THE JOSH BRENT CASE: “APPARENT” INTOXICATION IS AN OBJECTIVE TEST FOR DRAM-SHOP-ACT LIABILITY

Beamers Private Club d/b/a Privae Lounge v. Jackson
Dallas Court of Appeals, No. 05-19-00698-CV (April 21, 2021)
Justices Osborne, Pedersen III (Opinion, here), and Goldstein


In the wee hours of the morning on December 8, 2012, after a night of drinking, Dallas Cowboys defensive lineman Josh Brent crashed his car while speeding. Brent’s best friend and teammate, Jerry Brown, was a passenger in the car and died in the accident. Brown’s mother, Stacey Jackson, sued Brent and Beamers d/b/a Privae, the club where Brent had been drinking immediately before the crash, securing multi-million-dollar judgments against each. Brent did not appeal. Beamers did, challenging, among other things, the legal and factual sufficiency of the evidence to support the judgment against the club under the Texas Dram Shop Act.

Under the Act, providing an alcoholic beverage to someone can lead to statutory liability if, “at the time the provision occurred it was apparent to the provider that the individual being sold, served, or provided with an alcoholic beverage was obviously intoxicated to the extent that he presented a clear danger to himself and others.” Focusing on the requirement that it be “apparent to the provider” that the person being served “was obviously intoxicated,” Beamers pointed to testimony from servers and other club employees, as well as from some of Brent’s teammates who were present, that Brent did not appear to them to be “obviously intoxicated.” The jury, of course, disagreed.

The Dallas Court of Appeals affirmed the verdict and judgment, holding that “the test for liability under the Act is an objective one.” The Court explained that “the requirement that intoxication be ‘apparent to the provider’ does not mean that the provider must actually observe such signs of intoxication; if it did, any provider of alcohol could escape liability by turning a blind eye to signs of intoxication that would otherwise be plain, manifest, and open to view.” Here, Brent failed a series of “roadside intoxication tests” at the accident scene, and a video showed Brent—who “was quiet and reserved by nature”—dancing at the club while drinking from two open bottles of alcohol. Especially viewed in the light most favorable to the verdict, the evidence was legally and factually sufficient to satisfy the Act’s objective test.

One procedural note, highlighting the recent turnover on the Dallas Court: Both the late Justice David Bridges and former Justice David Evans had participated in this case through submission. Justices Osborne and Goldstein, having studied the briefs and record, replaced them in the final determination of the appeal.

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