The state Supreme Court has ruled a victim of a drunk driving accident can’t blame the restaurant that served the driver because it’s unclear how much alcohol he was served there.
The opinion, delivered April 11, says a provider can only be liable if “at the time of the provision occurred it was apparent to the provider” that the customer “was obviously intoxicated to the extent that he presented a clear danger to himself and others.”
Barrie Myers was injured in a vehicle crash just after midnight on November 30, 2018. Nasar Khan and Kelly Jones had been at Cadot Restaurant in Dallas that evening and left the restaurant when Khan drove Jones back to her apartment a few minutes away. After he left Jones’ apartment, Khan rear-ended Myers’ vehicle, causing it to roll multiple times. At 3:06 a.m., Khan’s blood showed a blood alcohol content of 0.139, well above the legal limit of 0.08.
Boyd
| American Law Institute
But in the opinion, Justice Jeffrey S. Boyd said most of the facts about the evening of the accident are unclear.
It says Khan and Jones were at the restaurant, but the bar tab was opened at 10:23 and closed seven minutes later. And the tab shows they ordered three vodka drinks and a sparkling wine, but Khan said he paid for a beer with cash before they opened the bar tab. Khan told police he only drank two beers that night, and he later testified he wasn’t sure if they had opened one tab or two.
But the evidence doesn’t show how long Khan was at Cadot and how long he was at Jones’ home before the crash.
Khan also testified he had three or four drinks that night, but he also said the bartender must have served him “too much” based on his BAC. The bartender testified Khan would have had to have had eight to 10 drinks to test at 0.139, and an expert witness said Khan would have had to have 10 to 19 drinks depending on his weight.
But, Boyd writes, the Texas Dram Shop Act provides liability based not on the amount of alcohol a customer was served or consumed but on whether it was apparent to the provider that the customer was obviously intoxicated to the extent he presented a clear danger when the provider served him.
After Myers sued Cadot for violating the act, Cadot filed no-evidence and traditional summary judgment motions arguing that no evidence exists to establish this necessary fact. The trial court agreed and granted, but the court of appeals reversed and said a fact issue exists because a reasonable jury could make the necessary finding based on concessions Khan himself made in his deposition about his appearance and demeanor at Cadot.
During his deposition, Khan conceded that it was possible he might have exhibited signs of intoxication at Cadot.
“We conclude that Myers submitted no competent evidence to establish liability under the Dram Shop Act’s high bar,” Boyd wrote. “We therefore reverse the court of appeals’ judgment and reinstate the trial court’s summary judgment in Cadot’s favor.”
Supreme Court of Texas case number 23-0662