Chapter 10 — Causation Defenses

Statutory Requirement & Burden

Under Tex. Alco. Bev. Code § 2.02(b), a plaintiff must prove both:

  1. That at the time of service it was apparent to the provider the patron was obviously intoxicated to the extent he posed a clear danger to himself and others; and
  2. The patron’s intoxication was a proximate cause of the damages.

Proximate cause requires cause-in-fact (a substantial factor, without which the harm would not have occurred) and foreseeability. The Texas Supreme Court has emphasized the Dram Shop Act imposes a “more onerous” standard than common law; liability turns on the patron’s observable condition at the time of service and a legally sufficient link between that intoxication and the injury.

The Raoger Revolution: Obvious Intoxication Evidence Standards

The Texas Supreme Court’s 2025 decision in Raoger Corporation v. Myers represents the most significant strengthening of the defense position in dram shop law since the original 1987 statute. The Court unanimously held that circumstantial evidence such as BAC results cannot establish the statutory requirement that intoxication was “apparent to the provider” at the time of service.

Key holdings from Raoger:

  • Temporal Precision Required: Evidence must relate specifically to the patron’s observable condition when alcohol was provided, not later manifestations of intoxication
  • Direct Evidence Mandatory: Circumstantial evidence such as post-accident BAC testing cannot stand alone and must be coupled with direct observational evidence
  • Expert Testimony Limitations: Opinions about how a patron “would have” appeared based solely on BAC constitute “pure speculation” and are insufficient
  • Higher Evidentiary Bar: The Act requires proof that intoxication was “apparent to the provider,” meaning “visible; manifest; obvious” and “easily discovered, seen, or understood”

Defense Applications:

  • File no-evidence MSJs on “apparent, obvious intoxication at service” when plaintiff lacks eyewitness or video/incident-log proof
  • Move to exclude/limit retrograde extrapolation that leaps from BAC to appearance without anchoring observational facts
  • Oppose continuances when plaintiff already had a fair chance to develop “at-service” evidence
  • Use Raoger language in settlement negotiations to demonstrate fundamental weaknesses in circumstantial evidence cases

Causation Themes & Defense Playbook

1. Alternative Causes & Superseding Intervening Acts

  • Emphasize cause-in-fact challenges: show the crash likely resulted from other forces such as weather, road conditions, vehicle failure, cellphone use, or third-party negligence.
  • If the patron continued drinking elsewhere or there was a long time gap, argue attenuation: the service at your premises was too remote.
  • Example: Southland Corp. v. Lewis held that selling alcohol to a passenger was not cause-in-fact absent proof the passenger interfered with driving.

Practice Moves:

  • Retain accident reconstruction and human-factors experts.
  • Obtain vehicle maintenance, phone records, EDR downloads, and weather/work-zone data.
  • Cross-examine law enforcement on bodycam timing to show normal demeanor contemporaneous with the incident.

Multiple Providers / Multiple Stops

  • When a patron visited several establishments, attack source and timing: which provider (if any) actually contributed?
  • Force plaintiffs to particularize who served what, when, and how that service proximately caused harm.
  • Use receipts, POS logs, credit-card data, rideshare records, and surveillance to break the chain.

First-Party vs. Third-Party Claims

  • First-party claims (intoxicated patron sues) are permitted, but Chapter 33 of the Civil Practice and Remedies Code comparative responsibility applies.
  • Smith v. Sewell recognized first-party dram shop liability but confirmed proportionate responsibility governs.
  • F.F.P. Operating Partners, L.P. v. Duenez applies proportionate responsibility in dram shop cases, allowing fault allocation to the drunk driver and others.
  • Use CPRC § 33.004 to designate Responsible Third Parties (RTPs) and expand the apportionment canvas.

Passenger / Non-Driver Drinking

  • Under Southland, selling alcohol to a passenger does not establish causation unless the passenger interfered with driving.
  • Use this precedent to defeat tenuous claims.