Del Lago Partners, Inc. v. Smith

206 S.W.3d 146, 2006 Tex. App. LEXIS 8820, 2006 WL 2884759
CourtCourt of Appeals of Texas
DecidedOctober 11, 2006
Docket10-04-00252-CV
StatusPublished
Cited by8 cases

This text of 206 S.W.3d 146 (Del Lago Partners, Inc. v. Smith) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Del Lago Partners, Inc. v. Smith, 206 S.W.3d 146, 2006 Tex. App. LEXIS 8820, 2006 WL 2884759 (Tex. Ct. App. 2006).

Opinions

OPINION

BILL VANCE, Justice.

Bradley Smith was severely injured in a bar fight at Del Lago, a resort.1 He brought a premises liability action against Del Lago, and a jury found the resort 51% responsible and Smith 49% responsible for the occurrence. The jury found actual damages in the amount of $2,874,000, and the trial court, after reducing the damages amount by 49% and then adding prejudgment interest, entered judgment for Smith in the amount of $1,478,283. Del Lago appeals. We will affirm.

Background

Del Lago, a 300-acre resort on the shores of Lake Conroe, consists of a conference center, a separate 21-story tower with 310 hotel rooms, and 58 golf course cottages. Permanent residences, a marina, a beach area, and a golf course are also on site. The conference center holds the central lobby, banquet rooms, a gift shop, and the Grandstand Bar. The bar seats 208 persons inside and 200 on the outside deck.

Del Lago’s security force included two off-duty, experienced law enforcement officers, John Chancellor (Chief of the Shenandoah Police Department) and Lanny Moriarty (a lieutenant with the Montgomery County Sheriffs Department). As of June 2001, Chancellor had been working at Del Lago for six years, and Moriarty had been working there for eight years. Ruben Sanchez, a retired 20-year fireman and paramedic, became a Del Lago loss-prevention officer in 2000, and at the time of trial, he was Del Lago’s Director of Security and Safety. Del Lago’s security force maintained order and security throughout the resort. Rather than staying in one place, Chancellor and Moriarty would patrol the entire resort together (to “make a presence” and for officer safety) using a golf cart but would split up to walk through the conference center.

Smith, a 29-year-old project manager for Deloitte Consulting, attended a weekend Sigma Chi fraternity 40th reunion at Del Lago from Friday to Sunday, June 8-10, 2001. On Friday night, Smith and his fraternity brothers attended a Sigma Chi event in the bar. Smith estimated that his group was in the bar for three hours; they stayed until it closed. Smith and Spencer Forsythe, a fraternity brother, testified that a uniformed security officer was on duty in the bar “for hours” that evening. The officer even ejected an intoxicated fraternity brother who had become loud and unruly, and he made everyone leave at midnight, even though usual closing time was 1:00 a.m.

On Saturday evening, Sigma Chi had a reception and dinner in a Del Lago banquet room just across from the bar; 228 persons attended. Around 9:00 p.m., Smith and a group of fraternity brothers left the banquet room and went to the bar, which was described as “packed” and “standing room only” at that time. The bar staff was very busy. Forsythe estimated the crowd was 150 to 200 people, about double what it had been the night before. [150]*150Around midnight, about fifteen to twenty-persons from a wedding party made a loud, noticeable entrance into the bar. Smith and about forty fraternity brothers were still there. A fraternity brother “hit on” a female companion of a wedding party member, and a verbal altercation ensued between the two men. Smith said that the men were standing very close to each other, angrily yelling and pointing for three to five minutes. Elizabeth Sweet, a bar waitress working that night (but not employed by Del Lago at the time of trial), remembered talking with another waitress about the men’s exchanges as a funny or harmless situation between intoxicated men; they joked that the men “were drunk and, you know, being just stupid, drunken men.”

Forsythe said that verbal exchanges continued in the bar for an hour. He characterized them as “cussing, name-calling, verbal threats, and hand gestures”; the tension was obvious and everyone could tell that a serious problem was brewing. Fraternity brother Toby Morgan also said that tension was in the air and was growing. Fraternity brother Cesar Lopez testified that the conflict between the two groups could be seen for an hour and a half, “and if you didn’t see it, you were either blind, deaf, or didn’t care.” Fraternity brother Michael Brooks, who had experience working in bars, said that the bar staff should have seen and heard the problems and should have called security based on the atmosphere. Forsythe was concerned that the problems would develop into a fight; Morgan was also concerned. Brooks said the ongoing heckling was such that a fight would likely happen and he wasn’t surprised when the fight broke out.

Del Lago’s procedures called for “zero tolerance” toward violent acts and threats of violence. Sweet agreed that the verbal confrontations between the two intoxicated groups were “heated” and continued “off and on” for an hour and a half.2 Sweet did not report the situation to the bartender or a manager; she said she did not see a need to call security. She had not received any training at Del Lago on how and when to contact security or how to handle intoxicated patrons, abusive patrons, fighting patrons, or an unruly crowd. The bar manager was not there; Sweet said he had left early that night. No Del Lago employee intervened to defuse the situation. On the other hand, Arlene Duncan, a bartender on duty that night, testified there had been no confrontations and she had not witnessed any heated or threatening arguments. She also said that several “regulars” were in the bar that night and none had commented about seeing threatening conduct.

Witnesses testified that the verbal confrontations turned into physical shoving [151]*151and pushing altercations, including: (1) a loud confrontation and pushing incident that occurred in plain view of the bartender, about an hour before the big fight; (2) members of each group “squaring up”; (3) a wedding party member who was pushing fraternity brothers from behind with his arm “cocked back” and was pulled away by his group; and (4) a 45-second “shoving match” or “push fight” (as described by Morgan and occurring ten to twenty minutes before the big fight) that was between four men, that others in the bar saw and paid attention to, and that was in the bartender’s view.

Around 1:30 a.m., serving had stopped, the wait staff was picking up drinks, and the patrons were told it was closing time and they had to leave the bar. But because no one was leaving, the staff had to work their way from the back of the bar, moving table to table and asking the patrons to leave their drinks and to continue their conversations in the lobby or on the bar deck. In spite of the difficulty getting the crowd to leave, the bar staff did not notify security that the bar was closing or of this difficulty. As the remaining bar patrons — including the fraternity group and the wedding party — were being “herded” out of the bar, another verbal confrontation erupted between a fraternity brother and a wedding party member at the bar’s double door. The two sides “bunched up” against each other, with shoving, jabbing, and arguing going back and forth. Forsythe noticed that several of his friends were involved, so he moved toward the two groups, which totaled about forty persons, to see what was going on. Punches were suddenly thrown between the two groups, and Forsythe was pushed against a wall and shoved to the floor. Smith, who had not been involved in any of the earlier verbal and physical confrontations, saw Forsythe being kicked and entered the melee to pick up For-sythe, whom Smith knew to have heart disease and to be in poor health.

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Bluebook (online)
206 S.W.3d 146, 2006 Tex. App. LEXIS 8820, 2006 WL 2884759, Counsel Stack Legal Research, https://law.counselstack.com/opinion/del-lago-partners-inc-v-smith-texapp-2006.