Smith v. Sewell - 858 S.W.2d 350 (Tex. 1993)

Rule:

Chapter 2 Civil Liabilities for Servicing Beverages establishes a cause of action against providers of alcohol under certain limited circumstances. 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 Ann. § 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 Ann. § 2.03.

Facts:

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. 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.

Issue:

Does Sewell, as someone who was provided, sold, or served alcoholic beverages, have a cause of action against Smith, the bar owner under Chapter 2 of the Alcoholic Beverage Code?

Answer:

Yes.

Conclusion:

The plain meaning of Chapter 2 was to authorize a cause of action for "providing, 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." 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. However, liability under Chapter 2 was 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 was the same conduct regardless of whether the intoxicated individual injured himself or a third party. Furthermore, Chapter 2 evinced 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, 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, as in the case at bar. Note, however, that the court’s 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.