Table of Contents
Chapter 1: Traditional Common Law Immunity and the Origins of Texas Dram Shop Liability
1-1 TRADITIONAL IMMUNITY
1-2 EL CHICO V. POOLE
1-3 THE STATUTE
1-4 COMMON LAW OR STATUTORY CAUSE OF ACTION
1-5 COMMENTARY
Chapter 2: The Statutory Cause of Action Section 2.02 Texas Alcoholic Bev-erage Code
2-1 “PROVIDER” DEFINED
2-2 SECTION 2.02(A)
2-3 SECTION 2.02(B)
2-4 THE MEANING OF “OBVIOUS INTOXICATION” AND AT THE TIME THE PROVISION OCCURRED.”
Chapter 3: Traditional Common Law Social Host Immunity
3-1 TRADITIONAL IMMUNITY
3-2 COMMON LAW SOCIAL HOST IMMUNITY AFTER 1987 AND BEFORE 2005
3-3 THE ESTABLISHMENT OF CIVIL LIABILITY FOR CERTAIN SOCIAL HOSTS
Chapter 4: Statutory Social Host Liability, Texas Alcoholic Beverage Code Section 2.02c
4-1 THE STATUTE
4-2 THE EFFECTIVE DATE
4-3 THE PRACTICAL APPLICATION OF THE STATUTE
Chapter 5: The Exclusivity of the Cause of Action, Texas Alcoholic Beverage Code Section 2.03
5-1 THE STATUTE
5-2 ATTEMPTS TO CIRCUMVENT THE EXCLUSIVITY
5-3 THE PRACTICAL EFFECT OF THE EXCLUSIVE REMEDY PROVISION
Chapter 6: The Recovery of Exemplary Damages
6-1 STEAK & ALE OF TEXAS, INC. V. BORNEMAN
6-2 TEXAS CIVIL PRACTICE AND REMEDIES CODE 41.005 AND WILSON V. KWG
6-3 WRONGFUL DEATH AND THE TEXAS CONSTITUTION
Chapter 7: The Safe Harbor Affirmative Defense, Texas Alcoholic Beverage Code Section 106.14
7-1 THE STATUTE
7-2 THE FIRST PRONG AND THE EVIDENCE
7-3 THE SECOND PRONG AND THE EVIDENCE
7-4 THE THIRD PRONG AND THE EVIDENCE BEFORE PARKER
7-5 20801 V. PARKER
7-6 COMMENTARY—PARKER SHIFTS THE BURDEN OF PROOF AND STANDS TRADITIONAL NOTIONS OF AFFIRMATIVE DEFENSES ON THEIR HEAD
7-7 USING THE TEXAS ALCOHOLIC BEVERAGE CODE RULES TO DEFEAT THE SAFE HARBOR DEFENSE
7-8 DEFEATING THE SAFE HARBOR DEFENSE BY SUING THE INDIVIDUAL SERVER IN ADDITION TO THE LICENSED ESTABLISHMENT
Chapter 8: Duenez and the Proportionate Responsibility Act: Application to Dram Shop Cases
8-1 BACKGROUND OF THE DUENEZ CASE
8-2 THE COURT’S PRETRIAL RULING
8-3 THE TRIAL RESULT
8-4 THE COURT OF APPEALS AFFIRMS
8-5 THE SUPREME COURT ISSUES THREE OPINIONS
8-6 THE PRACTICAL EFFECT OF THE ULTIMATE HOLDING AND THE COMPARATIVE RESPONSIBILITY ACT
8-7 COMMENTARY
8-8 THE DRUNK DRIVER DEFENDANT AS A RESPONSIBLE THIRD PARTY
Chapter 9: Evaluating the Potential Dram Shop Case From the Plaintiff’s Perspective
9-1 THIRD PARTY CASES
9-2 FIRST PARTY CASES
9-3 SECOND PARTY CASES
Chapter 10: Pre-Litigation Investigation and Preparation
10-1 WITNESS STATEMENTS AND EXAMINATION UNDER OATH: EYEWITNESSES AND SERVERS
10-2 CONTACT WITH THE DRUNK DRIVER’S CRIMINAL DEFENSE LAWYER: NON-DISCOVERABLE WITNESS INTERVIEW
10-3 ONSITE INVESTIGATION AND THWARTING THE SAFE HARBOR DEFENSE PRE-LITIGATION
10-4 POLICE REPORT AND BLOOD ALCOHOL CONCENTRATION
10-5 FILING SUIT AGAINST THE DRUNK DRIVER IN THE CASE OF A SECOND PARTY OR THIRD PARTY ACTION PRIOR TO SUING THE ESTABLISHMENT
10-6 PRE-LITIGATION INVESTIGATION ON BEHALF OF THE ESTABLISHMENT
10-7 AVOIDING THE MISTAKES MOST OFTEN MADE BY PLAINTIFF’S ATTORNEYS
Chapter 11: Preparation of Plaintiff’s Original Petition and Strategic Consid-erations From the Plaintiff’s Perspective
11-1 PARTIES TO BE NAMED IN THE PETITION AND WHY
11-2 REQUEST FOR DISCLOSURE
11-3 REQUEST FOR PRODUCTION
11-4 INTERROGATORIES
11-5 STRATEGIC CONSIDERATIONS FROM THE PLAINTIFF’S PERSPECTIVE
Chapter 12: The Filing of a Contemporaneous Complaint With the Texas Al-coholic Beverage Code
12-1 INTRODUCTION
12-2 COLLATERAL ESTOPPEL CONSIDERATIONS
Chapter 13: Defendant’s Original Answer and Strategic Considerations for the Defense
13-1 INTRODUCTION
13-2 THE NEGLIGENCE OF THE PLAINTIFF
13-3 NO EXEMPLARY DAMAGES
13-4 DESIGNATION OF RESPONSIBLE THIRD PARTY—DO IT PREEMPTIVELY TO NULLIFY LATER NONSUIT BY THE PLAINTIFF
13-5 ASSERT THE SAFE HARBOR DEFENSE? MAYBE
13-6 STRATEGIC CONSIDERATIONS FOR THE DEFENSE
13-7 THE SEATBELT DEFENSE IN DRAM SHOP CASES
Chapter 14: Written Discovery
14-1 TO THE PLAINTIFF
14-1:1 Sample List of Items to Include in Request for Production to Plaintiff(s)
14-2 INTERROGATORIES
14-2:1 Sample Interrogatories for Defense Counsel
14-3 TO THE DEFENDANT
14-3:1 Sample List of Items to Include in Request for Production to Defendant Provider
14-3:2 Sample List of Items to Include in Request for Production to Defendant Bartender
14-3:3 Sample List of Items to Include in Request for Production to Defendant Drunk Driver or Intoxicated Person
14-4 SAMPLE INTERROGATORIES FOR PLAINTIFF COUNSEL
14-4:1 Sample Interrogatories for Individual Defendants
14-4:2 Sample Interrogatories for Drunk Driver Litigant
Chapter 15: Depositions
15-1 DEPOSING THE FIRST PARTY PLAINTIFF
15-2 DEPOSING THE SECOND PARTY PLAINTIFF
15-3 DEPOSING THE THIRD PARTY PLAINTIFF
15-4 DEPOSING THE DRUNK DRIVER
15-5 DEPOSING THE DEFENSE WITNESSES
Chapter 16: Toxicology and Expert Testimony
16-1 BACKGROUND
16-2 RETROGRADE EXTRAPOLATION
16-3 THE DUBOWSKI CHART AND EXPECTED SIGNS OF INTOXICATION AT VARIOUS LEVELS OF BLOOD ALCOHOL CONCENTRATION
16-4 METABOLIC AND PHYSIOLOGIC TOLERANCE TO ALCOHOL
16-5 DEPOSING THE PLAINTIFF’S TOXICOLOGIST
16-6 THE RETENTION AND UTILIZATION OF THE DEFENSE TOXICOLOGIST
16-7 THE SELECTION AND USE OF LIABILITY EXPERTS, IF ANY
16-7:1 Liability Experts for the Plaintiff
16-7:2 Liability Experts for the Defense
16-8 DEPOSING THE DEFENSE TOXICOLOGIST
Chapter 17: Motion in Limine
17-1 THE PLAINTIFF’S MOTION IN LIMINE
17-2 THE DEFENDANT’S MOTION IN LIMINE
Chapter 18: Jury Selection
18-1 JURY SELECTION IN THE TRIAL OF DRAM SHOP CASES
18-2 THE PLAINTIFF’S VOIR DIRE AND JURY SELECTION
18-3 VOIR DIRE AND JURY SELECTION FOR THE DEFENSE
Chapter 19: Trying the Dram Shop Case to a Jury
19-1 TRYING THE PLAINTIFF’S CASE
19-2 TRYING THE DEFENDANT’S CASE
19-3 FINAL ARGUMENT FOR THE PLAINTIFF
19-4 FINAL ARGUMENT FOR THE DEFENSE
Appendix: Forms
1:1 PLAINTIFF’S PETITION, SAMPLE A
1:2 PLAINTIFF’S PETITION, SAMPLE B
1:3 DEFENDANT’S MOTION TO TRANSFER VENUE AND ORIGINAL ANSWER
1:4 DEFENDANT’S MOTION TO TRANSFER VENUE, ANSWER AND MOTION FOR LEAVE TO DESIGNATE RESPONSIBLE THIRD PARTY, SUBJECT THERETO
1:5 DEFENDANT’S ANSWER TO MULTIPLE PLAINTIFFS AND MOTION FOR LEAVE TO DESIGNATE RESPONSIBLE THIRD PARTY
1:6 PLAINTIFF’S OBJECTIONS TO DEFENDANT’S MOTION FOR LEAVE TO DESIGNATE RESPONSIBLE THIRD PARTY
1:7 DEFENDANT’S REPLY TO OBJECTION TO MOTION FOR LEAVE TO DESIGNATE RESPONSIBLE THIRD PARTY
1:8 REQUEST FOR PRODUCTION TO PLAINTIFF, SAMPLE A
1:9 REQUEST FOR PRODUCTION TO PLAINTIFF, SAMPLE B
1:10 REQUEST FOR PRODUCTION TO DRAM SHOP DEFENDANT
1:11 REQUEST FOR PRODUCTION TO DEFENDANT DRUNK DRIVER
1:12 INTERROGATORIES TO PLAINTIFF, SAMPLE A
1:13 INTERROGATORIES TO PLAINTIFF, SAMPLE B
1:14 INTERROGATORIES TO DRAM SHOP DEFENDANT
1:15 INTERROGATORIES TO DEFENDANT DRUNK DRIVER
1:16 DEFENDANT’S NO EVIDENCE MOTION FOR SUMMARY JUDGMENT
1:17 DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
1:18 DEFENDANT’S TRADITIONAL AND NO EVIDENCE MOTION FOR SUMMARY JUDGMENT
1:19 PLAINTIFF’S MOTION IN LIMINE
1:20 DEFENDANT’S MOTION IN LIMINE
1:21 DRAM SHOP JURY CHARGE (CHARGE OF THE COURT)
1:22 DIRECT AND CROSS EXAMINATION OF PLAINTIFF’S LIABILITY EXPERT WITNESS AT TRIAL
1:23 STAGES OF ACUTE ALCOHOLIC INFLUENCE/INTOXICATION (DUBOWSKI)
