By a 2-1 vote, the Austin Court of Appeals has held that a country club that required people applying for membership to release the club from liability for its own negligence was not liable under the Texas Dram Shop Act. This appears to be a matter of first impression in Texas law.
Ronald Oman and Karen Anderson v. Wildflower County Club, Inc. d/b/a Wildflower Country Club and Jeremy Lawson (No. 03-25-00249-CV; October 16, 2026) arose from a Dram Shop lawsuit. Plaintiffs, who had several drinks at a country club bar after a golf tournament, got drunk and were injured driving home in their golf cart. They sued the country club and the bartender for compensatory and punitive damages under the Texas Dram Shop Act, common-law negligence, negligence per se, and gross negligence. They also alleged that the bartender spiked their drinks with drugs. The country club moved for MSJ based on an executed release and waiver of liability in Plaintiffs’ application for club membership. The trial court granted the motion. Plaintiffs appealed.
In an opinion by Chief Justice Byrne, the court affirmed in part and reversed in part. Plaintiffs argued that fact issues existed as to whether a release of liability included in the country club’s membership application was invalid and unenforceable. First, the court considered whether the release complied with the fair-notice requirement, i.e. met the “conspicuousness” standard pursuant to § 1.201(10), Business & Commerce Code. The court concluded that it did. The release was located “in the first full paragraph near the top of the third page in a three-page document,” the only paragraph on that page and close to the signature line. It also capitalized the liability language, distinguishing it from the rest of the agreement “such that a reasonable person ought to have noticed it.”
The next question was whether the club met its burden as to the express-negligence doctrine. To disavow liability for party’s own negligence, the language must be in the four corners of the contract and “make [] clear the intent of the parties to exculpate” the party. Broad language, such “any negligent act [of the released party]” will suffice. The release at issue, in all caps, read that the applicant fully released and discharged the club and its affiliates and employees “from any and all liabilities, injuries, losses, damages or claims arising from may or may family’s use of the club facilities, including any such claims caused by the released party’s own negligence.” This language, closely similar to language of other releases enforced by SCOTX, satisfied the express-negligence doctrine.
Turning to Plaintiffs’ fact issue claim, the court observed that the application information provided by Plaintiffs showed that Oman and Karen Anderson were married and certified that they had a marriage license or its equivalent. Oman further acknowledged that he was authorized to sign on his wife’s behalf as a user on the membership. Plaintiffs tried to argue that the marriage information was false or fraudulently used, but only presented attorney’s argument, which is not evidence. Additionally, Plaintiffs offered no evidence that a fact issue existed as to whether the club facilities referenced in the release excluded the bar. The club also approved their membership, countering Plaintiffs’ argument that there was no evidence that they were members. On this record, Plaintiffs failed to show that summary judgment was precluded on the issue of the release’s validity and enforceability.
Plaintiffs argued that even if the release were valid and enforceable, it didn’t bar their overservice claims for gross negligence. Of course, as the court observed, there can be gross negligence without a finding of ordinary negligence. The club responded that Texas law doesn’t recognize common law and gross negligence claims for service independent of the Dram Shop Act, and that the validity of the release resolved the case. The court agreed that the Dram Shop Act prescribed “the exclusive means for recovery against a provider of alcohol and is in lieu of any common-law claims against the provider.” § 2.03(a), Alcoholic Beverages Code. Consequently, “[a]bsent an award of actual damages, there is no recovery of exemplary damages” (citations omitted).
As to Plaintiffs’ allegation that the bartender spiked their drinks, the court observed that the “complete, unobjected-to police-incident sheet states that the final analysis of [Plaintiffs’] blood tests showed ‘no evidence of them being drugged’ and a forensic nurse determined the same. The tests did show presumptive positives for opiates and amphetamines in Oman’s blood, but Oman reported using only prescription opiates. A fact issue thus existed as to whether the bartender may have put uppers in the drinks. Also, the club’s MSJ didn’t address the non-overservice, drugging claims, so the trial court erred by granting more relief than the motion requested. The court sent this issue back to the trial court for further proceedings.
Justice Ellis filed a concurring and dissenting opinion. She would have held that “[a] contractual release of dramshop claims violates the law because such a release is not included among the exclusive defenses available under the [Dram Shop] Act.” She argued further that a release violated public policy because it allowed “providers to nullify one of act’s key features—potential lawsuits brought by overserved patrons—the purpose of which is to discourage providers from overserving patrons and thereby promote public health and safety.”
