Steak & Ale of Texas v. Borneman

• Decision Date: 06 December 2001
• Docket Number: No. 2-97-046-CV,2-97-046-CV
• Parties: (Tex.App.-Fort Worth 2001) STEAK & ALE OF TEXAS, INC., D/B/A BENNIGAN'S, APPELLANT v. LEA BORNEMAN, APPELLEE
• Court: Texas Court of Appeals

Page 898

62 S.W.3d 898 (Tex.App.-Fort Worth 2001)

STEAK & ALE OF TEXAS, INC., D/B/A BENNIGAN'S, APPELLANT v. LEA BORNEMAN, APPELLEE

No. 2-97-046-CV

Court of Appeals of Texas, Fort Worth

December 6, 2001.

Rehearing Overruled January 10, 2002

FROM THE 236TH DISTRICT COURT OF TARRANT COUNTY

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

PANEL B:DAY, LIVINGSTON, and GARDNER, JJ.

OPINION ON REMAND

ANNE GARDNER, JUSTICE

This is a dram shop case. We previously determined that the trial court erred in submitting the dram shop causation question because the question did not track the statutory causation standard. Because we held that the submitted question omitted an element of appellee Lea Borneman's cause of action and she failed to object, we reversed the trial court's judgment and rendered judgment in favor of Steak and Ale of Texas, Inc. d/b/a Bennigan's. Steak & Ale v. Borneman, No. 2-97-046-CV, slip op. at 7, (Tex. App. Fort Worth Aug. 31, 1998) (not designated for publication), rev'd, 22 S.W.3d 411, 413 (Tex. 2000). The supreme court agreed that the charge was erroneous, but held that we should not have rendered judgment because the error was a defect, not an omission. Borneman v. Steak & Ale, 22 S.W.3d 411, 413 (Tex. 2000). The supreme court remanded the case to us for consideration of points not addressed in our prior opinion.

Remaining Points

According to the supreme court's holding, Bennigan's is entitled to a new trial because of the defective jury question concerning causation. Bennigan's first point, which raises a no-evidence challenge to the jury's liability finding, is the only point under which we could afford Bennigan's greater relief than the supreme court has granted because if Bennigan's prevailed, we would render judgment for Bennigan's, thereby obviating the necessity of a new trial. Tex. R. App. P. 43.3; Vista Chevrolet, Inc. v. Lewis, 709 S.W.2d 176, 176 (Tex. 1986) (quoting Nat'l Life Accident Ins. Co. v. Blagg, 438 S.W.2d 905, 909 (Tex. 1969)). As discussed below, the evidence is legally sufficient to support the jury's liability finding, so we will remand the case for a new trial. Generally, we would not address Bennigan's remaining points because to do so at this juncture, before the new trial, would be advisory. Patterson v. Planned Parenthood, 971 S.W.2d 439, 443 (Tex. 1998) (holding state courts are not empowered to give advisory opinions). However, because the disposition of points six, eight, and nine, which complain of another jury instruction and the exemplary damages award, is critical to the correct re-trial of this case, we also address those points.

Evidence of Liability

In its first point, Bennigan's asserts that the trial court erred in overruling Bennigan's motion for judgment notwithstanding the verdict because there was no evidence to support the jury's answer to the dram shop liability question. That question stated:

On or about the date of the occurrence in question, did STEAK & ALE OF TEXAS, INC. D/B/A BENNIGAN'S provide, sell, or serve alcoholic beverages to NEHEMIAH FRANKLIN when it was apparent to BENNIGAN'S that NEHEMIAH FRANKLIN was obviously intoxicated to the extent that he presented a clear danger to himself and others?

The jury answered "yes."

In determining a "no-evidence" point, we are to consider only the evidence and inferences that tend to support the finding and disregard all evidence and inferences to the contrary. Continental Coffee Prods. v. Cazarez, 937 S.W.2d 444, 450 (Tex. 1996); In re King's Estate, 150 Tex. 662, 244 S.W.2d 660, 661 (1951). Legally sufficient evidence exists if there is more than a scintilla of such evidence to support the finding. Cazarez, 937 S.W.2d at 450; Leitch v. Hornsby, 935 S.W.2d 114, 118 (Tex. 1996).

In order to hold a provider of alcoholic beverages liable under the alcoholic beverage code, a plaintiff must prove: 1) at the time that the provider sold or served the alcohol it was apparent to the provider that the recipient was obviously intoxicated to the extent that he presented a clear danger to himself and others, and 2) the intoxication of that individual proximately caused the damages suffered. Tex. Alco. Bev. Code Ann. § 2.02(b) (Vernon 1995); Southland Corp. v. Lewis, 940 S.W.2d 83, 84-85 (Tex. 1997). The test is an objective one. Fay-Ray Corp. v. Tex. Alco. Bev. Comm'n, 959 S.W.2d 362, 366 (Tex. App. Austin 1998, no pet.). Because Borneman had the burden of proof on this issue at trial, Bennigan's must show there is no evidence or, at most, no more than a scintilla of evidence to support this finding. Cazarez, 937 S.W.2d at 450; I-Gotcha, Inc. v. McInnis, 903 S.W.2d 829, 838 (Tex. App. Fort Worth 1995, writ denied).

Lea Borneman was injured in a one-car accident on August 24, 1991. Nehemiah Franklin was driving the car, Michael Nimon was the front-seat passenger, and Borneman and another woman were back-seat passengers. Franklin and Nimon had been drinking at Bennigan's prior to the accident. Bennigan's contends that there is no evidence that Franklin was obviously intoxicated to the extent that he provided a clear danger to himself and others or, if he was, that this level of intoxication was apparent to Bennigan's at the time Franklin was served alcohol.

Franklin and Nimon arrived at Bennigan's between 7:00 and 8:00 p.m. and remained there until last call at midnight. Both were twenty years old, which is below the legal drinking age. Bennigan's did not ask them for identification. They both conceded they went to Bennigan's for the purpose of getting drunk and claimed to have gotten drunk at Bennigan's on other occasions.

They did not sit in the bar area because Nimon is confined to a wheelchair and the bar area is not wheel-chair accessible. At least two different people waited on them at the table, and Franklin also went to the bar to get drinks because the waiters were too slow. The only food they ate consisted of several orders of quesadillas, which they shared.

The two men drank beer, Kamikazees, and Flaming Dr. Peppers. A Kamikazee consists of 1 1/4 ounce of vodka, 3/4 ounce of triple sec, and lime juice, which are mixed in a shot glass. A Flaming Dr. Pepper consists of a shot glass filled 3/4 full of amaretto and 1/4 of 151 proof Bacardi rum. The shot is then dropped into one-half of a beer, which is 5 ounces, and the customer then "chugalugs" or drinks the entire drink at once.

Franklin and Nimon had a drinking competition, trying to keep up with each other. Even though they could not remember how many drinks they'd had, both testified that they had "a lot" to drink and that Bennigan's served them enough alcohol to make them intoxicated. They drank the entire time they were at Bennigan's. Sometime after the first two hours, Franklin left several times to visit a friend working at a nearby store and to give her a ride home. He was gone for 15 to 20 minutes each time. He did not drink while he was gone, but resumed drinking when he returned. Franklin's step-father was with them for 30 minutes to an hour. He told them that they were both "wasted" and that Nimon was too drunk to drive.

Franklin admitted that he was very intoxicated at Bennigan's and that alcohol affected everything he did that night. Nimon testified that it was obvious to him while he was at Bennigan's that he was intoxicated and that the alcohol affected his judgment. According to Franklin, the men were loud and boisterous, laughing, giggling, dancing, and grabbing at each other. Nimon testified that their behavior at Bennigan's was inappropriate. Both men admit that they were too drunk to know whether they exhibited signs of intoxication such as slurred speech or lack of coordination. Immediately before the accident, Franklin leaned over to Nimon and admitted that he was "f_____ up," meaning he was drunk. The car jerked to the left, went over the median, and "flipped." Franklin "took off" running from the scene of the accident. He was found by an officer passed out in a front yard a few blocks away.

Nimon's credit card bill that night was $194.62. After deducting the food, tips, and tax, Nimon purchased about $108 worth of alcohol. Moreover, the two men took turns paying, with Franklin paying his portion in cash. Bennigan's area manager testified that it would be dangerous to serve two people even $108 worth of Flaming Dr. Peppers, Kamikazees, and beer.

Two bartenders who worked at Bennigan's on August 24, 1991 testified. They did not remember Franklin or Nimon. They both received on-the-job training, which included recognizing signs of intoxication. In addition to visual clues, Bennigan's staff can monitor a customer's intoxication by observing the number of drinks served.

Dr. Angela Springfield, the chief toxicologist for the Tarrant County Medical Examiner's office, testified about the effects of alcohol on the human body. A person with a blood alcohol level between .04 and .12 would demonstrate a lessening of finer motor skills, take more risks, and be less able to perform complicated tasks such as driving. Such a person's eyes might be flushed and their emotions would change. With a blood alcohol level of .09 to .18, a person would experience changes in perception, memory, and critical judgment, all of which would affect that person's driving ability. Such a person would demonstrate changes in walking even though the drinker would not necessarily stagger or fall down. An untrained observer would not notice signs of obvious intoxication until the drinker's blood alcohol level neared the .15 to .20 range.

Dr. Gary Wimbish, a toxicologist with Harrison Laboratories in Midland, Texas, also testified about the symptoms of intoxication. At first, the drinker becomes more loquacious, outgoing, and interactive socially, often talking nonsense. At the point of intoxication, the drinker will have some speech pattern slurring, fine motor skills might be affected, the drinker may have difficulty...