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Click here for the full text of this decision FACTS:The plaintiffs in this dramshop 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 this court required in Smith v. Sewell, 858 S.W.2d 350 (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. HOLDING:Affirmed. The court concludes 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. The court also concludes 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, the court holds that the trial court did not err in refusing to submit an instruction on sole proximate cause to the jury. It is clear from Civil Practice & Remedies Code 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 the court decided in Sewell, 858 S.W.2d at 356, [Smith v. Sewell, 858 S.W.2d 350 (Tex. 1993)] that Chapter 33 applied to claims brought under the Dram Shop Act.” Applying Chapter 33 to a dramshop liability scheme that partially imputes causation does not thwart the Legislature’s purpose. The court notes the commentary of Schwartz, “Comparative Negligence” 16.1 (2d ed. 1986): “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. 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.” The court concludes 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 dramshop and the intoxicated patron, as well as the injured third party if there is evidence of contributory negligence. The resulting judgment should aggregate the dramshop’s and driver’s liability so that the plaintiff fully recovers from the provider without assuming the risk of the driver’s insolvency. The dramshop may then recover from the driver based upon the percentages of responsibility that the jury assessed between them. OPINION:O’Neill, J.; Phillips, C.J., Jefferson, Schneider and Smith, JJ., join. DISSENT:Owen, J.; Hecht, Wainwright and Brister, JJ. “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.”

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