PJC General Negligence 2022

PJC 5.6

N EGLIGENCE P ER S E

PJC 5.6

Defense to Respondeat Superior Liability under Statutory Dramshop Act or Common Law

If you answered “Yes” to Question ______ [ 5.5 ] as to Pete Provider , then answer the following questions. Otherwise, do not answer the following ques tions. QUESTION ______ Do you find that, before the occurrence in question— 1. Pete Provider ’s employer required the employees to attend a com mission-approved seller training program; and 2. Pete Provider actually attended such a training program? Answer “Yes” or “No.” Answer: _______________ QUESTION ______ Do you find that, before the occurrence in question, Pete Provider ’s employer directly or indirectly encouraged Pete Provider to violate the law regarding the selling or providing of alcoholic beverages to [ intoxicated per sons ] [ minors ]? Answer “Yes” or “No.” Answer: _______________ COMMENT When to use. PJC 5.6 submits the employer’s “safe harbor” affirmative defense to respondeat superior liability that would otherwise result from the actions of an employee subject to statutory or common-law liability for the providing, selling, or serving of alcoholic beverages to an intoxicated person or to a minor. Tex. Alco. Bev. Code § 106.14. Burden of proof. In 20801, Inc. v. Parker , 249 S.W.3d 392, 397 (Tex. 2008), the Texas Supreme Court held that while it is the employer’s burden to establish the first two elements of section 106.14(a), the burden of proof rests on the claimant to estab lish the third element—i.e., that the employer has directly or indirectly encouraged the employee in question to violate the law regarding the selling or providing of alcoholic beverages.

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