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Click here for the full text of this decision FACTS:Nov. 19, 1999, the appellant, John L. Parker, attended the grand opening of Slick Willie’s Family Pool Hall, where he consumed alcoholic beverages throughout the evening. According to appellant, the bartender told him to “drink up,” and the manager and employees gave him a number of drinks. During the evening, appellant encountered Anthony Griffin, the son of appellant’s ex-girlfriend. Appellant and Griffin eventually became intoxicated and began to argue inside the pool hall. As a result, manager Craig Watson told appellant to leave and escorted him to the door. Watson went back inside the pool hall when he saw appellant walking toward a car. A few minutes later, Griffin, his mother, and his girlfriend followed appellant outside. Watson observed appellant and Griffin conversing in an apparently civil manner. Before long, however, the previous argument recommenced. Griffin suddenly punched appellant, causing him to fall and strike his head on the pavement. The fall fractured appellant’s skull and caused permanent brain damage. Appellant sued 20801 Inc. under the Dram Shop Act. Appellant alleged that 20801, its agents, servants and employees were negligent in that “they provided, supplied, sponsored, encouraged, served and/or sold intoxicating alcoholic beverages and liquor to [appellant] and Griffin when they knew or should have known that they had become obviously intoxicated to such a degree as to present a clear danger to themselves and others, and such intoxication was a proximate cause of the damages suffered by [appellant].” Appellant also pleaded a cause of action based on premises liability, alleging that the breach of 20801′s duty to exercise reasonable care to protect him from Griffin’s intentional and criminal conduct was the proximate cause of his injuries. Appellant alleged four ways in which 20801 and its agents, servants and employees were negligent: 1. in telling appellant to leave the pool hall without regard for his safety in the parking lot; 2. in failing to demand that Griffin leave the premises before appellant was injured; 3. in failing to timely notify the police; and 4. in failing to warn appellant that Griffin was following him outside. In its motion for summary judgment, 20801 argued that �2.03 of the Texas Alcoholic Beverage Code pre-empts appellant’s common law causes of action. Additionally, 20801 argued that it had complied with the safe harbor defense in �106.14, which immunizes a commercial provider of alcoholic beverages from liability for its employees’ provision of alcohol to an intoxicated customer if: 1. The employer requires employees to attend a commission-approved seller training program; 2. The employee has actually attended such a training program; and 3. The employer has not directly or indirectly encouraged the employee to violate such law. The trial court granted 20801′s motion for summary judgment Feb. 1, 2005 without specifying the grounds. HOLDING:Affirmed in part, reversed and remanded in part. The appellant contends that because he can simultaneously pursue both dram shop and premises liability causes of action, the trial court’s grant of summary judgment in favor of 20801 was erroneous. Because appellant’s premises liability claim is pre-empted by the code, the trial court did not err to the extent that it granted summary judgment against appellant’s premises liability claim. The appellant contends that 20801 did not establish the third element of its affirmative defense to appellant’s dram shop cause of action. The court agrees with 20801 that Watson’s affidavit is specific in establishing that it had a policy prohibiting the employer’s encouragement of direct or indirect violations of the code. Nevertheless, the court believes that a fact issue exists whether 20801 was actually enforcing its policies on the night in question. 20801 argues that the appropriate focus under the safe harbor provision is whether a provider has established the existence of policies and procedures to ensure compliance with the code. The court disagrees that establishment of compliance procedures alone suffices to trigger the protection of the safe harbor provision. The court agrees with the appellant that a provider also must prove enforcement of its alcohol policies on a particular occasion to satisfy the third element of the safe harbor defense. According to appellee, the burden shifted to appellant to show that appellee has a policy that encourages its employees to break the law. Appellee asserts that appellant has submitted no evidence regarding appellee’s alcohol policies and therefore did not raise a fact issue. However, there is no direct authority to support appellee’s argument of burden-shifting on its affirmative defense. Meanwhile, language in other dram shop cases indicates that enforcement is also a relevant consideration and that failure to enforce alcohol policies can constitute indirect encouragement to break the law. Because appellee did not establish the third element of its affirmative defense, the trial court improperly granted summary judgment on appellant’s statutory cause of action. OPINION:Hedges, C.J.; Hedges, C.J., Yates and Anderson, JJ.

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