The Appellate Record : Texas Appellate Lawyer & Attorney Kendall Gray for Fifth Circuit & Supreme Court Appeals

The Supreme Court was probably right to grant the petition for review in Del Lago.  Del Lago involves one of those issues in modern tort law that call out for treatment by a court of last resort.  What do you do when you have a victim with serious injuries but the most blameworthy party has no resources to satisfy a judgment? 

You see the same question in products cases (especially crash worthiness cases), Dram Shop cases, and premises cases involving criminal conduct by third parties.  There's a high likelihood that the drunk who crashes into you or who picks a fight in a bar is not wealthy enough to defray the costs of his moral fault.  No surprise there.  And their conduct is the type the law would want to discourage with an award of damages. But how much should the law shift the blame from the bad actor who is not loaded to the less culpable party who is?

So, Del Lago Partners involves a topic appropriate for Supreme Court treatment.  It is "important to the jurisprudence of the state."  And obviously, the cases that draw the best lines in the sand on such questions are those where the lower court comes out one way and the Supreme Court says, "No, the law goes only this far, not that far."

Here, however, the Supreme Court affirmed the lower court judgment, and it did so while trying not to create a new avenue of broad liability any time a "man walks into a bar."  Just look at the language Justice Willett uses, first to create an extraordinary factual setting and then to signal a limited holding:

This appeal concerns a bar owner’s liability for injuries caused when one patron assaulted another during a closing-time melee involving twenty to forty “very intoxicated” customers. The brawl erupted after ninety minutes of recurrent threats, cursing, and shoving by two rival groups of patrons. The jury heard nine days of conflicting evidence from twenty-one witnesses and found the owner fifty-one percent liable. The court of appeals affirmed the roughly $1.48 million award: “A
reasonable person who knew or should have known of the one-and-a-half hours of ongoing ‘heated’ verbal altercations and shoving matches between intoxicated bar patrons would reasonably foresee the potential for assaultive conduct to occur and take action to make the condition of the premises reasonably safe.”1 We agree with the court of appeals and affirm its judgment.

* * * 

We do not announce a general rule today. We hold only, on these facts, that during the ninety minutes of recurrent hostilities at the bar, a duty arose on Del Lago’s part to use reasonable care to protect the invitees from imminent assaultive conduct. The duty arose because the likelihood and magnitude of the risk to patrons reached the level of an unreasonable risk of harm, the risk was apparent to the property owner, and the risk arose in circumstances where the property owner had readily available opportunities to reduce it.

Doubtless, Justice Willett needed to write narrowly to keep his majority.  There was no consensus for a rule to reverse the judgment on the facts in this case nor even to state a rule for future cases.  Even on this narrow stance, Justice Willett's majority opinion drew three dissents from Justice Hecht, Justice Wainwright and Justice Johnson.

But, if there is no consensus to either state the rule of liability or the rule of non-liability, that raises an important question: Why write at all?   If you are a court of discretionary jurisdiction with limited resources, why expend those resources writing any opinion that merely affirms the lower court and trims around the edges while restricting itself to the facts? 

Courts of discretionary jurisdiction, which only grant review in a minority of cases, like the Supreme Court of the United States, "can no longer control lower courts by means of narrow, case-by-case determinations."  Richard A. Posner, How Judges Think, Ch. 10, p. 269 (2008). Every exercise of the Court's discretionary jurisdiction uses finite resources that are taken away from other matters where they might be better spent--squeezing out other cases that ought to be granted, making some cases into PC's when they ought to receive argument, or just slowing down a difficult docket.  Del Lago Partners, for example, consumed 2 years and four months of time between argument and issuance--even more, 3 years and 3 months between the filing of the petition for review and the opinion--all without a definitive rule one way or the other.

And then there are the costs in future cases.  No matter how the Court limits its holding, there is now a Supreme Court opinion on bar fights.  There will be more lawsuits concerning bar fights.  The Plaintiffs will argue that their facts are just as bad as Del Lago, and the Defendants will argue that they are not.  Unresolved is where the line actually lies. 

(Better, perhaps, to avoid bars and fraternity reunions altogether?)

It's no crime to grant a Supreme Court issue and then discover that, for whatever reason, there are procedural barriers or a lack of consensus to resolving the issue in a way that advances the jurisprudence of the state.  If this is so, better to avoid the expenditure of resources on the non-opinion-opinion.  Better to dismiss the petition as improvidently granted or deny the petition with a PC order flagging anything unseemly that was said by the lower court.

Del Lago is a fine opinion.  Well reasoned.  Narrowly drawn.  Persuasive.  This type of court just ought not have spent three years writing it.