NUMBER 13-11-00392-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
CHRISTOPHER ARTHEY AND
DENISE ARTHEY, Appellants,
v.
SCHLUMBERGER TECHNOLOGY
CORPORATION, Appellee.
On appeal from the 267th District Court
of Refugio County, Texas.
OPINION
Before Chief Justice Valdez and Justices Garza and Vela
Opinion by Justice Garza
Appellants, Christopher and Denise Arthey, challenge the trial court’s summary
judgment in favor of appellee, Schlumberger Technology Corporation (“Schlumberger”),
in a personal injury case. By two issues, the Artheys contend that the trial court erred in
granting summary judgment on the basis that Schlumberger owed no duty to the
Artheys, either under general maritime law or the Texas Dram Shop Act.1 We reverse
and remand.
I. BACKGROUND
The accident made the subject of the underlying lawsuit occurred on the
afternoon of May 16, 2008. The Artheys, riding motorcycles, were struck head-on by a
vehicle driven by David Huff on State Highway 35 north of Port Aransas, Texas. The
Artheys suffered severe injuries, with each requiring the amputation of a leg. Texas
Department of Public Safety officer Danny Leon White, who responded to the accident,
stated that there was no detectable odor of alcohol on Huff’s person. Nevertheless,
witness statements established that Huff was driving erratically immediately prior to the
accident. Moreover, three hours after the accident, Huff’s blood alcohol content (“BAC”)
was measured at .25. Huff subsequently pleaded guilty to the criminal offense of
intoxication assault and was placed on community supervision.
The Artheys sued Schlumberger and several other individuals and entities not
parties to this appeal. Schlumberger filed a traditional motion for summary judgment,
arguing that it owed no duty to the Artheys as a matter of law. The summary judgment
1
The Texas Dram Shop Act provides in part:
Providing, selling, or serving an alcoholic beverage may be made the basis of a statutory
cause of action under this chapter . . . 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(b) (West 2007).
2
evidence established that, at the time of the accident, Huff was returning home from a
three-day fishing trip organized by Schlumberger at the Shoal Grass Lodge in Port
Aransas. Huff, an employee of Petrobras America, Inc. (“Petrobras”), was invited by
Schlumberger to attend the fishing trip. According to Winston Hey, the Schlumberger
employee who invited Huff, “The reason I invited [Huff] is basically to thank him for his
business and hope to strengthen the business relationship.”2 Huff and another
Schlumberger employee, William Ney, went out on a fishing boat on the morning of the
accident. The parties dispute whether alcohol was served or consumed on that boat. It
is undisputed, however, that Huff was extremely intoxicated at the time he collided with
the Artheys several hours later.
Schlumberger claimed in its summary judgment motion that it owed no duty to
the Artheys to refrain from providing alcohol to Huff. It claims that, although alcohol was
provided at the lodge, none was provided on the fishing boats and, if individuals wished
to consume alcohol on the boats, they had to bring it themselves.3 Schlumberger noted
that Huff, in deposition testimony, did not recall consuming alcohol on May 16, although
he conceded that he was “significantly intoxicated” at the time of the accident.
The Artheys filed a response that included deposition testimony and an expert
affidavit by Ernest D. Lykissa, Ph.D. Dr. Lykissa, a clinical and forensic toxicologist,
stated that he reviewed the deposition testimony in the case. He opined:
It is my professional opinion that based on the above listed reviewed
testimonies and particularly of the observation of the first responder DPS
Officer Danny Leon White, that there was no detectable alcohol smell in
2
Petrobras America had previously purchased software from Schlumberger that assisted in
interpreting seismic data. Huff denied that any business was discussed during the trip.
3
As detailed further herein, the evidence showed that individuals were permitted to take alcohol
that was provided by Schlumberger at the lodge and bring it onto the fishing boats to consume.
3
Mr. Huff’s breath on May 16, 2008 after the Motor Vehicle Accident, that
Mr. Huff had consumed copious amounts of Ethanol (alcohol) drinks
(equal to 12 beers or glasses of wine, or ounces of Crown Royal Bourbon
Whiskey). This is substantiated by the facts that his blood alcohol
registered 0.25 g/dL (%) 3 hours after the accident. The significance of
lack of obvious alcohol smell to a trained observer is that, he had
consumed the alcohol [a] long time before the accident, which fact places
him in the boat he was fishing in 2 hours prior to the accident.
In an “addendum” to his affidavit, Dr. Lykissa added:
The scientific methodologies utilized by my person to arrive at my
conclusions are based on 0.02g/dL Ethanol burn-off per hour. Therefore,
the alcohol level measured in a blood sample collected of Mr. Huff 3 hours
after the accident, by utilizing retrograde extrapolation adjust the blood
alcohol concentration of Mr. Huff up-to 0.31 g/dL (%).
In addition consumption of alcohol containing drinks is associated with a
characteristic odor of alcohol plus drink congeners for a period of 1–2
hours post consumption. Therefore, the lack of a detectable alcoholic
breath odor in Mr. Huff by the State Trooper, is very significant in a
forensic extrapolation of the facts, in establishing a timeline for the
consumption of the 12 drinks that were detectable in Mr. Huff’s system
following the accident.
The trial court granted Schlumberger’s motion for summary judgment and
rendered judgment that the Artheys take nothing. This appeal followed.
II. DISCUSSION
A. Standard of Review
To obtain a traditional summary judgment under Texas Rule of Civil Procedure
166a(c), a movant must establish that there is no genuine issue of material fact so that
the movant is entitled to judgment as a matter of law. W. Invs., Inc. v. Urena, 162
S.W.3d 547, 550 (Tex. 2005) (citing Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471
(Tex. 1991)). In reviewing a summary judgment, we consider the evidence in the light
most favorable to the non-movant and resolve any doubt in the non-movant's favor. Id.
4
In a negligence case, the existence of a duty is typically a threshold question of
law which the trial court decides based on the particular facts surrounding the
occurrence in question. Van Horn v. Chambers, 970 S.W.2d 542, 544 (Tex. 1998);
Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995); Nat’l Convenience
Stores, Inc. v. Matherne, 987 S.W.2d 145, 148 (Tex. App.—Houston [14th Dist.] 1999,
no pet.). If there is no duty, liability for negligence cannot exist. Thapar v. Zezulka, 994
S.W.2d 635, 637 (Tex. 1999). “[F]actors which should be considered in determining
whether the law should impose a duty are the risk, foreseeability, and likelihood of injury
weighed against the social utility of the actor’s conduct, the magnitude of the burden of
guarding against the injury and consequences of placing that burden on the employer.”
Nabors Drilling, Inc. v. Escoto, 288 S.W.3d 401, 405 (Tex. 2009) (citing Otis Eng’g
Corp. v. Clark, 668 S.W.2d 307, 309 (Tex. 1983)). Foreseeability of the risk has been
called the foremost and dominant consideration in the duty analysis. El Chico Corp. v.
Poole, 732 S.W.2d 306, 311 (Tex. 1987). The test for foreseeability is what a party
should, under the circumstances, reasonably anticipate as a consequence of its
conduct. J.P. Morgan Chase Bank, N.A. v. Tex. Contract Carpet, Inc., 302 S.W.3d 515,
533 (Tex. App.—Austin 2009, no pet.) (citing Foster v. Denton Indep. Sch. Dist., 73
S.W.3d 454, 465 (Tex. App.—Fort Worth 2002, no pet.)).
Though the existence of duty is a question of law when all of the essential facts
are undisputed, when the evidence does not conclusively establish the pertinent facts or
the reasonable inferences to be drawn therefrom, the question becomes one of fact for
the jury. Bennett v. Span Indus., Inc., 628 S.W.2d 470, 474 (Tex. App.—Texarkana
1981, writ ref‘d n.r.e.).
5
B. Jurisdiction
In their seventh amended petition, the Artheys allege that their claims arise under
general maritime jurisdiction. See 46 U.S.C. § 30101(a) (2012). A holding that a
particular occurrence is within admiralty jurisdiction generally amounts to a holding that
the law governing that occurrence is substantive maritime law. Crear v. Omega Protein,
Inc., 2002 U.S. Dist. LEXIS 15759, at *5–6 (E.D. La. Aug. 20, 2002). Schlumberger did
not specifically address the applicability of admiralty jurisdiction in its motion for
summary judgment; nonetheless, we will construe its claim of “no duty” broadly.
Because the breach allegedly occurred on a vessel and the Artheys’ damages occurred
on land, it is appropriate to first determine whether admiralty jurisdiction is applicable.
See id.
Section 30101 of title 46 of the United States Code provides that “[t]he admiralty
and maritime jurisdiction of the United States extends to and includes cases of injury or
damage, to person or property, caused by a vessel on navigable waters, even though
the injury or damage is done or consummated on land.” 46 U.S.C. § 30101(a). To
determine the applicability of admiralty jurisdiction, the United States Supreme Court
has devised a two-pronged test which focuses on both the location of the incident in
question and the connection between the incident and the federal interest in the
protection of maritime commerce. See Jerome B. Grubart, Inc. v. Great Lakes Dredge
& Dock Co., 513 U.S. 527, 534 (1995). Under the first prong, the “location” test, a court
must determine whether the tort occurred on navigable water or whether the injury
suffered on land was caused by a vessel on navigable water. Id.; see Young v. Players
Lake Charles, L.L.C., 47 F. Supp. 2d 832, 834 (S.D. Tex. 1999). Under the second
6
prong, the “connection” test, the court must consider two issues: (1) whether, based on
the “general features of the type of accident involved,” the incident has a “potentially
disruptive impact on maritime commerce”; and (2) whether the general character of the
activity giving rise to the incident bears a “substantial relationship to traditional maritime
activity.” Grubart, 513 U.S. at 534 (citing Sisson v. Ruby, 497 U.S. 358, 364 n.2
(1990)); see id. at 547 (recognizing a presumption in favor of “seeing jurisdiction as the
norm when the tort originates with a vessel in navigable waters, and in treating
departure from the locality principle as the exception”). In this case, the tort alleged is
the provision of excess alcohol on the fishing boat that resulted in Huff’s intoxication and
the general activity giving rise to the incident is the sponsored fishing trip.
1. The Location Prong
Historically, admiralty jurisdiction hinged exclusively on location. See id. at 531–
32. “The traditional test for admiralty tort jurisdiction asked only whether the tort
occurred on navigable waters. If it did, admiralty jurisdiction followed; if it did not,
admiralty jurisdiction did not exist.” Id. The locality issue was addressed with
Congress’s passage of the Extension of Admiralty Jurisdiction Act. See 46 U.S.C. §
30101. After the Extension Act, the “location” test is satisfied if the act occurred on
navigable water or if the injury suffered on land was caused by a vessel on navigable
waters. Id. § 30101(a); see Grubart, 513 U.S. at 534. Although the Artheys’ injuries
occurred on land, the jurisdictional focus is on the activity that “caused” the injury,
regardless where or when the injury manifests itself or is “consummated.” See 46
U.S.C. § 30101; Grubart, 513 U.S. at 535–46 (rejecting the argument that the property
damage at issue in that case “must be close in time and space to the activity that
7
caused it”); see also In re Asbestos Litig., 2012 Del. Super. LEXIS 177, at *18 (Del.
Super. Ct. Feb. 15, 2012).
Courts have routinely held that admiralty jurisdiction applies in cases involving
passengers who are served excessive amounts of alcohol on vessels, and after
disembarking, are involved in on-shore automobile accidents. See, e.g., Bay Casino,
L.L.C. v. M/V Royal Empress, 199 F.R.D. 464, 465 (E.D.N.Y. 1999) (finding location
prong satisfied where claims arose from motor vehicle accident but alleged negligence
was “the provision of large amounts of alcohol to an underage customer attending [a]
gambling cruise”); Young, 47 F. Supp. 2d at 834 (finding location prong satisfied where
“the alleged negligence, the serving of copious amounts of alcohol on the casino boat,
occurred on navigable waters”); Horak v. Argosy Gaming Co., 648 N.W.2d 137, 145
(Iowa 2002) (finding location prong satisfied in automobile accident case where the
“harm complained of—the sale and service of alcohol to an intoxicated adult—occurred
on a vessel”). Here, the provision of alcohol is alleged to have taken place on the
fishing boat; if that allegation is correct, the tort occurred on navigable waters and the
case will sound in admiralty. Considering the evidence in the light most favorable to the
Artheys, see W. Invs., Inc., 162 S.W.3d at 550, we conclude that the first prong of the
Grubart test has been met.
2. The Connection Prong
The first issue under the connection prong requires us to consider the potential
for a disruptive impact on maritime commerce. Grubart, 513 U.S. at 534. In Grubart,
the United States Supreme Court stated that, for purposes of the disruptive impact
factor, the incident at issue must be defined at an “intermediate level of possible
8
generality” by “ask[ing] whether the incident could be seen within a class of incidents
that posed more than a fanciful risk to commercial shipping.” Id. at 538. Defining the
incident at an “intermediate level of possible generality,” the Young court found that the
provision of “copious amounts of alcohol” to passengers on a boat was a potentially
negligent condition affecting passengers aboard the vessel. Young, 47 F. Supp. 2d at
834 (noting that “[i]t is not difficult to imagine a slightly different scenario from the case
at bar in which an intoxicated passenger falls down a stairway or into the
water. . . . Such an incident could lead to a disruption as rescue crews attempt to locate
and save the passenger or search for his body”).
The second issue of the connection prong considers “whether the general
character of the activity giving rise to the incident shows a substantial relationship to
traditional maritime activity.” Grubart, 513 U.S. at 539. The relevant activity “is defined
not by the particular circumstances of the incident, but by the general conduct from
which the incident arose.” Sisson, 497 U.S. at 364. We must ask whether the alleged
tortfeasor’s activity “on navigable waters is so closely related to activity traditionally
subject to admiralty law that the reasons for applying special admiralty rules would
apply in the suit at hand.” Grubart, 513 U.S. at 539–40. “Navigation of boats in
navigable waters clearly falls within the substantial relationship.” Id. at 540 (citing
Foremost Ins. Co. v. Richardson, 457 U.S. 668, 675 (1982)); see In re Asbestos Litig.,
2012 Del. Super. LEXIS 177, at *22–23. Here, the sponsored fishing boat is similar to
cruise and sightseeing vessels that regularly transport passengers over navigable
waters. Courts have consistently stated that torts on such vessels satisfy the traditional
maritime activity requirement. Young, 47 F. Supp. 2d at 835 (citing Palmer v. Fayard
9
Moving & Transp. Corp., 930 F.2d 437, 441 (5th Cir. 1991); Butler v. Am. Trawler Co.,
887 F.2d 20, 21-22 (1st Cir. 1989); Carey v. Bahama Cruise Lines, 864 F.2d 201, 207
(1st Cir. 1988); Luby v. Carnival Cruise Lines, 633 F. Supp. 40, 41 n.2 (S.D. Fla. 1986);
Palmer v. Ribax, 407 F. Supp. 974, 978–79 (D. Fla. 1976)).
Viewing the facts in this case at the level of generality that the Supreme Court
requires, and in light of the presumption in favor of finding maritime jurisdiction over
injuries caused by or on vessels in navigable waters, see Grubart, 513 U.S. at 537, we
conclude that the connection prong of the Grubart test is met. The type of activity at
issue in this case poses a risk of potential disruption of maritime commerce that is more
than merely “fanciful,” Grubart, 513 U.S. at 539, and the activities of Schlumberger in
sponsoring fishing trips can be viewed as bearing a substantial relationship to traditional
maritime activities. Because both the location and connection prongs of the Grubart
test are met, this case falls within maritime jurisdiction.
Federal maritime law therefore governs the substantive law of this case. See
Crear, 2002 U.S. Dist. LEXIS 15759, at *5–6. Federal courts exercising admiralty
jurisdiction have recognized that a defendant can be held liable at maritime law for
providing alcohol without adequate supervision. In Their v. Lykes Bros., Inc., 900 F.
Supp. 864, 866 (S.D. Tex. 1995), plaintiff Fred Their, an employee on a vessel owned
by the defendants, was seriously injured in a one-car accident that occurred shortly after
the car left the dock where the vessel was berthed. The chief officer of the vessel,
Robert Borzi, was driving the car and died as a result of the crash. Id. At the time of
the crash, Borzi was legally intoxicated. Id. The federal district court found that Borzi
consumed the alcohol while he was on the vessel. Id. at 869. The court concluded that
10
the defendants, the owners of the vessel, were “negligent in operating a floating dram
shop with insufficient supervision to prevent Mr. Borzi from becoming intoxicated while
on the vessel, and this negligence was a proximate and producing cause of [Their]’s
damages.” Id. at 878. The defendants “were negligent in failing to monitor alcohol
consumption onboard, fostering a party atmosphere, and failing to prohibit drunk officers
from driving . . . .” Id. at 879. Accordingly, regardless of whether Their or Borzi were in
the course and scope of their employment at the time of crash, the defendants were
“completely liable, jointly and severally, to [Their] for his damages sustained as a result
of the subject incident . . . .” Id.; see Young, 47 F. Supp. 2d at 835; see also Reyes v.
Vantage S.S. Co., 609 F.2d 140, 141–46 (5th Cir. 1980) (holding that plaintiff could
maintain an action for negligent rescue and stating that, in assessing the plaintiff’s
contributory negligence, the lower court must consider the defendant’s role in operating
a “floating dram shop” from which crew members obtained intoxicants with no
supervision).
C. Summary Judgment Evidence
We now review the summary judgment evidence to determine whether
Schlumberger established as a matter of general maritime law that it owed no duty to
the Artheys. The summary judgment evidence included excerpts from the depositions
of Huff, Hey, and Ney. It also included the transcript from the punishment phase of
Huff’s criminal trial after his plea of guilty, and documents and information emailed to
Huff.
Hey is a salesperson for Schlumberger. Hey had spoken to Huff in the past
about Schlumberger products that he would like to sell to Petrobras. Hey asked Huff via
11
email whether he was interested in going on the fishing trip. Subsequently Huff
received an invitation from Cindy Hassler of Schlumberger. Although Huff denied that
any business was discussed on the fishing trip, there is no question that the purpose of
the trip was to foster the business relationship between Huff and Sclumberger. The trip
was sponsored by Schlumberger and no friends of Huff went on the trip. Hey testified
that the reason Huff was invited was to thank him for his business and to strengthen the
business relationship. An email dated April 24, 2008, from Hassler set forth guidelines
for who should be invited on the trip: “Slots are for clients and account managers. (1)
Clients who have done significant business (revenue) over last six to 12 months. (2)
Clients who will be doing significant business in 2008.”
Huff stated in his deposition that he is a geophysicist and exploration manager.
At the time of his deposition, Huff had been employed by Petrobras for nearly eight
years. Huff stated that he believes there were six people on the Schlumberger trip; at
least three were from Schlumberger. There were no other people staying at the Shoal
Grass Lodge other than those that were part of the trip.
Huff arrived at the Shoal Grass Lodge on Wednesday evening. He ate dinner
there. There was an open bar at the lodge. Huff had a drink about an hour after he
arrived on Wednesday. He drank bourbon and wine. The meal and liquor were
provided free of charge.
Huff stated that there was no alcohol available directly on board the boat: “If you
wanted some [alcohol], you had to—you had to physically go and get it from either the
bar—from the bar or your own if you brought some.” Huff recalled “several people
getting a bag of ice and putting beers in the bag of ice” on Thursday to take on the boat.
12
He conceded that “[t]here was some beer on the boat.” He thought there was some
heavy drinking going on Thursday on the boat, and he did not recall any reason to
believe it was any different on Friday.
Huff did not dispute that he was driving the vehicle that collided with the Artheys’
motorcycle while significantly intoxicated, although he had no recollection of doing so.
He did not remember consuming alcohol on Friday or driving from Aransas Pass to the
site of the accident. Huff thought he remembered walking to the dock that morning, and
he thought he remembered catching a fish.
Ney met Huff on the fishing trip; he had not met him before. On Friday, Ney, Huff
and the boat captain went out on the boat to fish. Ney recalls that they fished for about
three or four hours and returned to the dock around 12:30 or 1:00 p.m. The fish were
cleaned at the dock. He left the lodge before Huff did. Ney testified: “I know that he did
not drink hard alcohol on the boat but there were cans on the boat.” When asked if
there was beer on the boat, Ney stated, “I do not remember beer being on the boat on
Friday. I know there was beer on the boat on Thursday and that I had one on the—on
the boat on Thursday. I do not know about Friday.” Ney testified that Huff spent most
of his time on the boat sleeping. Ney stated:
I woke him up to catch the fish. . . . When a fish was hooked, I would
wake him up; and then he’d reel—reel in the fish. . . . I recall seeing him
drinking, but it was out of something in a koozie[4] on the boat but what
was in that koozie, I don’t know, because he put it in the koozie.
Ney agreed that as the host of the event, Schlumberger could have decided not to
permit beer or alcohol on the boat. He acknowledged that Schlumberger controlled who
4
A koozie is a fabric or foam device that is designed to insulate a beverage can or bottle.
Wikipedia, “Beer Koozie,” http://en.wikipedia.org/wiki/Beer_koozie (last visited August 15, 2012).
13
was on the boat, what was served on the boat, and how long they remained on the
boat.
Officer White investigated the crash. When he first arrived on scene, he spoke
with Huff and other witnesses. He suspected intoxication based on witness accounts.
However, while talking to Huff, he could not smell alcohol on his breath so he obtained
Huff’s medical records. The medical records included an analysis of the blood sample
that was drawn at the hospital where Huff was taken following the incident. Huff’s BAC
was .25 approximately three hours after the crash.
Dr. Lykissa, a clinical and forensic toxicologist, provided an affidavit in support of
the Artheys’ response to Schlumberger’s motion for summary judgment. As set forth
above, Dr. Lykissa performed an analysis to determine Huff’s BAC at the time of the
collision, and he also conducted forensic analysis to determine the time frame in which
the alcohol was actually consumed by Huff. Based on the rate of elimination, Dr.
Lykissa determined that Huff’s BAC at the time of the accident—2:34 p.m.—was .31.
According to Dr. Lykissa, the fact that the Officer White was unable to smell alcohol on
Huff indicates that Huff was not drinking within one hour prior to the accident.
According to the evidence, the earliest Huff got off the water was 12:30 p.m.
Dr. Lykissa’s stated that, in the one hour between when he got off the boat, at
12:30 p.m., and 1:30 p.m., when he departed, Huff would have had to consume at least
twelve drinks in order to attain a BAC of .31. In Dr. Lykissa’s opinion, Huff could not
have consumed twelve or more drinks in that hour; if he had done so, he would likely
have become so sick and incapacitated so as not to have been able to drive himself to
the scene of the accident, roughly 40 miles from where he got off the water, by 2:34
14
p.m. This analysis led Dr. Lykissa to opine that Huff became intoxicated over a greater
period of time—that is, over more than the one hour between 12:30 and 1:30—which
means that he would have reached a BAC of .31 while still on the water, prior to docking
around 12:30 p.m. According to Dr. Lykissa, being unable to stay awake is a classic
symptom of high-level intoxication that is often exhibited by those whose BAC climbs
above the .2 level towards the .3 level.
The invitation sent by Schlumberger described the trip as a “two-day fishing get-
away at Shoal Grass Lodge.” The invitation described the lodge as “a 10,000 square
feet facility [with] 12 bedrooms, a game room and a great room, bar, commercial kitchen
and a large conference room. . . . The lodge has a gorgeous great room looking out of
Aransas Bay with an open bar which is included.” (Emphases added.) The invitation
also included the following schedule:
May 14 Arrive Shoal Grass Lodge for check-in after 3:00 p.m., where
you can relax, and enjoy the view and open bar from the
great room with dinner and appetizers in the evening. Pier
fishing options out back.
May 15 After breakfast, you’ll be met at the private docket (right out
back) for a day of fishing with three anglers per boat. You’ll
enjoy lunch on the water and be back in time for an
afternoon cocktail to watch the sunset. Cocktails and dinner
will be served in the evening.
May 16 After breakfast, you’ll be met for a second day of guided
fishing from which you’ll return based on travel
arrangements in time to catch your flight or ride home.
Check-out will be between 1 and 2 p.m.
(Emphases added.) The questionnaire sent to participants for the “Schlumberger
Fishing Fling” asked for name, arrival time, angling experience, preferred reels,
preferred fishing method, and preferred liquors.
15
The invoice to Schlumberger from Fishing Tackle Unlimited reflected that the
price charged to Schlumberger included liquor at the lodge. It also stated: “Not
included: . . . alcohol for the boat (We can set this up ahead of time but is done
separately from the lodge) . . . .”
In an email dated May 13, 2008, Hassler stated that she had reviewed the
contract, “including alcohol, tips, etc.” She further stated: “Shoal Grass Lodge has an
open bar and that is included in our package. The lodge does not provide alcohol on
the boats so if anyone wants beer while they are out on the water, get with Andy
[Packmore] and he can help to make that happen.” Packmore stated in an answer to an
interrogatory that “Shoal Grass Lodge served alcohol from an open bar as part of the
package purchased by Schlumberger.”
The summary judgment evidence established that Huff was drinking an unknown
beverage from cans on the boat and was having trouble staying awake; that Huff was
extremely intoxicated at the time he got off the boat; and that Schlumberger
representatives, through their emails and invitations, encouraged alcohol consumption
during the entire trip, including while fishing from boats. This evidence raised a genuine
issue of material fact as to whether Schlumberger allowed a “party atmosphere” to
prevail during the entire fishing trip, whether Huff became intoxicated while on the boat,
and whether Schlumberger operated a “floating dram shop” that resulted in Huff’s
intoxication. See Thier, 900 F. Supp. at 866; Reyes, 609 F.2d at 141–46. If these facts
are proven true, then Schlumberger owed a duty of ordinary care to the Artheys under
maritime law. See Young, 47 F. Supp. 2d at 835.
16
Because a fact issue existed regarding Schlumberger’s duty to the Artheys,
summary judgment was improper. See Mitchell v. Mo.-Kan.-Tex. R.R. Co., 786 S.W.2d
659, 662 (Tex. 1990) (“While foreseeability as an element of duty may frequently be
determined as a matter of law, in some instances it involves the resolution of disputed
facts or inferences which are inappropriate for legal resolution.”), overruled on other
grounds by Union Pac. R.R. Co. v. Williams, 85 S.W.3d 162 (Tex. 2002). The Artheys’
first issue is sustained.5
III. CONCLUSION
We reverse the trial court’s summary judgment and remand for further
proceedings consistent with this opinion.
DORI CONTRERAS GARZA,
Justice
Dissenting Opinion by
Justice Rose Vela.
Delivered and filed the
8th day of November, 2012.
5
In light of our conclusion that maritime jurisdiction applies, we need not address the Artheys’
second issue, in which they argue that summary judgment was improper under the Texas Dram Shop
Act. See TEX. R. APP. P. 47.1.
17