After three years, a decision in Del Lago Partners v. Smith
Author: Deborah La Fetra & Joshua Thompson
The Texas Supreme Court issued a decision today in Del Lago Partners v. Smith. PLF filed an amicus briefin that case way back in December 2007. The case dealt with the extent to which business owners can be held liable, under a premises liability theory, for an assault occurring on the business' premises. In a nutshell, a fraternity reunion and members of a wedding party were partying at the bar at the upscale Del Lago Resort complex near Houston. As the liquor flowed, tempers grew shorter and over the course of 90 minutes in the wee hours of the morning, hostile words and gestures escalated. Eventually there was a brawl, and one of the fraternity brothers, Bradley Smith, was seriously injured.
Smith sued Del Lago on a premises liability negligence theory that Del Lago has failed to protect him from the third party aggravated assault. A jury verdict found Del Lago 51% at fault for failing to protect Smith (by failing to respond to the escalating tension; and, Smith 49% at fault because he injected himself into the fight rather than leave the bar during the escalating tension.
PLF's brief argued that there were two separate duties to be considered in this case. First, did Del Lago have a duty to maintain security personnel on the premises of the bar at all times? Second, did Del Lago have a duty to stop the fight once it started? In response to the former, PLF argued that the bar had no duty have guards stationed at all times, because there had been no such incidents in the bar's history. As to the latter, PLF argued that Del Lago had a clear duty to stop the fight once it started.
The court's decision today was split 6-3. The court held that Del Lago did not have a duty to have security permanently stationed at the Bar because of the lack of prior incidents. But the court held that Del Lago have a duty to call security at some point during the 90 minutes preceding the fight, because it was apparent to everyone present that big trouble was on its way.
The majority opinion emphasized the narrowness of its holding:
"We have not held that a bar proprietor always or routinely has a duty to protect patrons from other patrons, and do not so hold today. Nor have we held that a duty to protect the clientele necessarily arises when a patron becomes inebriated, or when words are exchanged between patrons that lead to a fight, and do not so hold today."
"One need not believe that Del Lago has a universal duty to insure patrons’ safety against all third-party crimes, or that prior criminal activity at Del Lago imposed a duty to post security guards in the bar at all times, in order to accept that on this record this sequence of conduct on this night in this bar could foretell this brawl. Tort law does not provide a remedy for every harm, nor must a bar call 911 for every blowhard drunk, but the record in this case documents that for an hour and a half Del Lago knowingly served rowdy and drunk rivals who were engaged in repeated and aggressive verbal and physical confrontations. Tension at the bar turned into cursing, cursing led to threats, threats grew into pushing, and all of the above culminated in a full-scale brawl. Del Lago observed — but did nothing to reduce — this persistent hostility, and while the antagonism may have ebbed and flowed over those ninety minutes, the liquor simply flowed. Given this evidence, the jury was free to find Del Lago’s response not just unalert but unreasonable, and we do not disturb that finding."
There were three dissenting opinions. Justice Hecht arguedin dissent that Brad Smith, who testified that he had actually drunk far less than everyone else that night and thus had presence of mind, took it upon himself to inject himself into the brawl and thus, based on the rule that a defendant has no duty to prevent harm caused by an acknowledged and obvious danger, Del Lago owed him no duty. The majority argued in response that Justice Hecht was trying to revitalize the defunct assumption of the risk doctrine and that the jury's division of fault 51/49 recognized Smith's role in his own injuries.
Justice Wainwright argued in dissent that this wasn't really a premises liability case at all, but one of ordinary negligence and that the majority therefore applied the wrong test. As a result, he argues that "almost any negligence dispute involving contemporaneous activities [will be] tried as a premises case." That said, he went on to analyze the case under the premises liability cases and concluded that he is concerned that "the message from the Court is to hold premises owners to a standard of perfection, instead of a standard of reasonable care."
Justice Johnson agreed withJustice Hecht and further argued in dissent that even if there was a duty, there was no evidence of breach or proximate causation:
"At some point, the ordinary care standard must mean something. I would hold that it means something here. The question is, would reasonable persons exercising ordinary care in Del Lago’s position have gone around the room telling Smith and other adult members of the groups who were in the bar after midnight and into the wee hours of the morning about what was occurring and that there was potential for a fight? I think not."
He further argued that even if security had removed some of the rowdy patrons from the bar earlier in the evening, there is no evidence that these were the same people who later started the actual fight.
All-in-all, the court reached a defendable decision. The court repeatedly makes clear that its holding should not be construed to require property owners to ensure the safety of their patrons from the criminal acts of others in other circumstances. PLF's brief, which was filed in support of neither party to address the complicated duty issues, was cited in the majority opinion.
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