*1
State,
shown.
cable statute at that time did imposition
not allow the of a fine. We
agree. murder, jury appellant
The convicted degree felony. jury
first assessed
punishment imprisonment life and a
$10,000.00 degree felony fine. The first appellant
offense was convicted of oc- 20, on March At the time the curred 1976. Dorothy Brett BEARD and committed, offense was section 12.32 of the Beard, Appellants, Texas Penal did not authorize assess- Code fine for of a first ment conviction time, degree felony. At the section 12.32 Graff, GRAFF, Lynn Royce Bob Debra
provided: Hausmon, Hausmon, Betty adjudged guilty An individual of a felo- Moos, Appellees. Edward Houston ny degree punished for the first shall be Department by confinement the Texas No. 04-89-00006-CV. term of any of Corrections for life or for Texas, Appeals of Court of years more than 99 or less than 5 Antonio. San years. 1122, 1124, 426, 1973 Ch. Tex.Gen.Laws Nov. 1990. by ch. amended Tex.Gen.Laws Rehearing Denied Dec. 1990. Penal 1058. Section 12.32 of Texas provide amended in 1979 to Code was
the assessment of a fine addition to amending legisla-
imprisonment. The 1979 provides part:
tion applies only 2. This Act to of-
Sec. committed on or after its effective
fenses
date, for an offense and a criminal action this Act’s effective
committed before existing governed by the law be-
date date,
fore this Act’s effective which law purpose this continued in effect for pur- in force. For
if this Act were not section, an offense is com-
poses of this the effective date of
mitted before of the offense occurs
Act if element effective date.
before the Septem- This Act takes effect
Sec. 3. 1, 1979.
ber 1979 Tex.Gen.Laws
Ch. $10,000.00 in this case fine assessed law in effect at not authorized *2 presented whether,
sion. The issue situation, a cause of action exists imposes duty which on a social host to serving stop beverages alcoholic to an in- toxicated in- host knows is toxicated and also knows will thereafter operate a motor vehicle while intoxicated. Specifically, this court is asked to decide whether duty a social host owes a of care parties to innocent general motoring public injured by who are acts of an intoxicated of his because intoxication while a motor vehicle. Negligence, a common law doc trine, consists of three essential ele legal ments—a duty by owed one to another, duty, a breach of that and dam ages proximately by caused the breach. Store, Rosas v. Buddies Food 518 S.W.2d (Tex.1975). Duty is the threshold issue. An seeking individual to recover prove must the existence and violation of a duty owed to him the defendant to es tablish in tort. Abalos v. Oil Dev. Co., (Tex.1976). 544 S.W.2d Therefore, question the initial before this appellees court is whether owe such a appellants. to For the reasons set out opinion, we answer the issue affirmative.
Appellants, mother, Brett Beard and his Beard, Perkins, Stone, Dorothy Jim couples, Royce Catherine M. sued two Wat- Brock, Antonio, Lynn kins & appellants. Bobby San for Debra Graff and and Bet- Hausmon, ty damages arising per- Brin, George Brin, Brin G. & San Anto- injuries sonal sustained Brett Beard in a nio, Johnson, Kerby Plunkett, Gibson & vehicular accident alleged caused Allen, Antonio, appellees. San negligence of Houston Edward Moos. alleged operating Beard that Moos was his CADENA, C.J., REEVES, Before vehicle on a street while intoxicated. BUTTS, CHAPA, PEEPLES, BIERY and negligence against action Moos has CARR, JJ., en banc. been from the severed suit appellees. ON APPELLANT’S MOTION FOR
REHEARING against appellees, this suit Beard al- leged appellees were in: serv- CARR, Justice. ing they Moos when appellants’ rehearing motion for knew or should known of have Moos’intox- granted following and the En opinion Banc icated oper- condition and that he would be panel is substituted for the opinion of Octo- vehicle; ating a allowing motor toMoos 31, 1989, opinion ber as the of this court. operate they the vehicle when knew or appeal This is an from a judgment of should have known of his intoxicated condi- tion; him; dismissal providing liquor suit which providing presents us with an impres- issue of first liquor they Moos with when knew
should
issue,
have known that Moos
dressing
would con-
the threshold
intoxicating
sume an
amount such that he
poses
Walker court
to itself:
intoxicated,
would become
they
and when
Does a cause of
action exist
Texas
knew or should have known that his intoxi-
imposes duty
on social hosts not
cated
injury
condition would result in
to a
to serve
who are obvi-
*3
person (Beard).
third
seeks
Beard
to re-
ously
prevent
intoxicated in order to
damages
appellees,
cover
the
“social
harming
them from
themselves or oth-
intoxicating liquor
hosts” who served
to
ers?
Moos,
appellant
with whom
(emphasis added).
Id.
The Walker court’s
public
involved in a
accident on a
vehicular
language reference to “or others” was not
street.
only.
before the court and is dicta
Fur-
appellees’ spe-
The trial court sustained
thermore,
guest
injured par-
the social
and
exceptions
cial
and dismissed the suit for
ty being
Walker,
one and the same in
In
failure to state a cause of action.
one
(in
reference to “or others”
the context of
error,
point of
Beard claims the trial
denying
remedy
Walker court
a civil
agree
court’s dismissal was error. We
injured
himself)
guest
super-
social
thus
cause.
reverse
remand this
fluous
in
because
the situation where a
present-
From our
research on
issue
“others,”
guest injures
social
any civil rem-
us,
ed whether a social host owes a
edy
sought by
injured party
would be
gener-
care
parties
to innocent third
of the
referenced in Walker’s “or others” lan-
motoring public
injured by
al and
who are
guage
by
and not
social
guest
the acts of an intoxicated
because of
Here,
guest.
injury
is to innocent
driving
his intoxication
a motor
while
ve-
parties.
facts in-
third
Since Walker
hicle,
precedential authority
we find neither
only injury
volve
to the intoxicated social
persuasive authority
in Texas nor
in the
himself,
holding is so limit-
Walker’s
majority position of our sister states.
event,
ed. In
do not find the
we
Walk-
holding
applies
to the social
er
First,
nothing
there is
in Texas law to
injures himself as a result of his
who
own
preclude
finding
of social host
intoxication, persuasive
regard
in
under
the circumstances
this case.1
parties
issue of innocent third
who are vic-
Appellees’ reliance on
v. Chil
Walker
driving
tims of drunken
because the
Services, Inc.,
(Tex.
dren’s
Washington.3 While
jurisdictions
other
Judiciary
Function of
have
the issue of social host
considered
agree
We do not
that the issue before us
unwilling
been
to extend
have
injury
par-
involving the
to innocent
liability to a
has served
ties
the context of the facts of this
within
gen
guests,4 they
intoxicants to adult
have
*4
by
case cannot be addressed
resolved
and
erally
imposition
done
the
so on
basis
legislative policy,
evidence of
as
us without
liability
of this
of
“such a
new form
is
Walker,
720,
expressed in
at
751 S.W.2d
law,”
departure
prior
radical
from
with
scope
because the determination
the
of
of
impact
average
such a substantial
on the
negligence
traditionally
in
eases has
everyday
family
citizen and on
social and
Chico,
judiciary,
been a function of the
El
affairs,
legisla
that the issue is
left
best
314;
732 S.W.2d at
our courts have consist-
However,
present
tive determination.
ently
changes in
made
the common law of
subject being
condition of Texas law on the
changing
need
torts as the
arose
a
socie-
undecided,
yet
we fail to see a “radical
311;
ty,
and,
judiciary
has decid-
id.
departure
prior
In
law”
Texas.
significant
many
any pri-
ed
issues without
addition,
view,
rights
in our
of innocent
study.
fact,
judicial
legislative
or
In
a
de-
parties
general
motoring
of
termination of the existence of
social host
annually injured
who are
in our state
duty in the context of the facts of this case
by the acts of
far
intoxicated motorists
competence
judiciary
is
within the
of
outweigh any resulting
society
impact on
strong legisla-
harmony
and is in
with the
from imposition
liability
of
on
social
policy
tive
drunken
and for
provided
host as
herein. For
reasons
of our
enforcement
traffic laws.
opinion,
event,
set
persuaded
forth
this
we are
with
on
if the
differs
us
1972);
(Del.
Superior
3.
Maroney,
Coulter v.
Court
San
Coun-
v.
Mateo
When the court from that determines that when the host knows the extended, exists and will be is intoxicated and also it knows will be *6 judicial operating draws a lines based on motor vehicle while intoxicated fairness and policy. society In a is where sufficient to attach civil thousands of to the deaths are year by injuries caused each host for to parties. drunken innocent third drivers, damage where the by caused Conclusion regarded
such deaths is increasingly as intolerable, where licensees are Since this case comes to our court prohibited from serving intoxicated purposes, ruling of on the trial court’s adults, and where long-standing criminal sustaining special exceptions of and dismis sanctions driving drunken have appellants’ sal of suit for failure to state a recently significantly been strengthened action, cause of accept this court must imposition ... the of such a the appellants’ pleaded true all of allegations judiciary fully seems both fair and in evidence, indulging every and in reasonable accord with the policy. State’s resolving appel inference and all in doubts Chico, 315; lant’s favor. El Id. 476 S.W.2d at A.2d at 1222. Morgan, Blanton v. 681 S.W.2d policy, states, Texas like that of other (Tex.App. n.r.e.). Paso writ ref’d - El prohibit driving. drunken TEX. See (Ver- REV.CIV.STAT.ANN. art. 67011-1 In their trial pleadings, appellants al- Supp.1990) (a non leged commits an of- that the accident made the basis of fense if the is intoxicated while this suit damages and their were caused operating or a Moos, motor vehicle in a of Houston Edward public place). And it seems evident operating that who was his vehicle while under purpose policy protect of this is to intoxicating influence of alcoholic bev- people using public who are place, a a erages class at the time of Appel- the accident. appellant to which belongs. The alleged offense of further appellees lants that were driving while intoxicated composed of in serving intoxicating alcoholic opinion, greater As used in this "exclusive control” than that of the [of user. supply] right the alcohol means that of control providers to Houston Moos when nizes of licensed if Edward
they
allegations
knew or should have
that Moos
petition
proof
known
and the
was intoxicated and that he
subse-
would
meet the
enunciated in
Act.
standard
quently operate a motor vehicle while in-
Corp.
Enacted
in effect when El
Chico
toxicated.
Poole,
(Tex.1987)
one before this court. The courts of Texas requires This case us to decide whether a do not write on “a clean slate” this field court should create a common-lawcause of as would a in wholly court common law action in a field that legislature has jurisdiction. The liability issue of civil for pervasively regulated. majority The holds a social host has broad ramifications with private that a individual can be liable for many conflicting interests concerns of serving alcohol to a who the server society judiciary involved. The is not knows is intoxicated and will drive a car equipped public input to receive as is our ultimately and who injures person. a third legislature, public with its committee hear holding That liability legis- creates that the ings, and to resolve broad policy consciously (and lature declined to create questions based on a societal consensus. arguably prohibited) when it enacted the Brennan, See Bankston v. 507 So.2d Texas dram law in 1987. I dissent. (Fla.1987). The before this majority does not even mention many court has affecting ramifications so chapter of the Beverage two Alcoholic ciety which have not been addressed and Code, which is entitled “Civil Liabilities for cannot by majority be resolved holding. Serving Beverages,” arguably and which It is one that is properly within the realm precludes of today. action created of cause legislature to resolve. See Burk That statute creates a Harrod, cause of action in hart v. 110 Wash.2d 755 P.2d tort an (1988) “provider” alcohol (comprehensive 761-63 discus —defined serves, as a anyone sion licensee who sells or of the or why reasons sells, beverage an alcoholic subject is a to an indi- best left to body equipped “apparent” vidual—if it to deal was legislature). with it—the the drink- As noted er Burkhart, “obviously was intoxicated.” the decision to defer the issue of to the Section 2.03 makes clear that the statu- fully supported by precedent. Id. at 762 tory cause of action inis lieu of common (citations omitted). liability. law The last sentence in 2.03 § Therefore I respectfully dissent. says regard that with chapter to adults two would hold the petition second amended is exclusive and there is no other cause of does recognized not state a cause of chapter provides action action: “This the exclu- in Texas judgment and affirm the of the sive cause action providing of an alco- trial court. beverage person years holic to a age entirety (1) 1. The statute reads in its provision as follows: at the time the occurred it apparent provider CHAPTER 2. CIVIL was LIABILITIES FOR individ- sold, served, SERVING being BEVERAGES provided ual or with an § 2.01. Definitions beverage obviously alcoholic chapter: In this presented danger to the extent that he a clear (1) "Provider” means a who sells or others; himself beverage serves an authority alcoholic under recipient the intoxication of the permit a license or issued under the terms of beverage proximate alcoholic was a cause of this code or who otherwise sells an alcoholic damages suffered. beverage to an individual. Statutory § Remedy 2.03. includes, to, “Provision” but is not limited providers chapter under this beverage. the sale or service an alcoholic customers, members, for the actions of their or § 2.02. Causes of Action guests who are or become intoxicated is in lieu (a) chapter right This does not affect the statutory of common law or other law warran- any person bring a common law cause of providers ties and duties of of alcoholic bever- against any consump- action individual whose ages. chapter impose obligations This does not beverage allegedly tion of an alcoholic resulted provider aon of alcoholic other than causing person bringing the suit to suffer expressly chapter. those stated in this This personal injury property damage. or chapter provides the exclusive cause (b) action Providing, selling, serving an alcoholic providing beverage beverage may to a statutory be made the basis of a *10 years age or older. chapter may cause of action under this made the basis of a revocation (Ver- proceeding un- TEX.ALCO.BEV.CODE §§ ANN. 2.01-2.03 6.01(b) upon proof der Supp.1990) added). Section of this code (emphasis that: non 168 simply
or older.” If this
majority places
sentence means
almost all its reliance
that the statute is the exclusive cause of
Gwinnell,
538,
Kelly
v.
476
96 N.J.
A.2d
against “providers,”
action
it is redundant
(1984),
quotes
1219
from which it
extensive-
preceding
because the
two sentences al-
ly.
Kelly
Jersey
But
stressed that New
ready
In
say
thing.
view
same
not have a
shop
did
dram
act and said that
2.01(2)’s
“provision”
definition of
§
—“the
exists,
a
legisla-
whenever such statute
beverage”
sale or service of
alcoholic
an
arguably occupied
ture has
the field and
chapter pro-
2.03 seems to mean: “This
—§
should
the courts
not create common law
vides the exclusive cause of action for [sell-
liability:
ing
serving]
beverage
a
or
alcoholic
very
person
years
age
Shop
18
or older.”
existence of a Dram
Act
[The]
argument
constitutes
a
substantial
(“Civil
Considering the statute’s title
Lia-
against expansion
legislatively-
Beverages”)
Serving
bilities for
and its
liability. Very simply,
mandated
when
provisions together,
very plausible
other
a
Legislature
specifical-
spoken
has
so
interpretation is that
there is a statu-
tory
against
categories
cause of action
two
ly
subject
on the
make
and has chosen to
(a)
people:
those
to an intoxi-
who sell
liable,
only
arguably
Legis-
licensees
person,
(b)
merely
cated
those who
impose
lature did
intend to
the same
persons,
only if
serve such
but
the server
liability on hosts.
licensee;
(2) nothing
a
in the statute
passage
169 Having way, stated the himself—was correct and that the court language court three times used sug- that its exercised discretion not to review the gested duty the social host no owes approve disapprove ease and the dicta drinker or to others: quoted above. Yet this view has its diffi- appeal presents questions.
This two supreme court in a vendor culties. The a Does cause of action exist in Texas suggested case the vendor imposes duty a on social hosts not duty irrespective owes the same of whether liquor guests to serve who are obvi- plaintiff party: is the drinker or a third ously prevent intoxicated in order to “The is the same whether the foresee- harming them from themselves or oth- injury able involves drunkard himself ers? ... may peril placed or a third who
because
drunkard’s condition.” El
306,
Poole,
Corp. v.
732
312
Chico
S.W.2d
Therefore,
great weight
authority
(Tex.1987).
And our dram
statute
supports
position
that a social host
seems to allow a cause of action
should not be held
guests
liable to his
parties
nor to
drinker himself
addition to innocent third
guests
third
whom his
Nevertheless,
may injure
parties.
on
...
balance do not
controlling
consider the
dicta
in the
Walker
present case.
persuaded
are not
to extend a civil
[We]
remedy
injure
to social
them-
majority
cites cases from other
selves or others.
adopt
states and then chooses to
the mi
718,
added).
cases,
at
(emphasis
nority
Id.
720
At
rule. But
its citation of
anoth
point in
opinion,
er
majority
court stressed
fails to make fundamental dis
that the case involved the drinker himself
the host
tinctions—whether
violated stat
plaintiff
person:
not a third
“Otis
unlawfully
ute or
served a minor —and
Clark,
Engineering [Corp. v.
668 S.W.2d gives
impression
the erroneous
it is
(Tex.1983)
307
require
does not
an em
following
minority.
]
a sizable
Some courts
ployer
protect
employee
an
from harm
imposed liability
have
because
instance,
ing
In this
we do not
person
underage
served an
in violation of a
himself.
injured
therefore,
have an
party;
language
have
statute.4 Others
relied on
Otis Engineering
apply.”
does not
Walk
justifies
a statute that
civil
er,
added).
751
(emphasis
S.W.2d
719
pers
when
on.,5
host served
intoxicated
(Massachusetts
Only
It is true that the
two states
supreme court declined
Walker,
impose
Jersey) presently
to review
New
but that action does not
necessarily mean
hosts in
like
approved
that the court
non-vendor social
situations
us,
its dicta.
The denial of review
mean the one before
in which the
could
that the result in Walker—that the server
served was an adult and no statute was
is not liable to the
injures
drinker who
there
violated.6 Most courts have held that
See,
88,
e.g., Ely
intoxication");
Murphy,
4.
Gariup
v.
207 Conn.
540
state
noticeable
(1988);
194,
Hutchings,
Foster,
(Ind.1988)
A.2d 54
Sutter v.
Ga.
254
v.
N.E.2d
Constr. Co.
519
1224
(1985);
Gensel,
Longstreth
170
is no
wholeheartedly
agree
under
these circumstances.7
I
that drunk driv-
See generally
Annotation,
Social Host’s
ing
problem,
society
is a
and that
must
Liability
Injuries
By
Incurred
Third
ways
seek more effective
to deal with it.8
for
Parties As a Result
Intoxicated Guest’s
IBut
doubt
the law can reduce the
of
Negligence, 62 A.L.R.4& 16
(1988).
problem
holding social hosts liable
DWI
the accidents caused
their
friends
for
majority
adopting
I do not fault
the
for
already
the
who were
intoxicated when
minority
simply
the
it
rule
because
is the
much deterrence
host served them. How
minority rule. We should not follow the
really accomplish?
will tort suits
Tort law
blindly
try
join
crowd
discern and
the
compensate,
does
but I
whether
good
“trend” unless there are
reasons for
negligence
shape
suits
the
of indi-
behavior
doing
joins
so. But
a court
when
scant
any appreciable degree. This is
viduals to
minority
departs
from the common law
especially true
host’s
where
social
new,
action,
expansive
to create a
cause of
policy
in all
homeowners
insurance
will
good
it should have
reasons. And it should
punitive
it
likelihood cover his actual
consider
the ramifications
of the rule
damages9
attorney’s
fees
de-
adopts.
majority
It is here that I find the
and the
for
opinion especially lacking.
fending the suit.10
381,
(1988); Overbaugh
problem.”
language suggested
Wash.2d
755 P.2d
v.
court’s
759
McCutcheon,
(W.Va.1990).
liability might
such
extend to the social host.
S.E.2d 153
396
majority
potentially
makes the
mislead
ing
of action
statement that a social host cause
entirely
majority rests its decision almost
8. The
recognized”
states. See text
"has been
in seven
driving.
goal
deterring
drunk
It does
majority
majority
at note three. But as the
express
compen-
find additional
a desire to
Iowa,
admits,
California,
legislatures
goal
injured
person,
but that
sation for
responded
Minnesota
to court decisions—which
quotation in its
is mentioned in the extensive
part
rested in whole or in
on statutes —with
opinion.
greater compensation is in fact the
If
legislation abolishing
cause
action. The
goal,
simply
be candid and
admit
should
vendor, though
Connecticut case involved a
widening
of addi-
that we are
the net in search
suggest
may
that there
court did
in dictum
help compensate
in-
defendants to
tional
ordinary
social host
when the host is
majority opinion,
jured party.
As I read
guilty
reckless misconduct. The
however,
of wanton and
deep-pocket
it does not rest on this
prohibited
Georgia cases rest on a statute that
rationale.
serving
Washington
alcohol
to minors. The
longer
case is no
authoritative in view of Burk
punitive
have held that
dam
9. The Texas cases
381,
Harrod,
hart v.
110 Wash.2d
like legislatures question- we cannot send court decide whether to extend naires to our “constituents” or otherwise when the extra drink was consumed at a pending hear out their at which all the views on a contributed case. money split liquor sup- the cost of publicize Nor can we fact that we are ply? majority opinion, Under the no one is considering the issue and then assess the liable because the host did not have exclu- pros and cons that are made known in the control, right sive defined as “that of con- media or in our mail. The leg- constituent greater trol than that of the user.” society islature can also consider whether *14 But that result allows social hosts who problem by should attack the means other liability require simply to want to avoid litigation.14 only than civil Courts can act guests liquor contribute to the their lawsuit, a through unwieldy blunt and is fund and serve themselves. Who liable addition, costly tool that is as well. when the drink was served a bartender? proceed step-by-step, courts must while a knowledge Will the bartender’s actual be legislature can enact a statute that takes a imputed to him? the host who hired And comprehensive, more unified view.15 questions. there are other Will there be today pal- The cause of action created liability buys when one friend a drink at a majority only atable to the because it is another, jury bar for who a later decides thought narrowly to be confined and limit- already intoxicated? great opinion says ed. With confidence the cases, When these issues arise in future only that the host is liable when he had principled it will be hard to draw lines. We liquor supply exclusive control of the and liability will either have to extend further in- knowledge actual that the drinker was or confine it to the artificial lines drawn driving. toxicated and would be But these today. likely We are to conclude that we prove limits on the cause of action will should not down this road in have started difficult to maintain and enforce. The place. the first prem- whole idea of deterrence rests on the majority ignored a has statute person ise that whose behavior we (“Civil occupies Liability the field for Serv- want to deter —the host—will aware ing Beverages”), adopted a rule that surely the law’s sanctions. But some lonely unimpressive and mi- followed hosts, upon becoming aware of the social courts, nority given and no of two state action, may adapt host cause of to it in- thought practical problems real to the structuring their affairs to avoid exclusive herent its decision. It has done this knowledge control of the and actual without discussion of whether social host who drinks it. What will courts do any impact have on the acci- will gave up host when the exclusive control dent rate. and let the serve their own drinks? principled respectfully And on what basis will the next dissent.
14.Approaches while blocks to strengthening ing age drinking both increase tion of office.... driving under the influence. Other measures ful and include bloodstream that results in a regarding make .05%, state A pledges intoxicated, intoxication, impartial judge to [5] drivers, judicial and federal levels have included improve twenty-one, lowering, or criminal or percentage to the deterrence awareness of the promises performance judicial duties other than the faith- [2] the chances of raising [4] from .10% to .08% penalties [6] [3] using candidate shall not of conduct in office of alcohol instituting setting up legal presump- of the duties of the media to legal problem dangers catching admin- in the drink- road- [1] 16. See for the civil should be civil or criminal or courts accident, seek to by duct the law seeks to 404-405 Comment, istrative drinking If the Social insurance liable, Drinking majority opinion at footnote six. marginal such issues punish (1988) (footnotes omitted). and whether Host procedures drivers off the roads. it can decide much better than the should be covering Liability, Continuing Driver percentage chooses to make the social deter) as whether punitive Tragedy punish joint for could be getting Search and several or contribution to the NW.U.L.REV. both, and deter. and the Problem damages any and whether whose discharged Solutions sanction keeping (which only con- Justice, BIERY, dissenting. fore it the of a issue social host’s to to whom alcohol is served. reasons, Although for different I also issue, however, stating in Broadly respectfully dissent. third-party clude social hosts’ presented specific We are with the well, the Amarillo victims as court conclud statutory narrow of whether the El should not be ed that the Chico recognizes or common of Texas a cause law extended to social hosts. providing of action host for court, ap- Subsequently, supreme our obviously to one who is error, plication appli- for writ of denied the injures subsequently intoxicated and who the notation “Writ Denied.” cation with person. legislative While the branch Appellate supreme directly and our court have not Rule 133 of Texas Rules of question, provides “application is sufficient that if answered there Procedure implicit authority supreme presents requires recent from our no error of law which court to conclude that this new cause of importance reversal or which is such recognized. action is not jurisprudence to re- State as *15 correction, deny quire the court will Although legislature spoken has application with the notation ‘Writ De- shop” liability, the issue of “dram it has ” added.) Thus, (Emphasis nied.’ su- our not addressed the of preme recently court had before it this because, definition, “provider” under importance to jurisprudence issue of Beverage the Texas Alcoholic is limit- Code implicitly the State and concluded that the ed to one who “sells or serves an alcoholic pronouncement Amarillo Court beverage authority under of a license or Appeals Analogous not corrected. need permit ...” TEX.ALCO.BEV.CODE guess diversity litiga- to an Erie federal (West Supp.1990). ANN. 2.01 Unlike § tion, highest I therefore conclude that our California, Iowa, Minnesota and other state recognize court does not the cause of ac- legislatures, legislature our specifi- has not appellants tion asserted herein. and, cally addressed the social host issue therefore, precluded possibility has Accordingly, judg- I would affirm the of a common law cause of action. ment of the trial court.
Looking law, to the existing common agree
cannot proximate that a lack of precluding
cause is a valid reason for liabil-
ity part on the of the social host. For
example, difficulty finding we have no
proximate cause where a provides a
vehicle to another in a Further,
entrustment cause of action. difficulty finding proxi- encounter no FOX, Appellant, Steven D. mate cause a ease where a commercial provider beverage of alcoholic sells to Texas, Appellee. The STATE of person. No. B14-89-00692-CR. specifi Given that our has not cally addressed the social host issue and Texas, Appeals Court of concept that the traditional common law (14th Dist.). Houston proximate preclude cause does not Nov. 1990. host, on a social we must then ascertain court, highest whether our State’s under Rehearing Dec. Denied decisis, principle provided of stare has guidance. Only years ago two the Amaril Appeals
lo Court Walker Chil Services, Inc., (Tex.
dren’s
App. writ had be — Amarillo