Alaniz v. Rebello Food & Bev., L.L.C. - 165 S.W.3d 7 (Tex. App. 2005)

Rule:

Under the Texas Dram Shop Act, a plaintiff must prove that at the time alcohol was provided, sold, or served, it was apparent to the provider that the person consuming the alcohol was obviously intoxicated to the extent that he presented a danger to himself and others. Tex. Alco. Bev. Code Ann. § 2.02(b)(1) (1995). The plaintiff must also prove that the intoxication of the person consuming the alcohol was a proximate cause of the damages suffered. Tex. Alco. Bev. Code Ann. § 2.02(b)(2) (1995). 

Facts:

Tragically, in the early morning hours of May 17, 1998, as Mario Alaniz and his wife, Ludivina, crossed a boulevard, they were struck and killed by a vehicle driven by Ronald Kurtz. The record showed that the driver began drinking during the afternoon hours of May 16. At about 9:30 that evening, the driver and several of his friends went to a bar owned by appellee Rebello Food and Beverage Services LLC d/b/a The Oasis. While at the bar, the driver had two mixed drinks. The driver testified that he left at approximately 11:45 p.m., and that as he turned onto a boulevard, he blacked out and has no recollection of what happened thereafter, including the accident. Appellants Mario Alaniz Jr. and Ludivina Alaniz Hernandez et al., children and other family members of the deceased, filed suit against the driver and appellees Oasis, SRK Management Inc. d/b/a Howard Johnson Suites, and Kirit Patel, alleging various causes of action, including suit under the Dram Shop Act. Appellants claimed appellees served alcoholic drinks to the driver when it was apparent, that the latter was obviously intoxicated. Appellees filed a traditional and no-evidence motion for summary judgment arguing that their evidence established it was not apparent to anyone at the bar that the driver was obviously intoxicated, and that there was also no evidence to prove the same and no evidence of proximate causation. Appellants filed a partial motion for summary judgment, claiming that appellees' attempt to join the driver as a responsible third party, and thereby apportion liability, was in contravention of the Dram Shop Act. After a hearing on the motions, the trial court granted appellees' motion and denied appellants' motion. This appeal ensued.

Issue:

Did the trial court err in granting appellees traditional and no-evidence motion for summary judgment in appellants' suit under the Texas Dram Shop Act?

Answer:

No.

Conclusion:

The court affirmed the trial court's judgment. In affirming, the court held that appellants' no-evidence summary judgment motion met the requirements of Tex. R. Civ. P. 166a(i). The court found that the motion specifically set forth the two elements appellants were required to prove under the Dram Shop Act, specifically Tex. Alco. Bev. Code Ann. § 2.02(b) (1995), and, correspondingly, identified the specific elements on which appellees contended appellants had no evidence. The court explained that appellants produced no direct evidence that while being served at the bar, the driver was obviously intoxicated to the extent he presented a danger to himself and others. Furthermore, their circumstantial evidence did not establish that the driver was obviously intoxicated while being served at the bar. The court then determined that appellees had also established their entitlement to a traditional summary judgment. Finally, the trial court did not err in excluding the testimony of appellants' expert because he based his calculations on facts not in evidence and on assumptions that were contrary to facts.