S & A Beverage Co. of Beaumont, No. 2 v. DeRouen
| Decision Date | 30 June 1988 |
| Docket Number | No. 09-87-082,09-87-082 |
| Citation | 753 S.W.2d 507 |
| Parties | S & A BEVERAGE COMPANY OF BEAUMONT, NO. 2 d/b/a Bennigan's Tavern and Steak & Ale of Texas, Inc., Appellants, v. Rachel DeROUEN, Appellee. CV. |
| Court | Texas Court of Appeals |
Appellee, Rachel DeRouen, was a customer at Bennigan's Tavern which was owned and operated by appellants. Ms. DeRouen, just prior to leaving, went to the ladies' room where she was sexually assaulted by Bobby Earl Johnson, who was also a patron of the establishment. Appellee filed suit for personal injuries, and the jury found appellants negligent and awarded damages of $75,000. Appellants appeal the judgment entered in accordance with the jury's findings.
Point of error number one complains of the trial court's submission of special issue 1.c.
"PROXIMATE CAUSE" means that cause which, in a natural and continuous sequence, unbroken by any new and independent cause, produces an event, and without which cause such event would not have occurred; and in order to be a proximate cause, the act or omission complained of must be such that a person using ordinary care would have foreseen that the event, or some similar event, might reasonably result therefrom. There may be more than one proximate cause of an event.
Do you find from a preponderance of the evidence that on the occasion in question Bennigan's was negligent in failing to properly supervise and/or control the premises, failing to have adequate security, failing to refuse service to Bobby Johnson. Answer "Yes" or "No" on each line in Column 1. If any of your answers in Column 1 are "Yes", was any such negligence a proximate cause of the occurrence in question?
Answer "Yes" or "No" on the corresponding line of Column 2.
Column 1 Column 2
Negligence Proximate Cause
a. Supervision or control Yes No
---------------------- ----------
b. Adequate security No --
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c. Refusing Service Yes Yes
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APPELLANTS' REQUESTED ISSUES
SPECIAL ISSUE NO. ___
On the occasion in question, was there inadequate security or inadequate supervision or failing to refuse service JWB [italicized portions interlineated by appellants' counsel] at Bennigan's?
ANSWER: Yes or No
_______________
If you have answered Special Issue No. ___ "yes", and only in that event, then answer Special Issue No. ___.
SPECIAL ISSUE NO. ___
Did Bennigan's know, or in the exercise of ordinary care should have known, that the security or supervision or fail to refusing [sic] service JWB at Bennigan's was inadequate.
ANSWER: Yes or No
_______________
If you have answered Special Issue No. ___ "yes", and only in that event, then answer Special Issue No. ___.
SPECIAL ISSUE NO. ___
Was Bennigan's failure to correct the inadequate security and supervision or fail to refusing [sic] service JWB negligent?
ANSWER: Yes or No
_______________
If you have answered Special Issue No. ___ "yes", and only in that event, then answer Special Issue No. ___.
SPECIAL ISSUE NO. ___
Was that negligence a proximate cause of the occurrence in question?
ANSWER: Yes or No
_______________
You are instructed that: "NEW AND INDEPENDENT CAUSE" means the act or omission of a separate and independent agency, not reasonably foreseeable, which destroys the casual connection, if any, between the act or omission inquired about the occurrence in question, and thereby becomes the immediate cause of such occurrence.
Do you find from a preponderance of the credible evidence that Bennigan's knowingly served an alcoholic beverage or alcoholic beverages to Bobby Earl Johnson when he was intoxicated.
1. The Court has erred in failing to submit the-the [sic] "offered instruction and definition on new and independent cause." Your defendant would respectfully submit the Nixon and Wolf Opinions on point as both cases and this case concerns the criminal act of third parties on premises.
2. Your defendant would object to the submission of Special Issue No. 1 as it is a double and triple submission of the same concept, namely: Whether or not Bennigan's failed to provide the plaintiff, Rachel Derouen with a reasonably safe place to eat and drink.
3. Your defendant would further object to the submission of Special Issue No. 1 as there is no evidence or in the alternative insufficient evidence to support the submission of same.
4. Your defendant would specifically object to the submission of Special Issue 1(c) which is "Refusing service" as that is nothing more than a submission of "Dram Shop" as he enunciated by the Pool vs. El Chico decision, as the Pool vs. El Chico decision is quite clear that it is purely objective and must be knowingly on the part of Bennigan's. And, number two, the duty only is owed to the motoring public.
....
7. Your defendant further objects to Special Issue No. 1 as it aside from being a double submission does not follow the pattern jury charge and as stated earlier should be submitted as a one concept issue. Your defendant further objects to the denial of the Court, of its pro-offered [sic] issues in line with the above objections.
Appellants urge that the issue as submitted was not in substantially correct form. Appellants thoroughly analyze the court of appeals holdings in Poole v. El Chico Corp., 713 S.W.2d 955 (Tex.App.--Houston [14th Dist.] 1986), aff'd, 732 S.W.2d 306 (Tex.1987), and Evans v. Joleemo, Inc., 714 S.W.2d 394 (Tex.App.--Corpus Christi 1986), aff'd, 732 S.W.2d 306 (Tex.1987), as well as our supreme court's opinion in both of the cases. Appellants' arguments go to the substance of the issues, i.e., duty, knowing or should have known of the intoxicated patron, and the applicability of "dram shop liability" in non-motoring cases. We need not address these substantive problems, under this point however. A party cannot complain on appeal when the issues or instructions given the jury are substantially the same as those requested by appellants. Dailey v. Wheat, 681 S.W.2d 747, 757 (Tex.App.--Houston [14th Dist.] 1984, writ ref'd n.r.e.); American Motorists Ins. Co. v. Ellison, 364 S.W.2d 83 (Tex.Civ.App.--Waco 1962, writ ref'd n.r.e.). The only difference between the issue submitted and the issues proffered by appellants is that the court's issues are combined issues. Because appellants' requested issues are in substantially the same form as those submitted to the jury, appellants cannot now complain. Point of error number one is overruled.
Appellants argue under points of error two and three that the trial court should have granted their motion for directed verdict and motion for judgment n.o.v. because the sexual assault of Ms. DeRouen by Bobby Johnson was unforeseeable and a superseding cause as a matter of law. Although the negligence of appellant was ultimately based upon the duty an alcoholic beverage licensee owes the general public not to serve alcoholic beverages to certain persons, appellants argue that El Chico Corp. v. Poole, 732 S.W.2d 306 (Tex.1987) does not apply because El Chico only applies to cases involving the "motoring public." We disagree. While Justice Spears alluded to motor vehicles and driving while intoxicated, he stated clearly and without reservation:
Based on both common law negligence principles and a violation of sec. 101.63(a), we hold an alcoholic beverage licensee owes a duty to the general public not to serve alcoholic beverages to a person when the licensee knows or should know the patron is intoxicated. A licensee who violates that duty by serving alcoholic beverages to an intoxicated person is negligent as a matter of law. Whether a licensee breached his duty and whether that breach proximately caused a plaintiff's injuries are issues of fact for a jury to resolve.
Id. at 314. He went on to say this about foreseeability:
Foreseeability, the second element of proximate cause, means the actor as a person of ordinary intelligence should have anticipated the dangers his negligent act creates for others. Nixon, 690 S.W.2d at 550; [Missouri Pacific Railroad Company v.] American-Statesman, 552 S.W.2d at 103. Foreseeability does not require the actor anticipate the particular accident, but only that he reasonably anticipate the general character of the injury. Nixon.
Id. at 313. The El Chico court recognized the general rule of superseding criminal conduct in stating:
Generally, a person's criminal conduct is a superseding cause extinguishing liability of a negligent actor. ... The tortfeasor's negligence, however, is not superseded when the criminal conduct is a foreseeable result of the negligence. Nixon, at 550.
Earlier in Nixon v. Mr. Property Management Co., 690 S.W.2d 546 (Tex.1985), the court had quoted with approval the RESTATEMENT (SECOND) OF TORTS sec. 448 (1965):
The act of a third person in committing an intentional tort or crime is a superseding cause of harm to another resulting therefrom, although the actor's negligent conduct created a situation which afforded an opportunity to the third person to commit such a tort or crime, unless the actor at the time of his negligent conduct realized or should have realized the likelihood that such a situation might be created, and that a third person might avail himself of the...
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