I-Gotcha, Inc. v. McInnis

• Decision Date: 13 July 1995
• Docket Number: I-GOTCH,No. 2-94-127-CV,INC,2-94-127-CV
• Citation: 903 S.W.2d 829
• Parties: d/b/a Wranglers, Appellant, v. Melissa McINNIS, Individually, John Allen McInnis, Sr., Individually, and Melissa McInnis and John Allen McInnis, Sr. as the Heirs and Representatives of the Estate of John Allen McInnis, Jr., Deceased, and Jeffrey Elder, Appellees.
• Court: Texas Court of Appeals

Page 829

903 S.W.2d 829

I-GOTCHA, INC. d/b/a Wranglers, Appellant, v. Melissa McINNIS, Individually, John Allen McInnis, Sr. Individually, and Melissa McInnis and John Allen McInnis Sr. as the Heirs and Representatives of the Estate of John Allen McInnis, Jr., Deceased, and Jeffrey Elder, Appellees.

No. 2-94-127-CV.

Court of Appeals of Texas Fort Worth.

July 13, 1995.

Rehearing Overruled Sept. 7, 1995.

John L. Gamboa, Acuff, Gamboa & Moore, L.L.P., Fort Worth, for appellant.

Carol Ann Carson, John S. Jose, Jose, Henry & Brantley, Clay B. Peebles, Peebles, Betty & Brantley, Fort Worth, for appellees.

Before PAT McCLUNG, J. (Retired), and BILL J. STEPHENS, J. (Assigned).

OPINION

STEPHENS, Justice, Assigned.

Melissa McInnis, John Allen McInnis, Sr., individually and as heirs and representatives of the estate of John Allen McInnis, Jr. ("John"), and Jeffrey Elder ("Jeff") sued I-Gotcha, Inc. d/b/a Wranglers ("I-Gotcha") under certain provisions of the Texas Alcoholic Beverage Code and the Texas Wrongful Death Statute. The jury awarded John's parents and Jeff actual damages and punitive damages. The jury attributed forty-nine percent (49%) of the negligence to John and Jeff and fifty-one percent (51%) of the negligence to I-Gotcha. The jury's actual damage findings were reduced accordingly.

Appellant presents thirteen points of error on appeal. We disagree with each point of error, and accordingly, we affirm the judgment of the trial court.

THE ACCIDENT

John had always been a popular child who enjoyed being around other people. He and his brother, Jeff McInnis, were the center of their parents', John Allen McInnis, Sr. and Melissa McInnis, lives. During July 1990, John was on summer break preparing for his senior year at Arlington Heights High School. John had always been very involved in sports. He showed promise in both baseball and football; he played catcher for the baseball team and quarterback for the football team. John intended to go to college, and his father believed John had a good chance to play college football or baseball.

On the night of July 12, 1990, after John got off of work, he went to the home of Chad Arnett ("Chad"), arriving around 10:30 p.m. John was drinking a cup of beer when he arrived. John changed from his work shirt into blue cut-offs, a white T-shirt, athletic socks, and Nikes. Jeff and several other friends were already at Chad's house watching television. Jeff had been at Chad's house since around 8:00 p.m. and had been drinking beer.

Chad, Jeff, and John decided to go to Wranglers Club ("Wranglers"), a topless bar in west Fort Worth. Neither John nor Jeff had been to Wranglers before. Chad, however, had been to Wranglers three to five times in the prior year, though he could not remember the exact dates or with whom he went. Both Jeff and Chad testified they went to Wranglers to drink because they knew it to be a place where minors could get in. Chad explained, "A lot of kids from [Arlington Heights] high school went there and drank on the weekends late at night" because Wranglers had a reputation for being an easy place for minors to get in. In addition, Jeff had never been to a topless bar and thought it would be fun to go. By the time the trio left for Wranglers, Jeff had consumed about a six-pack of beer, and John had consumed approximately a twelve ounce cup of beer.

At trial, Chad indicated he understood he was admitting to criminal behavior, but testified that John, Jeff, and he went to Wranglers the night of July 12, 1990. Jeff testified they got to the bar around midnight, earlier than Chad's recollection. As they entered the door at Wranglers, there was a small booth in which a club employee sat. At the booth, John paid his money and walked in. Both Chad and Jeff testified that John entered Wranglers without presenting any type of identification. Further, John told Chad that he did not have a fake ID before they left Chad's house to go to the bar. Chad was asked for identification when he entered the bar, and Jeff, following Chad, went ahead and pulled out his ID without being asked for it. Chad and Jeff both used fake IDs to get into Wranglers. Chad testified that it was well-known just about any ID, no matter how bad, would gain you admittance into Wranglers. Chad's ID "was basically a piece of paper with [his] name on it." Jeff's ID read "Arkansas Department of Identification" on the front, and on the back appeared the words "[t]his is not a real ID. This is a novelty item." The ID had Jeff's picture on it and his correct day of birth, but had a different year of birth so that he appeared to be twenty-one. The employee in the booth "just glanced at" Jeff's ID. Jeff explained that the boys "had to go around that little kind of partition right there. Then you walked in, you were in the club, and we walked straight to the bar on the back wall."

Once they were inside Wranglers, the trio were not surprised when they saw other high school students in Wranglers whom they recognized--"It was common to see other people there you knew when you went." Chad saw another high school student from Arlington Heights and five or six kids from Paschal High School. Jeff saw Michael Ryatt and several other people younger than him, either sophomores or juniors from Arlington Heights High School whose faces he recognized, but whose names he did not know. Jeff also saw several students from Paschal High School. All of the high school kids congregated in the same vicinity of the bar. There were about a dozen other patrons in the club that night. At trial, Chad drew the layout of Wranglers and indicated that the group sat by the stage.

Once in the club, the three boys went to the bar. Jeff ordered a beer, while John and Chad both ordered a drink with tequila. Chad said they were shots and Jeff was unsure whether it was a margarita or a straight shot of tequila. The trio ordered from the same bartender, and none of the three were asked for ID. The other high schoolers were also consuming alcohol, and Jeff never saw a waitress or bartender ask them for ID. Jeff just had a few beers while he was there because he "was broke," but he never saw John "without a drink in his hand." Jeff saw John with both beer and tequila, and he observed John take three shots. Chad testified John had four or more tequila shots and about five beers. While at the bar, Jeff noticed John was "kind of slurring his speech a little bit, and his eyes were getting kind of squinty." Chad admitted that they were all drunk and were drinking quite a bit of alcohol, but he could not remember if the group was "boisterous" while they were in the club or when they were leaving.

Around closing time, some of the personnel of the bar were trying to clear the bar out. No one at Wranglers tried to call a cab for the boys, told them John should not be driving, asked if they had a designated driver, or offered coffee or soft drinks and time to sober up. It never crossed Chad's mind to call a cab, even though none of them were sober enough to drive. They left the bar around 2:00 a.m. to go to Chad's house. Chad could not remember much of anything about the ride back to his house. Jeff testified they went down Camp Bowie and John was speeding. Chad's house was five or six miles from the bar.

Chad testified that all three of the boys were intoxicated at that point, but both Chad and Jeff testified that John did not consume any more alcohol after leaving Wranglers. John and Jeff dropped Chad off, stayed in the yard for a while "shooting the bull," and left. Chad testified John stayed in the yard for about half an hour, but Jeff testified they stayed at Chad's house for only about fifteen minutes. Chad did not see or notice anyone falling down or throwing up while they stood in the yard. John never got out of the car during this time. Jeff got back in the car with John to go home.

When Jeff and John got on the highway, John was speeding down I-30 West. Jeff told him to slow down, but John did not reply. Jeff wanted him to slow down and stop so that he could drive instead of John, but he ran out of time. As the red Acura was speeding around the bridge at the I-30/820 Interchange, John began to lose control of the Acura and it started to fishtail. As the car ran up against the guard rail, John turned the car quickly. The car flipped over three times, bounced off the side of the bridge, and landed in the grass. Jeff first noticed his hand, which had been out the window when John lost control of the car, was injured. Then Jeff realized that John was not in the car, and found where he had been thrown. Jeff ran down 820 trying to flag somebody down, but no one would stop. He continued to run and eventually stopped at a Whataburger in Benbrook where someone called the emergency vehicles. Jeff was taken to the hospital. Three of his fingers were nearly amputated and required surgery. Jeff testified he told his parents that he was at Wranglers that night, but he never told anyone else that they had been at Wranglers.

The wreck occurred ten to twelve miles from Chad's house. John died at 2:51 a.m. on July 13, 1990, of multiple blunt force impact fractures to his skull. The Tarrant County Medical Examiner originally identified him by the only ID he had on him, a valid Texas Driver's License that showed him to be seventeen years old. Angela Springfield, the chief toxicologist for the Tarrant County Medical Examiner's Office, testified John had a blood alcohol level of .38 grams per hundred milliliters of blood at the time of his death, nearly four times the legal level for intoxication. This level would have been close to "alcohol poisoning." She testified John would have had a blood alcohol level between .30 and .38 while at Wranglers and that he would have been exhibiting slurred speech, an uneven gait or staggering, and expansive movements during that time.

At the time of trial, Jeff was doing a little work as a ranch hand...