El Chico Corp. v. Poole

• Decision Date: 03 June 1987
• Docket Number: Nos. C-5639,C-5798,s. C-5639
• Parties: EL CHICO CORPORATION, Petitioner, v. A. Bryan POOLE, et ux., Individually and as Heirs of the Estate of Larry Bryan Poole, Deceased, Respondents. JOLEEMO, INC., et al., Petitioners, v. Wendel EVANS, et al., Respondents.
• Court: Texas Supreme Court

Page 306

732 S.W.2d 306

EL CHICO CORPORATION, Petitioner, v. A. Bryan POOLE, et ux., Individually and as Heirs of the

Estate of Larry Bryan Poole, Deceased, Respondents.

JOLEEMO, INC., et al., Petitioners, v. Wendel EVANS, et al., Respondents.

Nos. C-5639, C-5798.

Supreme Court of Texas.

June 3, 1987.

Rehearing Denied July 15, 1987.

Charles W. Lyman and James D. Ebanks, Giessel, Stone, Barker & Lyman, Houston, for El Chico.

Robert C. Floyd and Timothy D. Riley, Floyd, Taylor & Riley, Houston, for Poole.

Harold Tom Hermansen and Carlos Villarreal, Hunt, Hermansen, McKibben & Barger, Corpus Christi, for Joleemo, Inc et al.

William R. Edwards, Edwards & Terry, Russell McMains, McMains & Constant, Corpus Christi, for Evans et al.

SPEARS, Justice.

These two wrongful death and survival actions were submitted together to determine whether a person injured by an intoxicated driver may recover from the alcoholic beverage licensee who allegedly sold intoxicants to that intoxicated driver in violation of the Texas Alcoholic Beverage Code. In El Chico v. Poole, Mr. and Mrs. Bryan Poole sued El Chico Corporation and Rene Saenz for the death of their son, Larry, alleging that El Chico negligently served alcohol to an intoxicated Saenz who later collided with Larry's car. The trial court severed the action against Saenz and granted summary judgment for El Chico. The court of appeals reversed the trial court's summary judgment and remanded the cause for trial. 713 S.W.2d 955. We affirm.

In Joleemo v. Evans, Mr. and Mrs. Wendel Evans sued Joleemo, Inc., Bobby L. Morris, individually and d/b/a Bandy's, and Henry Scott Smith for the death of their son, Patrick, alleging that Bandy's negligently served alcohol to Smith, who later struck Patrick's motorcycle. The trial court dismissed the Evanses' petition for failure to state a cause of action. The court of appeals reversed and remanded the cause for trial. 714 S.W.2d 394. We affirm.

The El Chico summary judgment evidence established the following facts: On Friday, January 21, 1984, Rene Saenz, an admitted alcoholic, left work and proceeded with a friend to the El Chico restaurant in Northwest Mall in Houston. Saenz arrived at El Chico shortly after 5:00 p.m. Saenz remembered ordering his first drink, but remembered nothing else until the accident which occurred around 8:00 p.m., three to five blocks from El Chico. In his deposition, Saenz stated that he did not pass out, but rather "blacked out"--forgot or erased from memory--the incidents leading to the accident. Saenz attributed his "black-out" to his inebriation and desire to "put the accident behind him." Saenz did not recall the number of beverages he drank, but he believed the quantity was sufficient to cause his black-out. Saenz did not remember his condition in El Chico nor could he recall whether his conduct would have alerted any El Chico employees to his intoxicated condition.

Saenz left El Chico around 7:45 p.m. The collision resulting in Larry Poole's death occurred a few minutes later as Saenz was speeding north on Mangum Road and ran a red light at the intersection of Mangum and the Northwest Freeway service road. His truck struck Larry's car as Larry was turning left onto the service road. Larry Poole was dead on arrival at Hermann Hospital. The police officer who investigated the accident observed Saenz was wobbly and swaying in his movements, had a strong smell of alcohol on his breath, was talkative although mumbling, and appeared to be intoxicated. A breath alcohol test administered at the scene resulted in a .18 reading. Saenz was arrested for driving while intoxicated and later convicted of involuntary manslaughter.

In Joleemo, the trial court dismissed the Evanses' cause of action upon Joleemo's special exceptions that the pleadings failed to state a cause; therefore, we accept the facts pleaded by the Evanses as true in determining whether a cause of action exists. Massey v. Armco Steel Co., 652 S.W.2d 932, 933-34 (Tex.1983); Wheeler v. White, 398 S.W.2d 93, 95 (Tex.1966). Patrick Evans died shortly after Henry Scott Smith negligently collided with Patrick's motorcycle near the intersection of Weber Road and South Staples in Corpus Christi. The collision occurred in the early morning hours of Monday, November 14, 1984, after Smith had spent Sunday evening and early Monday morning consuming alcoholic beverages at "Bandy's." On Sunday evening, Bandy's served free drinks from 8:00 p.m. to 9:30 p.m., and then charged $1.00 per drink for the remainder of business hours. Even though those associated with Bandy's knew or should have known Smith was intoxicated, they continued to serve him drinks.

The courts of appeals in Joleemo and in El Chico reversed the respective trial courts' judgments. The El Chico court of appeals held:

... [A] bar owner owes a duty to the motoring public not to knowingly sell an alcoholic beverage to an already intoxicated person.

713 S.W.2d at 958. The court determined that whether El Chico breached its duty and whether the breach was a proximate cause of the Pooles' damages were issues for a jury to decide when the evidence raises those issues. Id. The Joleemo court of appeals, in broader language, held:

... [U]nder general common law principles, a tavern owner who encourages one to consume too much alcohol, continues to serve him alcohol after he knows or should know he was intoxicated, and who knows or should know that he will operate a motor vehicle on the public streets, owes a duty to third persons to take such precautions as are reasonable and prudent to prevent the intoxicated person from driving, and it is foreseeable that a breach of this duty could cause injury to third persons.

714 S.W.2d 396.

On appeal here, both El Chico and Joleemo argue that in the absence of a legislative dramshop act specifically creating a civil remedy and civil cause of action against alcoholic beverage licensees, no cause of action may be maintained against them. The Pooles and Evanses contend that liability may be imposed upon an alcoholic beverage licensee based upon the common law principles of negligence and negligence per se. An alcoholic beverage licensee refers to the holder of an Alcoholic Beverage Commission permit or license who may sell or serve alcoholic beverages. See generally TEX.ALCO.BEV.CODE ANN. tit. 3 (Vernon 1978 & Supp.1987). The duty, if any, of one who dispenses or serves liquor gratuitously, in absence of a license or permit, is not involved in this appeal.

At common law, a purveyor of alcoholic beverages was not liable for damages sustained by third persons resulting from a patron's intoxication. 48A C.J.S. Intoxicating Liquors § 428 (1981); Annot., 97 A.L.R.3d 528 (1980). The rule of non-liability was two-fold. First, the consumption, not the sale or service of alcohol, was viewed as the sole proximate cause of the patron's intoxication and later injury to a third party. An able-bodied person was responsible for his or her own actions. Second, even if the sale were a proximate cause of the intoxication, injury to a third person was an unforeseeable result of the patron's intoxication.

In recent years, modern analyses have discarded the absolute rule of no liability in favor of an approach incorporating current legal understanding as dictated by conditions and circumstances of modern society. An intoxicated person is by definition not an able-bodied nor able-minded person. Of fifty American jurisdictions (including the District of Columbia and excluding Texas), twenty-nine recognize a common law cause of action against an alcoholic beverage purveyor for injuries caused by an intoxicated customer. ¹ Additionally, nineteen state legislatures have enacted civil dramshop liability, ² seven of which also have recognized a complementary and supplemental common law cause of action. ³ In total, a civil cause of action exists in forty-one jurisdictions with a substantial majority basing the cause of action upon the common law principles of negligence, negligence per se, or both. Focusing on the carnage inflicted upon innocent victims by drunk drivers, courts have rejected the rationale supporting no liability as outdated and unrealistic and thus invalid. Injury to a third person is no longer unforeseeable in an age when death and destruction occasioned by drunk driving is so tragically frequent. Alegria v. Payonk, 101 Idaho 617, 619 P.2d 135, 137 (1980).

As demonstrated by the actions of the majority of states, the common law is not frozen or stagnant, but evolving, and it is the duty of this court to recognize the evolution. See Otis Engineering Corp. v. Clark, 668 S.W.2d 307, 310 (Tex.1983). Indeed, it is well established that the adoption of the common law of England was intended "to make effective the provisions of the common law, so far as they are not inconsistent with the conditions and circumstances of our people." Grigsby v. Reib, 105 Tex. 597, 153 S.W. 1124, 1125 (1913). Our courts have consistently made changes in the common law of torts as the need arose in a changing society. See, e.g., Sanchez v. Schindler, 651 S.W.2d 249 (Tex.1983) (recovery of loss of society and mental anguish allowed in response to needs of modern society); Parker v. Highland Park, Inc., 565 S.W.2d 512 (Tex.1978) (landowner's duty owed to tenants extends to guests); McKisson v. Sales Affiliates, Inc., 416 S.W.2d 787 (Tex.1967) (strict liability in tort expanded to include defective products); Decker & Sons, Inc. v. Capps, 139 Tex. 609, 164 S.W.2d 828 (1942) (manufacturer of impure food liable for injuries in absence of negligence as a matter of public policy); Hill v. Kimball, 76 Tex. 210, 13 S.W. 59 (1890) (recognition of cause of action for infliction of emotional and mental distress). The need to consider whether the Pooles and Evanses have stated a cause of action in negligence arises now.

Negligence, a common law doctrine, consists of three essential elements--a...