Smith v. Sewell
| Citation | 858 S.W.2d 350,36 Tex. Sup. Ct. J. 802 |
| Decision Date | 21 April 1993 |
| Docket Number | No. D-1990,D-1990 |
| Parties | Frank SMITH, Individually and d/b/a Charley's Angels et al., Petitioner, v. Randy SEWELL, Respondent. |
| Court | Supreme Court of Texas |
In this cause, we consider whether a provider of alcoholic beverages may be responsible for an intoxicated individual's injury to himself under Chapter 2 of the Alcoholic Beverage Code. After he was severely injured in an auto accident, Randy Sewell ("Sewell") sued Frank Smith, the operator and owner of a bar, and others under Chapter 2 of the Texas Alcoholic Beverage Code ("Chapter 2"). The trial court granted summary judgment for Smith and the others. The court of appeals reversed and remanded the trial court's summary judgment in favor of Smith, and affirmed the trial court's summary judgment in favor of the others. 819 S.W.2d 565. We hold that an individual who is provided, sold, or served alcoholic beverages in violation of Chapter 2 of the Alcoholic Beverage Code and injures himself may assert a cause of action against the provider. We further hold that the Comparative Responsibility Act--Chapter 33 of the Texas Civil Practice and Remedies Code--is applicable to Chapter 2 causes of action. Consequently, we affirm the judgment of the court of appeals.
Sewell became intoxicated at Charley's Angels, a bar owned and operated by Smith. Smith's bartender served Sewell four pitchers of beer. On his way home, Sewell lost control of his car and was severely injured in the resulting one-car accident. In 1989, Sewell sued Smith and alleged three causes of action: (1) negligence; (2) negligence per se; and (3) liability under Chapter 2. 1 Sewell also sued Public Storage Properties IX, Ltd. (the owners of the property on which Charley's Angels was located), and Public Storage, Inc. (the owner of Public Storage Management, Inc.) for failing to take reasonable steps to ensure that Smith was not illegally serving alcoholic beverages to minors when they knew or should have known of these activities and had the ability to control them.
The trial court granted summary judgment for Smith holding that no cause of action exists for an intoxicated individual to recover for his own injuries against the provider of the alcohol, and granted summary judgment for P.S. Properties, P.S. Management, and P.S. on the ground that no cause of action existed for Sewell against them. The court of appeals reversed and remanded the trial court's summary judgment in favor of Smith holding that Sewell has a cause of action for his own injuries against Smith under Chapter 2 of the Texas Alcoholic Beverage Code. The court of appeals affirmed the trial court's summary judgment for Smith concerning Sewell's negligence and negligence per se causes of action holding that Chapter 2 provided the exclusive cause of action for providing an alcoholic beverage to a individual 18 years of age or older. The court of appeals affirmed the trial court's summary judgment in favor of the P.S. entities.
Sewell argues that an individual who is provided, sold, or served alcoholic beverages in violation of Chapter 2 of the Alcoholic Beverage Code and injures himself may assert a cause of action against the provider. We agree.
Historically, an individual who voluntarily became intoxicated was precluded from suing a tavern owner for his own injuries. 1 J. MOSHER, LIQUOR LIABILITY LAW § 2.02[a](1990). At common law a purveyor of alcohol was not liable for damages sustained by innocent third persons resulting from a patron's intoxication. 48A C.J.S. Intoxicating Liquors § 428 (1981). This common law rule of non-liability has in recent times been disregarded in relation to third persons injured by an intoxicated person. El Chico Corp. v. Poole, 732 S.W.2d 306, 310 (Tex.1987). Many states have enacted dram shop acts which provide third parties with a cause of action for their injuries against the provider of alcoholic beverages. 2 However, a majority of these jurisdictions do not permit an intoxicated individual to sue the provider of alcoholic beverages for his own injuries. 3 While this Court has not directly addressed the liability of providers of alcoholic beverages for injuries suffered by the intoxicated recipients of the alcoholic beverages, we have examined the liability of providers of alcohol for injuries inflicted on third parties by intoxicated individuals. In El Chico Corp. v. Poole, 732 S.W.2d 306 (Tex.1987), this Court created a common law cause of action against a provider of alcoholic beverages in favor of a third party injured by the intoxicated consumer of alcohol. 4
Two days prior to our decision in El Chico, the legislature enacted Chapter 2 of the Alcoholic Beverage Code. 5 Chapter 2 establishes a cause of action against providers of alcohol under certain limited circumstances. 6 6 A cause of action may be asserted against a provider of alcoholic beverages if (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 § 2.02. Chapter 2 provides the exclusive cause of action for providing an alcoholic beverage to a person 18 years of age or older, and liability under this chapter is in lieu of common law or other statutory law warranties or duties of providers. TEX.ALCO.BEV.CODE § 2.03; Boyd v. Fuel Distributors, Inc., 795 S.W.2d 266, 273 (Tex.App.--Austin 1990, writ denied).
In enacting Chapter 2, the legislature has recognized that providers of alcoholic beverages owe a duty to those who may be injured due to the consumption of those alcoholic beverages. Section 2.02(b) establishes the standard of conduct by which the liability of the provider of alcoholic beverages is judged. See Restatement (Second) of Torts § 286. A provider of alcoholic beverages is under a statutory duty to refrain from providing alcohol to an individual when it is apparent to the provider that the individual is obviously intoxicated to the extent that he presents a clear danger to himself and others.
We must decide in this case if the duty owed by the provider under the statute extends to the recipient of the alcohol, and if the recipient may assert a cause of action for his own injuries resulting from the breach of this duty. Texas follows the rule that statutes in derogation of the common law are not to be strictly construed. See TEX.GOV'T.CODE § 312.006(b). Nevertheless, it is recognized that if a statute creates a liability unknown to the common law, or deprives a person of a common law right, the statute will be strictly construed in the sense that it will not be extended beyond its plain meaning or applied to cases not clearly within its purview. Dutcher v. Owens, 647 S.W.2d 948, 951 (Tex.1983); Satterfield v. Satterfield, 448 S.W.2d 456, 459 (Tex.1969).
The plain meaning of Chapter 2 was to authorize a cause of action for "[p]roviding, selling, or serving an alcoholic beverage ... [to an individual when the individual] provided with an alcoholic beverage was obviously intoxicated to the extent that he presented a clear danger to himself and others." (Emphasis added). The legislature did not indicate plainly which parties could assert the cause of action. Neither first party nor third party actions were specifically included or excluded. 7 However, liability under Chapter 2 is premised on the conduct of the provider of the alcoholic beverages--not the conduct of the recipient or a third party. The conduct for which the provider may be held liable under Chapter 2 is the same conduct regardless of whether the intoxicated individual injures himself or a third party. 8 Furthermore, Chapter 2 evinces a legislative concern for the well-being of the intoxicated individual when it speaks of the person being a clear danger "to himself and others." Consequently, we conclude that an individual who is provided, sold, or served alcoholic beverages in violation of Chapter 2 of the Alcoholic Beverage Code and injures himself may assert a cause of action against the provider. 9
Our determination that the intoxicated individual may bring a cause of action for his own injuries does not mean that he will always recover damages from the provider. A finding that a provider of alcoholic beverages violated Chapter 2 does not establish liability; it only subjects the provider to possible liability. Under Chapter 2, the intoxication of the recipient must be a proximate cause of the damages. TEX.ALCO.BEV.CODE § 2.02(b).
Sewell argues that Chapter 33 of the Texas Civil Practice and Remedies Code--the Comparative Responsibility Act--is not applicable to an intoxicated individual's recovery under Chapter 2. We disagree.
The Act provides, in part:
(a) In an action to recover damages for negligence resulting in personal injury, property damage, or death or an action for products liability grounded in negligence, a claimant may recover damages only if his percentage of responsibility is less than or equal to 50 percent.
* * * * * *
(c) In an action in which a claimant seeks damages for harm other than personal injury, property damage, or death, arising out of any action grounded in negligence, including but not limited to negligence relating to any professional services rendered by an architect, attorney, certified public accountant, real estate broker or agent, or engineer licensed by this state, a claimant may recover damages only if his percentage of responsibility is less than or equal to 50 percent.
TEX.CIV.PRAC. & REM.CODE § 33.001(a), (c) (emphasis added). The Act was passed as part of...
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