dissenting.
Although for different reasons, I also respectfully dissent.
We are presented with the specific and narrow question of whether the statutory or common law of Texas recognizes a cause of action against a social host for providing alcoholic beverages to one who is obviously intoxicated and who subsequently injures a third person. While the legislative branch and our supreme court have not directly answered the question, there is sufficient recent implicit authority from our supreme court to conclude that this new cause of action is not recognized.
Although the legislature has spoken to the issue of “dram shop” liability, it has not addressed the duty of the social host because, by definition, a “provider” under the Texas Alcoholic Beverage Code is limited to one who “sells or serves an alcoholic beverage under authority of a license or permit ...” TEX.ALCO.BEV.CODE ANN. § 2.01 (West Supp.1990). Unlike California, Iowa, Minnesota and other state legislatures, our legislature has not specifically addressed the social host issue and, therefore, has not precluded the possibility of a common law cause of action.
Looking to the existing common law, I cannot agree that a lack of proximate cause is a valid reason for precluding liability on the part of the social host. For example, we have no difficulty in finding proximate cause where a person provides a vehicle to another person in a negligent entrustment cause of action. Further, we encounter no difficulty in finding proximate cause in a ease where a commercial provider of alcoholic beverage sells to an intoxicated person.
Given that our legislature has not specifically addressed the social host issue and that the traditional common law concept of proximate cause does not preclude a duty on a social host, we must then ascertain whether our State’s highest court, under the principle of stare decisis, has provided guidance. Only two years ago the Amarillo Court of Appeals in Walker v. Children’s Services, Inc., 751 S.W.2d 717 (Tex.App.—Amarillo 1988, writ denied), had before it the issue of a social host’s duty to the person to whom alcohol is served. Broadly stating the issue, however, to include social hosts’ liability to third-party victims as well, the Amarillo court concluded that the El Chico duty should not be extended to social hosts.
Subsequently, our supreme court, on application for writ of error, denied the application with the notation “Writ Denied.” Rule 133 of the Texas Rules of Appellate Procedure provides that if the “application presents no error of law which requires reversal or which is of such importance to the jurisprudence of the State as to require correction, the court will deny the application with the notation ‘Writ Denied.’ ” (Emphasis added.) Thus, our supreme court recently had before it this issue of importance to the jurisprudence of the State and implicitly concluded that the pronouncement of the Amarillo Court of Appeals need not be corrected. Analogous to an Erie guess in federal diversity litigation, I therefore conclude that our highest court does not recognize the cause of action asserted by the appellants herein.
Accordingly, I would affirm the judgment of the trial court.