Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Click here for the full text of this decision FACTS:Mario Alaniz and his wife, Ludivina, crossed Seawall Boulevard, and they were struck and killed by a vehicle driven by Ronald Kurtz. The evidence shows Kurtz began drinking at J.W.’s 8 Mile Road Bait Camp (“J.W.’s”) during the afternoon hours of May 16. While at J.W.’s, Kurtz drank between four and six beers. At about 9:30 that evening, Kurtz and several of his friends left J.W.’s and went to the Oasis, a bar owned by the appellee, Rebello Food and Beverage Services, L.L.C., d/b/a The Oasis. While there, Kurtz had two mixed drinks. He left the Oasis at approximately 11:30 p.m. Kurtz testified that as he turned onto Seawall Boulevard, he blacked out and has no recollection of what occurred thereafter, including the accident which occurred at approximately 12:40 a.m. on May 17. The appellants, children of Mr. and Mrs. Alaniz, their aunt, and grandmother, filed suit against Kurtz and appellees, Oasis, SRK Management, Inc., d/b/a Howard Johnson Suites (“SRK”), and Kirit Patel, alleging various causes of action, including suit under the Dram Shop Act. Appellants claimed appellees served alcoholic drinks to Kurtz when it was apparent he was obviously intoxicated. Appellees filed a traditional and no-evidence motion for summary judgment arguing 1. their evidence established it was not apparent to anyone at the Oasis that Kurtz was obviously intoxicated; and 2. there was no evidence Kurtz was obviously intoxicated and no evidence of proximate causation. They also filed a motion to exclude the testimony of the appellants’ expert witness, James C. Garriott. The appellants filed a partial motion for summary judgment, claiming that the appellees’ attempt to join Kurtz as a responsible third party, and thereby apportion liability, was in contravention of the Dram Shop Act. After a hearing on the motions, the trial court granted appellees’ motion and denied appellants’ motion. HOLDING:Affirmed. On their Dram Shop Act claims, the appellants must prove two elements: 1. that at the time alcohol was provided, sold, or served, it was apparent to the appellees that Kurtz was obviously intoxicated to the extent he presented a danger to himself and others; and 2. Kurtz’s intoxication was a proximate cause of the damages suffered. A plaintiff seeking to impose liability on a provider under the Dram Shop Act has an onerous burden of proof, approaching a common-law gross negligence standard. F.F.P. Operating Partners LP v. Duenez, 47 Tex. Sup. Ct. J. 1068 (Tex. Sept. 3, 2004). The appellants argue that the appellees’ no-evidence summary judgment motion failed to meet the specificity requirements of Rule 166a(i). In their summary judgment motion, the appellees made statements that specifically set forth the two elements appellants are required to prove under the Dram Shop Act and correspondingly, identify the specific elements on which appellees contend appellants have no evidence. The appellants argue, respectively, that the trial court erred in granting the appellees’ no-evidence summary judgment motion regarding Kurtz’s intoxication, and in granting the appellees’ traditional summary judgment motion on the issue of intoxication because material fact issues exist as to Kurtz’s “apparent intoxication” and causation. The court finds the appellants failed to present more than a scintilla of evidence that at the time alcohol was provided, sold, or served to Kurtz while he was at the Oasis, it was apparent to appellees that he was obviously intoxicated to the extent he presented a danger to himself and others. Therefore, the trial court did not err in granting appellees’ no-evidence summary judgment motion. Further, the court finds that appellees’ summary judgment evidence established there was no genuine material fact issue that, while Kurtz was at the Oasis, it was not apparent to the alcohol providers that Kurtz was obviously intoxicated. The appellants argue the trial court erred in granting appellees’ motion to strike their expert witness, Dr. James Garriott. In their motion, appellees assert that Garriott’s testimony is unreliable because Garriott relied on inaccurate assumptions about Kurtz’s alcohol consumption, his opinions were speculative, and he admitted that without an actual blood alcohol level for Kurtz, he could not estimate an accurate blood alcohol level while Kurtz was at the Oasis. The court agrees. OPINION:Guzman, J.; Hedges, Frost and Guzman, JJ.

Want to continue reading?
Become a Free ALM Digital Reader.

Benefits of a Digital Membership:

  • Free access to 3 articles* every 30 days
  • Access to the entire ALM network of websites
  • Unlimited access to the ALM suite of newsletters
  • Build custom alerts on any search topic of your choosing
  • Search by a wide range of topics

*May exclude premium content
Already have an account?


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.