On April 11, 2025, the Texas Supreme Court, in a unanimous opinion in Raoger Corporation v. Barrie Myers, reversed the Dallas Court of Appeals and affirmed a summary judgment granted by the trial court to the appellant restaurant/bar. The Raoger Corporation opinion is instructive as a reminder of the evidentiary burden of proof placed on a plaintiff attempting to hold a commercial establishment liable for allegedly over-serving the patron plaintiff with alcohol.
Dram Shop Liability – Background
First, some dram shop liability background/context is in order. Dram shop liability – liability for a commercial establishment/provider of alcohol – did not always exist in Texas. Prior to 1987 when the Texas Supreme Court decided El Chico Corp. v. Poole, Texas courts usually gave the commercial establishments/providers of alcohol a "judicial pass," holding that the consumer of the alcohol who causes damages/injuries to a third-party is solely responsible and that such damages/injuries are not foreseeable to the alcohol provider. El Chico changed that, requiring a dram shop liability plaintiff to satisfy a "knew or should have known" requirement on the provider of alcohol in order to hold it liable. In other words, if the evidence established that the alcohol provider knew or should have known the patron was intoxicated when it served him, and the patron caused damages/injuries to a third-party, the alcohol provider could be held liable.
Presumably due to interest/lobbying by the hospitality industry, one week after El Chico was decided, the Texas Legislature enacted the Dram Shop Act, which made it even tougher to hold commercial providers of alcohol liable. Specifically, instead of satisfying the "knew or should have known" El Chico standard, dram shop plaintiffs must now establish that the alcohol provider served the customer when it was apparent to the provider that the customer was obviously intoxicated to the extent that he presented a clear danger to himself and others. Ever since the enactment of the Dram Shop Act, this has been the exclusive remedy for those injured from the alleged over-serving of alcohol to a commercial patron.
The Evidence in Raoger Corporation v. Barrie Myers
In Raoger Corporation, the Texas Supreme Court examined the evidence/facts in the summary judgment record – much smaller than a bench or jury trial record, as a summary judgment is a preliminary, pre-trial disposition of a case – and found them to be insufficient on the key issues of "apparent[ness]" and "obviously." The record showed that the patron was served some alcohol by the commercial establishment; then spent time (possibly 45 minutes) at his friend's home; next, was involved in a wreck approximately 1-2 hours later; and tested over the legal limit for alcohol consumption approximately 3 hours after the accident. The Raoger Corporation opinion held that the evidence recited did not rise to the level of being sufficient evidence of "apparentness" or "obviousness."
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