Sarah Salazar v. Natco, Inc. D/B/A Giorgio's of S.A.

• Court: Court of Appeals of Texas
• Decided: June 13, 2001
• Docket: 04-99-00450-CV
• Status: Published

Opinion

No. 04-99-00450-CV

Sarah SALAZAR,

Appellant

v.

NATCO, INC., d/b/a Giorgio's of S.A.

Appellee

From the 57th Judicial District Court, Bexar County, Texas

Trial Court No. 98-CI-15457

Honorable Henry Schuble, Judge Presiding

Opinion by: Tom Rickhoff, Justice

Concurring opinion by: Alma L. López, Justice

Sitting: Tom Rickhoff, Justice

Alma L. López, Justice

Paul W. Green, Justice

Delivered and Filed: June 13, 2001

REVERSED AND REMANDED

Appellant, Sarah Salazar, appeals from a summary judgment rendered in favor of appellee, NATCO, Inc. d/b/a Giorgio's of S.A. ("Giorgio's"). In this appeal, we are asked to determine whether Texas Civil Practice and Remedies Code section 86.002 bars Salazar's Dram Shop Act claims against her employer, Giorgio's, because Salazar was convicted of a misdemeanor. Finding that her claims are not barred, we reverse the summary judgment.

BACKGROUND

Salazar worked as a dancer at Giorgio's, a club in San Antonio. On April 21, 1998, she worked the 7:00 p.m. to 2:00 a.m. shift and, during that time, consumed enough alcohol to become intoxicated. Dancers at Giorgio's were encouraged, but not required, to drink with customers. Driving home from work, she crashed into a telephone pole and sustained multiple injuries to her face and right shoulder. Her blood alcohol level registered at .18, and she subsequently pled nolo contendere to the misdemeanor offense of driving while intoxicated ("DWI"). She was fined and placed on probation.

Salazar sued Giorgio's for damages due to negligence, negligence per se, gross negligence, and violating Texas Alcohol and Beverage Code section 2.02 ⁽¹⁾ for serving alcohol to her while she was intoxicated, which caused her injuries. Giorgio's generally denied the allegations and raised as affirmative defenses that Salazar's own negligence was the sole proximate cause of her injuries, the incident was unavoidable, her exclusive remedy lay in section 2.02, and her recovery was barred under Section 86.002(a) by her misdemeanor conviction. The trial court granted Giorgio's summary judgment on the ground that Section 86.002 barred Salazar's recovery.

DISCUSSION

Section 86.002, entitled "Recovery of Damages for Injury to Convicted Person Prohibited," provides as follows:

(a) A claimant who has been convicted of a felony or misdemeanor may not recover damages for an injury sustained during the commission of the felony or misdemeanor if the injury would not have been sustained but for the commission of the felony or misdemeanor.

(b) Subsection (a) does not bar the claimant from recovering damages if the claimant shows that:

(1) the damages arose from an act entirely separate from any act intended to result in the:

(A) prevention of the commission of a felony or misdemeanor by the claimant; or

(B) apprehension of the claimant during or immediately after the commission of the felony or misdemeanor; and

(2) the damages did not arise from a premises defect or other circumstance that the claimant was exposed to as a result of the commission of the felony or misdemeanor.

Tex. Civ. Prac. & Rem. Code § 86.002 (Vernon Supp. 2000).

Giorgio's argues that Salazar's claims are barred under subsection (a), because she was convicted of a misdemeanor and her injuries were sustained during the commission of that misdemeanor. Salazar argues her claims are not barred because her claims fall within the exception provided under subsection (b). Salazar contends her injuries arose from an act entirely separate from her misdemeanor-Giorgio's continuing to serve her alcohol even though she was clearly intoxicated, to the extent that she presented a danger to herself and others. Salazar also argues that the Legislature did not intend to provide a right of recovery under the Dram Shop Act, only to take away that right under Section 86.002(a). Our research reveals no case law considering the interplay between the Dram Shop Act and Section 86.002. However, because we conclude that Section 86.002 was not designed to apply to the facts of this case, Salazar's Dram Shop Act claim is not barred by Section 86.002.

When paragraphs (a) and (b) of Section 86.002 are read together, as they should be, it is apparent that the bar to recovery was intended to apply only to those criminal wrongdoers who are injured by third parties who caused injury while attempting to prevent the commission of the crime, or while attempting to apprehend the wrongdoer during or immediately after the commission of the crime. Id. Although Salazar's injury probably would not have occurred but for her own act of driving while intoxicated, she was not injured by someone in the course of attempting to stop her from driving while intoxicated or attempting to apprehend her, and the damages did not arise from a premise defect or other circumstance to which she was exposed while driving while intoxicated. Accordingly, her claim falls within the exception to the statute.

We reverse the trial court's judgment and remand for further proceedings consistent with this opinion.

Tom Rickhoff, Justice

PUBLISH

1. "Providing, selling, or serving an alcoholic beverage may be made the basis of a statutory cause of action under this chapter and may be made the basis of a revocation proceeding under Section 6.01(b) of this code upon proof that: . . . (1) 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; and . . . (2) the intoxication of the recipient of the alcoholic beverage was a proximate cause of the damages suffered." Tex. Alco. Bev. Code Ann. § 2.02 (Vernon 1995) ("the Dram Shop Act").