In this installment of our continuing Dram Shop series, we
address the recovery of exemplary/punitive
damages1 in Texas dram shop cases.
Trial courts in Texas often deny motions for summary judgment
challenging the propriety of punitive damages in Dram Shop cases,
and permit exemplary damages to be awarded by juries upon a finding
of gross negligence. But is this proper? No. A claim
for gross negligence is expressly not allowed under the Act.
Based on the plain language of the Texas Dram Shop Act (the
"Act")2 and case law addressing the
question, exemplary damages
are not recoverable. Courts should
refuse to charge the jury on such damages, and should grant Motions
for Summary Judgment challenging them. Failure to do so
results in prejudice and harm to the Defendants in such cases.
