Opinion
No. 02-0381
Argued on March 5, 2003.
Opinion Delivered: September 3, 2004.
On Petition for Review from the Court of Appeals for the Thirteenth District of Texas.
JUSTICE O'NEILL delivered the opinion of the Court, in which CHIEF JUSTICE PHILLIPS, JUSTICE JEFFERSON, JUSTICE SCHNEIDER, and JUSTICE SMITH joined.
JUSTICE OWEN filed a dissenting opinion, in which JUSTICE HECHT, JUSTICE WAINWRIGHT, and JUSTICE BRISTER joined.
The plaintiffs in this dram-shop case were injured when their car was struck head-on by an intoxicated driver who had purchased alcohol from a convenience store that the defendant owned. The trial court refused to submit the intoxicated driver's percentage of responsibility to the jury for apportionment, as we required in Smith v. Sewell, 858 S.W.2d 350, 356 (Tex. 1993) when the intoxicated driver sued his provider for his own injuries. Instead, the trial court severed the provider's cross-action against the driver and rendered judgment on the jury's verdict against the provider. The court of appeals affirmed, holding that the proportionate responsibility statute does not apply when the injured plaintiff is an innocent third party. 69 S.W.3d 800. We hold that the proportionate responsibility statute applies to all Dram Shop Act claims, including the type at issue here. We conclude, however, that the judgment was correct because the provider is responsible to the innocent third-party plaintiffs for its own liability and that of its intoxicated patron, from whom it seeks recovery in the cross-action. We also conclude that, although the trial court should have submitted the intoxicated patron's percentage of responsibility to the jury for apportionment, its order severing the provider's cross-action against the intoxicated driver did not amount to reversible error. Finally, we hold that the trial court did not err in refusing to submit an instruction on sole proximate cause to the jury. Accordingly, we affirm the court of appeals' judgment, although on different grounds.
I
After consuming a case-and-a-half of beer, Roberto Ruiz drove his truck to a Mr. Cut Rate convenience store owned by F.F.P. Operating Partners, L.P., and purchased a twelve-pack of beer. The store's assistant manager, Carol Solis, sold the beer to Ruiz. Ruiz then got into his truck, opened a can of beer, and put the open beer can between his legs.
There was conflicting testimony about whether Ruiz actually drank any of the beer that he purchased at Mr. Cut Rate.
Ruiz then drove onto a nearby highway, and several times swerved into oncoming traffic. Two cars had to dodge his truck to avoid a collision. As he crossed a bridge less than a mile from the convenience store, Ruiz swerved across the center line and hit the Dueñezes' car head-on. At the time of the collision, Ruiz had lowered his head below his truck's dashboard as he tried to reach beneath his seat to retrieve a compact disc.
All five members of the Dueñez family suffered some injury. Nine-year-old Ashley was the most seriously hurt. She suffered a traumatic brain injury, and will require round-the-clock care for the rest of her life. Xavier Dueñez, a corrections officer, also suffered some degree of permanent brain damage.
Ruiz was arrested at the accident scene for drunk driving. He pleaded guilty to intoxication assault and was sentenced to prison. The Dueñezes initially sued F.F.P., Ruiz, Solis, Nu-Way Beverage Company, and the owner of the land where Ruiz had spent the afternoon cutting firewood and drinking. F.F.P. named Ruiz a responsible third party and filed a cross-action against him. F.F.P. named no other persons or entities as responsible for the accident. The Dueñezes thereafter nonsuited all defendants except F.F.P.
At the pretrial conference, the Dueñezes obtained a partial summary judgment that Texas Civil Practice and Remedies Code Chapter 33's proportionate responsibility provisions did not apply to this type of case. The trial court then severed F.F.P.'s cross-action against Ruiz, leaving F.F.P. as the only defendant for trial. The severed action remains pending in the trial court.
At trial, F.F.P. requested a jury instruction that "if an act or omission of any person not a party to the suit was the 'sole proximate cause' of an occurrence, then no act or omission of any other person could have been a proximate cause." The trial court refused to give the instruction. The trial court also overruled F.F.P.'s objections that the jury charge omitted: (1) any question submitting Ruiz's negligence as a responsible third party; and (2) any comparative responsibility question asking the jury to determine what percentage of negligence causing the occurrence in question was attributable to Ruiz and what percentage was attributable to F.F.P.
The jury found, as required to impose dram-shop liability, that when the alcohol was sold to Ruiz, it was "apparent to the seller that he was obviously intoxicated to the extent that he presented a clear danger to himself and others," and that Ruiz's intoxication was a proximate cause of the collision. See TEX. ALCO. BEV. CODE § 2.02(b). The jury returned a $35 million verdict against F.F.P., upon which the trial court rendered judgment.
The court of appeals affirmed the trial court's judgment, holding:
[I]n third-party actions under the Dram Shop Act in which there are no allegations of negligence on the part of the plaintiffs, a provider is vicariously liable for the damages caused by an intoxicated person, and such a provider is not entitled to offset its liability by that of the intoxicated person.
69 S.W.3d at 805. In reaching that conclusion, the court distinguished our decision in Sewell, 858 S.W.2d at 356, in which we held that the comparative responsibility statute applied to dram-shop causes of action. 69 S.W.3d at 805. The court of appeals concluded that Sewell's holding was limited to first-party actions, in which the intoxicated patron is suing for his own injuries, and did not apply when the plaintiff is an innocent third party injured by an intoxicated patron. Id. The court also held that the trial court did not abuse its discretion in severing F.F.P.'s cross-action against Ruiz, concluding that F.F.P.'s statutory liability was vicarious and not direct so that any rights F.F.P. had against Ruiz did not accrue until its own liability became fixed. Id. at 807. Finally, the court rejected F.F.P.'s argument that the trial court should have submitted an instruction on sole proximate cause. Id. at 808-09. We granted F.F.P.'s petition for review to consider Chapter 33's application and related issues.
In addition to briefing from the parties, we received briefs from several amici, including the Saltgrass Steakhouse Private Club, Inc., Waco Texas Management, Inc., on behalf of Cactus Canyon, Texas Restaurant Association, Texas Petroleum Marketers and Convenience Store Association, and Mothers Against Drunk Driving.
II
In enacting the Dram Shop Act, the Legislature sought to "deter providers of alcoholic beverages from serving alcoholic beverages to obviously intoxicated individuals who may potentially inflict serious injury on themselves and on innocent members of the general public." Sewell, 858 S.W.2d at 356. A plaintiff seeking to impose liability on a provider under the Act must shoulder what we have called "an onerous burden of proof," El Chico Corp. v. Poole, 732 S.W.2d 306, 314 (Tex. 1987), approaching the common-law gross negligence standard. See Steak Ale of Tex., Inc. v. Borneman, 62 S.W.3d 898, 909 (Tex. App.-Fort Worth 2001, no pet.). The Act requires a plaintiff to prove that, when the alcohol was provided, the recipient "was obviously intoxicated to the extent that he presented a clear danger to himself and others," and the recipient's intoxication was a proximate cause of the damages suffered. TEX. ALCO. BEV. CODE § 2.02(b) (emphasis added). If the plaintiff can meet this burden, the Act nevertheless affords providers a relatively simple safeharbor. Section 106.14(a) shields a provider from liability for its employee's actions if the provider establishes that it required the employee to attend a training course approved by the Texas Alcoholic Beverage Commission, the employee actually attended the course, and the provider did not encourage the employee to violate the Alcoholic Beverage Code. Act of May 21, 1987, 70th Leg., R.S., ch. 582, § 3, 1987 Tex. Gen. Laws 2298, 2299 (amended 2003) (current version at TEX. ALCO. BEV. CODE § 106.16(a)); see D. Houston, Inc. v. Love, 92 S.W.3d 450, 453 (Tex. 2002). If the plaintiff meets the burden of proof that the Dram Shop Act imposes, and the provider is unable to establish a server-training defense, then the provider is liable "for the actions of [its] customer." Act of June 1, 1987, 70th Leg., R.S., ch. 303, § 3, 1987 Tex. Gen. Laws 1673, 1674 (amended 2003) (current version at TEX. ALCO. BEV. CODE § 2.03).
Although this provision has since been amended, in this opinion, we refer to the version of the statute that governs these proceedings. We treat other code provisions that have been amended similarly.
Chapter 33 of the Texas Civil Practice and Remedies Code governs the apportionment of responsibility and applies to "any cause of action based on tort in which a defendant, settling person, or responsible third party is found responsible for a percentage of the harm for which relief is sought." Act of June 3, 1987, 70th Leg., 1st C.S., ch. 2, § 2.05, 1987 Tex. Gen. Laws 37, 41 (amended 2003) (current version at TEX. CIV. PRAC. REM. CODE § 33.002). Section 33.003 provides that the trier of fact shall apportion responsibility "with respect to each person's causing or contributing to cause in any way the harm for which recovery of damages is sought." Act of June 3, 1987, 70th Leg., 1st C.S., ch. 2, § 2.06, 1987 Tex. Gen. Laws 37, 41 (amended 2003) (current version at TEX. ALCO. BEV. CODE § 33.003). Chapter 33 expressly excludes certain types of cases from its coverage, such as workers' compensation cases, id. § 33.002(c)(1), but it does not exclude actions brought under the Dram Shop Act.
It is clear from Chapter 33's language that the Legislature intended all causes of action based on tort, unless expressly excluded, to be subject to apportionment. The statute was similarly plain when we decided in Sewell, 858 S.W.2d at 356, that Chapter 33 applied to claims brought under the Dram Shop Act. When Sewell was decided, Chapter 33 provided that it applied "[i]n an action to recover damages for negligence . . . or an action for products liability grounded in negligence." Act of June 3, 1987, 70th Leg., 1st C.S., ch. 2, § 2.04, 1987 Tex. Gen. Laws 37, 40 (amended 1995) (current version at TEX. CIV. PRAC. REM. CODE § 33.001(a)). We concluded that the statute applied because the essential elements of a dram-shop action replicated those of a negligence claim. Sewell, 858 S.W.2d at 355-56. Since Sewell, the Legislature has amended Chapter 33's applicability provision to encompass "any cause of action based on tort." TEX. CIV. PRAC. REM. CODE § 33.002. If anything, that change indicates the Legislature intended a broader application, since the term would include non-negligent tortious conduct.
The court of appeals held that Sewell did not apply in cases like this one because the Dram Shop Act imposes vicarious liability on F.F.P. for Ruiz's actions; thus, as between F.F.P. and the Dueñezes, there is nothing to apportion. 69 S.W.3d at 806. The court noted that vicarious liability is "problematic" in first-party suits because allowing an intoxicated patron to impose vicarious liability on a provider without regard to the patron's own conduct would be "unpalatable." Id. It was a desire to avoid this result, the court of appeals reasoned, that fueled our Sewell analysis, as evidenced by our statement that the decision was based on "the limited circumstances present in this cause. . . ." Sewell, 858 S.W.2d at 356.
It is true, though hardly remarkable, that we based our holding in Sewell on the facts presented, and those facts presented a first-party claim. But our holding was more broadly stated: "[T]he Comparative Responsibility Act — Chapter 33 of the Texas Civil Practice and Remedies Code — is applicable to Chapter 2 [dram shop] causes of action." Id. at 351 (emphasis added). Nowhere did we create an exception for third-party claims. The statute's plain language leaves no doubt that Chapter 33 applies to all claims brought under the Dram Shop Act. Moreover, the nature of the liability that the Dram Shop Act imposes on a provider does not render the proportionate responsibility statute meaningless, nor does Chapter 33's application undermine the Dram Shop Act's effect.
Causation under the Dram Shop Act is tied to the patron's intoxication rather than the provider's conduct. See Borneman v. Steak Ale of Tex., Inc., 22 S.W.3d 411, 413 (Tex. 2000). Because the Act imposes liability on providers "for the actions of their customers" regardless of whether the provider's conduct actually caused the injuries suffered, the court of appeals in this case concluded that the provider's liability is purely vicarious. 69 S.W.3d at 805-06. Under the court's analysis, the provider and the intoxicated patron are one and the same, like the employer and employee in a case founded upon the doctrine of respondeat superior. Id.
It is true that, if a provider's liability under the Dram Shop Act were purely vicarious, as the court of appeals held, there would be nothing for the jury to apportion between F.F.P. and the Dueñezes in this case. But the Act has a direct liability component that the court of appeals wholly ignored. Unlike true vicarious liability, in which one party's actionable conduct is imputed to another, a dram shop's liability stems in part from its own wrongful conduct. See Sewell, 858 S.W.2d at 355; KEETON ET AL., PROSSER KEETON ON TORTS § 69, at 499 (5th ed. 1984). In order to impose liability under the Act, the factfinder must conclude that the provider made alcohol available to an obviously intoxicated patron whose intoxication caused the plaintiff harm. TEX. ALCO. BEV. CODE § 2.02(b). As we said in Sewell, "liability under [the Dram Shop Act] is premised on the conduct of the provider of the alcoholic beverages — not the conduct of the recipient or a third party." 858 S.W.2d at 355. Accordingly, the dram shop's liability is based on its own wrongful or dangerous conduct even though the statutorily required causal link focuses on the patron's intoxication. TEX. ALCO. BEV. CODE § 2.02(b).
That a provider's liability under the Dram Shop Act has a derivative component does not make it antithetical to proportionate responsibility. Under Chapter 33, the trier of fact must apportion the percentage of responsibility attributable to each of the persons who "caus[ed] or contribut[ed] to cause in any way" the harm suffered. TEX. CIV. PRAC. REM. CODE § 33.003. Although the Act ties causation to the intoxicated patron's actions, certainly dram-shop liability was fashioned on the notion that providing alcohol to one who is obviously intoxicated to the extent that the public is clearly endangered "contributes [in some] way" to harm that the intoxication causes. Id.; see Sewell, 858 S.W.2d at 356.
The Dueñezes contend that allowing F.F.P. to avoid its statutory liability by shifting responsibility onto its intoxicated customer will undermine the legislative policy choice to deter the sale of alcohol to obviously intoxicated persons and the Legislature's "recogni[tion] that providers of alcoholic beverages owe a duty to those who may be injured due to the consumption of those alcoholic beverages." Sewell, 858 S.W.2d at 354. We agree that the Legislature did not intend for an innocent third party to bear the risk of an intoxicated patron's insolvency when a provider has breached the duty that the Act imposes. But applying Chapter 33 to a dram-shop liability scheme that partially imputes causation does not thwart the Legislature's purpose. As one commentator has noted:
Comparative negligence, in and of itself, has not changed these basic principles [of imputed negligence]. When negligence is apportioned in the presence of vicarious liability, the master bears the burden of his servant's negligence. If the master has been partially at fault, the percentage of negligence attributed to the servant is added to the percentage attributed to the master.
SCHWARTZ, COMPARATIVE NEGLIGENCE § 16.1 (2d ed. 1986) (emphasis added) (citations omitted). Thus, while the dram shop is entitled to seek recovery from an intoxicated patron to the extent causation is imputed, rather than direct, the dram shop is liable to injured third parties for both its own actions and for its patron's share of responsibility.
This construct comports with the rule stated in section 13 of the Restatement of Apportionment of Liability that "[a] person whose liability is imputed based on the tortious acts of another is liable for the entire share of comparative responsibility assigned to the other. . . ." RESTATEMENT (THIRD) OF TORTS: APPORTIONMENT OF LIABILITY § 13 (2000). While section 13 refers to the situation in which a party is held vicariously liable solely on the basis of another's conduct, the Restatement makes clear that a party to whom liability is imputed and who is also independently liable "is responsible for the share of the verdict assigned to [the party whose liability is imputed] and is also responsible for the share of the verdict assigned to its own negligence." Id. § 7 cmt. j (2000).
We conclude that, when the factfinder determines that a provider has violated the Dram Shop Act and its patron's intoxication has caused a third party harm, responsibility must be apportioned between the dram shop and the intoxicated patron, as well as the injured third party if there is evidence of contributory negligence. The resulting judgment should aggregate the dram shop's and driver's liability so that the plaintiff fully recovers from the provider without assuming the risk of the driver's insolvency. The dram shop may then recover from the driver based upon the percentages of responsibility that the jury assessed between them.
In reaching this conclusion, we pay heed to the principle that courts should, if possible, construe statutes to harmonize with each other. La Sara Grain Co. v. First Nat'l Bank of Mercedes, 673 S.W.2d 558, 565 (Tex. 1984) (citing State v. Standard Oil Co., 107 S.W.2d 550 (Tex. 1937)). In enacting the Dram Shop Act, the Legislature sought to protect innocent members of the public from the dangers intoxicated individuals pose by placing some responsibility for injury on those who sell alcoholic beverages. Sewell, 858 S.W.2d at 356. That is why the Act speaks in terms of "[t]he liability of providers under this chapter for the actions of their customers, members, or guests who are or become intoxicated. . . ." TEX. ALCO. BEV. CODE § 2.03. As the Iowa Supreme Court has postulated, juries in dram shop cases are likely to assign most, if not all, of the responsibility for third parties' injuries to the intoxicated patron. See Slager v. HWA Corp., 435 N.W.2d 349, 357 (Iowa 1989). If the provider who serves a clearly intoxicated patron does not bear responsibility for injuries caused by the patron's intoxication, the remedy the Legislature provided in the Dram Shop Act would be meaningless, at least to the extent the intoxicated patron proves to be insolvent, hardly a result that the Legislature likely contemplated in substituting dram-shop liability for otherwise available common-law remedies.
Moreover, the Legislature has directed that, in construing statutes, we must consider the object sought to be obtained and the consequences of a particular construction. CODE CONTRUCTION ACT, TEX. GOV'T CODE §§ 311.023(1), (5); see TEX. ALCO. BEV. CODE § 1.02 (expressly incorporating the Code Construction Act). The Legislature has further instructed courts to liberally construe the Alcoholic Beverage Code so that the safety and welfare of our citizens are protected. TEX. ALCO. BEV. CODE § 1.03. Rather than undermine the Legislature's purpose in enacting the Dram Shop Act, we give effect to both it and the Proportionate Responsibility Act.
In contrast, the dissent gives no weight to section 2.03(a) of the Dram Shop Act, concluding it "means only that a cause of action for damages caused by an intoxicated patron is the exclusive remedy against an alcohol provider." (OWEN, J., dissenting). But if that had been the statutory purpose, section 2.03(a) would have simply said:
The liability of providers under this chapter is in lieu of common law or other statutory law warranties and duties of providers of alcoholic beverages.
Instead, subsection (a) clearly says:
[t]he liability of providers under this chapter for the actions of their employees, customers, members, or guests who are or become intoxicated is in lieu of common law or other statutory law warranties and duties of providers of alcoholic beverages.
TEX. ALCO. BEV. CODE § 2.03(a) (emphasis added). The dissent's construction of the statute violates the fundamental rule that we are to give effect to "every sentence, clause, and word of a statute so that no part thereof [will] be rendered superfluous." City of San Antonio v. City of Boerne, 111 S.W.3d 22, 29 (Tex. 2003) (quoting Spence v. Fenchler, 180 S.W. 597, 601 (1915)).
Finally, the dissent's discussion of the Legislature's imposition of strict liability on illegal methamphetamine manufacturers and other criminal actors improperly presumes that we are similarly exempting alcohol providers from the proportionate responsibility scheme. Clearly we are not. Instead, we apply that scheme consistent with the Dram Shop Act's language and purpose. Our interpretation gives effect to both the Dram Shop Act's express language and the statutory proportionate responsibility scheme. Even the dissent acknowledges that our decision "may express sound public policy." (OWEN, J., dissenting). That is exactly the public policy we believe the Legislature chose when it crafted section 2.03(a).
We conclude that the court of appeals erred in holding that the proportionate responsibility statute does not apply to third-party actions under the Dram Shop Act. The judgment is correct, though, because F.F.P. is responsible to the Dueñezes for its own liability and that of Ruiz, from whom F.F.P. may recover to the extent of his imputed liability. We must now decide whether the trial court erred in severing F.F.P.'s claim against Ruiz.
III
The trial court severed F.F.P.'s claim against Ruiz and proceeded to trial with F.F.P. as the only defendant. The court of appeals affirmed the trial court's severance order, concluding that a vicariously liable party's right of recovery against a tortfeasor is through indemnity, which does not become actionable until an adverse judgment is taken. 69 S.W.3d at 807-08. Because the court considered F.F.P.'s liability vicarious in nature, it also held that Ruiz did not meet Chapter 33's definition of a responsible third party for apportionment purposes. Id.
As already explained, F.F.P.'s dram-shop liability is not purely vicarious; therefore the trial court should have submitted Ruiz's percentage of responsibility to the jury for apportionment under Chapter 33. But because F.F.P. is responsible to the Dueñezes for its own percentage of liability and that of Ruiz, and because there is nothing that would prevent a jury from fairly apportioning responsibility between F.F.P. and Ruiz in the severed action, the trial court's severance order did not constitute reversible error.
IV
Finally, F.F.P. contends the trial court erred in refusing to instruct the jury on sole proximate cause. F.F.P. bases its claimed entitlement to that instruction on evidence that Ruiz was reaching under the seat for a compact disc when the accident occurred, and it was this inattention rather than Ruiz's intoxication that caused the accident. The Dueñezes respond that the instruction F.F.P. requested did not preserve this argument. We agree.
F.F.P.'s requested instruction stated: "if an act or omission of any person not a party to the suit was the 'sole proximate cause' of an occurrence, then no act or omission of any other person could have been a proximate cause." The proposed submission merely instructs that if a non-party's action was the sole proximate cause of the Dueñezes' injury, then no other person's action could be a proximate cause. The instruction thus asks the jury to compare the actions of two different people rather than distinguish between the same person's intoxication and inattention. The requested instruction would not have focused the jury's attention on the act that F.F.P. contends was the sole proximate cause of the Dueñezes' injuries; thus, the trial court did not err in refusing to submit it. See Hyundai Motor Co. v. Rodriguez, 995 S.W.2d 661, 665-66 (Tex. 2002) .
V
For the foregoing reasons, the court of appeals' judgment is affirmed.
While the Court's determination that a provider of alcohol should be vicariously liable for a patron's intoxication may express sound public policy, I am constrained to conclude that it does not correctly apply the Legislature's statutory proportionate responsibility scheme and reads more into the Dram Shop Act than the words chosen by the Legislature can bear. First, although the Court says proportionate responsibility applies to causes of action under the Dram Shop Act, that is not the Court's actual holding. Instead, the Court holds that the most substantive parts of proportionate responsibility — liability commensurate with the percentage of responsibility found by the trier of fact — do not apply. A provider of alcohol is liable to a claimant for 100 percent of the damages regardless of the percentage of responsibility assigned by a jury. In the Court's view, the sole function of the proportionate responsibility statutes is to determine the amount for which an alcohol provider may seek indemnity from an intoxicated patron.
TEX. CIV. PRAC. REM. CODE §§ 33.001-.017. This case is governed by the law in effect in July 1997. There have been amendments to both the Proportionate Responsibility Act and the Dram Shop Act since then. Because those revisions do not impact this case and for ease of reference, quotations are from and citations are to the current versions of these Codes, unless otherwise indicated.
TEX. ALCO. BEV. CODE §§ 2.01-.03.
___ S.W.3d at ___ (concluding that a provider of alcohol "is liable to injured third parties for both its own actions and for its patron's share of responsibility" without regard to the percentages of responsibility assigned by the factfinder).
Second, in 1993, this Court held unequivocally in Smith v. Sewell that "[a]pplication of the principles of comparative responsibility to causes of action brought under [the Dram Shop Act] establishes a consistent and equitable approach to the issue of 'dramshop liability' generally, and first party 'dramshop liability' specifically." We made it very clear that an alcohol provider's liability under the Dram Shop Act was for its own conduct, not that of its intoxicated patron: "liability under [the Dram Shop Act] is premised on the conduct of the provider of the alcoholic beverages — not the conduct of the recipient or a third party." Today, the Court overrules this holding, even though it purports to rely upon it, saying the Dram Shop Act "imposes liability on providers 'for the actions of their customers,'" and that a provider's liability is thus vicarious (although only partially vicarious, rather than "purely vicarious") for the actions of its patron. Sewell held there was no vicarious liability at all, only comparative responsibility. The Court's decision today is in direct conflict with our holding in Smith v. Sewell.
858 S.W.2d 350, 356 (Tex. 1993).
Id. at 355.
___ S.W.3d at ___.
Sewell said:
A provider of alcoholic beverages is under a statutory duty to refrain from providing alcohol to an individual when it is apparent to the provider that the individual is obviously intoxicated to the extent that he presents a clear danger to himself and others.
. . . .
However, liability under [the Dram Shop Act] is premised on the conduct of the provider of the alcoholic beverages — not the conduct of the recipient or a third party.
858 S.W.2d at 354-55.
Third, in the eleven years since Sewell was decided, the Legislature has amended the Dram Shop Act and has extensively amended the proportionate responsibility statutes, but it has never excluded a cause of action against a provider of alcohol from comparative or proportionate responsibility. We must presume that the Legislature knew of our holding in Sewell and that by subsequently re-enacting the Proportionate Responsibility Act and the Dram Shop Act, it accepted this Court's construction of those statutes.
See Wich v. Fleming, 652 S.W.2d 353, 355 (Tex. 1983) (quoting Marmon v. Mustang Aviation, Inc., 430 S.W.2d 182, 187 (Tex. 1968) (quoting Cunningham v. Cunningham, 40 S.W.2d 46, 50 (Tex. 1931))); Coastal Indus. Water Auth. v. Trinity Portland Cement Div., Gen. Portland Cement Co., 563 S.W.2d 916, 918 (Tex. 1978).
Fourth, the Legislature has, at differing times, specifically included and excluded certain torts from all or parts of the proportionate responsibility scheme. For example, the Legislature created a strict liability cause of action against manufacturers of methamphetamine and took great pains to say that these manufacturers' liability is not limited by proportionate responsibility. Instead, a manufacturer of methamphetamine is "jointly liable with any other defendant for the entire amount of damages arising from the manufacture." There is no comparable treatment of providers of alcohol in either the Dram Shop Act or the Proportionate Responsibility Act.
See, e.g., TEX. CIV. PRAC. REM. CODE §§ 33.002(c), .013(b).
Id. §§ 33.002(c)(3) ("This chapter does not apply to . . . a cause of action for damages arising from the manufacture of methamphetamine as described by Chapter 99."), 99.002 (strict liability for damages arising from methamphetamine manufacture), .004 (providing that a methamphetamine manufacturer is "jointly liable with any other defendant for the entire amount of damages arising from the manufacture"), .005 ("Chapter 33 does not apply in an action for damages arising from the manufacture of methamphetamine.").
Id. § 99.004.
In light of the express provisions of the Dram Shop Act and the Proportionate Responsibility Act, and our decision in Sewell authoritatively construing them, I simply cannot agree with the Court that the only purpose the Legislature's proportionate responsibility scheme serves is to determine an alcohol provider's indemnity rights against an intoxicated patron. I respectfully dissent.
When Sewell was decided in 1993, Chapter 33 of the Texas Civil Practice and Remedies Code was called the "Comparative Responsibility Act." The Act has since been amended several times and is now the "Proportionate Responsibility Act," but the amendments do not alter the analysis of the issues raised in this case. See Act of May 17, 1985, 69th Leg., R.S., ch. 959, § 1, 1985 Tex. Gen. Laws 3242, 3271, amended by Act of June 3, 1987, 70th Leg., 1st C.S., ch. 2, §§ 2.04-.11B, 1987 Tex. Gen. Laws 37, 40-44, amended by Act of May 29, 1989, 71st Leg., R.S., ch. 380, § 4, 1989 Tex. Gen. Laws 1490, 1492, amended by Act of May 8, 1995, 74th Leg., R.S., ch. 136, § 1, 1995 Tex. Gen. Laws 971, 971-75, amended by Act of May 19, 1995, 74th Leg., R.S., ch. 414, § 17, 1995 Tex. Gen. Laws 2988, 3003, amended by Act of May 21, 2001, 77th Leg., R.S., ch. 643, § 2, 2001 Tex. Gen. Laws 1208, 1208-09, amended by Act of June 2, 2003, 78th Leg., ch. 204, §§ 4.01-.12, 2003 Tex. Gen. Laws 847, 855-59 (current version at TEX. CIV. PRAC. REM. CODE §§ 33.001-.017).
I
When construing statutes, we, of course, begin with the statutes themselves. The Dram Shop Act provides:
§ 2.02. Causes of Action
(a) This chapter does not affect the right of any person to bring a common law cause of action against any individual whose consumption of an alcoholic beverage allegedly resulted in causing the person bringing the suit to suffer personal injury or property damage.
(b) Providing, selling, or serving an alcoholic beverage may be made the basis of a statutory cause of action under this chapter and may be made the basis of a revocation proceeding under Section 6.01(b) of this code upon proof that:
(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.§ 2.03. Exclusivity of Statutory Remedy
(a) The liability of providers under this chapter for the actions of their employees, customers, members, or guests who are or become intoxicated is in lieu of common law or other statutory law warranties and duties of providers of alcoholic beverages.
(b) This chapter does not impose obligations on a provider of alcoholic beverages other than those expressly stated in this chapter.
(c) This chapter provides the exclusive cause of action for providing an alcoholic beverage to a person 18 years of age or older.
Id. § 2.03.
The Court's entire rationale hinges on a single phrase in section 2.03 that says: "The liability of providers under this chapter for the actions of their employees, customers, members, or guests who are or become intoxicated is in lieu of common law or other statutory law warranties and duties of providers of alcoholic beverages." This sentence means only that a cause of action for damages caused by an intoxicated patron is the exclusive remedy against an alcohol provider. I do not believe the Legislature intended the single phrase parsed by the Court to mean that a provider of alcohol is liable for 100 percent of the damages caused by an intoxicated patron whenever there is a finding that alcohol was provided in contravention of the Act and injury occurred. Nor does the phrase on which the Court's entire rationale depends say that an alcohol provider has the right to indemnity from the intoxicated patron. The phrase in section 2.03 cannot bear the weight the Court places on it. This becomes even more apparent when the history and details of the proportionate responsibility scheme are examined carefully.
Id. (emphasis added).
II
The 1997 version of the proportionate responsibility scheme applies to this case because the collision that injured the Dueñezes occurred in July 1997. At that time, section 33.013 of the Civil Practice and Remedies Code provided, with certain exceptions, that a defendant was liable only for the percentage of responsibility found by the trier of fact, unless the percentage of responsibility was found to exceed 50 percent. In that event, a defendant was jointly and severally liable for damages recoverable by the claimant:
Act of May 17, 1985, 69th Leg., R.S., ch. 959, § 1, 1985 Tex. Gen. Law 3242, 3271, amended by Act of June 3, 1987, 70th Leg., 1st C.S., ch. 2, § 2.09, 1987 Tex. Gen. Laws 37, 42, amended by Act of May 8, 1995, 74th Leg., R.S., ch. 136, § 1, 1995 Tex. Gen. Laws 971, 974 (former TEX. CIV. PRAC. REM. CODE § 33.013(a), (b)), amended by Act of June 2, 2003, 78th Leg., R.S., ch. 204, §§ 4.07, 4.10(5), 2003 Tex. Gen. Laws 847, 858-59.
§ 33.013. Amount of Liability
(a) Except as provided in Subsections (b) and (c), a liable defendant is liable to a claimant only for the percentage of the damages found by the trier of fact equal to that defendant's percentage of responsibility with respect to the personal injury, property damage, death, or other harm for which the damages are allowed.
(b) Notwithstanding Subsection (a), each liable defendant is, in addition to his liability under Subsection (a), jointly and severally liable for the damages recoverable by the claimant under Section 33.012 with respect to a cause of action if the percentage of responsibility attributed to the defendant is greater than 50 percent. Section 33.003 provided that the factfinder was to compare a defendant's responsibility with the responsibility of the claimant, other defendants, and any responsible third party joined by a defendant.
Id.
This was generally the state of the law at the time we decided Smith v. Sewell in 1993. In that case, Sewell became intoxicated at a bar. On his way home, he lost control of his car and was severely injured in a one-car accident. He sued the bar. This Court recognized that a cause of action against a provider of alcohol is a direct action for the wrongful conduct of the provider. The Court said, "[L]iability under [the Dram Shop Act] is premised on the conduct of the provider of the alcoholic beverages — not the conduct of the recipient or a third party." The Court said this is true "regardless of whether the intoxicated individual injures himself or a third party." The Court then examined the comparative responsibility scheme and its exclusions and concluded that a cause of action against a provider of alcohol was "not excluded" from the Comparative Responsibility Act and, therefore, the comparative responsibility scheme applied. The Court was very clear that the Legislature's intent was that "each of the parties involved in causing the injury" would have its percentage of responsibility determined: "Application of the Comparative Responsibility Act to causes of action brought under [the Dram Shop Act] requires the trier of fact to determine the percentage of responsibility attributable to each of the parties involved in causing the injury."
858 S.W.2d 350 (Tex. 1993) (construing the Dram Shop Act and the Comparative Responsibility Act); see also supra note 12.
Sewell, 858 S.W.2d at 355.
Id.
Id. at 356.
Id. (emphasis added).
The Court spelled out the import of this statutory construction, holding that the intoxicated person "will be entitled to recover damages only if his percentage of responsibility is found to be less than or equal to 50 percent," and further, "[e]ven if recovery is not barred under section 33.001(a) (c), any damages must be reduced by a percentage equal to the intoxicated individual's percentage of responsibility."
Id.
The Court also made clear that the comparative responsibility scheme applied when the claimant was a third party rather than the intoxicated patron. "Application of the principles of comparative responsibility to causes of action brought under [the Dram Shop Act] establishes a consistent and equitable approach to the issue of 'dramshop liability' generally, and first party 'dramshop liability' specifically."
Id.
The dissent in Sewell would have held that the Dram Shop Act did not create a cause of action for intoxicated patrons, so there could be no first party claims. But, with regard to innocent third parties who unmistakably had a cause of action, the dissent agreed with the Court that the comparative responsibility provisions applied to limit a provider's liability to an injured third party if the provider was found less than 51 percent responsible:
Id. (Gonzalez, J., dissenting).
I do agree wholeheartedly with the Court's conclusion that the Comparative Responsibility Act applies to [the Dram Shop Act]. Such a holding prevents an injured party from placing all the blame on the bar owner; instead, at least part of the responsibility will be placed on the truly culpable party in the best position to prevent the injury, the drunk driver.
Id. at 359 n. 6.
Today, the Court concludes that the Dram Shop Act "partially imputes causation" to the provider. Thus, the Court says, "the dram shop is liable to injured third parties for both its own actions and for its patron's share of responsibility." Citing the RESTATEMENT (THIRD) OF TORTS: APPORTIONMENT OF LIABILITY, the Court says "the Restatement makes clear that a party to whom liability is imputed and who is also independently liable 'is responsible for the share of the verdict assigned to [the party whose liability is imputed] and is also responsible for the share of the verdict assigned to its own negligence.'"
___ S.W.3d at ___.
Id. at ___.
Id. at ___ (alteration in original) (citing RESTATEMENT (THIRD) OF TORTS: APPORTIONMENT OF LIABILITY § 7 cmt. j (2000)).
There are numerous problems with this analysis. First, the RESTATEMENT (THIRD) OF TORTS: APPORTIONMENT OF LIABILITY is not the law in Texas. The Proportionate Responsibility Act and the Dram Shop Act are. Those statutory provisions govern this case, not the Restatement. Were this Court the Legislature, it could amend the Proportionate Responsibility Act, the Dram Shop Act, or both, to effectuate its notion of the fairest way to deal with an alcohol provider's liability, and the approach the Court has chosen might be an acceptable, perhaps even preferable, public policy. But we are not the Legislature, and we have to give effect to what it has written. The Court's imposition of vicarious liability conflicts with the Proportionate Responsibility Act. The Court says that the Legislature "did not intend for an innocent third party to bear the risk of an intoxicated patron's insolvency when a provider has breached the duty that the Act imposes." But the Legislature did intend for an innocent third party to bear the risk of a joint tortfeasor's insolvency as a general proposition. A tortfeasor who is found less than 51 percent responsible does not have to pay the entire amount of damages, only its proportionate share. There are exceptions for certain torts, but claims against providers of alcohol are not among those exceptions. Whether an innocent third party should bear the risk that one of several joint tortfeasors is insolvent has been the subject of longstanding debate in American jurisprudence. But the Texas Legislature made hard choices and charted a course that this Court must uphold.
Id. at ___.
The Legislature has said who is not entitled to proportionate responsibility, so that the risk of insolvency when there is more than one tortfeasor does not fall on an innocent third party. But alcohol providers are not among those enumerated. For example, the Legislature created a strict liability cause of action against a person who manufactures methamphetamine for death, personal injury, or property damage arising from the manufacture of that drug. The Legislature also created strict liability for any exposure by an individual to the manufacturing process, including exposure to the methamphetamine itself or any of the byproducts or waste products incident to the manufacture. The Legislature has declared that a person who manufactures methamphetamine and is found liable for any amount of damages arising from the manufacture is jointly liable with any other defendant for the entire amount of damages arising from the manufacture. The Legislature specifically said in both the statute that created the cause of action against such manufacturers and in amendments to the Proportionate Responsibility Act that the proportionate responsibility scheme "does not apply in an action for damages arising from the manufacture of methamphetamine." The Legislature did not include a similar exclusion for alcohol providers in either the Proportionate Responsibility Act or the Dram Shop Act, which creates the exclusive cause of action against an alcohol provider.
Id. § 99.002.
Id. § 99.003.
Id. § 99.004.
Id. § 99.005; see also id. § 33.002(c)(3).
At the time of the Dueñezes' injuries, the proportionate responsibility scheme imposed joint and several liability on those who caused toxic tort injuries and those who released hazardous substances into the environment if their responsibility was equal to or greater than 15 percent. Thus, in such cases, liability was not limited by proportionate responsibility. In 2003, the Legislature revisited that exclusion and repealed it in its entirety. Now, defendants found liable for these tortious acts are subject to the general proportionate responsibility scheme. If they are less than 51 percent responsible, they are liable only for the percentage assessed by the factfinder.
Act of June 3, 1987, 70th Leg., 1st C.S., ch. 2, § 2.09, 1987 Tex. Gen. Laws 37, 42, amended by Act of May 8, 1995, 74th Leg., R.S., ch. 136, § 1, 1995 Tex. Gen. Laws 971, 974 (former TEX. CIV. PRAC. REM. CODE § 33.013(c)), repealed by Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 4.10(5), 2003 Tex. Gen. Laws 847, 859.
Act of June 3, 1987, 70th Leg., 1st C.S., ch. 2, § 2.09, 1987 Tex. Gen. Laws 37, 42, amended by Act of May 8, 1995, 74th Leg., R.S., ch. 136, § 1, 1995 Tex. Gen. Laws 971, 974 (former TEX. CIV. PRAC. REM. CODE § 33.013(c)), repealed by Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 4.10(5), 2003 Tex. Gen. Laws 847, 859.
The Legislature has carved out exceptions for a host of criminal acts, declaring that there should be joint and several liability instead of proportionate responsibility, but only if there was specific intent to do harm to others and the defendant acted in concert with another. The list of crimes is numerous and broad in scope, ranging from capital murder to fraudulent destruction of a writing, and also includes theft when "the punishment level . . . is a felony of the third degree or higher."
Id. § 33.013(b)(2). In 2003, the Legislature moved the list of criminal acts from section 33.002(b) to 33.013(b)(2). See Act of June 2, 2003, 78th Leg., R.S., ch. 204, §§ 4.01, 4.07, 4.10(1), 2003 Tex. Gen. Laws 847, 855, 858-59. Section 33.013(b) currently provides:
(b) Notwithstanding Subsection (a), each liable defendant is, in addition to his liability under Subsection (a), jointly and severally liable for the damages recoverable by the claimant under Section 33.012 with respect to a cause of action if:
(1) the percentage of responsibility attributed to the defendant with respect to a cause of action is greater than 50 percent; or
(2) the defendant, with the specific intent to do harm to others, acted in concert with another person to engage in the conduct described in the following provisions of the Penal Code and in so doing proximately caused the damages legally recoverable by the claimant:
(A) Section 19.02 (murder);
(B) Section 19.03 (capital murder);
(C) Section 20.04 (aggravated kidnapping);
(D) Section 22.02 (aggravated assault);
(E) Section 22.011 (sexual assault);
(F) Section 22.021 (aggravated sexual assault);
(G) Section 22.04 (injury to a child, elderly individual, or disabled individual);
(H) Section 32.21 (forgery);
(I) Section 32.43 (commercial bribery);
(J) Section 32.45 (misapplication of fiduciary property or property of financial institution);
(K) Section 32.46 (securing execution of document by deception);
(L) Section 32.47 (fraudulent destruction, removal, or concealment of writing); or
(M) conduct described in Chapter 31 the punishment level for which is a felony of the third degree or higher.
TEX. CIV. PRAC. REM. CODE § 33.013(b)(2); see also TEX. PENAL CODE §§ 31.01-.15.
When the Legislature has chosen to impose joint and several liability rather than proportionate liability, it has clearly said so. The Legislature has not clearly said that alcohol providers are jointly and severally liable instead of proportionately liable. That fact has not deterred the Court in the least. Even though "vicarious" liability or "joint and several" liability are terms never used by the Legislature in setting forth the parameters of a cause of action against a provider of alcohol, the Court nevertheless imposes vicarious and joint and several liability.
If, as the Court says, a provider of alcohol is vicariously liable for its patron's share of responsibility, then when a jury finds that a patron was 15 percent responsible for his or her own injuries, the provider of alcohol is still liable to the patron for that 15 percent together with the percentage of responsibility assigned to the provider. That means that what this Court said in Smith v. Sewell was wrong. The Court held in Smith v. Sewell that the comparative responsibility scheme required a direct comparison and apportionment of responsibility. The provider was not required to pay the patron all of his damages and then seek indemnity with the hope that the intoxicated patron's other creditors would not have higher priority claims to the damages awarded.
858 S.W.2d 350, 356 (Tex. 1993).
If, as the Court says, a provider of alcohol is vicariously liable for its patron's share of responsibility, then it does not matter if a jury finds an intoxicated patron was 60 percent responsible for his or her own injuries. Since liability is vicarious, the provider is liable for all the damages caused by the patron's conduct, and section 33.001, which says a claimant may not recover if his percentage of responsibility is greater than 50 percent, does not apply. The Dram Shop Act makes no distinction between claims by drunk patrons and those injured by drunk patrons. A provider of alcohol is equally liable to both. There is liability if "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." If the limitations of liability in section 33.013 of the Proportionate Responsibility Act limiting a defendant's liability to the percentage of responsibility assigned to it do not apply, as the Court says, then the same type of limitations applicable to a claimant in section 33.012, which requires that the claimant's damages be reduced by the claimant's percentage of responsibility, do not apply. There is no basis for construing the two sections differently.
TEX. ALCO. BEV. CODE § 2.02 (emphasis added).
TEX. CIV. PRAC. REM. CODE § 33.012 ("If the claimant is not barred under section 33.001, the court shall reduce the amount of damages to be recovered by the claimant with respect to a cause of action by a percentage equal to the claimant's percentage of responsibility.").
If, as the Court says, a provider of alcohol is vicariously liable for its patron's share of responsibility, then multiple providers of alcohol found responsible are all jointly and severally liable, without regard to section 33.013, which limits liability to "the percentage of the damages found by the trier of fact equal to that defendant's percentage of responsibility." For example, suppose that Joe Doe became obviously intoxicated at his home, then went to three different bars. He bought an alcoholic drink at the first, but consumed none of it. At each of the other two establishments, he bought and consumed a beer. He then injured an innocent third party while driving home. A jury found Joe 75 percent responsible, the first establishment he visited 5 percent responsible, and each of the other two providers 10 percent responsible. The first provider is jointly and severally liable for 80 percent of Joe's damages even though the jury apportioned its responsibility at 5 percent. The Court says it is giving effect to the statutory proportionate responsibility scheme. But liability for 80 percent of the damages when a jury has found 5 percent responsibility is not the Legislature's proportionate responsibility scheme. It is the Court's.
Id. § 33.013(a).
___ S.W.3d at ___.
It bears repeating that the only statutory language the Court can find that supports its conclusion that the proportionate liability provisions of the Proportionate Responsibility Act do not apply is a phrase in a sentence in section 2.03 of the Alcoholic Beverage Code that says, "The liability of providers under this chapter for the actions of their employees, customers, members, or guests who are or become intoxicated is in lieu of common law or other statutory law warranties and duties of providers of alcoholic beverages." I simply cannot discern all the consequences the Court ascribes to this phrase.
TEX. ALCO. BEV. CODE § 2.03 (emphasis added).
The Court's opinion today overturns Smith v. Sewell sub silento by effectively holding that in cases in which the policy underlying the proportionate responsibility scheme is the most compelling — when the intoxicated person injures him- or herself and sues the provider, the provider must pay 100 percent of the patron's damages, then seek to "recover" from that patron, who may well be insolvent. Under the Court's analysis, the risk of the intoxicated patron's insolvency must be borne exclusively by the alcohol provider. That directly contravenes our holding in Smith v. Sewell.
III
In Smith v. Sewell, the Court unequivocally held that the comparative responsibility scheme applied to all Dram Shop Act causes of action. Part of the reasoning that led to that holding was that the Legislature had set forth exclusions or exceptions to the comparative responsibility statute and the Dram Shop Act was not among them. Since the decision in Smith v. Sewell, the Legislature has revisited the exclusions to its comparative, and later proportionate, responsibility scheme, more than once. It still has not included the Dram Shop Act among those exclusions. This signifies legislative acceptance of this Court's interpretation of the Dram Shop Act and the Comparative Responsibility Act in Smith v. Sewell.
Smith v. Sewell, 858 S.W.3d 350, 355-56 (Tex. 1993).
Id.
In Wich v. Fleming, this Court held "'[T]he Legislature must be regarded as intending statutes, when repeatedly reenacted, as in the case here, to be given that interpretation which has been settled by the courts.'" We also held in Coastal Industrial Water Authority v. Trinity Portland Cement Division, General Portland Cement Co.:
652 S.W.2d 353, 355 (Tex. 1983) (quoting Marmon v. Mustang Aviation, Inc., 430 S.W.2d 182, 187 (Tex. 1968) (quoting Cunningham v. Cunningham, 40 S.W.2d 46, 50 (Tex. 1931))).
[T]he fact that the amended statute carries forward the same language considered by [a] court indicates a legislative adoption of the construction theretofore given said statute. The rule is well settled that when a statute is re-enacted without material change, it is presumed that the legislature knew and adopted the interpretation placed on the original act and intended the new enactment to receive the same construction.
563 S.W.2d 916, 918 (Tex. 1978).
Given the many instances in which the Legislature has (1) expressly said that certain causes of action are excluded from the Proportionate Responsibility Act, which would otherwise limit liability commensurate with proportionate responsibility, and (2) has expressly tailored special joint and several liability provisions for some causes of action, the phrase in section 2.03 cannot reasonably be read to require vicarious liability and joint and several liability in lieu of proportionate liability for alcohol providers.
* * * * *
I respectfully dissent.