Waiting for Cadot

The issue in Myers v. Raoger Corp. d/b/a Cadot Restaurant was whether Khan, a patron of Cadot Restaurant, had too much to drink while he was there. Specifically, the dram shop statute requires proof that “at the time the provision occurred it was apparent to the provider that the individual … was obviously intoxicated to the extent that he presented a clear danger to himself and others ….”

The Fifth Court reversed a summary judgment in favor of the defendant, finding a genuine issue of material fact.

The one clear fact is that Khan had a BAC of .139 at 3:09 AM, a few hours after he left Cadot and was involved in an accident. From there, the opinion described the conflicting testimony of Khan, the arresting officer, the bartender, the restaurant owner, and a toxicology expert, and concluded that the record contained sufficient circumstantial evidence to allow inferences in the plaintiff’s favor under City of Keller.

The Court also noted a legal error in the defendant’s summary-judgment position,in that the statute “does not require evidence that the provider actually witnessed the intoxicated behavior”–only that the behavior have been objectively “visible, evident, and easily observed.” No. 05-21-00988-CV (July 5, 2023) (mem. op.).