# Raoger Corp. v. Myers

Supreme Court of Texas, No. 23-0662

**Raoger Corp. v. Myers, No. 23-0662 (Tex. Apr. 11, 2025). Holding: Dram Shop Act claimants may rely on circumstantial evidence such as a BAC test taken hours later, but it must be linked to other probative evidence of the customer's apparent condition when served, and speculation about how a customer would have appeared based on his BAC is not competent evidence that it was apparent to the provider that he was obviously intoxicated to the extent of a clear danger; the trial court also did not abuse its discretion in denying a continuance.**

Practice areas: personal injury, civil procedure

## Key issues

- A Dram Shop Act plaintiff can rely on circumstantial evidence such as a BAC test taken hours later, but it must be linked to other probative evidence that the customer was obviously intoxicated to the extent of a clear danger when the provider served him; speculation about how a customer would have looked, drawn from a BAC result, is no evidence.
- The trial court did not abuse its discretion in denying a continuance of the summary-judgment hearing where the plaintiff had 561 days to depose the owner and did not show the testimony would be material.

## Factual History
Barrie Myers was seriously injured when Nasar Khan rear-ended his vehicle shortly after midnight on November 30, 2018; Khan's blood, drawn at 3:06 a.m., showed a blood alcohol content (BAC) of 0.139, above the 0.08 legal limit (Opinion, PDF p. 2). Khan and Kelly Jones arrived at Cadot Restaurant in Dallas around 9:45 or 10:00 p.m. on November 29, their bar tab was opened at 10:23 and closed at 10:30, and Khan drove Jones to her apartment and left shortly before midnight, but the record does not clarify how long he stayed at either place or how much he drank (Opinion, PDF pp. 2-3). The bar tab shows four alcoholic drinks, Khan testified he had at least three and possibly four, the bartender opined that eight drinks would be needed to reach a 0.139 BAC, and Myers's expert opined ten to nineteen (Opinion, PDF pp. 3-4). Khan, Jones, the restaurant's owner, the bartender, and the police officer at the crash scene all testified that Khan did not appear intoxicated, though the officer smelled alcohol at the hospital and detected signs of intoxication on a gaze test around 1:00 a.m. (Opinion, PDF pp. 8-9).

## Procedural History
Myers sued Raoger Corporation, which operates Cadot, under the Dram Shop Act, and Cadot filed no-evidence and traditional summary-judgment motions arguing that no evidence showed it was apparent that Khan was obviously intoxicated when served; the trial court granted them (Opinion, PDF p. 4). The Fifth Court of Appeals reversed, holding that a fact issue exists based on concessions Khan made in his deposition about his appearance and demeanor (Opinion, PDF p. 4). Cadot petitioned for review on September 18, 2023, and Myers responded on December 7, 2023; the Court requested briefs on the merits on February 16, 2024, granted the petition on September 27, 2024, heard argument on January 13, 2025, and decided the case on April 11, 2025 (Docket; Opinion, PDF pp. 1, 16).

## Issues Presented
Cadot presents whether it is entitled to judgment when the plaintiff offers no evidence that the patron appeared obviously intoxicated when served, whether a BAC measured after the patron left is legally sufficient evidence, and whether a provider can be liable without evidence that it was consciously indifferent to a known risk (Brief on the Merits (Petitioner), PDF p. 8; Petition for Review (Petitioner), PDF p. 8). Myers presents whether the summary-judgment evidence, including that the patron was served 19 drinks and admitted he was intoxicated and should not have been served, was sufficient to let a jury decide whether the patron appeared intoxicated, and, in the alternative, whether the trial court erred in holding the hearing before the owner's deposition (Brief on the Merits (Respondent), PDF p. 7). The Court decided whether the record contains some competent evidence that it was apparent to Cadot that Khan was obviously intoxicated to the extent that he presented a clear danger, and whether denying a continuance was an abuse of discretion (Opinion, PDF pp. 7, 15).

## Standard(s) of Review
Summary-judgment orders are reviewed de novo, viewing the evidence in the light most favorable to the nonmovant, crediting favorable evidence if reasonable jurors could and disregarding contrary evidence unless reasonable jurors could not; denial of a continuance is reviewed for abuse of discretion, considering how long the case has been on file, the materiality and purpose of the discovery sought, and the movant's diligence (Opinion, PDF pp. 7 n.7, 15).

## Legal Arguments
**Whether the evidence raises a fact issue under the Dram Shop Act.**

**Petitioner (Cadot):** The plaintiff must offer legally sufficient evidence that at the time of service it was apparent to the provider that the patron was obviously intoxicated to the extent he presented a clear danger; Myers offered no evidence of drunken conduct at Cadot, and every witness who saw Khan there said he did not appear intoxicated (Brief on the Merits (Petitioner), PDF p. 19; Petition for Review (Petitioner), PDF p. 16). In reply, Cadot argued that evidence that a normal-appearing patron later tested over the limit says nothing about how he appeared at the time of service (Reply Brief (Petitioner), PDF p. 7).

**Respondent (Myers):** The petition should be refused because the court of appeals correctly analyzed the standard of review and the substantive law, circumstantial evidence may be used in dram-shop cases, and, alternatively, the case should be remanded to decide whether the trial court should have continued the hearing so Cadot's corporate representative could be deposed (Brief on the Merits (Respondent), PDF p. 12; Response to Petition (Respondent), PDF p. 6). The Court described his evidence as Khan's concessions that he possibly showed signs of intoxication, the bartender's and the officer's testimony about how someone with that BAC would appear, and the expert's estimate of ten to nineteen drinks (Opinion, PDF pp. 9-10).

## Stated Reasons the Court Should Take the Case
Cadot argued that the case presents important issues of first impression, that the court of appeals extended the Act beyond its plain meaning, and that its decision causes conflicting decisions among the courts of appeals about what evidence is legally sufficient to establish liability (Reply to Response to Petition filed (Petitioner), PDF p. 5). The Court noted that it had addressed the Dram Shop Act in a few cases since *Poole* but had not previously addressed the sufficiency of evidence required to establish liability (Opinion, PDF p. 6).

## Oral Argument

- **Number of drinks.** Asked whether any number of drinks alone makes intoxication apparent, Cadot's counsel said never, because tolerance and body size vary. (Oral Argument, 0:13:21; 0:14:28)
- **Appearance is the test.** Asked whether serving an enormous amount of alcohol is enough, Cadot's counsel said no, because the Legislature based liability solely on how the patron appeared at service. (Oral Argument, 0:04:48)
- **Held it together.** Asked about a patron served 19 drinks who held it together, Cadot's counsel said appearance is the sole textual benchmark; the Legislature could have made it the number of drinks. (Oral Argument, 0:06:21)
- **Bartender's testimony.** Asked whether a juror could infer signs of intoxication from the 0.13 reading at 3 a.m., Myers's counsel stressed the certified bartender's testimony and the safe harbor for trained employees. (Oral Argument, 0:28:23)
- **Hypotheticals.** Asked to vary the blood alcohol numbers and drinks served, Myers's counsel said this is a summary-judgment record, and bars know how much they serve rather than testing blood alcohol. (Oral Argument, 0:30:03)
- **No effect on him.** Asked whether Khan's testimony creates a fact issue, Cadot's counsel said Khan testified the alcohol had no effect on him. (Oral Argument, 0:08:34)
- **Gap in the record.** Asked about drinking after the restaurant, Cadot's counsel said the restaurant closed about 10:30 and they left the home after midnight, a gap that should have been investigated. (Oral Argument, 0:01:39)

## Practice Area Tags
personal-injury, civil-procedure

## Procedural Posture/Vehicle
Petition for review from the Fifth Court of Appeals after a summary judgment; argued January 13, 2025, and decided April 11, 2025 (Opinion, PDF pp. 1, 4, 16).

## Amicus Involvement
- [Texas Restaurant Association and the Restaurant Law Center](https://search.txcourts.gov/SearchMedia.aspx?MediaVersionID=521b1146-7d87-4c83-b905-54fb2f7d42d4&coa=cossup&DT=BRIEFS&MediaID=b442768d-a32d-471d-9326-8cb3fcd08df8) filed an amicus curiae letter on October 19, 2023, at the petition stage, and filed an [amicus curiae brief](https://search.txcourts.gov/SearchMedia.aspx?MediaVersionID=d2db1a11-8593-4252-b6d1-1a93071d1681&coa=cossup&DT=BRIEFS&MediaID=1a1b1e27-09e2-4c47-8506-b627852189d5) on January 13, 2025.
- [Texas Civil Justice League](https://search.txcourts.gov/SearchMedia.aspx?MediaVersionID=51e8912f-37ad-42c6-bffe-b9d47de12189&coa=cossup&DT=BRIEFS&MediaID=8588a460-c409-4e37-94f6-312164ac04b5) filed an amicus brief on December 16, 2024.
- [Xtreme ATV Off Road Park & Beach, LLC](https://search.txcourts.gov/SearchMedia.aspx?MediaVersionID=5e239d68-44a3-47fd-85c0-8d8ae80fe141&coa=cossup&DT=BRIEFS&MediaID=df0fc9a1-4373-4765-9a31-d9f4bdbf884b) filed an amicus curiae brief on December 20, 2024.
- [Griffith & Hughes PLLC](https://search.txcourts.gov/SearchMedia.aspx?MediaVersionID=f70e7536-8832-40bd-a310-76e877c0edf3&coa=cossup&DT=BRIEFS&MediaID=b083e105-8417-4676-bc49-5ae8de54477e) filed an amicus curiae brief on January 13, 2025.

## Holding
Dram Shop Act claimants may rely on circumstantial evidence such as a BAC test taken hours later, but it must be linked to other probative evidence of the customer's apparent condition when served, and speculation about how a customer would have appeared based on his BAC is not competent evidence that it was apparent to the provider that he was obviously intoxicated to the extent of a clear danger; the trial court also did not abuse its discretion in denying a continuance (Opinion, PDF pp. 2, 11, 15-16).

## Court's Reasoning
**The Act's standard.** At common law providers were not liable, and *Poole* held that a licensee may be liable if it serves a customer it knows or should know is intoxicated, but the Legislature adopted the Dram Shop Act that same week and it imposes a "much more onerous burden" requiring proof that it was apparent to the provider that the customer was obviously intoxicated to the extent that he presented a clear danger (Opinion, PDF pp. 4-5). The Act provides the exclusive cause of action, and the Court gave "apparent" and "obvious" their ordinary meanings of visible and readily perceived (Opinion, PDF pp. 5-7).

**The evidence.** The record contains substantial evidence that Khan did not appear intoxicated when served, and the BAC result and post-crash signs support an inference that he drank a large amount and was perhaps intoxicated to some extent at Cadot, but not that it was apparent to Cadot that he was obviously and dangerously intoxicated (Opinion, PDF pp. 7-9). Khan's concessions, the bartender's, and officer's testimony about how a person with that BAC "would" have appeared, and the expert's drink estimate all rest on inferences from the BAC test, and circumstantial evidence must support a legal inference and not merely speculative conclusions (Opinion, PDF pp. 9-11). Claimants may use circumstantial evidence such as a later BAC, but it must be linked to other probative evidence of the customer's apparent condition at service, for example expert testimony that he would have been obviously intoxicated plus evidence of obvious signs shortly after he left (Opinion, PDF p. 11 & n.10). The expert addressed how much Khan must have consumed but not how he would have appeared, and even uncontroverted evidence of an outrageous amount of alcohol would not alone create a fact issue about appearance (Opinion, PDF pp. 11-13). The Court concluded that the trial court correctly granted summary judgment, since the contrary suggestions on this sparse record are mere speculation (Opinion, PDF pp. 13-14).

**Continuance.** Myers had 561 days between joining Cadot in his suit and the summary-judgment hearing to depose the owner, deposed the bartender on August 11, 2021, noticed the owner's deposition for a date after the hearing, and did not ask for an earlier date, so the trial court could find he did not exercise due diligence; he also made only a vague assertion that the deposition would produce material evidence (Opinion, PDF pp. 15-16).

## Disposition
The Court reversed the court of appeals' judgment and reinstated the trial court's summary judgment in Cadot's favor (Opinion, PDF p. 16).

## Vote Breakdown
Justice Boyd delivered the opinion of the Court (Opinion, PDF p. 1).


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Source: The SCOTX Report, https://scotxreport.com/cases/23-0662. AI-generated summary of the Court's opinion, orders and the parties' briefs, with pin cites to the page of each document; verify against the Court's own documents at search.txcourts.gov.