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Click here for the full text of this decision FACTS:After spending the day cutting firewood while 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 LP and purchased a 12-pack of beer. The store’s assistant manager, Carol Solis, sold the beer to Ruiz. Ruiz then climbed 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 swerved into oncoming traffic several times. Two cars dodged his truck to avoid a collision. As he crossed a bridge approximately a mile and a half from the Mr. Cut Rate convenience store, Ruiz swerved across the center line, hitting the Duenezes’ car head-on. All five members of the Duenez family suffered injuries. Ruiz was arrested at the accident scene for drunk driving. He pled guilty to intoxication assault and was sentenced to prison. The Duenezes 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. filed a cross-action against Ruiz, naming him as a responsible third-party and a contribution defendant. The Duenezes thereafter nonsuited all defendants except F.F.P.. At the pretrial conference, the Duenezes obtained a partial summary judgment that Chapter 33 of the Texas Civil Practice & Remedies Code, the proportionate responsibility statute, did not apply to this 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 Duenezes’ claim against F.F.P. proceeded to trial. At the charge conference, the trial court refused to submit to the jury questions for determination of Ruiz’s negligence. The court also failed to submit questions on the proportionate responsibility of Ruiz and F.F.P.. The jury found 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. 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.” In reaching that conclusion, the court distinguished the Texas Supreme Court’s decision in Smith v. Sewell, 858 S.W.2d 350 (Tex. 1993), in which it held that the comparative-responsibility statute applied to dram-shop causes of action under Texas Alcoholic Beverage Code �2.02. 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 is inapplicable when the plaintiff is an innocent third party injured by an intoxicated patron. The Texas Supreme Court granted F.F.P.’s petition for review and issued an opinion on Sept. 3, 2004. F.F.P. filed a motion for rehearing. While the motion was pending, Xavier, Irene and Ashley Duenez settled their claims against F.F.P.. Only the claims of Pablo and Carlos Duenez against F.F.P. remained before the court. On April 8, 2005, the Texas Supreme Court granted F.F.P.’s motion for rehearing. The case was re-argued on Nov. 30, 2005. The Texas Supreme Court withdrew its previous opinion and issued a new opinion in the matter. HOLDING:The Texas Supreme Court reversed the judgment of the court of appeals and remanded the case for a new trial. The court stated that the court of appeals decision was contrary to its opinion in Sewell. The court stated that it has interpreted the Dram Shop Act to create liability based “on the conduct of the provider of the alcoholic beverages � not the conduct of the recipient or a third party.” Thus, the court stated, the premise of the court of appeals’ vicarious liability holding � that the provider’s liability stems from the conduct of the intoxicated individual instead of the provider’s own conduct � runs contrary to both the Dram Shop Act and the court’s interpretation of the act in Sewell. The court held that the trial court abused its discretion by severing F.F.P.’s claim against Ruiz, proceeding to trial with F.F.P. as the only defendant and refusing to submit jury questions for determination of Ruiz’s negligence and proportion of responsibility. OPINION:Wainwright, J., delivered the opinion of the court, in which Hecht, Brister, Medina, Green, Johnson and Willett, J.J. joined. DISSENTS:Jefferson, C.J., filed a dissenting opinion. “I would hold, contrary to Sewell, that the Legislature has imposed a form of vicarious liability on a dram shop for the acts of its intoxicated customer. Because the shop’s conduct is statutorily irrelevant in relation to the plaintiff’s injury, there is no legitimate basis for comparing its responsibility with that of the intoxicated person.” O’Neill, J., filed an additional dissenting opinion. “In sum, the disagreement in this case is, and has always been, over what the Legislature meant in the Dram Shop Act when it referred to”the liability of providers under this chapter for the actions of their customers . . . who are or become intoxicated.’ . . . . Today the Court usurps the legislative function and dilutes the deterrent protections the Dram Shop Act was designed to afford.”

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