Beard v. Graff, 04-89-00006-CV

• Decision Date: 07 November 1990
• Docket Number: No. 04-89-00006-CV,04-89-00006-CV
• Citation: 801 S.W.2d 158
• Parties: Brett BEARD and Dorothy Beard, Appellants, v. Royce GRAFF, Debra Lynn Graff, Bobby Hausmon, Betty Hausmon, and Houston Edward Moos, Appellees.
• Court: Texas Court of Appeals

Page 158

801 S.W.2d 158

Brett BEARD and Dorothy Beard, Appellants, v. Royce GRAFF, Debra Lynn Graff, Bobby Hausmon, Betty Hausmon and Houston Edward Moos, Appellees.

No. 04-89-00006-CV.

Court of Appeals of Texas San Antonio.

Nov. 7, 1990.

Rehearing Denied Dec. 19, 1990.

Jim Perkins, Catherine M. Stone, Watkins & Brock, San Antonio, for appellants.

George G. Brin, Brin & Brin, San Antonio, Kerby Johnson, Plunkett, Gibson & Allen, San Antonio, for appellees.

Before CADENA, C.J., and REEVES, BUTTS, CHAPA, PEEPLES, BIERY and CARR, JJ., en banc.

ON APPELLANT'S MOTION FOR REHEARING

CARR, Justice.

The appellants' motion for rehearing is granted and the following En Banc opinion is substituted for the panel opinion of October 31, 1989, as the opinion of this court.

This is an appeal from a judgment of dismissal in a negligence suit which presents us with an issue of first impression. The issue presented is whether, in any situation, a cause of action exists which imposes a duty on a social host to stop serving alcoholic beverages to an intoxicated guest who the host knows is intoxicated and also knows will thereafter operate a motor vehicle while intoxicated. Specifically, this court is asked to decide whether a social host owes a duty of care to innocent third parties of the general and motoring public who are injured by the acts of an intoxicated guest because of his intoxication while driving a motor vehicle.

Negligence, a common law doctrine, consists of three essential elements--a legal duty owed by one person to another, a breach of that duty, and damages proximately caused by the breach. Rosas v. Buddies Food Store, 518 S.W.2d 534, 536 (Tex.1975). Duty is the threshold issue. An individual seeking to recover must prove the existence and violation of a duty owed to him by the defendant to establish liability in tort. Abalos v. Oil Dev. Co., 544 S.W.2d 627, 631 (Tex.1976). Therefore, the initial question before this court is whether appellees owe such a duty to appellants. For the reasons set out in this opinion, we answer the issue in the affirmative.

Appellants, Brett Beard and his mother, Dorothy Beard, sued two couples, Royce and Debra Lynn Graff and Bobby and Betty Hausmon, for damages arising from personal injuries sustained by Brett Beard in a vehicular accident caused by the alleged negligence of Houston Edward Moos. Beard alleged that Moos was operating his vehicle on a public street while intoxicated. The negligence action against Moos has been severed from the suit against the appellees.

In this suit against appellees, Beard alleged the appellees were negligent in: serving alcoholic beverages to Moos when they knew or should have known of Moos' intoxicated condition and that he would be operating a motor vehicle; allowing Moos to operate the vehicle when they knew or should have known of his intoxicated condition; providing the liquor to him; providing Moos with liquor when they knew or should have known that Moos would consume an intoxicating amount such that he would become intoxicated, and when they knew or should have known that his intoxicated condition would result in injury to a third person (Beard). Beard seeks to recover damages from appellees, the "social hosts" who served intoxicating liquor to Moos, the person with whom appellant was involved in a vehicular accident on a public street.

The trial court sustained appellees' special exceptions and dismissed the suit for failure to state a cause of action. In one point of error, Beard claims the trial court's dismissal was error. We agree and thus reverse and remand this cause.

From our research on the issue presented us, whether a social host owes a duty of care to innocent third parties of the general and motoring public who are injured by the acts of an intoxicated guest because of his intoxication while driving a motor vehicle, we find neither precedential authority in Texas nor persuasive authority in the majority position of our sister states.

First, there is nothing in Texas law to preclude a finding of social host liability under the circumstances of this case. ¹ Appellees' reliance on Walker v. Children's Services, Inc., 751 S.W.2d 717 (Tex.App.--Amarillo 1988, writ denied), as precedent for the instant case is misplaced for the reason that the facts of the Walker case are different from the facts in the present case. In Walker, the court stated:

[t]he question presented is whether a person who injures himself while driving an automobile under the influence of intoxicants may recover in tort from the individual who furnished him intoxicants in a social setting. We answer the question in the negative.

Walker v. Children's Services, Inc., 751 S.W.2d at 718 (emphasis added). In addressing the threshold duty issue, the Walker court poses the question to itself:

Does a cause of action exist in Texas which imposes a duty on social hosts not to serve liquor to guests who are obviously intoxicated in order to prevent them from harming themselves or others?

Id. (emphasis added). The Walker court's language reference to "or others" was not before the court and is dicta only. Furthermore, the social guest and injured party being one and the same in Walker, the reference to "or others" (in the context of the Walker court denying a civil remedy to the injured social guest himself) is superfluous because in the situation where a social guest injures "others," any civil remedy would be sought by the injured party referenced in Walker's "or others" language and not by the negligent social guest. Here, the injury is to innocent third parties. Since the Walker facts involve only injury to the intoxicated social guest himself, Walker's holding is so limited. In any event, we do not find the Walker holding that applies to the social guest who injures himself as a result of his own intoxication, persuasive in regard to the issue of innocent third parties who are victims of drunken driving because the public (i.e., innocent third parties) requires greater protection by available remedy than the drunken driver himself.

Second, the common law, as declared by the courts of the several states, is the rule of decision in this State (and has been so by statute since January 20, 1840 ²), Houston Chronicle Pub. Co. v. Bergman, 128 S.W.2d 114, 116 (Tex.Civ.App.--Galveston 1939, writ dism'd judgmnt cor.), and we find that the common law of the other states is conflicting, presenting us with two lines of cases between which we must choose. Research reveals that a cause of action in negligence in favor of an injured third party has been recognized by courts in other jurisdictions against a social host serving alcoholic beverages to an intoxicated adult: California, Connecticut, Georgia, Iowa, Massachusetts, New Jersey and Washington. ³ While other jurisdictions have considered the issue of social host liability and have been unwilling to extend liability to a social host who has served intoxicants to adult guests, ⁴ they have generally done so on the basis that imposition of this new form of liability is "such a radical departure from prior law," with such a substantial impact on the average citizen and on everyday social and family affairs, that the issue is best left to legislative determination. However, the present condition of Texas law on the subject being yet undecided, we fail to see a "radical departure from prior law" in Texas. In addition, in our view, the rights of innocent third parties of the general and motoring public who are annually injured in our state by the acts of intoxicated motorists far outweigh any resulting impact on society from the imposition of liability on the social host as provided herein. For the reasons set forth in this opinion, we are persuaded to follow the position favored by the minority of states.

In our opinion, the imposition of a social host duty in Texas, in the context of the facts of this case, is appropriate for several reasons.

Function of the Judiciary

We do not agree that the issue before us involving the injury to innocent third parties within the context of the facts of this case cannot be addressed and resolved by us without evidence of legislative policy, as expressed in Walker, 751 S.W.2d at 720, because the determination of the scope of duty in negligence cases has traditionally been a function of the judiciary, El Chico, 732 S.W.2d at 314; our courts have consistently made changes in the common law of torts as the need arose in a changing society, id. at 311; and, the judiciary has decided many significant issues without any prior legislative study. In fact, a judicial determination of the existence of a social host duty in the context of the facts of this case is within the competence of the judiciary and is in harmony with the strong legislative policy against drunken driving and for enforcement of our traffic laws. In any event, if the legislature differs with us on an issue of this kind, it is apparent it has a clear remedy.

Harmony with Public Policy and Competence of the Judiciary

At a time when the adverse effects of intoxicants on our society are in the very forefront of our local, state, and national public agenda and are accompanied by a public outcry for relief from those adverse effects, as evidenced by such private organizational efforts as Mothers Against Drunk Drivers and other such like organizations, we believe that a civil remedy in the form of an imposition of a social host duty in the context of the facts of this case is now needed, is supportive of a desirable public policy and is within the competence of the judiciary.

In Kelly v. Gwinnell, 96 N.J. 538, 476 A.2d 1219, 1222-25 (1984), the Supreme Court of New Jersey imposes a social host duty to third parties and, in powerful and persuasive language, addresses these policy considerations for judicial involvement in the following manner:

Unlike those cases in which the definition of desirable policy is the...