Wednesday, April 20, 2005

Unlike a couple of drivers who had, minutes earlier, swerved to avoid Roberto Ruiz's truck as it careened across the center line on State Highway 35 between Tivoli and Port Lavaca, Ashley Dueñez didn't have a chance.

Tort reform on a binge

By RICK CASEY, Houston Chronicle
April 20, 2005

Unlike a couple of drivers who had, minutes earlier, swerved to avoid Roberto Ruiz's truck as it careened across the center line on State Highway 35 between Tivoli and Port Lavaca, Ashley Dueñez didn't have a chance.

For one thing, she was only 9, so she wasn't driving. For another, her family's car was on a bridge. There was no escape from the oncoming truck.

Ashley was severely brain-damaged. She will require around-the-clock care for the rest of her life.

Her father, Xavier Dueñez, a corrections officer, required considerable plastic surgery and suffered some permanent brain damage. Three other family members were hurt less severely.

Ruiz, the truck driver, had drunk a case and a half of beer that day while chopping wood with friends.

That was before he went to Mr. Cut Rate and bought another 12-pack.

The convenience-store clerk testified that Ruiz was sober, and the surveillance camera didn't happen to be on that day.

But as it happened, a volunteer fireman was in the store at the time. He testified that Ruiz was clearly drunk, drooling and stumbling as he asked for the beer.

At trial, lawyers for the family argued that under a 1987 Texas law the company that owned the Mr. Cut Rate, F.F.P. Operating Partners, had to pay the full damages, which a jury determined to be $35 million.

'Onerous' burden of proof

But a more recent tort reform law requires juries to apportion responsibility. Any party that is less than 50 percent liable is not required to pay the full amount if the other responsible parties are unable to pay their portion. It was not an idle question. Ruiz, a grade-school dropout who held a series of low-paying jobs, sits in prison without assets.

Most of us would agree that he carried most of the responsibility for the collision. But the 1987 law was a careful compromise between Mothers Against Drunk Driving and lobbyists for the liquor industry. It made two major concessions to the industry:

•To be made liable, a vendor of alcoholic beverages must sell to a person who is "obviously intoxicated to the extent that he presented a clear danger to himself and others." This burden of proof was once described by the Texas Supreme Court as "onerous."

•Even this liability goes away if the employee selling the alcohol has been put through a training course sanctioned by the Texas Alcoholic Beverage Commission.

A meaningless remedy

In that case, an injured person would have to prove that management pressured employees to sell to drunks.

The Cut Rate clerk had not been sent to the TABC school, but lawyers for the store's owners argued that the recent tort reform laws meant that the company was liable only for its share as apportioned by a jury. But the trial judge had not asked the jury to apportion blame.

Last fall the Texas Supreme Court upheld the $35 million award by a 5-4 majority. It said the trial court should have asked the jury to apportion blame, but only so the convenience-store owners could go after Ruiz for his share.

Writing for the majority, Justice Harriet O'Neill said if the provider wasn't responsible, "the remedy provided by the . . . act would be meaningless, at least to the extent the intoxicated patron proves to be insolvent."

The purpose of the law, she said, was twofold: to dissuade companies from selling liquor to drunks, and to offer a better chance at compensation to victims.

Changing landscape

But three members of the majority are no longer on the court: Chief Justice Tom Phillips, Justice Steven Smith and Justice Michael Schneider.

Earlier this month, the court granted a motion for a rehearing. The four-member minority, headed by Justice Priscilla Owen, President Bush's controversial nominee for a federal appeals court seat, needs only one new ally to protect the liquor industry from even the very limited exposure it now has.

In the bad old days, when the Supreme Court was in the pockets of the plaintiff's bar, much was made of the large amount of money justices received from lawyers.

Turnaround is fair play, so it should be noted that according to Texans for Public Justice, lawyers and parties involved in this case on the side of the liquor providers have donated $99,000 to the court's current justices while this case was under consideration.

Slightly less than $60,000 went to Justice Scott Brister, who voted for the defense. More than $11,000 went to recently appointed Justice David Medina, who could give the minority the fifth vote it needs to take the liquor industry off the hook and say "tough luck" to the likes of Ashley Dueñez.

If the new Supreme Court reverses this decision, the liquor industry and tort reformers will raise their glasses high.