F.F.P. Operating Partners, L.P. v. Duenez

Decision Date11 May 2007
Docket NumberNo. 02-0381.,02-0381.
Citation237 S.W.3d 680
PartiesF.F.P. OPERATING PARTNERS, L.P., d/b/a Mr. Cut Rate # 602, Petitioner, v. Xavier DUENEZ and Wife Irene Duenez, As Next Friends of Carlos Duenez and Pablo Duenez, Minors, Respondents.
CourtTexas Supreme Court

Houston, TX, Victor E. Schwartz, Emily J. Laird, Manuel Lopez, Shook, Hardy & Bacon L.L.P., Washington, DC, Edward J. Murphy, Beirne, Maynard & Parsons, L.L.P., Houston, E. Lee Parsley, E. Lee Parsley, P.C., Austin, Grant E. Adami III, Adami Goldman & Shuffield, San Antonio, TX, for Amicus Curiae.

Russell H. McMains, Law Offices of Russell H. McMains, Corpus Christi, Reagan W. Simpson, King & Spalding LLP, Houston, Mike A. Hatchell, Locke Liddell & Sapp, LLP, Austin, TX, for Petitioner.

David Roberts, Wanda Roberts, Garner, Roberts & Roberts, L.L.P., Port Lavaca, Christa Brown, Austin, Cynthia T. Sheppard, Attorney At Law, Cuero, David C. Griffin, John W. Griffin Jr., Houston, Marek & Griffin, L.L.P., Victoria, TX, for Respondent.

Justice WAINWRIGHT delivered the opinion of the Court, in which Justice HECHT, Justice BRISTER, Justice MEDINA, Justice GREEN, Justice JOHNSON and Justice WILLETT joined.

On December 12, 2002, we granted this petition for review, and on September 3, 2004, the Court issued an opinion. On April 8, 2005, we granted the petitioner's motion for rehearing, reargued the case, and issued an opinion on November 3, 2006. Today we deny the respondents' motion for rehearing. We withdraw our opinion of November 3, 2006 and substitute the following in its place.

We are asked to revisit our holding in Smith v. Sewell that the proportionate responsibility scheme of chapter 33 of the Texas Civil Practice and Remedies Code requires an apportionment of responsibility under chapter 2 of the Alcoholic Beverage Code. 858 S.W.2d 350 (Tex.1993). We decline the invitation to reverse Sewell and instead affirm its holding that the language of the proportionate responsibility statute includes claims under the Dram Shop Act. Neither the purpose nor the language of the Act makes a dram shop automatically responsible for all of the damages caused by an intoxicated patron, regardless of a jury's determination of the dram shop's proportion of responsibility. Instead, pursuant to Chapter 33, a dram shop is responsible for its proportionate share of the damages as determined by a jury. Accordingly, we reverse the court of appeals' judgment and remand the case for a new trial.

I. Factual and Procedural Background

After spending the day cutting firewood while consuming a case and a half of beer, Roberto Ruiz drove his truck to a Mr. Cut Rate convenience store owned by F.F.P. Operating Partners, L.P. and purchased a twelve-pack of beer. The store's assistant manager, Carol Solis, sold the beer to Ruiz. Ruiz then climbed into his truck, opened a can of beer, and put the open beer can between his legs. There was conflicting testimony about whether Ruiz actually drank any of the beer that he purchased at Mr. Cut Rate.

Ruiz then drove onto a nearby highway and swerved into oncoming traffic several times. Two cars dodged his truck to avoid a collision. As he crossed a bridge approximately a mile and a half from the Mr. Cut Rate convenience store, Ruiz swerved across the center line, hitting the Duenezes' car head-on. All five members of the Duenez family suffered injuries.

Ruiz was arrested at the accident scene for drunk driving. He pled guilty to intoxication assault and was sentenced to prison. The Duenezes brought a civil suit against F.F.P., Ruiz, Solis, Nu-Way Beverage Company, and the owner of the land where Ruiz had spent the afternoon cutting firewood and drinking. F.F.P. filed a cross-action against Ruiz, naming him as a responsible third-party and a contribution defendant. The Duenezes thereafter nonsuited all defendants except F.F.P.

At the pretrial conference, the Duenezes obtained a partial summary judgment that chapter 33 of the Texas Civil Practice and Remedies Code, the proportionate responsibility statute, did not apply to this case. The trial court then severed F.F.P.'s cross-action against Ruiz, leaving F.F.P. as the only defendant for trial. F.F.P.'s severed action against Ruiz remains pending in the trial court.

The Duenezes' claim against F.F.P. proceeded to trial. At the charge conference, the trial court refused to submit questions for determination of Ruiz's negligence. The court also failed to submit questions on the proportionate responsibility of Ruiz and F.F.P.

The jury found that when the alcohol was sold to Ruiz, it was "apparent to the seller that he was obviously intoxicated to the extent that he presented a clear danger to himself and others," and that Ruiz's intoxication was a proximate cause of the collision. The jury returned a $35 million verdict against F.F.P., upon which the trial court rendered judgment.

The court of appeals affirmed the trial court's judgment, holding:

[I]n third-party actions under the Dram Shop Act in which there are no allegations of negligence on the part of the plaintiffs, a provider is vicariously liable for the damages caused by an intoxicated person, and such a provider is not entitled to offset its liability by that of the intoxicated person.

69 S.W.3d 800, 805. In reaching that conclusion, the court distinguished our decision in Sewell, in which we held that the comparative responsibility statute applied to dram-shop causes of action. Id. The court of appeals concluded that Sewell's holding was limited to first-party actions in which the intoxicated patron is suing for his own injuries and is inapplicable when the plaintiff is an innocent third party injured by an intoxicated patron. Id. at 805-06. The court also held that the trial court did not abuse its discretion in severing F.F.P.'s contribution claim against Ruiz, concluding that because F.F.P.'s statutory liability was vicarious and not direct, F.F.P. had an indemnity claim rather than a contribution claim against Ruiz. Id. at 807-08.

We granted F.F.P.'s petition for review. While the petition was pending, Xavier, Irene, and Ashley Duenez settled their claims against F.F.P. Only the claims of Pablo and Carlos Duenez against F.F.P. remain before the Court.

II. Statutory Interpretation

Statutory construction is a legal question that we review de novo, ascertaining and giving effect to the Legislature's intent as expressed by the plain and common meaning of the statute's words. Tex. Dep't of Transp. v. City of Sunset Valley, 146 S.W.3d 637, 642 (Tex.2004).

A. The Dram Shop Act

The Legislature enacted the Dram Shop Act to "deter providers of alcoholic beverages from serving alcoholic beverages to obviously intoxicated individuals who may potentially inflict serious injury on themselves and on innocent members of the general public." Sewell, 858 S.W.2d at 356. Section 2.02 of the Alcoholic Beverage Code sets forth the scope and elements of this action:

(a) This chapter does not affect the right of any person to bring a common law cause of action against any individual whose consumption of an alcoholic beverage allegedly resulted in causing the person bringing the suit to suffer personal injury or property damage.

(b) Providing, selling, or serving an alcoholic beverage may be made the basis of a statutory cause of action under this chapter and may be made the basis of a revocation proceeding under section 6.01(b) of this code upon proof that:

(1) at the time the provision occurred it was apparent to the provider that the individual being sold, served, or provided with an alcoholic beverage was obviously intoxicated to the extent that he presented a clear danger to himself and others; and

(2) the intoxication of the recipient of the alcoholic beverage was a proximate cause of the damages suffered.

TEX. ALCO. BEV.CODE § 2.02 (emphasis added).1 If a plaintiff meets the "onerous burden of proof" imposed by the Dram Shop Act, then the provider is liable for damages proximately caused by its employees or patrons. El Chico Corp. v. Poole, 732 S.W.2d 306, 314 (Tex.1987); see also TEX. ALCO. BEV.CODE § 2.03.2 In the Dram Shop Act, the Legislature created a duty, not recognized at common law, on alcohol providers and increased the potential liability of providers as a means of deterring providers from serving obviously intoxicated individuals. Historically, the "rule of non-liability" held that an alcohol provider owed no duty to third persons for injuries caused by the provision of alcohol. Sewell, 858 S.W.2d at 352; Poole, 732 S.W.2d at 310; see also Joel Smith, Annotation, Common-Law Right of Action for Damages Sustained by Plaintiff in Consequence of Sale of Gift of Intoxicating Liquor or Habit-Forming Drug to Another, 97 A.L.R.3d 528 (1980). Providers also were generally able to avoid liability because the consumption of alcohol, rather than its provision, was considered the sole proximate cause of injury to the patron and third persons. Poole, 732 S.W.2d at 309. Finally, even if the sale was a proximate cause of intoxication, injury was considered to be an unforeseeable result of the patron's intoxication. Id. The common law effectively precluded dram shops from incurring liability when their intoxicated patrons caused injury to third parties. Id.; see also Mata v. Schoch, 337 B.R. 135, 136 (Bankr.S.D.Tex.2005).

Relying on "modern analysis," in 1987 the Court in Poole discarded the "absolute rule of no liability" and imposed a duty on a dram shop not to serve alcoholic beverages to a person it knows or should know is intoxicated. Poole, 732 S.W.2d at 310. For the first time, the Court held that a provider of alcohol is negligent as a matter of law when he knowingly sells an alcoholic beverage to an intoxicated...

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