Sewell v. Smith, 05-90-01070-CV

• Citation: 819 S.W.2d 565
• Decision Date: 30 July 1991
• Docket Number: No. 05-90-01070-CV,05-90-01070-CV
• Parties: Randy SEWELL, Appellant, v. Frank SMITH, Individually and d/b/a Charley's Angels, Public Storage IX, Ltd., Public Storage Management, Inc., and Public Storage, Inc., Appellees.
• Court: Court of Appeals of Texas

Page 565

819 S.W.2d 565

Randy SEWELL, Appellant, v. Frank SMITH, Individually and d/b/a Charley's Angels, Public Storage IX, Ltd., Public Storage Management, Inc. and Public Storage, Inc., Appellees.

No. 05-90-01070-CV.

Court of Appeals of Texas Dallas.

July 30, 1991.

Rehearing Denied Nov. 15, 1991.

Jerome H. Ferguson, III, Dallas, for appellant.

L. Scot Dailey, Scott D. Weber and Gary S. Kessler, Dallas, for appellees.

Before BAKER, BURNETT and CHAPMAN, JJ.

OPINION

CHAPMAN, Justice.

Randy Sewell appeals from a summary judgment rendered in favor of Frank Smith, individually and d/b/a Charley's Angels (Smith), Public Storage Properties IX, Ltd. (P.S. Properties), Public Storage Management, Inc. (P.S. Management) and Public Storage, Inc. (P.S. Inc.). ¹ In five points of error, Sewell contends that the trial court erred in granting summary judgment for Smith because causes of action against Smith exist (1) under the Dram Shop Act; ² (2) for negligence; and (3) for negligence per se. In three additional points of error, Sewell contends the trial court erred in granting summary judgment for P.S. Properties, P.S. Management and P.S., Inc. because a cause of action existed for Sewell against them. In his last point of error, Sewell contends the trial court erred in granting summary judgment for P.S., Inc. because there was a fact issue as to whether it was in de facto management and control of the property in question.

A key issue on appeal is whether an intoxicated person may bring a first party cause of action against his server of alcohol for his own injuries. This issue presents a case of first impression. We affirm in part and reverse and remand in part.

FACTS

Sewell alleged that when he was 20, he became intoxicated at Smith's place of business, a bar called Charley's Angels. Smith's bartender served him four pitchers of beer. On his way home, he lost control of his car in a one-car collision and was severely injured. Sewell alleged three causes of action against Smith: (1) negligence; (2) negligence per se; and (3) liability under the Act. The trial court granted a partial summary judgment in Smith's favor on the ground that because the Act provided the exclusive remedy, the negligence and negligence per se claims were preempted by the Act. The trial court later granted final summary judgment in favor of Smith on the remaining cause of action on the ground that there is no cause of action for an intoxicated person to recover for his own injuries.

Against the P.S. Entities, Sewell alleged a cause of action for failing to take reasonable steps to ensure that Smith was not illegally serving alcoholic beverages to minors when the P.S. Entities knew or should have known of the existence of such activities and had the ability and legal right to control these actions. P.S. Properties moved for summary judgment on the ground that Sewell had no cause of action against it. P.S. Management moved for summary judgment on the ground that it did not owe Sewell a legal duty. P.S. Inc. moved for summary judgment on the ground that Sewell had no cause of action against it, that it owed no duty to Sewell and that it did not own the property at the time of the occurrence in question. The trial court granted the P.S. Entities' motions for summary judgment. At the time of the incident, P.S. Properties was the owner and P.S. Management the manager of the property on which the bar was located. P.S., Inc. was the owner of P.S. Management.

STANDARD OF REVIEW

When reviewing a summary judgment, we apply the following standards:

(1) The movant for summary judgment has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law.

(2) In deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the non-movant will be taken as true.

(3) Every reasonable influence must be indulged in favor of the non-movant and doubts resolved in his favor.

Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex.1985). A defendant moving for summary judgment assumes the burden of showing as a matter of law that the plaintiff had no cause of action against him. Citizens First Nat'l Bank v. Cinco Explor. Co., 540 S.W.2d 292, 294 (Tex.1976). The defendant must show there is no genuine issue of material fact as to one or more of the essential elements of the plaintiff's cause of action. Citizens, 540 S.W.2d at 294.

SERVER (SMITH)

1. Negligence and Negligence Per Se

In his first point of error, Sewell argues that the trial court erred in granting summary judgment for Smith on any of his motions. In his second, fourth and fifth points of error, Sewell contends that the trial court erred in granting summary judgment for Smith because a cause of action exists for Sewell against Smith for negligence, negligence per se and for serving alcohol to a minor. ³ The trial court held that Sewell had no cause of action against Smith for negligence or negligence per se because the Act provides the exclusive remedy. The Act provides:

§ 2.03 Statutory Remedy

The liability of providers under this chapter for the actions of their 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. This chapter does not impose obligations on a provider of alcoholic beverages other than those expressly stated in this chapter. This chapter provides the exclusive cause of action for providing an alcoholic beverage to a person 18 years of age or older.

TEX.ALCO.BEV.CODE ANN. § 2.03 (Vernon Supp.1991) (emphasis added).

The Austin Court of Appeals decided this contention adversely to Sewell. See Boyd v. Fuel Distributors Inc., 795 S.W.2d 266 (Tex.App.--Austin 1990, writ denied). In Boyd, the court held that the legislature meant what it said when it set forth the exclusive cause of action for providing alcohol to an intoxicated person 18 years of age and older. The court said the Act precludes a plaintiff's common law cause of action for negligence. Boyd, 795 S.W.2d at 273. We overrule Sewell's first, second, fourth and fifth points of error.

2. The Act

In point of error three, Sewell contends that the trial court erred in granting summary judgment for Smith because a cause of action existed for Sewell against Smith under the Act. The key issue to resolve is whether an intoxicated person may sue his server of alcohol in a first party action under the Act for injuries he suffered due to his own intoxication. The Act provides:

§ 2.01 Definitions

In this chapter:

(1) "provider" means a person who sells or serves an alcoholic beverage under authority of a license or permit issued under the terms of this code or who otherwise sells an alcoholic beverage to an individual....

§ 2.02 Causes of action

(b) ... [P]roviding, selling or serving an alcoholic beverage may be made the basis for 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 ANN. §§ 2.01, 2.02 (Vernon Supp.1991) (emphasis added). Section 2.02(b) speaks in terms of a statutory cause of action for selling an alcoholic beverage. The statute focuses its intent and express wording on the conduct of the "provider" of the alcoholic beverage. ALCO.BEV.CODE ANN. § 2.02(b). Nowhere in the statute does it preclude an action by the intoxicated person against the server for the intoxicated person's own injuries. The statute shows a legislative concern for the well-being of the intoxicated person in that it speaks of the person being a clear danger "to himself and others." ALCO.BEV.CODE § 2.02(b)(1) (emphasis added). The statute, by its very wording, indicates that the legislature may have contemplated a cause of action for the intoxicated person against the server. Further, the Texas Supreme Court has indicated that, at least at common law, there was such a cause of action. The Court suggested the same when it said, in dicta:

The duty [referring to the duty to exercise reasonable care to avoid forseeable injury to others] is the same whether the forseeable injury involves the drunkard himself or a third party who may be placed in peril because of the drunkard's condition.

See El Chico Corp. v. Poole, 732 S.W.2d 306, 312 (Tex.1987) (emphasis added). In any case, the statute does not definitely exclude such a cause of action. We hold that an intoxicated person does have a cause of action for his own injuries against the server of alcohol under the Act. ⁴

Smith argues that the language "to himself and others" was not meant to create a cause of action for the intoxicated person. Smith contends that this language was merely "lifted" from the public intoxication statute. See TEX.PENAL CODE ANN. § 42.08(a) (Vernon 1989). Smith argues that if the legislature intended to create such a cause of action, they would have provided for it in express language.

We are to liberally construe section 2.02 to achieve its purpose and to promote justice. TEX.GOV'T CODE ANN. § 312.006 (Vernon 1988). Although the intended plaintiffs...