Poole v. El Chico Corp., C14-85-512-CV

• Citation: 713 S.W.2d 955
• Decision Date: 12 June 1986
• Docket Number: No. C14-85-512-CV,C14-85-512-CV
• Parties: A. Bryan POOLE, et ux, Individually, and as Heirs of the Estate of Larry Bryan Poole, Appellants, v. EL CHICO CORPORATION, Appellee. (14th Dist.)
• Court: Court of Appeals of Texas

Page 955

713 S.W.2d 955

A. Bryan POOLE, et ux, Individually, and as Heirs of the Estate of Larry Bryan Poole, Appellants, v. EL CHICO CORPORATION, Appellee.

No. C14-85-512-CV.

Court of Appeals of Texas,

Houston (14th Dist.).

June 12, 1986.

Rehearing Denied July 17, 1986.

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

Charles W. Lyman, James D. Ebanks, Gressel, Stone, Barker & Lyman, Houston for appellees.

Daniel M. McClure, Fulbright & Jawarski, Houston, for intervenor.

David Crump, Houston, Mary Joe Carroll, Austin, for amicus curiae.

Before JUNELL, DRAUGHN and ELLIS, JJ.

OPINION

JUNELL, Justice.

Mr. and Mrs. A. Bryan Poole appeal the entry of a summary judgment in favor of El Chico Corporation. In their suit, brought under the Texas Wrongful Death Act, they allege that El Chico restaurant employees negligently sold drinks to an intoxicated person, and as a result, their son was killed in an automobile accident. El Chico successfully moved for summary judgment by arguing that Texas law recognizes no duty on the part of a bar owner to the motoring public for injuries that may be caused by patrons who are sold drinks after becoming intoxicated. We reverse the summary judgment and hold that such a duty must be recognized.

The summary judgment evidence shows that on January 21, 1983, Rene Saenz drove with a friend to the El Chico restaurant located in the Northwest Mall in Houston to have drinks. They arrived sometime around 5 p.m. during happy hour, when drinks were priced at two for one. At the time of his deposition a year and seven months after the accident, Saenz said that he remembered arriving at El Chico and getting his first drink. The next thing he remembered was the impact of the crash. He remembered nothing about his time spent at El Chico or when or how he left. Police reports, including sworn written statements of witnesses to the crash, are part of the unobjected-to summary judgment evidence. Those reports indicate that Saenz told police officers that he left El Chico at approximately 7:45 p.m. At about 8 p.m. Saenz was proceeding at a high rate of speed north on Mangum Road and ran a red light at the intersection of Mangum and the Northwest Freeway service road. His car struck a car driven by Larry Poole as Poole was turning left, in front of Saenz, onto the service road. There were no skid marks before the point of impact. One witness stated that Saenz did not even try to stop. Poole was dead on arrival at Hermann Hospital after being transported there by Life Flight LD helicopter.

The police reports indicate that officers investigating the accident found that Saenz had a strong odor of alcohol on his breath, he was wobbling and swaying and his speech was mumbled. Saenz told officers he had been drinking "a lot" of scotch and waters at El Chico. The accident occurred about three to five blocks from the El Chico restaurant.

Saenz was arrested for DWI. Later in the evening he was given a breathalyzer test that resulted in a reading of .18 percent alcohol concentration level. Under current law, a driver is presumed to be intoxicated when he exhibits a .10 percent blood, breath, or urine alcohol concentration. Tex.Rev.Civ.Stat.Ann. art. 6701l-1 (Vernon Supp.1986). Saenz later pled guilty to involuntary manslaughter. He was also a defendant in the Pooles' suit. The cause against El Chico was severed after the summary judgment was entered.

The principal allegation in the Pooles' petition is that El Chico employees violated section 101.63(a) of the Texas Alcoholic Beverage Code when they sold alcoholic beverages to Saenz when they knew or should have known that Saenz was intoxicated. They allege that this act and others amounted to negligence, gross negligence and negligence per se.

The code reads: "A person commits an offense if he knowingly sells an alcoholic beverage to an habitual drunkard or an intoxicated or insane person." Tex.Alco.Bev.Code Ann. § 101.63(a) (Vernon 1978).

The basis of El Chico's motion for summary judgment is that El Chico, as a restaurant and bar operator, owed no duty to the decedent, a Texas motorist, to protect him from the off-premises torts of its patrons.

In order to establish tort liability, plaintiffs must initially prove the existence and breach of a duty owed to them by the defendant. Abalos v. Oil Development Co., 544 S.W.2d 627, 631 (Tex.1976).

We agree with El Chico that the Texas Alcoholic Beverage Code does not provide the Pooles a statutory cause of action against those who violate section 101.63(a). However, this court need not and should not ignore section 101.63(a) in deciding whether El Chico owed a duty to Larry Poole to protect him from a patron's drunken driving.

For years the courts of this state have looked to criminal statutes as standards for determining tort liability. The most common example is the doctrine of negligence per se, which arises when a civil court adopts a statutory test rather than that of an ordinarily prudent man as the more accurate test to determine negligence. Rudes v. Gottschalk, 159 Tex. 552, 324 S.W.2d 201, 204 (1959). The unexcused violation of a penal statute constitutes negligence as a matter of law if the statute was designed to prevent injuries to a class of persons to which the injured party belongs. Murray v. O & A Express, Inc., 630 S.W.2d 633, 636 (Tex.1982).

We need not decide here whether the unexcused violation of section 101.63(a) would amount...