F.F.P. Operating Partners, L.P. v. Duenez
237 S.W.3d 680, 50 Tex. Sup. Ct. J. 764, 2007 Tex. LEXIS 432 (2007)
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Rule of Law:
Texas's proportionate responsibility statute applies to claims brought under the Dram Shop Act. An alcohol provider's liability is direct, based on its own wrongful conduct of serving an obviously intoxicated person, and not vicarious for the patron's actions, requiring a fact-finder to apportion responsibility between all at-fault parties.
Facts:
- After spending a day consuming a case and a half of beer while cutting firewood, Roberto Ruiz was intoxicated.
- Ruiz then drove his truck to a Mr. Cut Rate convenience store, owned by F.F.P. Operating Partners, L.P.
- Carol Solis, an assistant manager at the store, sold Ruiz a twelve-pack of beer despite his condition.
- Ruiz got into his truck, opened a beer, placed it between his legs, and began driving on a highway.
- While driving, Ruiz swerved into oncoming traffic several times.
- Approximately a mile and a half from the store, Ruiz's truck crossed the center line and collided head-on with a car carrying the Duenez family, injuring all five members.
Procedural Posture:
- The Duenez family brought a civil suit against F.F.P. Operating Partners, L.P., Roberto Ruiz, and others in a Texas trial court.
- F.F.P. filed a cross-action against Ruiz, naming him as a responsible third party.
- The Duenezes non-suited all defendants except F.F.P.
- The trial court granted a partial summary judgment for the Duenezes, ruling that the proportionate responsibility statute (Chapter 33) did not apply.
- The trial court then severed F.F.P.'s cross-action against Ruiz, leaving F.F.P. as the sole defendant for trial.
- The jury found F.F.P. liable under the Dram Shop Act and returned a $35 million verdict, upon which the trial court rendered judgment.
- F.F.P. (appellant) appealed to the Texas court of appeals.
- The court of appeals affirmed, holding that in third-party actions, a provider is vicariously liable and not entitled to apportion liability with the intoxicated person.
- F.F.P. (petitioner) petitioned the Supreme Court of Texas for review, which was granted.
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Issue:
Does the Texas proportionate responsibility statute (Chapter 33 of the Texas Civil Practice and Remedies Code) apply to third-party claims brought under the Texas Dram Shop Act, thereby allowing a jury to apportion fault between the alcohol provider and the intoxicated patron?
Opinions:
Majority - Justice Wainwright
Yes, the Texas proportionate responsibility statute applies to Dram Shop Act claims, requiring the apportionment of fault between the provider and the patron. The court reaffirmed its holding in Smith v. Sewell, stating that a dram shop's liability is not vicarious but is based on its own direct, wrongful conduct—the act of selling alcohol to an obviously intoxicated individual. The broad language of the proportionate responsibility statute covers 'any cause of action based on tort' and does not contain an exception for Dram Shop Act claims. The legislature has explicitly created exceptions for other causes of action when it intends to impose joint and several liability, and its failure to do so for dram shop claims indicates its intent for apportionment to apply. Therefore, a jury must determine the respective percentages of responsibility of the provider and the intoxicated patron.
Dissenting - Chief Justice Jefferson
No, the proportionate responsibility statute should not be applied to allow a provider to reduce its liability to an innocent third party because the Dram Shop Act creates a form of vicarious liability. The dissent argues that the Act's causation element focuses on the patron's intoxication causing the harm, not the provider's sale. The Act's purpose is to deter providers from making such sales, and allowing them to shift blame to the intoxicated patron undermines this purpose, as juries will likely assign most fault to the driver, allowing the provider to escape meaningful liability for the very conduct the law seeks to prevent. The court's prior decision in Sewell was incorrect and should be limited to first-party claims.
Dissenting - Justice O'Neill
Yes, the proportionate responsibility statute applies, but it should be harmonized with the Dram Shop Act's provision making a provider liable 'for the actions of their customers.' The jury should apportion fault between the provider and the patron; however, the innocent third-party plaintiff should be able to recover the full amount of damages from the provider. The apportionment would then serve as the basis for the provider to seek contribution or indemnity from the patron. This approach ensures the innocent victim is made whole and does not bear the risk of an insolvent drunk driver, while still giving effect to both statutes.
Analysis:
This decision solidifies the principle that dram shop liability in Texas is direct, not vicarious, for both first-party (the drunk person suing) and third-party (an innocent victim suing) claims. It significantly impacts litigation strategy by allowing alcohol providers to shift a portion of financial responsibility to the intoxicated tortfeasor, potentially reducing their own damages exposure. Consequently, the ruling places the risk of an intoxicated patron's insolvency squarely on the shoulders of the innocent injured plaintiff, who may be unable to collect the portion of damages allocated to a judgment-proof driver.
