PJC General Negligence 2022

PJC 5.5

N EGLIGENCE P ER S E

PJC 5.5 Statutory Dramshop Liability “Negligence” as to Pete Provider means providing, under authority of a license , an alcoholic beverage to a recipient when it is apparent to the provider that the recipient is obviously intoxicated to the extent that he presents a clear danger to himself and others. You are instructed that the negligence, if any, of Pete Provider was a proxi mate cause of the occurrence in question if the recipient’s intoxication was a proximate cause of the occurrence in question. QUESTION ______ Did the negligence, if any, of those named below proximately cause the occurrence in question? Answer “Yes” or “No” for each of the following: 1. Don Davis _______________ 2. Pete Provider _______________ 3. Paul Payne _______________ COMMENT When to use. PJC 5.5 should be given if a dramshop case is brought under Tex. Alco. Bev. Code § 2.02(b). Section 2.02(b) legislates an exclusive liability scheme for providing alcoholic beverages to persons eighteen years of age or older. Tex. Alco. Bev. Code § 2.03. See Southland Corp. v. Lewis , 940 S.W.2d 83, 84 (Tex. 1997) (com mon-law negligence and negligence per se claims barred by Act’s exclusive remedy provision). PJC 5.5 covers this exclusive basis for provider liability by including a definition and an instruction on section 2.02(b) elements, together with a broad-form question embracing both provider conduct and the common-law conduct of others. The broad-form negligence question is used because the supreme court characterized the statutory cause of action as grounded on negligence principles in Smith v. Sewell , 858 S.W.2d 350, 356 (Tex. 1993). A different standard may apply if an adult provides alcoholic beverages to a person under eighteen years of age. Tex. Alco. Bev. Code §2.02(c). Proximate cause as to Pete Provider . The provisions of section 2.02(b) impose liability on a provider if (1) at the time the provider sold or served the alcohol it was apparent to the provider that the recipient was obviously intoxicated to the extent that he presented a clear danger to himself and others and (2) the intoxication of that indi-

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