Raoger Corporation v. Myers: Circumstantial Evidence, “Inference on Inference,” and the High Bar for Obvious Intoxication Under the Texas Dram Shop Act

Raoger Corporation v. Myers: Circumstantial Evidence, “Inference on Inference,” and the High Bar for Obvious Intoxication Under the Texas Dram Shop Act

I. Introduction

In Raoger Corporation v. Myers, the Supreme Court of Texas significantly clarifies what counts as legally sufficient evidence in Dram Shop cases under Chapter 2 of the Texas Alcoholic Beverage Code. The Court holds that a plaintiff cannot survive a no-evidence summary judgment merely by stacking inferences from a later blood alcohol concentration (BAC) test and speculative testimony about how the patron “would have” or “might have” appeared earlier at the bar.

At the center of the dispute is the statutory requirement that, to impose liability on a “provider” of alcohol, the claimant must prove that:

“at the time the provision occurred it was apparent to the provider that the individual being sold, served, or provided with an alcoholic beverage was obviously intoxicated to the extent that he presented a clear danger to himself and others.”
– Tex. Alco. Bev. Code § 2.02(b)(1) (emphasis added)

The plaintiff, Barrie Myers, was severely injured in a motor vehicle collision caused by Nasar Khan, who had been drinking at Cadot Restaurant, operated by Raoger Corporation. Myers brought a Dram Shop Act claim against Cadot. The trial court granted summary judgment for Cadot, finding no evidence that Khan’s obvious intoxication was apparent to the restaurant when it served him. The Dallas Court of Appeals reversed, but the Supreme Court of Texas, in an opinion by Justice Boyd, reversed the court of appeals and reinstated the summary judgment.

The decision establishes an important precedent on:

  • How circumstantial evidence—especially post-incident BAC tests—may be used in Dram Shop litigation;
  • What makes evidence “competent” (as opposed to speculative or conclusory) at the summary-judgment stage; and
  • The stringent temporal and visual focus imposed by the statutory “apparent” and “obviously intoxicated” language.

The Court also addresses discovery practice, holding that the trial court did not abuse its discretion in denying a continuance where the plaintiff had more than 18 months to take a key deposition but failed to demonstrate due diligence or materiality.

II. Overview of the Case

A. Factual Background

On the night of November 29–30, 2018:

  • Nasar Khan and Kelly Jones arrived at Cadot Restaurant in Dallas around 9:45–10:00 p.m.
  • Their bar tab was opened at 10:23 p.m. and closed at 10:30 p.m.
  • They left shortly thereafter. Khan drove Jones to her nearby apartment (5–10 minutes away), went inside briefly, and left shortly before midnight, according to Jones.
  • Shortly after midnight, Khan rear-ended Myers’s vehicle. Myers’s vehicle rolled multiple times, causing serious injury.
  • At 3:06 a.m.—about three hours after their tab was closed—Khan’s blood was drawn. His BAC registered 0.139 (well above the 0.08 legal limit).

The record left several crucial details unclear:

  • Exactly how long Khan and Jones remained at Cadot, given the discrepancy between testimony and the bar tab times.
  • Exactly how many drinks Khan consumed and which ones he drank versus what Jones consumed.
  • Whether Khan drank any alcohol other than what was served at Cadot (he denied doing so, but the expert’s BAC-based calculations implied a much higher consumption than the receipts showed).

Khan testified he was “100% sober” when he arrived at Cadot and that Cadot was the only place he drank that night. The bar tab showed four alcoholic drinks (three vodka drinks and a glass of sparkling wine). Khan also said he paid cash for a beer before the tab was opened. Jones testified that she drank the wine and a “bit” of the vodka drinks. Khan estimated he had at least three, possibly four, drinks at Cadot.

However:

  • The bartender opined that to reach a 0.139 BAC by 3:06 a.m., Khan would need to have had about eight drinks.
  • Myers’s expert opined Khan would have had to consume ten to nineteen drinks, depending on his weight (which police reports inconsistently recorded as 225 or 250 pounds).

Crucially, multiple witnesses—including Khan, Jones, the restaurant owner, the bartender, and the responding officer—testified that Khan did not appear intoxicated at the restaurant, at the crash scene, or even at the hospital (aside from the odor of alcohol and later field-sobriety-test results).

B. Procedural History

  • Myers sued Cadot under the Dram Shop Act, alleging that Cadot served Khan when he was obviously intoxicated and posed a clear danger.
  • Cadot filed:
    • a no-evidence summary-judgment motion under Texas Rule of Civil Procedure 166a(i); and
    • a traditional summary-judgment motion.
  • The trial court granted both motions, concluding there was no evidence that Khan’s obvious intoxication was apparent to Cadot when it served him.
  • The Dallas Court of Appeals reversed, holding that deposition concessions by Khan and opinion testimony by the bartender and police officer created a fact issue. Raoger Corp. v. Myers, 698 S.W.3d 906 (Tex. App.—Dallas 2023).
  • The Supreme Court of Texas granted review, reversed the court of appeals, and reinstated the trial court’s summary judgment in favor of Cadot.

III. Summary of the Supreme Court’s Opinion

A. Holdings

  1. No competent evidence of statutory “apparent” obvious intoxication.
    The Court held that Myers produced no competent (legally sufficient) evidence that, at the time Cadot served Khan, it was apparent to the provider that Khan was obviously intoxicated to the extent he posed a clear danger to himself and others, as required by Tex. Alco. Bev. Code § 2.02(b)(1).
  2. Circumstantial evidence cannot be built on “inferences upon inferences.”
    While BAC results and other circumstantial evidence can be considered, such evidence must be “linked to other probative evidence” of the patron’s apparent condition at the time of service. Speculative or conclusory testimony about how a patron “might” or “would” have appeared—based solely on a later BAC—is legally no evidence.
  3. Temporal and visual focus of Dram Shop liability reaffirmed.
    The Court emphasizes that the relevant question is the patron’s outward appearance to the provider at the time the alcohol was served, not simply whether the patron was intoxicated at some point later in the evening (e.g., at the crash scene or hospital).
  4. Denial of motion for continuance upheld.
    The trial court did not abuse its discretion in denying Myers’s motion for continuance of the summary-judgment hearing. Myers had 561 days from joining Cadot as a defendant to the hearing date and did not exercise due diligence or demonstrate the materiality of the additional discovery he sought (a deposition of Cadot’s owner).

B. Practical Effect of the Decision

This opinion sharply limits the ability of Dram Shop plaintiffs to rely primarily on high BAC results and generalized expert assumptions to avoid summary judgment. It also underscores that courts will strictly distinguish between permissible circumstantial inferences and impermissible speculation.

IV. Doctrinal Context: The Texas Dram Shop Act and Prior Law

A. From Common Law to Statute – El Chico v. Poole and Legislative Response

Historically, under Texas common law, alcohol providers were generally not liable for damages caused by an intoxicated patron. Courts reasoned that:

  • The intoxicated person’s conduct was the sole proximate cause of the harm; and
  • The harm was not foreseeable to the provider.

In El Chico Corp. v. Poole, 732 S.W.2d 306 (Tex. 1987), the Supreme Court rejected that rule and held that a commercial provider of alcohol owes a duty not to serve customers it knows or should know are intoxicated, if such service proximately causes injury to a third party. That was a common-law negligence standard based on what the provider “knew or should have known.”

Almost immediately, the Legislature responded by enacting the Dram Shop Act (Tex. Alco. Bev. Code ch. 2), which:

  • Created a statutory cause of action against providers; and
  • Imposed a more demanding standard than the common-law duty in Poole.

As the Court notes, the Act:

“creates ‘a much more onerous burden of proof for an injured plaintiff’ than the common-law ‘knew or should have known’ standard we announced in Poole.”
– Slip op. at 5 (quoting Poole, 732 S.W.2d at 314)

By statute, the plaintiff must show not just that the patron was intoxicated and that the provider should have realized it, but that:

  • The patron was “obviously intoxicated to the extent that he presented a clear danger”; and
  • That condition was “apparent to the provider” at the time the alcohol was provided.

The Legislature also made the Dram Shop Act the exclusive remedy against providers:

  • Tex. Alco. Bev. Code § 2.03(a), (c);
  • Garza v. Maverick Market, Inc., 768 S.W.2d 273, 275 n.1 (Tex. 1989).

B. Subsequent Texas Supreme Court Dram Shop Decisions

The Court situates this case within its limited but important Dram Shop jurisprudence:

  • Smith v. Sewell, 858 S.W.2d 350 (Tex. 1993): A patron himself may sue under the Act for self-inflicted injuries if served in violation of the statute.
  • Southland Corp. v. Lewis, 940 S.W.2d 83 (Tex. 1997): Liability requires a causal connection between the sale and the accident; selling to a passenger is not a cause-in-fact of an accident unless the passenger interferes with vehicle operation.
  • Borneman v. Steak & Ale of Tex., Inc., 22 S.W.3d 411 (Tex. 2000): Jury questions must include proximate causation linked to intoxication.
  • Reeder v. Daniel, 61 S.W.3d 359 (Tex. 2001); Smith v. Merritt, 940 S.W.2d 602 (Tex. 1997): The Act applies to commercial providers; social hosts are excluded.
  • 20801, Inc. v. Parker, 249 S.W.3d 392 (Tex. 2008): Interprets the Act’s “safe harbor” provision for providers who properly train employees.
  • F.F.P. Operating Partners, L.P. v. Duenez, 237 S.W.3d 680 (Tex. 2007): Clarifies that proportionate responsibility applies in Dram Shop cases, and reiterates that the plaintiff must show the patron was “obviously intoxicated,” not merely intoxicated.

Before Raoger, the Supreme Court had not squarely addressed what kind of evidence is enough to prove that obvious intoxication was apparent to the provider. That evidentiary gap is where this new opinion adds substantial clarification.

V. The Court’s Legal Reasoning

A. Interpreting “Apparent” and “Obviously Intoxicated”

Because the Dram Shop Act does not define “apparent” or “obvious,” the Court applies ordinary meaning, relying on:

  • Tex. State Bd. of Exam’rs of Marriage & Fam. Therapists v. Tex. Med. Ass’n, 511 S.W.3d 28 (Tex. 2017); and
  • Black’s Law Dictionary definitions.

The Court notes:

  • “Apparent” ordinarily means visible, manifest, obvious.
  • “Obvious” means easily discovered, seen, or understood; readily perceived by the senses or intellect.

The statute, however, is even more demanding because it requires:

  1. The patron to be “obviously intoxicated to the extent that he presented a clear danger to himself and others”; and
  2. That this condition be “apparent to the provider” at the time of service.

Thus, the standard has two critical dimensions:

  • Severity: The intoxication must not just be noticeable but must rise to a level where danger to self or others is clear.
  • Perception: The condition must have been actually apparent to the provider (or at least observable to a reasonable provider) at the time the drinks were served.

B. Evaluating the Evidence in the Light Most Favorable to the Plaintiff

The Court applies the usual summary-judgment standards:

  • Review is de novo. (Malouf v. State ex rel. Ellis, 694 S.W.3d 712, 717 (Tex. 2024)).
  • All evidence is viewed in the light most favorable to the nonmovant, crediting favorable evidence if reasonable jurors could and disregarding contrary evidence unless they could not. (City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005)).

The Court acknowledges that:

  • The BAC of 0.139 at 3:06 a.m. is strong evidence that Khan was intoxicated after the crash;
  • It supports an inference that he drank a large amount of alcohol before that time; and
  • He may have been intoxicated, perhaps even significantly, while at Cadot.

However, under the Dram Shop Act, the ultimate question is:

Was there some competent evidence that it was apparent to the provider that Khan was obviously intoxicated to the extent he presented a clear danger at the time the alcohol was provided?

C. The “Inference Upon Inference” Problem and Competent Evidence

The Court’s central evidentiary move is to distinguish between:

  • Permissible circumstantial inference (e.g., from BAC to intoxication at a later time), and
  • Impermissible stacking of inferences (e.g., from BAC to number of drinks to assumed behavior earlier in the night to conclusions about what was apparent to the server).

The opinion relies on longstanding Texas authority that:

  • Evidence must allow a reasonable inference, not mere “suspicion or surmise.”
    • Green v. Tex. & Pac. Ry. Co., 81 S.W.2d 669, 673 (Tex. Comm’n App. 1935, opinion adopted);
    • Browning-Ferris, Inc. v. Reyna, 865 S.W.2d 925, 928 (Tex. 1993);
    • Marathon Corp. v. Pitzner, 106 S.W.3d 724, 729 (Tex. 2003).
  • Findings “must be supported by facts in evidence, not conjecture,” and courts will not “pile speculation on speculation and inference on inference.” (Marathon, 106 S.W.3d at 729.)
  • Speculative and conclusory testimony—whether lay or expert—is incompetent and cannot support or defeat summary judgment:
    • Nat. Gas Pipeline Co. of Am. v. Justiss, 397 S.W.3d 150, 156 (Tex. 2012);
    • Coastal Transp. Co. v. Crown Cent. Petroleum Corp., 136 S.W.3d 227, 232 (Tex. 2004);
    • Szczepanik v. First S. Tr. Co., 883 S.W.2d 648, 650 (Tex. 1994);
    • Hamilton v. Wilson, 249 S.W.3d 425, 427 (Tex. 2008);
    • Wadewitz v. Montgomery, 951 S.W.2d 464, 466 (Tex. 1997).

Applying these principles, the Court draws a sharp line:

“Dram Shop Act claimants may, of course, rely on circumstantial evidence—like the results of a BAC test taken three to four hours after a drinking episode—to prove the required finding. But such circumstantial evidence must be linked to other probative evidence of the customer's apparent condition when the provider served him. Speculative and conclusory testimony regarding how a customer may or should have appeared based on his BAC, absent additional probative evidence, is insufficient.”
– Slip op. at 11–12 (emphasis added)

D. Application to the Evidence in Raoger

1. Direct observational testimony favored Cadot

The Court notes that, undisputedly, there is “substantial evidence that Khan did not appear intoxicated” when he was at Cadot:

  • Khan said he was “acting normal,” not slurring, walking “very normally,” and did not feel intoxicated.
  • Jones said Khan did not appear intoxicated at Cadot or afterward.
  • Cadot’s owner testified Khan “looked fine” when he arrived, while there, and when he left.
  • The bartender remembered nothing unusual from that night and said she would not have served an obviously intoxicated customer.
  • The responding officer initially saw nothing to suggest intoxication at the crash scene, though later smell of alcohol and field sobriety test results led to a DWI arrest.

Because summary judgment law requires the Court to view the record in the light most favorable to Myers, it does not rest its decision solely on this favorable testimony to Cadot. Instead, it asks whether anything else—viewed most favorably to Myers—constitutes some competent evidence of obvious intoxication apparent to Cadot.

2. Khan’s deposition “concessions”

Myers relied heavily on Khan’s later deposition statements that:

  • It was “possible” he “might have” shown signs of intoxication at Cadot;
  • He believes Cadot “served somebody who was intoxicated”; and
  • He believes the server “should have observed” he was intoxicated while at Cadot.

The Court characterizes these as:

  • Speculative, based on hindsight from the BAC test (“the blood work proves it otherwise”); and
  • Conclusory assertions about what the server “should have observed,” unsupported by specific facts about how he actually appeared.

Such statements, the Court holds, are legally insufficient to create a fact issue under Hamilton v. Wilson and related precedent.

3. Bartender and officer testimony based on BAC

The bartender, though she did not remember Khan or the night at all, agreed that someone who consumed eight drinks would show certain signs (slurred speech, abnormal walking, being loud and obnoxious). The police officer similarly testified that, based solely on the 0.139 BAC, he would “assume” or “believe” Khan was showing signs of intoxication at Cadot.

The Court finds these opinions to be “pure speculation” (Szczepanik), because:

  • They are untethered to any direct observation at Cadot; and
  • They rest entirely on reverse extrapolation from a later BAC reading, without connecting that BAC in a specific, evidence-based way to Khan’s appearance at the time of service.

4. The toxicology expert’s opinion

Myers’s expert opined on:

  • How many drinks Khan must have consumed to reach 0.139 BAC by 3:06 a.m. (10–19 drinks); and
  • That Khan likely consumed that alcohol at Cadot, according to one interpretation of the evidence.

But the expert did not:

  • Offer specific testimony about how Khan would have been functioning or appearing while still at Cadot;
  • Factor in Khan’s alcohol tolerance; or
  • Correlate times of drinking with clinically expected outward signs at particular time intervals.

The Court therefore concludes that even assuming Khan consumed all that alcohol at Cadot, this proves only that he was intoxicated at some point—not that his obvious intoxication and dangerousness were apparent to Cadot while it served him.

E. Distinguishing Other Dram Shop Cases

The Court contrasts this case with prior intermediate-court decisions:

  • Cases where evidence was sufficient:
    • Perseus Inc. v. Canody, 995 S.W.2d 202 (Tex. App.—San Antonio 1999, no pet.): patrons saw the customer taking shots, stumbling, and slurring; a companion testified the intoxication was “obvious to anyone there”; another offered to pay for a taxi, indicating recognition of danger.
    • Fay-Ray Corp. v. TABC, 959 S.W.2d 362 (Tex. App.—Austin 1998, no pet.): the customer was openly taking shots, stumbling, falling off a chair, and slurring words—classic signs of obvious intoxication.
    • Love v. D. Houston, Inc., 67 S.W.3d 244 (Tex. App.—Houston [1st Dist.] 2000), aff’d, 92 S.W.3d 450 (Tex. 2002), and Cianci v. M. Till, Inc., 34 S.W.3d 327 (Tex. App.—Eastland 2000, no pet.): both involved expert toxicologists who translated high BAC levels into specific, clinically expected outward symptoms during the time the patron was at the bar, coupled with testimony of such symptoms shortly thereafter.
  • Cases where evidence was not sufficient:
    • J.D. Abrams, Inc. v. McIver, 966 S.W.2d 87 (Tex. App.—Houston [1st Dist.] 1998, pet. denied): similar circumstantial evidence (high BAC, toxicologist estimating many drinks, minimal food) plus marked signs of intoxication at the crash scene (slurred speech, confusion, stumbling, inability to stand). The court still found no evidence that the patron was “obviously intoxicated” to the extent he posed a clear danger and that this was apparent to the provider at the time of service.

The Supreme Court finds Raoger more analogous to J.D. Abrams than to Perseus or Fay-Ray:

“Notably missing from this evidence is any testimony that [the patron] was ‘obviously intoxicated,’ much less ‘to the extent he presented a clear danger to himself and others,’ at the time he was provided alcohol … or that such condition was then ‘apparent’ to the provider.”
– quoted with approval from J.D. Abrams, 966 S.W.2d at 91

The key doctrinal theme: a high BAC and later signs of intoxication do not, by themselves, prove that obvious intoxication was apparent to the server earlier in the evening.

F. Circumstantial Evidence That Might Be Sufficient

The Court does not foreclose all use of BAC-based circumstantial evidence. Instead, it offers a roadmap for when such evidence may suffice:

“For example, a high BAC, coupled with an expert's testimony (taking into account the customer's tolerance for alcohol) that the customer would have exhibited signs of obvious intoxication at the restaurant based on that BAC and testimony that the customer in fact exhibited obvious and dangerous signs of intoxication immediately after leaving—perhaps, for example, at the scene of the crash or the hospital—could be sufficient… The reasonableness of such an inference, however, diminishes as the temporal proximity lengthens.”
– Slip op. at 11–12 (emphasis added)

Thus, the Court sets a clear framework:

  • High BAC → supports inference of intoxication;
  • Expert toxicology → must convert BAC into specific, time-related clinical symptoms, considering tolerance;
  • Temporal Proximity:
    • Signs of obvious intoxication at or soon after leaving the premises can reasonably be tied back to the time of service;
    • The more time passes (with no direct evidence of behavior), the weaker the inference becomes.

Raoger failed on these metrics because:

  • The expert did not tie the BAC to specific visible symptoms at the time of service;
  • There was no testimony that Khan appeared obviously intoxicated immediately after leaving Cadot; and
  • Substantial direct testimony said he did not appear intoxicated at all.

G. The Motion for Continuance

On the procedural issue, Myers argued that if his evidence was insufficient, the trial court erred in denying his motion to continue the summary-judgment hearing, because he still needed to depose Cadot’s owner.

The Court reviews the denial for abuse of discretion, using the standard from Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 161 (Tex. 2004), and BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 800 (Tex. 2002):

“A trial court abuses its discretion when it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law.”

Relevant factors include:

  • How long the case has been on file;
  • The materiality and purpose of the discovery sought; and
  • Whether the party seeking continuance exercised due diligence.

Key facts:

  • Myers joined Cadot on March 4, 2020.
  • The no-evidence summary-judgment motion was filed July 2, 2021.
  • The hearing was set for September 16, 2021—561 days after joining Cadot.
  • Myers deposed the bartender on August 11, 2021, and unilaterally noticed the owner’s deposition for September 24—that is, after the hearing date set by Cadot.
  • Myers did not attempt to reset the deposition earlier once the hearing date was known.

The Court holds:

  • Myers did not show due diligence—he had ample time to depose the owner but delayed;
  • He did not articulate with specificity what material evidence the owner might provide, beyond a vague assertion that it would be “material” and “essential” to defeat summary judgment.

Accordingly, denying the continuance was not arbitrary or unreasonable and thus not an abuse of discretion.

VI. Precedents and Their Influence on the Court’s Decision

A. Substantive Dram Shop and Alcohol Liability Cases

  • El Chico Corp. v. Poole, 732 S.W.2d 306 (Tex. 1987)
    • Established a common-law duty before the Dram Shop Act: licensees could be liable if they served someone they knew or should have known was intoxicated.
    • In Raoger, cited primarily to underscore that the Act imposes a stricter standard than Poole and is now exclusive.
  • F.F.P. Operating Partners, L.P. v. Duenez, 237 S.W.3d 680 (Tex. 2007)
    • Clarified that plaintiffs must show the patron was “obviously intoxicated,” not merely intoxicated.
    • Reinforces the Court’s insistence in Raoger that the “obvious” and “clear danger” elements are substantive hurdles, not formalities.
  • Borneman, Southland, Smith v. Sewell, Smith v. Merritt, Reeder, Triplex Communications, 20801 v. Parker
    • Collectively cited to situate the Dram Shop Act within a larger framework of:
      • Who can be liable (commercial providers, not social hosts);
      • Who can sue (injured third parties and, in some circumstances, patrons themselves);
      • The interplay with other doctrines (proportionate responsibility, safe harbor, etc.).

B. Evidentiary and Summary Judgment Cases

  • Green, Browning-Ferris, Marathon, Justiss, Coastal, Szczepanik, Hamilton
    • These decisions form the backbone of the Court’s approach to “competent evidence” and the prohibition on transforming speculation into “some evidence.”
    • They are used to invalidate:
      • Khan’s speculative hindsight concessions;
      • The officer’s and bartender’s “assume”/“would have” statements; and
      • The unlinked BAC-based extrapolations offered by the expert.
  • City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005)
    • Provides the modern standard for reviewing legal sufficiency and summary judgments, mandating that courts view evidence in the light most favorable to the nonmovant while disregarding contrary evidence that reasonable jurors could not credit.

C. Intermediate Appellate Dram Shop Cases

  • Davis v. RPoint5 Ventures, LLC, 2013 WL 5947981 (Tex. App.—Houston [1st Dist.] 2013, pet. denied)
    • Recognized that expert testimony on BAC and associated symptoms can be circumstantial evidence of “apparent, obvious intoxication” when coupled with other evidence.
    • In Raoger, used to emphasize that BAC must be linked with other probative evidence of the patron’s condition at the time of service.
  • Alaniz v. Rebello Food & Beverage, L.L.C., 165 S.W.3d 7 (Tex. App.—Houston [14th Dist.] 2005, no pet.)
    • Discusses the weakening of inferences as the time gap grows between service and observable intoxication.
    • Supports the Supreme Court’s emphasis on temporal proximity.
  • Cianci, Love, Perseus, Fay-Ray, J.D. Abrams
    • Provide concrete factual examples of:
      • What does constitute evidence of obvious intoxication apparent to the provider (stumbling, slurring, falling off chairs, offers to call taxis, expert linking BAC to clinical symptoms at the time of service); and
      • When circumstantial evidence is still insufficient (high BAC plus serious intoxication at the accident, but no evidence tying obvious intoxication back to the time of service).

VII. Impact and Implications for Future Cases

A. Raising the Evidentiary Bar for Plaintiffs

Raoger reaffirms that the Dram Shop Act creates a substantially more demanding cause of action than ordinary negligence. Going forward, plaintiffs can expect:

  • Courts to scrutinize attempts to rely on:
    • Post-incident BAC tests;
    • Vague or hindsight-oriented testimony about how drunk the patron “must have been”; and
    • Expert opinions that are not firmly anchored in specific facts and time frames.
  • Summary judgment to be more readily granted where there is:
    • No direct testimony that the patron appeared obviously intoxicated at the bar; and
    • No detailed expert linkage between BAC, timing, tolerance, and observable clinical symptoms at the time of service.

B. Strategic Lessons for Plaintiffs’ Counsel

To survive no-evidence summary judgment after Raoger, plaintiffs will likely need to:

  • Secure direct observational evidence from:
    • Other patrons, friends, or companions (e.g., stumbling, slurred speech, aggressive or erratic behavior);
    • Servers or staff who recall the incident; and
    • Any video surveillance showing obvious impairment.
  • Use sophisticated toxicology evidence that:
    • Ties BAC levels to specific, time-bound expected symptoms at the bar; and
    • Accounts for individual tolerance, weight, and timing of consumption.
  • Highlight close temporal proximity between:
    • Time of last service; and
    • Clearly documented obvious intoxication (e.g., at the door, immediately outside, or immediately at the accident scene).

C. Strategic Lessons for Defense Counsel

Providers and their counsel can use Raoger to:

  • Press no-evidence summary judgment aggressively where:
    • No witness testifies to obvious intoxication at the premises; and
    • Plaintiff relies largely on BAC and speculative expert testimony.
  • Emphasize the Legislature’s policy choice for a “more onerous burden” and the exclusivity of the statutory standard.
  • Challenge expert opinions as speculative if they simply infer back from BAC without specific, factual linkage to behavior at the time of service.

D. Procedural Practice: Discovery and Continuances

The Court’s treatment of the continuance underscores:

  • No-evidence summary judgment may be granted after “adequate time for discovery” (Tex. R. Civ. P. 166a(i)), and “adequate time” can easily be met where a case has been on file for more than a year and a half.
  • Counsel must:
    • Use discovery windows diligently; and
    • Explain exactly what missing discovery will likely show and why it is material.

Merely stating that a deposition is “material and essential” is not enough.

E. Policy Considerations

The opinion closes by reminding that:

“As we have said, the Dram Shop Act imposes a ‘more onerous burden’ than this Court imposed under the common law in Poole. The Legislature having made the policy choice to impose such a high standard on which to hold providers liable, our duty is simply to enforce that choice.”
– Slip op. at 14

This underscores a separation-of-powers posture: any change to ease the burden on injured third parties must come from the Legislature, not from judicial expansion or relaxation of evidentiary standards.

VIII. Simplifying Key Legal Concepts

A. What Is “Dram Shop” Liability?

“Dram shop” is an old term for a business that sells alcoholic beverages by the drink (a “dram”). In Texas:

  • The Dram Shop Act (Tex. Alco. Bev. Code §§ 2.01–2.03) allows injured persons to sue licensed providers that:
    • Sell or serve alcohol to an adult who is obviously intoxicated to the extent of presenting a clear danger; and
    • Whose intoxication is a proximate cause of the plaintiff’s injuries.

It does not generally apply to social hosts, only to commercial providers.

B. “Obviously Intoxicated to the Extent of Presenting a Clear Danger”

This phrase means more than just “over the legal limit.” It requires:

  • Outward signs of intoxication that are visible and unmistakable (e.g., staggering, slurring, disorientation); and
  • A level of impairment that makes it clear the person is dangerous to themselves or others (for example, clearly unsafe to drive).

C. “Apparent to the Provider”

“Apparent” focuses on what the provider could see or sense at the time:

  • It is not enough that the person was, in fact, intoxicated.
  • It must be such that a reasonable server should have noticed the obvious intoxication.
  • The Court emphasizes both timing (“at the time the provision occurred”) and perception (“apparent to the provider”).

D. Circumstantial Evidence vs. Speculation

Circumstantial evidence is proof of a fact from which a jury may reasonably infer another fact (e.g., a high BAC suggests heavy drinking). It is legitimate and often powerful.

Speculation occurs when:

  • There are too many missing links between the known facts and the inference;
  • Several competing explanations are equally consistent with the evidence; or
  • Witnesses simply guess or assume, without a factual foundation.

In Raoger, the Court accepts BAC as circumstantial evidence of intoxication but rejects testimony that uses that BAC, alone, to speculate about how the patron “must have” looked at the bar.

E. No-Evidence Summary Judgment

Under Texas Rule of Civil Procedure 166a(i):

  • A party can move for “no-evidence” summary judgment, asserting that after adequate time for discovery, there is no evidence of one or more essential elements of the opponent’s claim.
  • The burden then shifts to the nonmovant to produce more than a scintilla of competent evidence on each challenged element.
  • If the nonmovant fails, the court must grant summary judgment.

Raoger illustrates that “more than a scintilla” does not include:

  • Speculative “might have” or “would have” assertions; or
  • Conclusions based on stacking unproven inferences.

F. Motions for Continuance and “Adequate Time for Discovery”

When facing a no-evidence motion, a party can ask the court for more time to obtain necessary evidence by filing a motion for continuance. To succeed, the party typically must:

  • Show that the existing discovery period has not been adequate;
  • Demonstrate diligence in pursuing discovery; and
  • Explain with some specificity what discovery is sought and why it is material to defeating summary judgment.

In Raoger, the plaintiff had over 18 months to depose the owner but did not do so until after the hearing date was set, and failed to show what specific, material testimony the owner was expected to give. That was not enough to require a continuance.

IX. Conclusion: The Significance of Raoger Corporation v. Myers

Raoger Corporation v. Myers is a major clarification of Texas Dram Shop law on the question of what evidence is sufficient to show that a bar served an “obviously intoxicated” patron whose condition was “apparent” to the provider at the time of service.

Key takeaways include:

  • The Dram Shop Act imposes a “more onerous burden” than common-law negligence and is the exclusive remedy against providers.
  • Plaintiffs must prove not just intoxication, but obvious intoxication to the extent of clear danger, and that this state was apparent to the provider when the drinks were served.
  • High BAC results and generalized expert assumptions are not enough by themselves—there must be a concrete, fact-based link between:
    • BAC;
    • Timing and quantity of consumption;
    • Patron’s tolerance; and
    • Specific visible symptoms at the time of service.
  • Courts will reject attempts to “pile inference on inference” or to rely on speculative and conclusory testimony, even if offered by experts or by the patron himself.
  • On the procedural side, parties must diligently use discovery time and cannot expect continuances when they have not shown diligence or the materiality of the missing evidence.

By reinstating summary judgment for the provider, the Supreme Court underscores that Dram Shop liability in Texas is tightly cabined by statutory language and strict evidentiary requirements. The decision will likely lead to more early dispositive motions in Dram Shop cases and will require plaintiffs to develop robust, fact-specific evidence of obvious and apparent intoxication at the time of service if they hope to reach a jury.

Case Details

Year: 2025
Court: Supreme Court of Texas

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