Dan Kovacic v. Larry Brown Enterprises, L.L

Case: 11-41250 Document: 00511888118 Page: 1 Date Filed: 06/15/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 15, 2012
No. 11-41250 Lyle W. Cayce
Clerk
DAN KOVACIC, Individually and with an Interest in the Estate of Zachary
Kovacic, Deceased; ELIZABETH FOX, individually and With an Interest in
the Estate of Zachary Kovacic, Deceased; ERIN MICHELLE KOVACIC,
individually and as next Friend of Carley Nicole Kovacic both With an
Interest in the Estate of Zachary Kovacic, Deceased; CARLEY NICOLE
KOVACIC, Minor Child With an Interest in the Estate of Zachary Kovacic,
Deceased,
Plaintiffs - Appellants
v.
LARRY BROWN ENTERPRISES, L.L.C., doing business as Cheers Cocktails;
DOUG MERCER,
Defendants - Appellees
Appeal from the United States District Court for the
Southern District of Texas, Laredo
5:11-CV-137
Before DAVIS, SMITH, and DENNIS, Circuit Judges.
W. EUGENE DAVIS, Circuit Judge:*
Appellants, the survivors of Zachary Kovacic, challenge the district court’s
order dismissing their case against appellees, the owners of Cheers Lounge in
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
Case: 11-41250 Document: 00511888118 Page: 2 Date Filed: 06/15/2012
No. 11-41250
Laredo, Texas on summary judgment. Plaintiffs brought this action under the
Texas Dram Shop Act, Texas Alcoholic Beverage Code § 2.03 (2007). The facts
were largely undisputed. On August 7, 2007 Kovacic met his co-workers for
drinks at appellee’s lounge and after several hours of drinking Kovacic became
highly intoxicated. He was then escorted outside by Cheers employees and
handcuffed. Cheers’ representative then called the Laredo Police Department
and notified them that an intoxicated patron needed to be escorted from the
premises. Two Laredo police officers then proceeded to place Kovacic in the back
of their patrol car and drive toward a motel where Kovacic was staying with his
wife and child. Approximately one and a half miles from the motel Kovacic
persuaded the officers to release him so that he could walk the rest of the way
to the motel. The officers released Kovacic at the intersection of Del Mar and
Loop 20 at approximately 2:00 a.m. At approximately 2:33 a.m. Kovacic was
struck on the roadway by an unknown hit-and-run driver. On arrival at the
hospital his blood alcohol level was found to be .227%. Kovacic died from these
injuries.
The district court granted summary judgment on grounds that the action
of the Laredo policemen in releasing Kovacic in his intoxicated condition at a
busy intersection at 2:00 a.m. was an independent, intervening cause and
appellee as owner of Cheers Cocktails had no liability under the Texas Dram
Shop Act. Kovacic v. Larry Brown Enters., L.L.C., 693 F. Supp. 2d 660 (S.D. Tex.
2010). We agree. The district court carefully considered the six factors Texas
courts consider in determining whether an intervening cause constitutes a new
and independent or superseding cause and we agree completely with that
analysis.
For the reasons stated above and those stated by the district court in its
Order of January 25, 2010, we affirm the judgment of the district court.
AFFIRMED.
2
Case: 11-41250 Document: 00511888118 Page: 3 Date Filed: 06/15/2012
No. 11-41250
3