Parker v. 20801, Inc.

• Citation: 194 S.W.3d 556
• Decision Date: 11 April 2006
• Docket Number: No. 14-05-00250-CV.,14-05-00250-CV.
• Parties: John L. PARKER, Appellant, v. 20801, INC., Appellee.
• Court: Texas Court of Appeals

194 S.W.3d 556

John L. PARKER, Appellant, v. 20801, INC., Appellee.

No. 14-05-00250-CV.

Court of Appeals of Texas, Houston (14th Dist.).

April 11, 2006.

Rehearing Overruled May 25, 2006.

Philip F. Klosowsky, Sugar Land, Barney L. McCoy, Houston, for appellant.

David P. Andis, Spring, Frank D. Lanter, Houston, for appellee.

Panel consists of Chief Justice HEDGES and Justices YATES and ANDERSON.

OPINION

ADELE HEDGES, Chief Justice.

Appellant John L. Parker appeals after the trial court granted summary judgment in favor of appellee 20801, Inc. ("20801").¹ In two points of error, appellant contends that the trial court's grant of summary judgment was improper because (1) Section 2.03 of the Texas Alcoholic Beverage Code does not preempt the common law causes of action asserted by appellant; and (2) appellee failed to establish the safe harbor affirmative defense contained in Section 106.14(a)(3) of the Texas Alcoholic Beverage Code. We affirm in part and reverse and remand in part.

Background

On November 19, 1999, appellant John L. Parker attended the grand opening of Slick Willie's Family Pool Hall, where he consumed alcoholic beverages throughout the evening. According to appellant, the bartender told him to "drink up" and the manager and employees gave him a number of drinks. During the evening, appellant encountered Anthony Griffin, the son of appellant's ex-girlfriend. Appellant and Griffin eventually became intoxicated and began to argue inside the pool hall. As a result, manager Craig Watson told appellant to leave and escorted him to the door. Watson went back inside the pool hall when he saw appellant walking toward a car.

A few minutes later, Griffin, his mother, and his girlfriend followed appellant outside. Watson observed appellant and Griffin conversing in an apparently civil manner. Before long, however, the previous argument recommenced. Griffin suddenly punched appellant, causing him to fall and strike his head on the pavement. The fall fractured appellant's skull and caused permanent brain damage.

Appellant sued 20801 under the Dram Shop Act.² See TEX. ALCO. BEV.CODE ANN. §§ 2.01, 2.03 (Vernon 2005); § 2.02 (Vernon Supp.2005); Smith v. Sewell, 858 S.W.2d 350, 359 n. 1 (Tex.1993) (Chapter 2 of the Texas Alcoholic Beverage Code is commonly known as the "Dram Shop Act"). Appellant alleged that 20801, its agents, servants, and employees were negligent in that "they provided, supplied, sponsored, encouraged, served and/or sold intoxicating alcoholic beverages and liquor to [appellant] and Griffin when they knew or should have known that they had become obviously intoxicated to such a degree as to present a clear danger to themselves and others, and such intoxication was a proximate cause of the damages suffered by [appellant]."

Appellant also pled a cause of action based on premises liability, alleging that the breach of 20801's duty to exercise reasonable care to protect him from Griffin's intentional and criminal conduct was the proximate cause of his injuries. Appellant alleged four specific ways in which 20801 and its agents, servants, and employees were negligent: (1) in telling appellant to leave the pool hall without regard for his safety in the parking lot; (2) in failing to demand that Griffin leave the premises before appellant was injured; (3) in failing to timely notify the police; and (4) in failing to warn appellant that Griffin was following him outside.

In its motion for summary judgment, 20801 argued that Section 2.03 of the Code preempts appellant's common law causes of action. Additionally, 20801 argued that it had complied with the safe harbor defense in Section 106.14 of the Code, which immunizes a commercial provider of alcoholic beverages from liability for its employees' provision of alcohol to an intoxicated customer if: (1) the employer requires employees to attend a commission-approved seller training program; (2) the employee has actually attended such a training program; and (3) the employer has not directly or indirectly encouraged the employee to violate such law. See TEX. ALCO. BEV.CODE ANN. § 106.14(a)(1)(a)(3) (Vernon 2005).

The trial court granted 20801's motion for summary judgment on February 1, 2005 without specifying the grounds therefore. On appeal, appellant specifically contends that (1) his premises liability claim is not preempted and (2) 20801 failed to establish that it did not directly or indirectly encourage its employees to violate the law.

Standard of Review

In a traditional motion for summary judgment, the movant has the burden to show that no genuine issue of material fact exists and that the movant is entitled to judgment as a matter of law. TEX.R. CIV. P. 166a(c); KPMG Peat Marwick v. Harrison County Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex.1999). In reviewing a grant of summary judgment, we take as true all evidence favorable to the nonmovant and make all reasonable inferences in the nonmovant's favor. Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546, 549 (Tex.1985). A defendant, as movant, is entitled to summary judgment if it (1) disproves at least one element of the plaintiff's theory of recovery; or (2) pleads and conclusively establishes each essential element of an affirmative defense, thereby rebutting the plaintiff's cause of action. Am. Tobacco Co., v. Grinnell, 951 S.W.2d 420, 425 (Tex.1997). An element is conclusively proved if ordinary minds could not differ as to the conclusion to be drawn from the evidence. Triton Oil & Gas Corp. v. Marine Contractors & Supply Inc., 644 S.W.2d 443, 446 (Tex.1982).

The nonmovant does not have a burden to respond to a traditional motion for summary judgment unless a movant establishes its right to judgment as a matter of law. Casso v. Brand, 776 S.W.2d 551, 556 (Tex.1989). If the movant has met its burden, it is incumbent upon the nonmovant to respond to the movant's evidence and to present contrary evidence sufficient to create a fact issue, or else risk an adverse ruling. Westland Oil Dev. Corp. v. Gulf Oil Corp., 637 S.W.2d 903, 907 (Tex.1982). When, as here, a trial court's order granting summary judgment does not specify the grounds relied upon, we must affirm summary judgment if any of the summary judgment grounds are meritorious. Oliphint v. Richards, 167 S.W.3d 513, 515-16 (Tex.App.-Houston [14th Dist.] 2005, pet. denied).

Preemption of Premises Liability Claim

In his first point of error, appellant contends that because he can simultaneously pursue both dram shop and premises liability causes of action, the trial court's grant of summary judgment in favor of 20801 was erroneous. We disagree.

Before the enactment of the Dram Shop Act in 1987, no cause of action existed against a provider of alcoholic beverages for injuries resulting from a patron's intoxication. Smith, 858 S.W.2d at 352; Steak & Ale of Tex., Inc., v. Borneman, 62 S.W.3d 898, 906 (Tex.App.-Dallas 2001, no pet.); Holguin v. Ysleta Del Sur Pueblo, 954 S.W.2d 843, 852 (Tex.App.-El Paso 1997, pet. denied). The Dram Shop Act provides that commercial providers of alcohol may be liable for the actions of their intoxicated customers if (1) it was apparent to the provider that the individual being sold, served, or provided with alcohol was obviously intoxicated to the extent that he presented a clear danger to himself and others and (2) the patron's intoxication was the proximate cause of the damages suffered. TEX. ALCO. BEV.CODE ANN. §§ 2.01(1), 2.02(b) (Vernon 2005); Smith, 858 S.W.2d at 352.³

The Dram Shop Act "provides the exclusive cause of action for providing an alcoholic beverage to a person 18 years of age or older."⁴ TEX. ALCO. BEV.CODE ANN. § 2.03(c) (Vernon 2005). The Act also states that "[the] liability of providers under this chapter for the actions of their employees, customers, members, or guests who are or become intoxicated is in lieu of common law or other statutory law warranties and duties of providers of alcoholic beverages." TEX. ALCO. BEV.CODE ANN. § 2.03(a) (Vernon 2005).

While no court has addressed preemption in the specific context of premises liability, courts clearly have held that the Act's exclusive remedy provision bars other common law actions against a statutorily liable provider. For example, in Southland Corp. v. Lewis, 940 S.W.2d 83, 84 (Tex.1997), plaintiff Dori Sue Lewis was injured in an automobile collision with a truck driven by Reed Bulaich. Bulaich, twenty-one, had been drinking at a party and then at a bar. Id. He then drove several friends to a 7-Eleven convenience store, where passenger Chris Ernemann bought more beer. Id. Bulaich did not enter the convenience store or consume any of the beer. Id. The accident occurred shortly after Bulaich and his friends left the convenience store. Id.

Lewis sued 7-Eleven and the bar under the Dram Shop Act. She also alleged that the defendants were negligent and negligent per se in providing alcohol to both Bulaich and Ernemann. Id. 7-Eleven moved for summary judgment on grounds that it had not proximately caused Lewis's damages and that the Act's exclusive remedy provision precluded Lewis's negligence and negligence per se claims. Id. The trial court granted summary judgment in favor of 7-Eleven on all claims without stating grounds therefore. Id. The court of appeals reversed and remanded, but the supreme court reversed and rendered judgment in favor of 7-Eleven. Id.

On the preemption issue, the supreme court held that "Lewis's negligence and negligence per se claims [were] clearly barred by the exclusive remedy provision of chapter 2 of the Texas Alcoholic Beverage Code." Quoting the statutory language, the court stated that "section 2.03 expressly precludes a negligence or negligence per se cause of action against a provider of alcohol when the purchaser is at least eighteen years of age." The court reasoned that summary judgment in favor of 7-Eleven was proper because both Ernemann and Bulaich were over eighteen years...