dissenting.
I respectfully dissent. After further consideration, I would grant appellant’s motion for rehearing, and reverse and remand this cause. Compelling reasons for so doing have been advanced. Justice will be best served by applying the discovery rule in dram shop actions because it is often impossible or very difficult to discover the facts supporting such a cause of action. This case should also be reversed because the plaintiff’s pleadings raised the Open Courts Provision of the Texas Constitution as a defense to limitations, and the defendant did not negate it as a matter of law.
I. FACTS
The plaintiffs’ pleadings alleged that their car was struck from behind by a vehicle driven by Rolando Garcia on April 14, 1986. Plaintiffs were seriously injured, suffering broken bones, fractures, and contusions. They filed suit against Garcia and others on September 22, 1987, claiming that Garcia failed to exercise care in the operation of his vehicle in numerous respects, including that he was intoxicated at the time of the accident.
Plaintiffs noticed Garcia several times for deposition. The first deposition was scheduled on March 30, 1988, a date less than two years after the accident. This deposition, and the second were canceled. At the third deposition, which was scheduled on May 24, 1988, Garcia finally appeared. This date was more than two years after the accident.
At the deposition the plaintiffs discovered that soon before the accident Garcia purchased beverages containing alcohol from appellee, a drive-through dram shop, at a time when he may have been visibly intoxicated. Thus, the deposition, which had been repeatedly delayed,1 was the first point in time that the plaintiffs actually discovered the cause of action against Phillips.
The trial court granted summary judgment. It held the facts admitted in plaintiffs’ pleadings established appellee’s limitations defense as a matter of law.
The majority, in affirming the trial court’s granting of summary judgment, holds that the “legal injury rule” rather than the “discovery rule” should apply in all dram shop cases. It suggests however that, even if the discovery rule applies, the statute of limitations begins to run when the plaintiff discovers the nature of his injury; in this case, at the time of the automobile accident when plaintiffs were injured. I would hold that, applying the proper test for determining which rule should apply, the nature of the class of cases involving the sale of alcoholic beverage to obviously intoxicated persons by a *24dram shop requires that the discovery rule should apply. I would further hold that under the discovery rule the statute of limitations would not begin to run until the plaintiff discovers the injury and its cause. Under this analysis the discovery rule would require that the summary judgment be reversed because appellee failed to prove as a matter of law that the plaintiff discovered, or should have discovered, the accident’s cause within two years before suit was filed.
II. THE DISCOVERY RULE SHOULD APPLY TO DRAM SHOP ACTIONS
The legal injury rule and the discovery rule are the two rules courts apply in determining when a cause of action accrues and the limitations period begins to run. Under the legal injury rule a cause of action accrues at the first moment facts come into existence which authorize recovery, regardless of whether the plaintiff is aware of these facts. Houston Water Works v. Kennedy, 70 Tex. 233, 8 S.W. 36, 37-38 (1888). This is an objective test. Applying this test, the cause of action almost always accrues when the negligent act effects an injury. This is true because in most, if not all, negligence eases, the last event which completes the cause of action necessarily is the injury. See e.g. Atkins v. Crosland, 417 S.W.2d 150, 153 (Tex.1967).
The discovery rule is composed of both objective and subjective components. Under this rule the cause of action accrues when the plaintiff either actually knew or a reasonable person in the same situation should have known of the facts supporting each element of the cause of action. See Willis v. Maverick, 760 S.W.2d 642, 646 (Tex.1988). If this rule of accrual applies, a cause of action may accrue when facts supporting injury, causation, and all other elements of the cause of action are (or should have been) discovered. Willis, 760 S.W.2d at 645; Allen v. Roddis Lumber Co., 796 S.W.2d 758, 760-61 (Tex.App.—Corpus Christi 1990, writ denied) (“a cause of action accrues when the plaintiff discovers the injury and its cause.”).
Viewed objectively, the facts supporting the plaintiffs’ dram shop action against ap-pellee for personal injuries came into existence at the time of the accident. El Chico Corp. v. Poole, 732 S.W.2d 306, 314 (Tex.1987). Specifically, the cause of action came into existence when: 1) Phillips allegedly breached its duty not to sell alcoholic beverages to Garcia at a time when Phillips knew or should have known Garcia was intoxicated, and 2) the sale and Garcia’s resulting intoxication contributed to causing the accident and the plaintiff’s injury. If the legal injury rule is applied the cause of action accrued at the time of injury and this action is barred. See Robinson v. Weaver, 550 S.W.2d 18, 19 (Tex.1977); Houston Water Works, 8 S.W. at 37-38.
Appellant’s petition, which is uncontro-verted, alleges two crucial facts: 1) that the accident occurred more than two years2 before suit was filed against appel-lee; and 2) that the plaintiffs did not know, and reasonably could not know, that the dram shop caused their injuries until less than two years before suit was filed against appellee. The cause of the injury, i.e., the sale, is an essential element of the cause of action. See El Chico, 732 S.W.2d at 313 (to complete a cause of action the plaintiff must prove that the dram shop proximately caused plaintiff’s injuries). If this was not discovered, and reasonably should not have been discovered until a time less than two years before suit was filed, then under the discovery rule the action is not barred by limitations.
The issue presented is whether the discovery rule applies to an El Chico (i.e. dram shop) cause of action. I believe it should because this type of action is inherently difficult to discover, and failure to apply the discovery rule to this type of ease will often result in great injustice.
Whether the discovery rule or the legal injury rule applies to a particular case is determined by certain characteristics inherent in that type of case. See Fernandi v. *25Strully, 35 N.J. 434, 173 A.2d 277, 285 (1961), followed in Moreno v. Sterling Drug, 787 S.W.2d 348, 351 (Tex.1990) and Willis, 760 S.W.2d at 642. Thus, certain characteristics of a class of cases must be examined by the court to determine which rule is best suited for that class. Fernandi, 173 A.2d at 285. In deciding whether to apply the discovery rule to a class of cases, characteristics of the case at bar are only relevant to the extent they are shared with other members of that class.
In determining whether the discovery rule should apply to a particular class of cases, the Supreme Court of Texas has balanced the legitimate purposes of limitations against the injustice created by barring the suit. On one hand, limitations statutes further the policy of repose by forcing plaintiffs to bring suit quickly to avoid the bar. This permits defendants to defend with fresh evidence and available witnesses. Moreno v. Sterling Drug, 787 S.W.2d 348, 351 (Tex.1990); Willis, 760 S.W.2d at 644.
On the other hand, in cases in which it is difficult or impossible for a plaintiff to ascertain the true facts establishing the elements of the cause of action, the discovery rule applies. This is particularly true if the legal injury rule compels unjust results because limitations bars the action before it can be discovered. See e.g. Willis, 760 S.W.2d at 645 (“This court has adopted the discovery rule in cases other than legal malpractice in which it is difficult for the injured party to discover the negligent act or omission.”); Kelley v. Rinkle, 532 S.W.2d 947, 949 (Tex.1976); Gaddis v. Smith, 417 S.W.2d 577, 580 (Tex.1967).
For example, in Gaddis, the Court wrote: “the disadvantage to the defendant (of the discovery rule) is overbalanced by the shocking results of the contrary rule which would bar a plaintiff from recovery when he could not know of the wrongful act until after the period of time prescribed by the statute of limitations had run.” Id. at 581. The Court reasoned that the discovery rule generally should apply in cases in which the plaintiff cannot know of the wrongful act until after the limitations period has expired. Such a result was properly described as “shocking” by the Willis Court. Willis, 760 S.W.2d at 645. This unjust situation is precisely the one plaintiffs will face in many dram shop actions. Thus, the discovery rule should apply.
A. Dram shop actions are difficult to discover and application of the legal injury rule is unjust.
The beverage seller’s negligent act as a breach of duty and cause of injuries to the plaintiff will be difficult to discover in many, if not most dram shop actions. This is true because in most cases, information forming the basis of the cause of action can only come from the negligent, and potentially uncooperative driver. If the intoxicated driver is uncooperative, leaves the scene of the accident, is incapacitated, or dies, it will be very difficult, if not impossible, to discover the true facts supporting the cause of action against the beverage seller. Due to the nature of the tort, these events are quite likely to occur often in dram shop cases. The solution to this problem is to apply the discovery rule in all dram shop cases.
The instant case presents a good example. The driver did not cooperate and appear for depositions despite repeated requests.3 Without him, the plaintiffs had no other source of information implicating the defendants.
Other issues likely to arise in the typical dram shop action will present even more severe discovery problems for plaintiffs.
A drunk driver’s actions are criminal.4 After an accident, strong incentives exist *26for an intoxicated driver to deny purchasing alcoholic beverages while in an intoxicated state, thereby covering up both the purveyor’s negligent act and the driver’s criminal liability. To do so may be an admission of civil and criminal liability, and a source of evidence in both actions. Where the specter of criminal liability arises, powerful Fifth Amendment protections may prohibit questioning of the defendant regarding any of the facts supporting the dram shop action. This prohibition will exist until all prosecution is terminated or limitations has barred all possible criminal actions.
An excellent example is Bradford v. Soto, 159 Ill.App.3d 668, 111 Ill.Dec. 376, 512 N.E.2d 765 (2nd Dist.1987). In Bradford, one evening, Soto, the defendant, was out on the town drinking. Later, while driving home, he crossed the center line and slammed head-on into Carlton Bradford’s car, killing him. Criminal charges were brought against Soto. Bradford’s widow filed suit against Soto and sought discovery regarding whether a dram shop, if any, caused the accident.
Soto successfully asserted the Fifth Amendment privilege and refused to answer any questions. After the limitations period expired and criminal proceedings arising from the accident became final, Soto informed the plaintiff that a dram shop served him alcoholic beverages before the accident. Bradford’s widow promptly filed suit against the dram shop.
The Illinois Appellate Court held limitations barred the dram shop action.
As Bradford demonstrates, failure to apply the discovery rule to a dram shop cause of action can lead to shocking and bizarre results. The majority would allow many of our state’s future widows and orphans to suffer the same injustice as that suffered by Carlton Bradford’s widow and orphans. I cannot agree with this result.
Application of the legal injury rule will be unjust for another reason: the dram shops should not be allowed to take advantage of the legal injury rule to avoid liability for the carnage on our streets and highways to which they contribute.
Dram shops should not be the unwitting beneficiaries of the legal injury rule. Sellers of alcoholic beverages cause many serious accidents. Thus, they should compensate those who are injured by their profitable activities. It is they, and not the victims, who are in the best position to shoulder the burden.
In contrast are the innocent plaintiffs and their families. These parties suffer the death or injury of a loved one, and should be compensated. They are in the worst position to carry the financial burden of death or injury in addition to the other more serious emotional burdens imposed upon them by the negligent dram shop. Moreover, it is dram shops who should be deterred from selling alcoholic beverages to intoxicated drivers because they are in the strongest position to minimize further deaths and injuries.
Deterrence of tortfeasors and compensation of victims are diluted by application of the legal injury rule, but enhanced by the discovery rule. Advancement of these two policies compels adoption of the discovery rule.
The majority concludes that the discovery rule does not apply to dram shop cases. However, its reasoning also suggests that even if the discovery rule applies, the plaintiff’s cause of action accrued when she “knew ... she had been injured.” The majority’s analysis in both respects is incorrect.
On the issue of the applicability of the discovery rule to dram shop cases, the majority ignores the tests developed by other courts on the application of this rule. The test repeatedly articulated by the Supreme Court of Texas and courts in other jurisdictions is whether this class of cases generally presents causes or injuries difficult to discover and, as a result, whether application of the legal injury rule would often be *27unjust. Moreno, 787 S.W.2d at 351; Willis, 760 S.W.2d at 642; Fernandi, 173 A.2d at 285. Application of the proper test should lead the majority to conclude that the discovery rule applies to dram shop cases due to the inherent difficulty in discovering the dram shop’s negligent act and the injustice of applying the legal injury rule in this class of case.
B. A cause of action accrues under the discovery rule when both cause and injury are discovered.
The majority also incorrectly states that, if the discovery rule applies, that discovery occurs, and hence the statute of limitations begins to run, at the time of the discovery of the injury by the plaintiff. The test is not, as the majority suggests, whether appellant was aware of her injury more than two years before suit is filed. This Court, as well as other Courts of Appeals in Texas, have held otherwise. In Allen v. Roddis Lumber Co., this Court wrote:
There is a conflict in the case law concerning whether under the discovery rule a cause of action accrues when the plaintiff discovers the cause of the injury; or if the discovery rule concerns only discovery of the injury itself. We hold the correct rule is that the cause of action accrues when the plaintiff discovers the injury and its cause.
Id. at 760-61 (emphasis added). See Medical Protective Co. v. Groce, Locke, & Hebdon, 814 S.W.2d 124, 128 (Tex.App.—Corpus Christi 1991, writ denied). This Court’s holding is entirely consistent with the Supreme Court’s decision in Willis which makes clear that a cause of action under the discovery rule occurs when the facts supporting each element of the cause of action is discovered or should have been discovered. Id., 760 S.W.2d at 646.
The problem with the “injury only” theory suggested by the majority is that discovery that a party has been injured does not necessarily mean they have discovered or should discover that legal recourse is available. For example, in Gaddis the Supreme Court of Texas held that the cause of action for foreign object medical malpractice accrued when the foreign object was discovered. Id. at 580. It did not hold that the cause of action accrued when the plaintiff first suffered severe internal pain (i.e., injury). The reason why the Court held as it did is because the negligent act, that is, breach of duty and causation are all discovered simultaneously when the foreign object is discovered.
In Corder v. A.H. Robins, 692 S.W.2d 194, 195-96 (Tex.App.—Eastland 1985, no writ), the plaintiff was fitted with an IUD in 1971. She experienced cramps and bleeding, and the IUD was removed. She was unable to conceive, and sought medical assistance. In 1980 she was advised that the IUD was the cause of her infertility. Even though the plaintiff was clearly injured as early as 1972, and was aware that she was infertile in 1973, she did not discover the cause of her injuries until informed by her doctor in 1980. Suit was filed within two years of discovery of the injury’s cause. The Eastland Court held that the cause of action accrued upon discovery of the cause of her injuries. See also Medical Protective, 814 S.W.2d at 128-29 (“It is undisputed that Medical Protective discovered its injury when the judgment was signed. The question is when did Medical Protective discover ... that its injury was caused by the law firm’s breach of duty.”).
The rule to be distilled from Gaddis and other discovery rule cases is that stated in Willis: a cause of action accrues when the facts supporting each element of the cause of action are discovered. Stated differently, a cause of action accrues when the legal injury or negligent act and injury are discovered.
Gaddis properly distinguished two party automobile accident cases because the impact is the sole legal cause of injuries in such cases. Id. at 581. However, the two party automobile impact ease is distinguishable from the instant case because dram shop cases involve causes attributable to concealed third parties. In such cases, in addition to the impact, one legal cause of the accident is the dram shop’s sale of *28alcoholic beverages to an obviously intoxicated driver. El Chico, 732 S.W.2d at 313. As discussed above, the dram shop’s contribution to the accident is difficult to discover, unlike the driver’s share of causation in the automobile case. This is precisely why different rules concerning limitations should be applied to these two classes of cases.
The plaintiffs alleged that they did not discover, nor could have discovered, the facts supporting their cause of action until a time less than two years before suit was filed. The defendant (summary judgment movants) did not adduce summary judgment evidence disproving these allegations. Thus, the discovery rule operates to save this cause of action from the bar of limitations and the summary judgment should be reversed.
III. THE OPEN COURTS PROVISION WAS PROPERLY INVOKED
I believe this case should be reversed for an additional reason. The cause of action against the purveyor of alcoholic beverages is a common law cause of action. El Chico, 732 S.W.2d at 314. In many circumstances which may arise in dram shop actions the plaintiff will not know, and reasonably could not know of the legal injury caused by the purveyor. See Nelson v. Krusen, 678 S.W.2d 918, 922 (Tex.1984). Under such circumstances application of a rule of accrual barring the cause of action before discovery violates the Open Courts Provision of the Texas Constitution. Nelson, 678 S.W.2d at 923. Thus, the Open Courts discovery rule is implicated in such cases.
This rule was invoked in the instant case because the plaintiffs’ petition alleged that they did not discover their cause of action against appellee within two years of the accident, and “[tjhere was no reason for plaintiff to know or believe that Defendant Phillips Properties or any other such third party caused the accident and Plaintiffs exercised reasonable diligence to make such discovery.” Construed under the liberal pleading rules, these allegations are sufficient to avoid the bar of limitations under the Open Courts provision of the Texas Constitution. Id.
Appellee Phillips, as the summary judgment movant, had the heavy burden to prove as a matter of law that the action was barred by limitations. In this respect, its motion is clearly insufficient because it did not allege and prove as a matter of law that the plaintiff’s cause of action was not a common law cause of action, or that the plaintiffs reasonably should have known that they possessed a eause of action against Phillips within two years from the date of the accident.
IV. CONCLUSION
To conclude, I would reverse the summary judgment and remand for two reasons. First, I believe the discovery rule applies to the instant case because it is a personal injury action in which the eause of injury is difficult to discover. Second, I believe the plaintiffs’ allegations were sufficient to invoke the Open Court’s Provision, and Phillips did not negate as a matter of law these allegations with competent summary judgment evidence. I respectfully dissent.
. There is no summary judgment evidence establishing the reason for the delay. Because this is a summary judgment, all reasonable inferences must be indulged in favor of the non-movant, in this instance, the plaintiffs. The reasonable inference that favors the plaintiffs is that the deposition was delayed through no fault of their own.
. The two year limitations period applies because this is a cause of action for personal injuries. Tex.Civ.Prac. & Rem. Code Ann. § 16.-003(a) (Vernon 1990).
. Arguably the plaintiffs could have been more diligent in compelling his appearance. However, this is a question of fact and the defendants have not established it as a matter of law against the plaintiffs on this record. This case cannot be disposed of through summary judgment on this ground.
. See e.g. Tex. Penal Code Ann. § 19.05(a)(2) (Vernon 1992) (“A person commits an offense if he: (2) by accident or mistake when operating a motor vehicle ... while intoxicated and by rea*26son of such intoxication, causes the death of an individual.”); Tex.Rev.Civ.Stat.Ann. art. 6701/-1(b) (Vernon 1990) (DWI).