TEXAS UPDATE

MS. CONGENIALITY WINS AGAIN: This morning, an Austin, Texas jury awarded $7 million to actress Sandra Bullock in her suit against a homebuilder for the defective construction of her new home on the shores of Lake Austin. Only $2 million of the $7 million was allocated by the jury to repairs. Sandy was not present in the court room to claim her winnings, but her father stated that she was pleased with the verdict.
DRAM SHOP: HOW DRUNK IS TOO DRUNK? Kurtz began drinking at J.W.’s Bait Camp during the afternoon hours of May 16, 1998. He then went on down to “The Oasis” and had two mixed drinks. He left The Oasis at about 12:40 a.m. and, about 55 minutes later, ran over and killed two pedestrians. Kurtz left the accident scene and went to a nearby convenience store where he was apprehended. The family of the deceaseds brought suit against The Oasis alleging that it had violated the Texas Dram Shop Act by serving alcohol to Kurtz who was “obviously intoxicated” at the time he was served. The Oasis filed a summary judgment motion arguing that there was no-evidence that Kurtz was obviously intoxicated when it served him two drinks that night. The trial court granted the summary judgment and the family appealed.
On appeal, the family argued that there was evidence that Kurtz was intoxicated because a convenience store security video tape taken a few minutes after the accident showed Kurtz to be in a state of obvious intoxication. Moreover, a fellow convenience store patron testified that Kurtz appeared drunk and had urinated in his pants. The appellate court rejected the argument, stating that the plaintiff has an “onerous burden” in a Dram Shop case to show that the bar served the patron when he is already obviously drunk. The video tape and the convenience store patron’s testimony did not have a “temporal connection” to whether Kurtz was drunk while he was at The Oasis.The fact that Kurtz may have been intoxicated an hour after he left The Oasis did not mean he was obviously drunk while he was being served at The Oasis. Moreover, the plaintiffs had failed to present any eyewitness testimony or other evidence that Kurtz was drunk while he was at The Oasis. Our Comment: Kurtz was not particularly helpful to either the plaintiffs’ or defendant’s case. While he denied being intoxicated, he admitted he had “blacked out” before the accident and could not remember what he did or where he went after he left The Oasis. Alaniz v. Robello (Tex App.- Houston [14th dist.] 2004).
YET ANOTHER WARDROBE MALFUNCTION ! Texas Congressman Pete Sessions has been critical of Justin Timberlake and Janet Jackson for exposing Janet’s breast in last year’s Super Bowl half-time show and wardrobe malfunction. Now, Sessions’ opponent in this year’s hotly contested election, Martin Frost, claims to have a decades-old news video of Sessions “streaking naked” on campus while a student at Southwest Texas State University in the 70’s. Sessions acknowledged the youthful indiscretion.
NO DUTY TO FOLLOW PROGRESS OF NO SHOW: The Plaintiff sought the services of a psychologist for treatment of anxiety and problems in her marriage. After evaluating her condition, the psychologist referred her to a psychiatrist. The psychiatrist diagnosed her as having ADHD and prescribed Adderall. The psychiatrist instructed the plaintiff to “self monitor” and adjust her dosage of Adderall to achieve the desired effect. The plaintiff began to suffer side effects from the Adderall, but by this time she had quit seeing the psychologist. The plaintiff eventually had a stroke which was alleged to have been caused by an improper dosage of the drug. She brought suit against the psychologist, the psychiatrist and Walgreen’s. The trial court granted the psychologist’s motion for summary judgment.
On appeal, the patient argued that the psychologist had a continuing duty to monitor her progress on Adderall and to report his impressions to the psychiatrist. The Texas appellate court disagreed, stating Texas law does not recognize a duty on the part of a psychologist to monitor the progress of a patient after a patient stops seeking treatment from the psychologist. Taylor v. Carley, (Tex. App-Houston [14th Dist.] 2004).
NEWS AND NOTES: Our Ninth Annual Ultimate Claims Handling Seminar was attended by almost 150 people last week, making it one of the largest in the state.