is to prohibit 'pushing the last legal drug,' the majority has gone a long way to accomplishing that task."

He wrote, "…the majority has imposed upon a bar's owner the duty to protect its patrons from the illegal activity of others."

He wrote that the brawl was not foreseeable and Del Lago owed no legal duty to Smith to protect him from criminal acts of a third party.

David Dies and Steve Parkhurst of Orange represent Smith. Audrey Vicknair of Corpus Christi represents Del Lago.

They will argue before the Texas Supreme Court at Baylor University, in Waco.

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