Nieman v. Valz, 3:14-cv-03897

Plaintiff Jason Nieman alleges he was drugged at Concrete Cowboy on Sept. 14, 2014, became incapacitated, and later fell on a staircase, suffering facial/cranial injuries.
Plaintiff alleges bartenders continued serving him after his condition became obviously compromised due to a drink he believes was spiked with GHB/Rohypnol.
Plaintiff also claims the staircase was defective (steep, disrepair, lack of handrails, poor lighting), contributing to his fall.
Plaintiff asserts a Texas Dram Shop Act claim, a premises-liability claim, and a related claim under Tex. Alc. Bev. Code § 109.03 for selling adulterated alcoholic beverages.
Concrete Cowboy Defendants moved to dismiss under Rule 12(b)(6), arguing plaintiff failed to plead elements of the Dram Shop and premises-liability claims and that the Section 109.03 claim is inapplicable.
Magistrate Judge recommends denying dismissal of the Dram Shop and premises-liability claims but granting dismissal of the Section 109.03 adulteration claim.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Applicability of Texas Dram Shop Act	Nieman alleges staff obviously observed his compromised state (due to being drugged and served more alcohol) and that intoxication proximately caused his injuries	Defendants say plaintiff failed to plead factual elements showing obvious intoxication and causation	Denied dismissal: allegations, liberally construed, sufficiently plead a Dram Shop claim
Claim under Tex. Alc. Bev. Code § 109.03 (adulteration)	Nieman treats duty to detect tampering/adulteration as basis for liability because drink was allegedly contaminated after purchase	Defendants argue §109.03 governs saleability/labeling and does not impose a duty to detect a third party’s post-sale adulteration	Granted dismissal: §109.03 inapplicable to alleged failure to detect a third-party contamination
Premises-liability based on staircase condition and lighting	Nieman alleges staircase was steep, in disrepair, lacked/defective handrails and lighting, and defendants knew or should have known	Defendants contend facts insufficiently plead merchant knowledge, unreasonableness, or proximate causation	Denied dismissal: pleadings sufficiently allege merchant knowledge (actual/constructive), unreasonable risk, failure to mitigate, and proximate causation

Bell Atl. Corp. v. Twombly, 550 U.S. 544 (pleading must state a plausible claim for relief)
Ashcroft v. Iqbal, 556 U.S. 662 (conclusory allegations insufficient under Rule 8)
In re Katrina Canal Breaches Litig., 495 F.3d 191 (5th Cir.) (pleading-stage standards; accept well-pleaded facts)
Southland Corp. v. Lewis, 940 S.W.2d 83 (Tex. 1997) (elements and exclusivity of Texas Dram Shop Act)
Wal-Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934 (Tex. 1998) (merchant’s duty to invitees: exercise reasonable care to discover/remove dangerous conditions)
Thomas v. Arn, 474 U.S. 140 (magistrate recommendation objection procedure)