The Texas Supreme Court has granted a restaurant’s petition for review of a Dallas Court of Appeals’ decision reversing a summary judgment in its favor.
Raoger Corporation d/b/a Cadot Restaurant v. Barrie Myers (No. 05-21-00988-CV; No. 23-0662; granted September 27, 2024) arose from a 2018 car wreck in which Khan, who had earlier that evening visited a Plano restaurant called Cadot, struck Myers from behind, causing Myers’ vehicle to roll over multiple times. Khan was later arrested for suspicion of driving while intoxicated. The investigating officer got a search warrant for a blood test, which showed Khan’s BAC as 0.139 about three hours after the accident. Myers sued Khan for negligence and negligence per se and Cadot for violations of the Texas Dram Shop Act. Myers alleged that Cadot continued to serve Khan alcohol when it was apparent that he was obviously intoxcated, and that Cadot’s conduct proximately caused Myers’ injuries. Cadot filed no-evidence and traditional summary judgment motions on the basis that Khan never exhibited obvious signs of intoxication while at the restaurant. The trial court granted summary judgment and entered a take nothing judgment for Cadot. Myers appealed.
In an opinion by Justice Partida-Kipness, the court of appeals reversed and remanded to the trial court. In its summary judgment motion, Cadot relied heavily on Khan’s own testimony that he did not feel intoxicated, as well as his companion’s testimony that he acted normally at the restaurant and that she felt no concerns about Khan driving her home. Additionally, the officer who interviewed Khan at the scene of the accident and later at the hospital testified that he did not suspect that Khan was intoxicated at the scene, that his speech and appearance did not indicate intoxication, and that simply smelling alcohol on someone’s breath doesn’t they were intoxicated. The court of appeals, however, observed that the statute “does not require evidence that the provider actually witnessed the intoxicated behavior” (citation omitted). The appropriate test is not whether the provider saw anything, but whether the patron’s conduct was “visible, evident, and easily observed.”
This standard may be satisfied by circumstantial evidence, according to the court, and Myers’ response to the summary judgment motions raised a fact question of whether it was “apparent” to Cadot that Khan was “obviously intoxicated to the extent that he presented a clear danger to himself and others.” The court pointed to other evidence in the depositions of Khan and the police officer, as well as to a bartender at Cadot. Though the bartender didn’t remember Khan at all, she testified that a person of Khan’s size would have to drink eight drinks to have a BAC of 0.139, and that if Khan had had that many, he would have exhibited signs of intoxication. For his part, Khan couldn’t remember how many drinks he had, but he did throw the bartender under the bus by testifying that the bartender should have observed that he was intoxicated (though he told the officer at the scene that he had only drunk two beers). The officer further testified that he didn’t think Khan was intoxicated until he interviewed Khan at the hospital and that “it was possible” Cadot had overserved him. Myers offered the opinion of a toxicologist that Khan had to have consumed 10 to 19 standard drinks in order to have a BAC that high three hours after the accident, contradicting the testimony of both Khan and his companion, who said that Khan had only a beer and three vodka drinks.
The court reasoned that none of this evidence was conclusive, that Cadot’s summary judgment evidence was from interested parties whom the jury might believe were biased, and that Myers presented contradictory evidence, especially the part of Khan’s testimony blaming the bartender for not noticing how obviously intoxicated he was. The court thus concluded that trial court should have denied the summary judgment motions and let the jury sort out the evidence and the credibility of the witnesses. Cadot filed a petition for review, which SCOTX granted. In its petition, Cadot argues that the court of appeals misapplied the Dram Shop Act because it ignored the Act’s requirement that the patron must exhibit signs of obvious intoxication at the restaurant when the patron provided the alcohol, not at some later point in time. In short, Myers presented no legally sufficient evidence that Khan appeared obviously intoxicated at that time.
We suspect that SCOTX took this case for two reasons. First, the court of appeals’ decision directly conflicts with a Houston [1st] Court of Appeals ruling on very similar facts. Second, the court of appeals’ rather lax view of legal sufficiency in the context of the Dram Shop Act could have a significant expansive effect on the application of that law. Oral argument has been scheduled for January 13 of next year.
