AUSTIN – Del Lago Golf Resort on Lake Conroe owes $1.5 million to a man who suffered brain damage in a bar brawl, the Supreme Court of Texas ruled on April 2.

Six justices agreed that Montgomery County jurors reasonably found that owners of the 300 acre resort failed to protect Bradley Smith.

The justices focused less on what they meant than on what they didn't mean.

"We do not announce a general rule today," Justice Don Willett wrote.

"We have not held that a bar proprietor always or routinely has a duty to protect from patrons from other patrons, and do not so hold today," he wrote.

"Nor have we held that a duty to protect the clientele necessarily arises when a patron becomes inebriated, or when words are exchanged between patrons that lead to a fight, and do not so hold today," he wrote.

Chief Justice Wallace Jefferson and Justices Harriet O'Neill, David Medina, Paul Green and Eva Guzman joined Willett.

Their wavering upset three justices so deeply that all three wrote dissents, pouring out 51 pages of protest against Willett's 24.

"The court's job is not to offer its musings on the case but to state a clear rule of law," Nathan Hecht wrote.

Phil Johnson wrote that Del Lago didn't violate a duty to warn Smith of a condition he didn't need to be warned about.

Dale Wainwright wrote, "I would be concerned if the message from the court is to hold premises owners to a standard of perfection instead of a standard of reasonable care."

In 2001, Smith and his Sigma Chi brothers gathered for a weekend reunion at Del Lago.

Friday night, security staff removed a brother from the Grandstand Bar to cool a quarrel.

Saturday, around midnight, a big group arrived at the Grandstand from a wedding.

Right away, the men of Sigma Chi and men in the new group started bickering.

The men yelled, pushed and shoved. One from the wedding cocked an arm to throw a punch, but his buddies dragged him away.

Yelling and shoving resumed around 1:30 a.m. Staff tried to shut down. No one left.

Staff formed a loose line from table to table to funnel customers out to the lobby of Del Lago's conference center.

Men collided, threw punches and spilled into the lobby. Glass and chairs flew.

Smith wisely chose a spot against a wall, but he moved forward when a brother with a weak heart hit the floor.

Someone grabbed Smith in a headlock, and they crashed into a wall.
Smith's face hit a stud. His skull fractured.

When a woman hit the floor, the energy drained and the brawl stopped.

Smith sued Del Lago, alleging premises liability and negligent activity.

At trial before Montgomery County District Judge Kathleen Hamilton, jurors absorbed nine days of conflicting testimony from 21 witnesses. Hamilton instructed jurors to decide premises liability, not negligent activity.

Jurors decided that Del Lago failed to protect Smith from reasonable risk of harm. They set damages at almost $3 million but assigned 49 percent of the blame to Smith.

Tenth District appeals judges in Waco affirmed the verdict in 2006.

"A reasonable person who knew or should have known of the one and a half hours of ongoing heated verbal altercations and shoving matches between intoxicated bar patrons would reasonably foresee the potential for assaultive conduct to occur and take action to make the condition of the premises reasonably safe," Justice William Vance wrote.

Del Lago appealed to the Supreme Court, where Vance's view prevailed.

"Del Lago had actual and direct knowledge that a violent brawl was imminent between drunk, belligerent patrons," Willett wrote.

Del Lago had ample time and means to defuse the situation, he wrote.

"Del Lago continued to serve drunk rivals who were engaged in repeated and aggressive confrontations," he wrote.

"Del Lago's own conduct that night did nothing to decrease the danger and much to promote it," he wrote.

He wrote that the parties, jurors and judges all agreed Smith was negligent.

"Our only disagreement is whether Smith's negligence is a complete bar to recovery. On this record, it is not," he wrote.

In dissent, Wainwright argued that a premises liability claim requires a physical defect in the condition of the premises.

He wrote that "this is not a case for damages caused by a pothole in the road, a slick floor from the misapplication of wax, a grape on a grocery store floor, the lack of adequate lighting in an apartment parking lot, or a trespasser's criminal attack on invited guests at a business," he wrote.

"Smith presented no evidence that even one bar patron complained about the behavior of the fraternity or wedding party members, called security, requested that security be called, left the bar to escape the situation, or otherwise expressed concern for his physical safety, either in word or deed," Wainwright wrote.

Johnson wrote, "No one could identify who started the fight, why it started, or who injured Smith."

He wrote, "At some point, the ordinary care standard must mean something. I would hold that it means something here."

Hecht wrote that Smith wouldn't have been injured if he had left the bar by either of its exits at any time in the 90 minutes he thought a fight was obvious.

He wrote that according to the majority, a possessor of land must protect an entrant from a condition that a reasonable person could appreciate and easily avoid.

"This has never been the law of Texas," he wrote.

David Dies, Sandee Hart and Steven Parkhurst represented Smith.

Audrey Vicknair, Lansford Ireson and Mary Parsons represented Del Lago.

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