Del Lago Partners, Inc. and Del Lago Partners, L.P., d/b/a Del Lago Golf Resort & Conference Center, and BMC-The Benchmark Management Co. v. Bradley Smith, No. 06-1022 (docket and briefs)

Some fraternity members held a three-day reunion at the Del Lago Golf Resort near Lake Conroe. On the first night, a resort security guard made an unruly drunk patron leave the bar and closed the bar an hour early because of the situation.

On the second night, the fraternity members were joined at the resort bar by a wedding party. Over a period of 90 minutes, tensions between the groups grew. There were a few small incidents of shoving and verbal exchanges, but no one was ejected from the bar. After 1:30 a.m., a full melee broke out, lasting for several minutes.

The plaintiff, Bradley Smith, had been observing the fight and “waded into the scrum” to remove an injured friend. “Before Smith could extricate himself, an unknown person grabbed him and placed him in a headlock. Momentum carried Smith and his attacker into a wall, where Smith’s face hit a stud. Smith suffered severe injuries including a skull fracture and brain damage.”

Smith sued Del Lago on a premises-liability theory. The jury found both Del Lago and Smith himself negligent, dividing responsibility 51% to 49%. The trial court reduced Smith’s damages by the amount of his own negligence and entered judgment on the remaining $1.48 million in damages.

The court of appeals affirmed, concluding that the resort should have foreseen the risk of injury based on the 90 minutes of growing tensions before this fight.

Today, the Texas Supreme Court also affirmed the award.

The Justices divided 6-3, with Justice Willett writing for the majority and each dissenting Justice writing a dissent.

Justice Willett’s majority opinion focuses on the question of whether the resort owed Smith a duty in these circumstances.

What’s useful about the Court’s analysis is that it focuses on the circumstances when determining the duty rule. The Court makes very clear that it is not establishing a bright-line rule about all bar fights:

We have not held that a bar proprietor always or routinely has a duty to protect patrons from other patrons, and do not so hold today. Nor have we held that a duty to protect the clientele necessarily arises when a patron becomes inebriated, or when words are exchanged between patrons that lead to a fight, and do not so hold today.

Generally, a premises owner has no duty to protect invitees from criminal acts by third parties. We have recognized an exception when the owner knows or has reason to know of a risk of harm to invitees that is unreasonable and foreseeable.

The Court discussed the factors discussed in its previous Timberwalk decision — “proximity, recency, frequency, similarity, and publicity” — bearing on whether a landowner has a duty to protect people against criminal conduct by others. In Timberwalk, the Court concluded that the evidence of past risk was not enough.

Ultimately, the Court concluded that this case was different because of the contemporaneous indications of risk, not just past risk. The Court noted the connection between alcohol and violence, as related in an amicus brief by Mothers Against Drunk Driving. It also noted that this very bar had ejected a patron and closed early the night before.

The Court also discussed how “criminal conduct is sometimes foreseeable because of immediately preceding conduct.” Here, that “immediately preceding conduct” meant the brewing unrest at the bar. With that in mind, the Court held that:

Del Lago had a duty to protect Smith because Del Lago had actual and direct knowledge that a violent brawl was imminent between drunk, belligerent patrons and had ample time and means to defuse the situation. Del Lago’s duty arose not because of prior similar criminal conduct but because it was aware of an unreasonable risk of harm at the bar that very night.

As for the dissent’s argument that Smith should have walked away from the fight, the majority answered by reframing it in terms of apportioning responsibility (rather than concepts such as voluntary assumption of the risk or whether a duty rule was present).

Framed in terms of the apportionment statute, the answer would be clear under Texas law. If a jury apportions responsibility to a plaintiff of less than 50%, the damage award is reduced in that same proportion — but not eliminated. The jury in this case found Smith to be 49% responsible, so the statutory bar to his recovery was (however narrowly) avoided:

Ultimately, JUSTICE HECHT makes a compelling argument that Smith was negligent. We agree. So do Smith, Del Lago, JUSTICE JOHNSON, the court of appeals, the trial court, and the jury. Our only disagreement is whether Smith’s negligence is a complete bar to recovery. On this record, it is not.

The dissents

Justice Hecht and Justice Johnson joined each other’s dissenting opinions. In Justice Hecht’s opinion (which Justice Johnson joined), he took issue with the majority for not enforcing a bright-line rule that an adequate warning can discharge the landowner’s duty.

Justice Hecht worries that this will lead to more uncertainty:

The rule in Texas is that a possessor of land discharges his duty to protect an entrant from a condition that poses an unreasonable risk of harm by giving an adequate warning. Now the Court tells us that “in some circumstances” no warning can be adequate. Which ones, exactly, the Court does not specify, saying only that Bradley Smith’s full appreciation of the risk of injury from a bar fight “hardly seems” adequate. So the rule has become that an adequate warning discharges a land possessor’s duty except in circumstances when any warning hardly seems adequate. In other words, there is no rule, as the Court admits: “We do not announce a general rule today.” The land possessor who simply wants to be sure to avoid any exposure to liability is left without guidance.

To be sure, the majority opinion will eliminate any safe harbor that bar owners (or perhaps land owners in general) thought they might have had. This will create more work for lawyers, but perhaps also more work for security officers, makers of safety measures, or those who figure out safer policies for bars to deal with unruly patrons.

In some sense, what the majority has done is move this back from being a “bright-line” standard, with a statute-like rule announced by a court, toward being more of a true tort standard. With that in mind, lower courts will be asked to refine and shape this duty rule as new cases arise. That tort standards are backward-looking rather than forward-looking is a strength as well as a weakness.

Justice Hecht was also concerned about finding the resort responsible when Smith had the very same 90 minutes of warning. Smith was watching events unfold and could have “played it safe” by withdrawing from the area rather than staying and risking injury. (The majority’s response is that the jury found him 49% responsible, so this was not a complete bar to recovery.)

Justice Johnson wrote a separate opinion (joined by Justice Hecht) that objected to the Court’s framing of the Timberwalk factors and its ultimate conclusion that there was any duty involved here at all. (( Justice Hecht, who joined this dissent, was the author of the Timberwalk opinion. ))

Justice Wainwright did not join those two dissents but instead took a different approach in his dissent. He would have found that this was not a “premises liability” claim at all because it turned on the actions of employees rather than a condition of the land.