Chapter 11 — Comparative Responsibility and Responsible Third Parties

Overview

Texas dram shop cases are governed by Chapter 33 of the Civil Practice and Remedies Code, which applies proportionate responsibility rules to all tort cases. The Texas Supreme Court has made clear that these rules fully apply to dram shop litigation.

Key Principles:

  • Fault Allocation: Juries must assign percentages of responsibility to every person or entity whose conduct contributed to the injury, regardless of whether that person is a defendant in the lawsuit.
  • Exclusive Remedy Principle: The Dram Shop Act creates the sole statutory cause of action against providers, but it does not impose automatic or vicarious liability. Each actor is responsible for their own share of fault.
  • 50% Bar Rule: A plaintiff found more than 50% responsible is barred from recovery. A defendant found more than 50% responsible may face joint and several liability under CPRC § 33.013.
  • Strategic Imperative for Defense: Defense counsel must ensure fault is allocated not just to the alcohol provider, but also to the intoxicated driver, the plaintiff (if negligent), and any other responsible third parties.

Allocating Fault Under Chapter 33

2. The Intoxicated Driver

  • Always the primary tortfeasor in dram shop cases.
  • Even if not sued, jurors must assign fault to the driver.
  • A driver may be judgment-proof, deceased, or omitted from the lawsuit, but their conduct still belongs on the verdict form.
  • Defense strategy: emphasize the driver’s voluntary choice to drink and drive, criminal conduct (DWI), and proximate causation.

The Alcohol Provider

  • Providers are liable only for overserving an obviously intoxicated patron.
  • Liability is limited to the provider’s percentage of responsibility, unless the provider exceeds 50% and becomes jointly and severally liable.
  • Defense strategy: stress that the provider’s role was indirect compared to the driver’s. Use Safe Harbor evidence and causation defenses to minimize the provider’s share.

The Plaintiff

  • Comparative fault applies to voluntary passengers.
  • A plaintiff who knowingly rides with an intoxicated driver may be barred from recovery if more than 50% responsible.
  • Defense strategy: elicit testimony and evidence that the plaintiff knew or should have known the driver was drunk. Argue assumption of risk and voluntary exposure.

Other Providers or Contributors

  • Multiple bars can each be assigned separate percentages of fault.
  • Liquor stores, convenience stores, restaurants, and other establishments that contributed to intoxication may be responsible.
  • Non-providers (e.g., social hosts, employers, companions, or negligent entrustors) can also be factually responsible.
  • Defense strategy: ensure every contributing actor is included either as a defendant or through Responsible Third Party designation.

Responsible Third Parties (RTPs) — CPRC § 33.004

3. Purpose. The RTP statute allows defendants to place non-parties on the verdict form so jurors can assign them a share of fault. This ensures that liability reflects all causes, not just those who happen to be in the courtroom.

Procedure:

  • Motion for Leave: File a motion to designate.
  • Deadline: Must be filed on or before 60 days before trial, unless the court grants leave for good cause.
  • No Objection Filed: If no one objects within 15 days, the motion is granted automatically.
  • Objection Filed: The court must allow repleading; denial is proper only if the defendant twice fails to allege facts showing the RTP’s responsibility.
  • Effect: RTPs are not parties. No judgment is entered against them. Their only role is to appear on the verdict form for apportionment of fault.

Common RTP Categories in Dram Shop Cases

4. Intoxicated Drivers

  • The most important RTP. Always designate the drunk driver if not a defendant.
  • Evidence is usually abundant: BAC results, police reports, criminal charges, witness testimony.
  • Juries often assign the majority of responsibility to the driver, substantially reducing the bar’s share.

Other Alcohol Providers

  • Patrons often visit multiple establishments.
  • Any bar, restaurant, or store that served the patron should be designated.
  • Receipts, surveillance, and witness statements provide the evidence base.
  • Toxicologists can help quantify contribution of drinks from each establishment.

Social Hosts and Non-Commercial Providers

  • Social hosts generally cannot be sued for serving adults, but their conduct may still be responsible for the harm.
  • RTP designation allows their contribution to be considered even if they have immunity.
  • Exception: social hosts who serve minors may face direct liability. If not sued, they should still be designated as RTPs.