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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. Carol Solis, the store’s assistant manager, 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 one-half from the Mr. Cut Rate convenience store, Ruiz swerved across the center line, hitting the Duenez family’s car head-on. All five members of the Duenez family suffered injuries. Ruiz was arrested at the accident scene for drunk driving. He pleaded guilty to intoxication assault and was sentenced to prison. The Duenezes brought a civil suit against F.F.P., Ruiz, Solis, Nu-Way Beverage Co., 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. F.F.P.’s severed action against Ruiz remains pending in the trial court. The Duenezes’ claim against F.F.P. proceeded to trial. At the charge conference, the trial court refused to submit questions for determination of Ruiz’s negligence. The trial court also failed to submit questions on the proportionate responsibility of Ruiz and F.F.P. The jury found that when Mr. Cut Rate sold the alcohol 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 13th 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 13th Court distinguished the Texas Supreme Court’s 1993 decision in Smith v. Sewell, in which it held that the comparative responsibility statute applied to dram-shop causes of action. The 13th Court concluded that Sewell’s HOLDING:was limited to first-party actions in which the intoxicated patron sued for his own injuries; and was inapplicable when the plaintiff is an innocent third party injured by an intoxicated patron. The 13th Court also held that the trial court did not abuse its discretion in severing F.F.P.’s contribution claim against Ruiz, concluding that because F.F.P.’s statutory liability was vicarious and not direct, F.F.P. had an indemnity claim rather than a contribution claim against Ruiz. The Texas Supreme Court granted F.F.P.’s petition for review. While the petition 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. HOLDING:Reversed and remanded. Texas Alcoholic Beverage Code �2.02, the Dram Shop Act, seeks 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.” If a plaintiff meets the burden of proof imposed by the Dram Shop Act, then the provider is liable for damages proximately caused by its employees or patrons. In the Dram Shop Act, the court stated, the Legislature created a duty on alcohol providers and increased the potential liability of providers as a means of deterring providers from serving obviously intoxicated individuals. Chapter 33 of the Texas Civil Practice & Remedies Code governs the apportionment of responsibility in cases within its scope. The 1995 version of this statute applied to this case, because the collision that injured the Duenezes occurred in July 1997. At that time, Texas Civil Practice & Remedies Code �33.013 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 exceeded 50 percent. The court declined the invitation to reverse Sewell and instead affirmed its holding that the language of the proportionate responsibility statute includes claims under the Dram Shop Act. Neither the purpose nor the language of the act makes a dram shop automatically responsible for all of the damages caused by an intoxicated patron, regardless of a jury’s determination of the dram shop’s proportion of responsibility. Instead, the court stated that pursuant to Chapter 33, a dram shop is responsible for its proportionate share of the damages as determined by a jury. Therefore, the court held that the trial court erred by not including a jury instruction to determine Ruiz’s proportionate share of responsibility. Moreover, the court stated, 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. “The Legislature, confronting a serious question of public health, enacted a strong deterrent to curb the plague of drunk driving in Texas. If a provider sells to a drunk, it must answer in damages for the injury its patron’s intoxication visits upon an innocent person, even if the sale is not itself the proximate cause. . . . The Court’s insertion of that defense, contrary to the statute’s terms, seriously undermines an important deterrent. “In an appeal to cozening hope, the Court offers that a jury will not always assign most of the responsibility to a provider’s patron. . . The Duenezes will take cold comfort in that pronouncement. The record shows that Ruiz � already so intoxicated that he was a clear danger to others before F.F.P. completed the sale � drank, at most, one more beer in 1.5 miles of highway driving afterwards. Under the legal sufficiency standards announced in City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005), that evidence will never support a finding that F.F.P. caused the accident. The Court’s remand for a new trial is, in reality, a decree of rendition.” O’Neill, J. “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.’ . . . Over two years ago, the Court considered this language significant and straightforward, and afforded the Legislature deference in choosing it. . . . Today the Court usurps the legislative function and dilutes the deterrent protections the Dram Shop Act was designed to afford.”

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