Anthony Lopez v. CBE Extreme Nightlife FW, LLC D/B/A Old School Texas

In the
                            Court of Appeals
                    Second Appellate District of Texas
                             at Fort Worth
                            ___________________________
                                 No. 02-24-00218-CV
                            ___________________________
                             ANTHONY LOPEZ, Appellant

                                              V.

    CBE EXTREME NIGHTLIFE FW, LLC D/B/A OLD SCHOOL TEXAS,
                           Appellee


                        On Appeal from the 348th District Court
                                Tarrant County, Texas
                            Trial Court No. 348-337949-22


                     Before Kerr and Birdwell, JJ.; and Gonzalez, J.1
                       Memorandum Opinion by Justice Birdwell
                         Justice Kerr concurs without opinion.



       1
         The Honorable Ruben Gonzalez, Judge of the 432nd District Court of Tarrant County,
sitting by assignment of the Texas Supreme Court pursuant to Section 74.003(h) of the Government
Code. See Tex. Gov’t Code Ann. § 74.003(h).
                           MEMORANDUM OPINION

      After being forcibly ejected from a bar due to his extreme intoxication,

Appellant Anthony Lopez sustained an ocular injury in the bar’s parking lot that left

him blind in one eye. Lopez sued the bar’s owner, Appellee CBE Extreme Nightlife

FW, LLC d/b/a Old School Texas (CBE), asserting a claim under the Texas Dram

Shop Act, an assault claim based on the theory of respondeat superior, and common-

law-negligence and gross-negligence claims. CBE filed both no-evidence and

traditional summary-judgment motions in which it argued, among other things, that

Lopez’s negligence and gross-negligence claims were preempted by the Texas Dram

Shop Act and that because Lopez had no memory of how he was injured, there was

no genuine issue of material fact as to the elements of his dram-shop and assault

claims. After holding a hearing and receiving supplemental briefing on the sufficiency

of the evidence to support the dram-shop claim’s causation element, the trial court

granted CBE’s summary-judgment motions and dismissed all of Lopez’s claims with

prejudice.

      Lopez timely appealed from this summary judgment. Because we conclude that

the Texas Dram Shop Act preempts Lopez’s negligence and gross-negligence claims,

we affirm the trial court’s summary judgment as to those claims. Further, because

Lopez failed to challenge all of the grounds supporting the trial court’s dismissal of his

respondeat superior assault claim, we affirm the trial court’s summary judgment as to

that claim. But because Lopez presented sufficient evidence to support a reasonable

                                            2
inference that his extreme intoxication proximately caused his eye injury, we reverse

the trial court’s summary judgment as to his dram-shop claim and remand the case for

further proceedings.

                                   I. BACKGROUND

      CBE owns and operates the Old School Texas bar and grill in Fort Worth. It

engages off-duty police officers to serve as security personnel.

      On October 24, 2020, Lopez drove two of his friends to Old School Texas

around 10:00 p.m. When he arrived at the bar, Lopez did not appear intoxicated. But

after consuming “at least [ten] beers” and approximately “six or seven shots” over the

next several hours, he began “showing signs of being very drunk.” At one point, the

waiter commented that Lopez did “not look[] so good,” but he never turned Lopez

down when he ordered a drink. By the end of the night, Lopez was so drunk that he

struggled “to even say the name of the beer [that] he was ordering” and “could

barely . . . stand up.” Due to Lopez’s extreme intoxication, “[m]ost of [his] memories

toward the end of the night are blurs.”

      Because Lopez was so drunk, one of the friends who rode with him to the bar

took Lopez’s keys and stopped drinking himself so that he could drive the group

home. Because he had taken Lopez’s keys and could ensure that he would get home

safely, the friend believed that it “was okay” for Lopez to continue drinking.




                                           3
      “Toward the end of the evening, probably after 1:00 a.m.,” Lopez’s designated-

driver2 friend went to the restroom, leaving Lopez at the table. While his friend was in

the restroom, off-duty police officers acting as security guards forcibly removed

Lopez from the bar. According to Lopez, the security guards “shov[ed him]

aggressively” because he was unable to walk properly. He claims that he tried to tell

them that his friend had his keys and was in the restroom, “but they would not let

[him] wait” and “kept shoving [him] from behind.”

      When Lopez’s designated driver returned from the restroom, he and the other

member of their party immediately gathered their things, went outside, and began

looking for Lopez. They found Lopez on the ground in the parking lot; his left eye

was bleeding, and he had some other cuts. Lopez was too drunk to describe what had

happened or the nature of his injuries, so his friends just took him home and put him

in bed.

      When Lopez woke up the next morning, he could not see out of his left eye.

He looked in the mirror and discovered that his eye was completely filled with blood.

He went to the emergency room and ultimately underwent three surgeries, but these

procedures were unsuccessful in restoring the vision in his left eye.




      2
       See Duran v. City of Douglas, 904 F.2d 1372, 1377 n.3 (9th Cir. 1990) (observing
a “designated driver” is “a widely[ ]accepted safety technique to have one person in a
group remain sober . . . precisely so that others can drink without having to worry
about driving home safely”).

                                            4
      Because he was heavily intoxicated at the time, Lopez does not remember how

he was injured. Initially, he had assumed that he had “injured [his] eye by falling down

while being black-out drunk.” But after his eye doctor told him that his injury was

consistent with having been beaten up, he called the police and told them about the

rough treatment that he had received from Old School Texas’s security guards.

Because there were no eyewitnesses and no video evidence and because Lopez

himself had “admitted that he was too intoxicated to remember” what had happened,

no criminal charges were ever filed, and the investigation was closed.

      In October 2022, Lopez filed suit against CBE. Alleging that he had been

“brutally assaulted and battered” by CBE’s “employee,” Lopez asserted a claim under

the Texas Dram Shop Act, an assault claim based on the doctrine of respondeat

superior, and claims for negligence and gross negligence. As noted, CBE moved for

summary judgment on both no-evidence and traditional grounds, and the trial court

granted the motions and dismissed all of Lopez’s claims with prejudice. This appeal

followed.

                                   II. DISCUSSION

      On appeal, Lopez generally argues that the trial court’s summary judgment

should be reversed as to each of his causes of action. We will address the summary

judgment’s propriety as to each of these individual claims in turn below.




                                           5
A. Standard of Review: Summary Judgment

      We review a summary judgment de novo. Merriman v. XTO Energy, Inc.,

407 S.W.3d 244, 248 (Tex. 2013). When, as here, the trial court does not specify the

grounds for its ruling, a summary judgment must be affirmed if any of the grounds on

which judgment was sought are meritorious. Id. Evidence is considered in the light

most favorable to the nonmovant, crediting evidence a reasonable jury could credit

and disregarding contrary evidence and inferences unless a reasonable jury could not.

Id.; see Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 756 (Tex. 2007); City of

Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005).

      When a party files both no-evidence and traditional motions for summary

judgment, see Tex. R. Civ. P. 166a(c) & (i), 3 we generally consider the no-evidence

motion first. Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). A properly

filed no-evidence motion shifts the burden to the nonmovant to present evidence

raising a genuine issue of material fact supporting each element contested in the no-

evidence motion. Wal-Mart Stores, Inc. v. Xerox State & Local Sols., Inc., 663 S.W.3d 569,

576 (Tex. 2023). If the nonmovant fails to meet its burden under the no-evidence



      3
        The Texas Supreme Court amended Rule 166a, effective March 1, 2026. See
Final Approval of Amendments to Rule 166a of the Texas Rules of Civil Procedure,
Misc. Docket No. 26-9012 (Tex. Feb. 27, 2026). But the “amendments apply only to a
motion for summary judgment filed on or after March 1, 2026,” id., so they are
inapplicable here. All citations to summary-judgment standards reference
interpretations of the prior version of Rule 166a, which continues to govern motions
for summary judgment filed before March 1, 2026.

                                            6
motion, there is no need to address the challenge to the traditional motion as it

necessarily fails. Merriman, 407 S.W.3d at 248.

      To defeat a no-evidence motion, the nonmovant must produce evidence raising

a genuine issue of material fact as to the challenged elements. See Ridgway, 135 S.W.3d

at 600. “A genuine issue of material fact exists if the evidence ‘rises to a level that

would enable reasonable and fair-minded people to differ in their conclusions.’” First

United Pentecostal Church of Beaumont v. Parker, 514 S.W.3d 214, 220 (Tex. 2017) (quoting

Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997)). The evidence

does not create an issue of material fact if it is “so weak as to do no more than create

a mere surmise or suspicion” that the fact exists. Kia Motors Corp. v. Ruiz, 432 S.W.3d

865, 875 (Tex. 2014) (quoting Ridgway, 135 S.W.3d at 601). A no-evidence challenge

will be sustained when

      (a) there is a complete absence of evidence of a vital fact, (b) the court is
      barred by rules of law or of evidence from giving weight to the only
      evidence offered to prove a vital fact, (c) the evidence offered to prove a
      vital fact is no more than a mere scintilla, or (d) the evidence
      conclusively establishes the opposite of the vital fact.

King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003) (quoting Merrell Dow

Pharms., Inc., 953 S.W.2d at 711).

      A defendant is entitled to traditional summary judgment if it conclusively

negates at least one essential element of the plaintiff’s cause of action, showing that

no genuine issue of material fact exists and that it is entitled to judgment as a matter

of law. Hillis v. McCall, 602 S.W.3d 436, 439–40 (Tex. 2020); Harkins v. Wal-Mart Stores

                                            7
Tex., LLC, No. 02-21-00201-CV, 2022 WL 3453548, at *4 (Tex. App.—Fort Worth

Aug. 18, 2022, pet. denied) (mem. op. on reh’g).

B. Negligence and Gross Negligence

      Lopez contends that the trial court erred by granting CBE summary judgment

on his negligence and gross-negligence claims because they are not preempted by the

Texas Dram Shop Act (the Act).4 We disagree.

      “The Legislature enacted the Dram Shop Act to ‘deter providers of alcoholic

beverages from serving alcoholic beverages to obviously intoxicated individuals who

may potentially inflict serious injury on themselves and on innocent members of the

general public.’” F.F.P. Operating Partners v. Duenez, 237 S.W.3d 680, 683 (Tex. 2007)

(op. on reh’g) (quoting Smith v. Sewell, 858 S.W.2d 350, 356 (Tex. 1993)). 5 To achieve


      4
        Lopez also argues that CBE failed to challenge his negligence and gross-
negligence causes of action in its summary-judgment motions. But as Lopez
acknowledges elsewhere in his briefing, CBE explicitly argued in its traditional
summary-judgment motion that all of Lopez’s common-law negligence causes of
action were preempted by the Act. Accordingly, we reject Lopez’s argument that CBE
failed to challenge these claims.
      5
        “Dram shop” is an old English term for “[a] place where alcoholic beverages
are sold,” such as “a bar or saloon.” Dram shop, Black’s Law Dictionary (12th ed.
2024); see Lacy v. State, 32 Tex. 227, 228 (1869) (“In common parlance, a ‘dram’ means
something that has alcohol in it—something that can intoxicate.”). “Historically, an
individual who voluntarily became intoxicated was precluded from suing a tavern
owner for his own injuries.” Smith, 858 S.W.2d at 352. The common law considered a
patron’s voluntary intoxication to be the sole proximate cause of any harm and the
harm itself unforeseeable by the provider. Raoger Corp. v. Myers, 711 S.W.3d 206, 210
(Tex. 2025) (citing El Chico Corp. v. Poole, 732 S.W.2d 306, 309 & 314 (Tex. 1987)
(imposing common-law duty of care upon commercial providers of alcoholic
beverages for injuries proximately caused by their patrons), superseded by statute as

                                          8
this purpose, the Act imposes liability on providers of alcoholic beverages for the

actions of their intoxicated patrons when, as discussed in more detail below, certain

conditions are met.6 See Tex. Alco. Bev. Code Ann. § 2.02(b). The Act further

includes a preemption provision stating that “[t]he liability of providers . . . for the

actions of their employees, customers, members, or guests who are or become

intoxicated is in lieu of common law or other statutory law warranties and duties of

providers of alcoholic beverages.” Id. § 2.03(a). Finally, the Act states that it “provides

the exclusive cause of action for providing an alcoholic beverage to a person 18 years

of age or older.” Id. § 2.03(c).

       Considering these latter provisions, the Texas Supreme Court has consistently

recognized that “the Dram Shop Act codifies the exclusive [cause of] action against an


recognized by Duenez, 237 S.W.3d at 683–85). But see Tex. Midland R.R. Co. v. Geraldon,
128 S.W. 611, 612 (Tex. 1910) (recognizing wrongful expulsion cause of action
predicated upon delicate condition of pregnant passenger and inclement weather at
time of her expulsion from depot and citing Weymire v. Wolfe, 3 N.W. 541, 542–43
(Iowa 1879) (rejecting voluntary intoxication as dispositive of contributory negligence
and imposing common-law duty of care upon saloonkeeper for patron “expelled from
the saloon at a late hour of the night, drunk and unconscious, [who] died by reason of
exposure and cold”)).

       The Act does not define “intoxicated” for purposes of either liability or
       6

preemption. Tex. Alco. Bev. Code Ann. §§ 1.04, 2.01. In El Chico, the supreme court
defined “intoxication” as “a condition when, due to the consumption of alcoholic
beverages, a person suffers impaired mental or physical faculties and a resulting
diminution of the ability to think and act with ordinary care.” 732 S.W.2d at 313.
By comparison, the legislature has defined a person as “intoxicated” for purposes
of the offense of public intoxication if he does not have “the normal use of
mental or physical faculties by reason of the introduction of alcohol” or he has
“a[ blood–]alcohol concentration of 0.08 or more.” Tex. Penal Code Ann. § 49.01(2).

                                            9
alcohol provider for injuries or damages resulting from the intoxication of a patron.”

Duenez, 237 S.W.3d at 691; see Borneman v. Steak & Ale of Tex., Inc., 22 S.W.3d 411, 412

(Tex. 2000); Southland Corp. v. Lewis, 940 S.W.2d 83, 84 (Tex. 1997); Graff v. Beard, 858

S.W.2d 918, 919 (Tex. 1993). Thus, to the extent that a plaintiff’s common-law-

negligence or gross-negligence claim against a provider arises out of the overservice of

alcoholic beverages, it is preempted, and the cause of action created by the statute is

the exclusive remedy. See Duenez, 237 S.W.3d at 691; Lewis, 940 S.W.2d at 84; Last v.

Quail Valley Country Club, L.P., No. 01-08-00759-CV, 2010 WL 1253782, at *5 (Tex.

App.—Houston [1st Dist.] Mar. 25, 2010, pet. denied) (mem. op.) (“Texas law is

unequivocal that the Dram Shop Act is the exclusive means of pursuing liability

against a provider . . . .”).

       Critically, Lopez does not argue that his common-law claim for negligent

hiring, training, and supervision of CBE’s serving staff is not preempted.7 Indeed, the

Act’s safe-harbor provisions make preemption of such claims crystal clear by

substituting a comprehensive defense to dram-shop liability if a provider (1) requires

its employees to attend a training program approved by the Texas Alcoholic Beverage

Commission, (2) the employee alleged to have overserved an intoxicated patron

actually attended such a program, and (3) the provider did not directly or indirectly


       7
         “Negligent hiring, retention, and supervision claims are all simple negligence
causes of action based on an employer’s direct negligence rather than on vicarious
liability.” Morris v. JTM Materials, Inc., 78 S.W.3d 28, 49 (Tex. App.—Fort Worth 2002,
no pet.).

                                           10
encourage the employee to violate the law. Tex. Alco. Bev. Code Ann. §§ 2.02(b),

106.14(a); see 20801, Inc. v. Parker, 249 S.W.3d 392, 394 (Tex. 2008); Bolanos v. Purple

Goat, LLC, 649 S.W.3d 753, 756–57, 762 (Tex. App.—El Paso 2022, no pet.) (holding

that common-law negligence claims based on provider’s hiring, retention, and

supervision of serving staff were preempted because they “arose out of [provider’s]

overserving alcohol”); Yarbrough v. McCormick, No. 04-17-00283-CV, 2018 WL

3129459, at *8–9 (Tex. App.—San Antonio June 27, 2018, no pet.) (mem. op.)

(holding that common-law negligence and gross-negligence claims arising from

provision of alcohol were preempted).

      Instead, Lopez argues that his common-law claims for negligent hiring,

training, and supervision of CBE’s security personnel and their negligence in forcibly

ejecting him from the bar are not preempted because they are “unrelated to the

provision of alcohol.” According to Lopez, “the conduct of the bar’s security

personnel in throwing [him] out of the bar” and the bar’s “negligence in . . . hiring,

training, and supervisi[ng] . . . bouncers” is separate and distinct from “the conduct of

[the] waiters who over[]served [him] in violation of the Dram Shop Act.”

      But Lopez has repeatedly asserted—both in the trial court and on appeal—that

his eye injury was caused by his extreme intoxication as a patron of the bar. See Tex.

Alco. Bev. Code Ann. § 2.03(a) (preempting common-law causes of action arising

from the actions of an intoxicated customer or guest). Indeed, the first sentence of

Lopez’s petition’s “Causes of Action” section—which contains the allegations

                                           11
underpinning both his dram-shop and negligence/gross-negligence claims—alleges

that CBE “provided, sold, and/or served [Lopez] alcoholic beverages when it was

apparent [that he was] obviously intoxicated.” Further, Lopez argued in the trial court

that the mechanism of injury was his forcible ejection from the bar in a state of

extreme and debilitating intoxication and that, even if the jury declined to find that an

actionable assault occurred, his removal to the parking lot in a mentally and physically

incompetent condition was the cause of his injury.8 See, e.g., ONI, Inc. v. Swift, 990



      8
       A common-law cause of action for personal injury damages suffered by a
business invitee, customer, or patron forcibly ejected, expelled or removed from a
commercial premises involves a “hybrid body of law that lies at the intersection of
premises liability and agency law.” See Clayton W. Williams, Jr., Inc. v. Olivo, 952 S.W.2d
523, 527 (Tex. 1997) (citing Exxon Corp. v. Tidwell, 867 S.W.2d 19, 21 (Tex. 1993)). In
Texas & Pacific Railway Co. v. Weatherly, the supreme court confirmed that

      the owner of [a commercial] premises has the right to eject trespassers
      therefrom and use such force as is reasonably necessary to do so, and if a
      trespasser resists ejection, the owner of the premises or his agents, have
      the right to use such force as appears reasonably necessary under the
      facts and circumstances in order to effect the ejection.

101 S.W.2d 217, 218–19 (Tex. [Comm’n Op.] 1937) (approving jury instruction for
wrongful ejection from a railway depot, including definitions of “eject” as “the right
to remove the said plaintiff from the defendant’s premises” and “force” as “such
force as may have been reasonably necessary under the facts and circumstances in
evidence before you to remove the plaintiff from the defendant’s premises”); see
Geraldon, 128 S.W. at 611–13 (affirming judgment for personal injuries sustained by
pregnant passenger when ejected from the depot’s waiting room into downpour); Tex.
& New Orleans R.R. Co. v. Parsons, 113 S.W. 914, 914–16 (Tex. 1908) (affirming
judgment for personal injuries inflicted by special deputy hired by railroad to eject
transients and trespassers from its railyards); Hampton v. Sharp, 447 S.W.2d 754, 758
(Tex. App.—Houston [1st Dist.] 1969, writ ref’d n.r.e.) (“One who is in lawful
possession of property has the right as against an intruder or trespasser to request him

                                            12
S.W.2d 500, 501–04 (Tex. App.—Austin 1999, no pet.) (affirming judgment for

personal injuries sustained by patron, including injury to and lacerations around his

eye, when bouncer forcibly ejected him from bar and he was attacked by an

unidentified assailant in the parking lot); Ohlen v. Hagar, 212 S.W.2d 253, 254–57 (Tex.

App.—Fort Worth 1948, writ ref’d n.r.e.) (affirming judgment awarding damages to

woman who suffered severe laceration to leg when forcibly ejected from downtown

Fort Worth bar by owner due to alleged intoxication); Bounty Ballroom v. Bain, 211

S.W.2d 248, 250, 252–53 (Tex. App.—Amarillo 1948, writ ref’d n.r.e.) (affirming

judgment for personal injuries sustained by patron when special police officer struck

him with an unidentified object then ejected him “and commanded him to ‘go home

to leave, and if he does not go, can use all reasonable means to compel him to leave
using no more force than is reasonably necessary.”).

        The right to use reasonable force in ejecting trespassers is a longstanding
principle of the common law. See Watrous v. Steel, 4 Vt. 629, 631–32 (1829) (“It is a
well settled principle, that the occupant of any house, store, or other building, has a
legal right to control it, and to admit whom he pleases to enter and remain there, and
that he has also a right to expel any one from the room or building who abuses the
privilege which has been thus given him; and if the occupant finds it necessary, in the
exercise of his lawful rights, to lay hands on him to expel him, he can legally justify the
assault.”). If, however, the force employed to eject the trespasser is unnecessary,
unreasonable or excessive and thereby causes injury, the owner or occupier of the
premises may be held liable in damages for wrongful ejection. See Rucker v. Barker, 192
S.W. 528, 528–29 (Tex. 1917) (affirming judgment in favor of patron of a medicine
show forcibly ejected from the venue over a seat dispute by a deputy constable
employed by the proprietor to provide premises security and handed over for arrest
by the police); Weatherly, 101 S.W.2d at 218–19 (affirming judgment for personal
injuries sustained when special officer struck plaintiff when forcibly ejecting him from
railroad premises); Tex. & Pac. Ry. Co. v. Mother, 24 S.W. 79, 80 (Tex. App.—Fort
Worth 1893, writ ref’d) (affirming judgment awarding wrongful death damages for
wrongful ejection of trespasser from freight train).

                                            13
and sober up’”). Finally, in his appellate brief, Lopez argued that his eye injury was the

end result of a “chain of causation that began with the over[]service of alcohol.”

Accordingly, the underlying premise of his negligence and gross-negligence causes of

action is that his forcible ejection from the bar was due to CBE’s overservice of

alcohol, his resulting excessive level of intoxication, and his actions as a customer or

guest under the influence thereof, and that “but for” the extreme intoxication he

experienced due to overservice he would not have suffered the injury to his eye or the

loss of its sight.9


       9
         Neither Lopez nor CBE disputes that an off-duty peace officer hired by CBE
to provide premises security initiated and completed Lopez’s forcible ejection from
the bar’s interior to its parking lot or that Lopez was extremely intoxicated at the time
of his ejection. CBE did not assert as a ground for summary judgment, however, that
the officer was engaged in law enforcement activity for which it could not be held
vicariously liable. See Ogg v. Dillard’s, Inc., 239 S.W.3d 409, 418–19 (Tex. App.—Dallas
2007, pet. denied) (“If the officer is performing a public duty, such as the
enforcement of general laws, the officer’s private employer incurs no vicarious
responsibility for that officer’s acts, even though the employer may have directed the
activities.” (quoting Mansfield v. C.F. Bent Tree Apartment Ltd. P’ship, 37 S.W.3d 145, 150
(Tex. App.—Austin 2001, no pet.))).

       Acknowledging that peace officers “commonly engage in off-duty security
work” yet retain their status as peace officers twenty-four hours a day, the supreme
court has identified “helpful guidelines” for determining when an off-duty peace
officer resumes his on-duty status by engaging in activities within the course and
scope of his governmental/law enforcement employment:

       An officer enforcing general laws in accordance with a statutory grant of
       authority is acting in the course and scope of employment as a peace
       officer. But if an officer is protecting a private employer’s property,
       ejecting trespassers, or enforcing rules and regulations promulgated by the
       private employer, a fact question may arise as to whether the officer’s
       conduct is in a private or official capacity.

                                            14
      Because Lopez himself has acknowledged that the injury for which he seeks

redress arose out of a chain of events that began with CBE’s purported overservice of

alcohol, his common-law negligence and gross-negligence claims are preempted. See

Duenez, 237 S.W.3d at 691; see also Bolanos, 649 S.W.3d at 762 (holding that appellant’s

common-law negligence claim asserting alcohol provider’s premises liability for failure

to provide proper security was preempted); Parker v. 20801, Inc., 194 S.W.3d 556, 558,

560–63 (Tex. App.—Houston [14th Dist.] 2006) (holding that intoxicated patron’s


Seward v. Santander, 713 S.W.3d 341, 355 (Tex. 2025) (quoting Garza v. Harrison,
574 S.W.3d 389, 403 (Tex. 2019)) (emphasis added).

         Absent law enforcement activity, the authority of an off-duty peace officer
performing security-guard work to eject trespassers—for example, to protect patrons
on a commercial premises—derives solely from the premises owner’s “power of
control or expulsion.” See Del Lago Partners, Inc. v. Smith, 206 S.W.3d 146, 153 (Tex.
App.—Waco 2006) (quoting Tidwell, 867 S.W.2d at 21), aff’d, 307 S.W.3d 762 (Tex.
2010); Tex. & New Orleans R.R. Co. v. Parsons, 109 S.W. 240, 247 (Tex. App.—
Texarkana) (“There is no known law which empowers a deputy sheriff, or any other
officer, to make such an eviction from private property. The right to have this done
was the private and personal right of the railroad company[] and could be performed
only by its sanction or authority.”), aff’d, 113 S.W. 914 (Tex. 1908). Accordingly,
absent any evidence of an arrest or detention for public intoxication, including the
conducting of standard field sobriety tests, the forcible ejection of Lopez exhibited
none of the indicia of law enforcement activity that would foreclose CBE’s vicarious
liability therefor. See Parsons, 109 S.W. at 247 (“The fact that no arrest was attempted
by [the deputy sheriff] tends to show that no official action was intended.”); see also
Monroe v. State, 465 S.W.2d 757, 758–59 (Tex. Crim. App. 1971) (holding arrest of
nightclub patron for public intoxication “legal” when made by an off-duty, uniformed
police officer working security for the club); Hardin v. State, 387 S.W.2d 60, 61 (Tex.
Crim. App. 1965) (holding bar patron’s arrest for public intoxication authorized when
he had been observed with his head on table and needed assistance to stand when
requested ); cf. Seward, 713 S.W.3d at 369–72 (Busby, J., concurring) (observing that
the extent to which a private employer may enjoy the benefit of governmental
immunity by hiring an off-duty peace officer remains an open question).

                                          15
common-law premises security claim arising from a parking lot fight with another

intoxicated patron was preempted), rev’d on other grounds, 249 S.W.3d 392 (Tex. 2008).

But cf. Del Lago Partners, Inc., 307 S.W.3d at 769 (imposing common-law duty on bar

owner to protect intoxicated patrons from imminent assaultive conduct of other

intoxicated patrons even though evidence strongly suggested overservice of alcoholic

beverages resulted in melee between fraternity and wedding parties).10

      Accordingly, the trial court did not err by granting CBE summary judgment on

Lopez’s negligence and gross-negligence claims due to preemption.

      10
         Lopez relies on Kovacic v. Larry Brown Enters., L.L.C., 693 F. Supp. 2d 660
(S.D. Tex. 2010) (order), to support his contention that his negligence and gross-
negligence claims are not preempted. But this case is distinguishable. In Kovacic, an
intoxicated bar patron—Zachary Kovacic—was escorted outside by the bar’s
employees and “involuntarily handcuffed” after he had purportedly created a
disturbance and had “tr[ied] to start a fight.” Id. at 661, 666–67. The bar’s employees
held Kovacic outside the bar while waiting for the police, who “placed him in the
back of their patrol car” once they arrived. Id. at 661–62. But instead of taking
Kovacic to the police station or to his motel, the officers “unceremoniously released”
him at a darkened intersection “approximately 1.5 miles” from his motel. Id. at 662.
Shortly thereafter, he was struck by a vehicle and killed. Id. Kovacic’s heirs sued the
bar, asserting a claim under the Act as well as common-law claims for assault, false
imprisonment, and negligence. Id. The district court granted the bar’s summary-
judgment motion as to the dram-shop claim, but it denied the motion as to the assault
and false-imprisonment claims. Id. at 663–67. Lopez makes much of the fact that the
bar never argued that the plaintiffs’ common-law claims were preempted and that the
district court allowed the plaintiffs to pursue their common-law claims—including
their negligence claim—after dismissing their dram-shop claim. But unlike Lopez, the
Kovacic plaintiffs based their negligence claims and their dram-shop claim on separate
and distinct injuries. In their dram-shop claim, they sought to hold the bar liable for
Kovacic’s vehicular death, but their negligence claim sought damages “only with
respect to his assault[] and false imprisonment” at the bar. Id. at 663. Because, unlike
the Kovacic plaintiffs, Lopez based his negligence and gross-negligence claims on the
same injury as his dram-shop claim—an injury that, according to his own argument,
was caused by CBE’s overserving him with alcohol—they are preempted.

                                          16
C. Assault

       Alternatively, although Lopez generally challenged the trial court’s summary-

judgment ruling in his appellate brief, he failed to negate each ground upon which the

trial court could have granted CBE summary judgment on his common-law

respondeat superior assault claim. Therefore, we must affirm this claim’s dismissal

irrespective of its merits.

       When—as here—a trial court’s order granting summary judgment does not

specify the grounds on which the order is based, the appealing party must negate each

possible ground. Rosetta Res. Operating, LP v. Martin, 645 S.W.3d 212, 226 (Tex. 2022).

A party may negate each ground by raising separate issues or by asserting a general

issue challenging the summary judgment and, within that issue, providing an argument

negating all possible grounds upon which summary judgment could have been

granted. Id. at 227. An appellate court “must affirm a summary judgment if any

ground on which the judgment could have been based stands unchallenged—

‘regardless of the merits of the unchallenged ground[s].’” Madhu Lodging Partners, LP v.

AmGuard Ins. Co., No. 02-23-00379-CV, 2024 WL 2760482, at *2 (Tex. App.—Fort

Worth May 30, 2024, pet. denied) (mem. op.) (quoting McCurley v. Tex. Motor Speedway,

Inc., No. 02-19-00108-CV, 2019 WL 6606103, at *1 (Tex. App.—Fort Worth Dec. 5,

2019, pet. denied) (mem. op.)).

       To prevail on his respondeat superior assault claim, Lopez was required to

prove (1) that he was injured by an assault, (2) that the tortfeasor was one of CBE’s

                                          17
employees, and (3) that the employee was acting within the scope of his employment

when the assault was committed. See GTE Sw., Inc. v. Bruce, 998 S.W.2d 605, 617–18

(Tex. 1999); Rodriguez v. Panther Expedited Servs., Inc., No. 04-17-00291-CV, 2018 WL

3622066, at *5 (Tex. App.—San Antonio July 31, 2018, pet. denied) (mem. op.). In its

no-evidence summary-judgment motion, CBE challenged all three of these elements.

Thus, to negate the trial court’s summary judgment as to his respondeat superior

assault claim, Lopez was required to demonstrate that a genuine issue of material fact

exists as to each element. See Madhu Lodging Partners, LP, 2024 WL 2760482, at *2; see

also Tex. R. Civ. P. 166a(i). But he failed to do so.

       In his appellate brief, Lopez asserts a broad issue generally questioning whether

the trial court erred by granting CBE summary judgment on his dram-shop and

respondeat superior assault claims.11 But the vast majority of Lopez’s brief is devoted

to his dram-shop claim; his argument in support of his respondeat superior assault

claim is threadbare. Indeed, he does not even enumerate the latter claim’s elements

anywhere in his brief, much less provide a robust argument that a fact issue exists as

to each element. Although Lopez offers at least some argument to support the

existence of a fact issue regarding the first two elements, he wholly fails to address the


       11
         Although the broad issue set forth in Lopez’s brief’s “Issues Presented”
section does not address the preemption of his negligence and gross-negligence
claims, he argues elsewhere in his brief that these claims are not preempted. Thus, this
issue was fairly raised, see Gray v. Crosby, No. 02-24-00336-CV, 2024 WL 5083190, at
*3 n.3 (Tex. App.—Fort Worth Dec. 12, 2024, no pet.) (mem. op.), and rejected on its
merits, see supra Section II.B.

                                             18
third element—whether the employee–tortfeasor was acting within the scope of his

employment when the alleged assault occurred.

      Because Lopez did not challenge every ground on which the trial court could

have granted CBE summary judgment on his respondeat superior assault claim, we

affirm the trial court’s ruling as to this claim to the extent it is not preempted. See

Medrano v. Kerry Ingredients & Flavours, Inc., No. 02-24-00262-CV, 2025 WL 52125, at *4

(Tex. App.—Fort Worth Jan. 9, 2025, no pet.) (mem. op.); Villanueva v. RNA Fin.

LLC, No. 02-23-00435-CV, 2024 WL 3365227, at *3 (Tex. App.—Fort Worth July

11, 2024, no pet.) (mem. op.); Madhu Lodging Partners, LP, 2024 WL 2760482, at *2.

D. Texas Dram Shop Act

      Lopez contends that the trial court erred by granting CBE summary judgment

on his dram-shop claim because he presented sufficient evidence to create a fact issue

regarding each of this claim’s essential elements. We agree.

      As previously noted, the legislature passed the Act to discourage alcoholic-

beverage providers from serving obviously intoxicated individuals who might

seriously injure themselves or others. See Duenez, 237 S.W.3d at 683. To achieve this

purpose, the Act imposes liability on an alcohol provider for the actions of an

intoxicated individual if (1) the provider served alcohol to an adult recipient (2) when

it was apparent to the provider that the recipient was obviously intoxicated to the

point that he presented a clear danger to himself or others and (3) the recipient’s



                                           19
intoxication proximately caused the plaintiff’s injury. See Tex. Alco. Bev. Code Ann.

§ 2.02(b); Bolanos, 649 S.W.3d at 759.

      In its no-evidence summary-judgment motion, CBE argued that Lopez’s dram-

shop claim failed as a matter of law because there was no evidence to support any of

these elements.12 Lopez presented ample summary-judgment evidence, including

affidavits and bank records, supporting his allegations that CBE had served him

alcohol on the night that he was injured and that it had continued to serve him when

it was apparent that he was obviously intoxicated. Thus, the parties’ focus—both in

the trial court and on appeal—has been on the sufficiency of the evidence to support

the proximate-cause element.

      For purposes of a dram-shop claim, the relevant causal link is between the

plaintiff’s injury and the recipient’s intoxication. 13 See Borneman, 22 S.W.3d at 412–13;


      12
         CBE additionally argued in its traditional summary-judgment motion that it
was entitled to judgment as a matter of law because it had conclusively established
that it satisfied the elements of the Act’s safe-harbor provision. See Tex. Alco. Bev.
Code Ann. § 106.14(a). But because the trial court sustained Lopez’s objections to
CBE’s summary-judgment evidence supporting the first two elements of its safe-
harbor defense, the trial court could not have granted CBE summary judgment on
Lopez’s dram-shop claim based on this defense. See 20801, Inc., 249 S.W.3d at 394
(holding that alcohol providers have the burden of proof on the first two elements of
the Act’s safe-harbor defense).
      13
        The plaintiff may be a third party or—as in the present case—the intoxicated
individual himself. Compare Cianci v. M. Till, Inc., 34 S.W.3d 327, 328 (Tex. App.—
Eastland 2000, no pet.) (arising from suit filed by driver involved in automobile
accident with intoxicated recipient), with Smith, 858 S.W.2d at 355 (holding that “the
intoxicated individual may bring a cause of action for his own injuries” under the
Act).

                                           20
Biaggi v. Patrizio Rest. Inc., 149 S.W.3d 300, 304 (Tex. App.—Dallas 2004, pet. denied)

(op. on reh’g). Proximate cause has two components: cause-in-fact and foreseeability.

Boggs v. Bottomless Pit Cooking Team, 25 S.W.3d 818, 823 (Tex. App.—Houston [14th

Dist.] 2000, no pet.) (citing Travis v. City of Mesquite, 830 S.W.2d 94, 98 (Tex. 1992) (op.

on reh’g)). To constitute a cause-in-fact, the recipient’s intoxication must have been a

“substantial factor” in bringing about the injury—that is, a factor “without which no

harm would have been incurred.” Boyd v. Fuel Distribs., Inc., 795 S.W.2d 266, 272 (Tex.

App.—Austin 1990, writ denied) (first citing Brown v. Edwards Transfer Co., 764 S.W.2d

220, 223 (Tex. 1988); and then citing Mo. Pac. R.R. Co. v. Am. Statesman, 552 S.W.2d

99, 103 (Tex. 1977)). An injury is foreseeable if a person of ordinary intelligence

should have anticipated that it could occur as a result of the recipient’s intoxication.

See Boggs, 25 S.W.3d at 823.

       CBE argues that it is entitled to summary judgment on Lopez’s dram-shop

claim because he cannot remember what happened at the time he was injured.

According to CBE, because a factfinder could not find that Lopez’s intoxication was a

cause-in-fact of his injury without engaging in impermissible inference stacking, his

dram-shop claim fails as a matter of law. See Raoger Corp., 711 S.W.3d at 213

(“Findings ‘must be supported by facts in evidence, not conjecture,’ and we cannot

‘pile speculation on speculation and inference on inference.’” (quoting Marathon Corp.

v. Pitzner, 106 S.W.3d 724, 729 (Tex. 2003)). But the record contains sufficient

circumstantial evidence to support such a finding without stacking inferences.

                                            21
      Lopez presented summary-judgment evidence showing that on the night in

question, he consumed alcohol at the Old School Texas bar for several hours and

became so intoxicated that he struggled to talk or stand; CBE’s security personnel

forcibly ejected him from the bar to the parking lot, aggressively shoving him during

the removal process; and Lopez was found by his friends a short time later with a

bloody left eye and “some cuts on him.”14 Based on this evidence, a factfinder could

reasonably infer that, more likely than not, the immediate cause of Lopez’s eye injury

was either (1) that he was assaulted by CBE’s security guards during (or shortly after)

the forcible-ejection process (either by being struck in the eye directly or by being

violently shoved in such a manner that he fell to the ground and hit his eye) or (2) that

he lost his balance—which the record shows had been significantly impaired by his

alcohol consumption—and fell after having been left in that impaired condition in the

parking lot. See Geraldon, 128 S.W. at 612 (recognizing wrongful expulsion cause of

action predicated upon impaired condition of patron (citing Weymire, 3 N.W. at 542–

43)). Stated differently, considering the entire range of possibilities, a factfinder could

conclude that there is a greater-than-fifty-percent likelihood that Lopez’s eye was

injured in one of these two scenarios. Because Lopez’s intoxication would be a



      14
        While it is unclear exactly how much time elapsed between Lopez’s removal
from the bar and his friends’ finding him in the parking lot, the record reflects that
Lopez was ejected from the bar while his designated-driver friend went to the
restroom and that his friends went to find him shortly after the designated driver
returned to their table.

                                            22
substantial factor in either scenario,15 it logically follows that a factfinder could

reasonably infer that, more likely than not, Lopez’s eye injury was proximately caused

by his intoxication.16 See Boyd, 795 S.W.2d at 272. Accordingly, to the extent that

Lopez can rely on both of these theories, he has satisfied his summary-judgment

burden with respect to his dram-shop claim’s causation element. See Helena Chem. Co.

v. Cox, 664 S.W.3d 66, 73 (Tex. 2023) (explaining that “[t]o survive summary

judgment, [a] plaintiff[’s] causation evidence must raise a genuine fact issue as to

whether it is more likely than not that” his injury was caused by the defendant’s

tortious conduct).

      CBE argues that Lopez cannot rely on a slip-and-fall causation theory because

he failed to plead it. But the only case that CBE cites to support this argument states

merely that a summary-judgment movant need not disprove an unpleaded “claim

raised for the first time in a non[]movant’s summary[-]judgment response.” See


      15
         Nothing in the record suggests that Lopez would have been expelled from the
bar but for his intoxication. Similarly, because the record reflects that at the time of
his injury, Lopez was intoxicated to the point that he could barely stand up or walk, it
would be unreasonable to infer that if he fell, his intoxication was not a substantial
factor. Cf. Love v. D. Hous., Inc., 67 S.W.3d 244, 248 (Tex. App.—Houston [1st Dist.]
2000) (recounting expert’s testimony that the “clinical symptoms of intoxication”
include “disorientation, impaired balance, lack of muscular coordination, [and] a
staggering gait”), aff’d, 92 S.W.3d 450 (Tex. 2002).
      16
         To be clear, this does not involve the stacking of two separate inferences. The
factfinder is only asked to make one inference—that, more likely than not, Lopez was
injured in one of the two intoxication-fueled scenarios described above. That Lopez’s
intoxication was a substantial factor in bringing about his injury logically follows from
this single inference.

                                           23
MedStar Funding, LC v. Willumsen, 650 S.W.3d 809, 813 (Tex. App.—Houston [14th

Dist.] 2022, no pet.) (emphasis added). Because it is apparent—and CBE does not

dispute—that Lopez pleaded a dram-shop claim, MedStar Funding is inapposite. Lopez

asserted his slip-and-fall causation theory in his written summary-judgment response,

in his oral argument at the summary-judgment hearing, and in his supplemental trial-

court briefing on causation, yet CBE never argued in the trial court that it had been

unfairly surprised by this theory or that Lopez had waived it by failing to plead it.

Because Lopez’s petition—against which no special exceptions have been

sustained 17—is broad enough to encompass this causation theory and because he

raised it in his written summary-judgment response, Lopez may rely on it as grounds

for reversal on appeal. See Tex. R. Civ. P. 166a(c); City of Houston v. Clear Creek Basin

Auth., 589 S.W.2d 671, 677 (Tex. 1979) (explaining that to be considered on appeal, a

nonmovant’s argument against summary judgment “must be in writing and before the

trial judge at the hearing”); see also Abraham & Co. v. Markel Ins. Co., 721 S.W.3d 37, 47

(Tex. App.—Houston [14th Dist.] 2025, no pet.) (“Because no special exceptions

were sustained against [appellant’s] petition in the court below, this court must

construe that pleading liberally in [its] favor to include all claims that reasonably may

        CBE included special exceptions in its amended answer, but nothing in the
       17

record indicates that it ever obtained a ruling on them. See Bridwell v. Grilletta, No. 09-
16-00016-CV, 2017 WL 218912, at *7 (Tex. App.—Beaumont Jan. 19, 2017, no pet.)
(mem. op. on reh’g) (“It is the responsibility of the defendant to file special exceptions
to the petition and obtain a ruling thereon if he challenges the specificity of the allegations
in the plaintiff’s petition, or he waives the right to complain about the specificity of
the pleading on appeal.” (emphasis added)).

                                              24
be inferred from the language contained in the petition . . . .” (citing Horizon/CMS

Healthcare Corp. v. Auld, 34 S.W.3d 887, 897 (Tex. 2000))); Johnson v. Saldana, No. 01-

98-00942-CV, 2000 WL 424343, at *2 (Tex. App.—Houston [1st Dist.] Apr. 20, 2000,

no pet.) (not designated for publication) (“When . . . there is no ruling on special

exceptions, the petition is to be construed liberally in favor of the pleader . . . .” (citing

Roark v. Allen, 633 S.W.2d 804, 809–10 (Tex. 1982))).

       CBE cites Stumph v. Dallas Lemmon West, Inc., No. 05-14-01044-CV, 2015 WL

5655835 (Tex. App.—Dallas Sept. 25, 2015, pet. denied) (mem. op.), to support its

contention that Lopez failed to create a fact issue on causation, but this case is

distinguishable. In Stumph, the injured plaintiff left a bar “alone, on foot, around 12:45

a.m.” after a night of drinking and was found “unconscious in a creek bed beneath a

‘vehicular’ bridge” at “approximately 7:14 a.m.” the next morning. Id. at *1. He

“remember[ed] nothing,” there were no witnesses “who saw any events involving [the

plaintiff] at or near the bridge,” and there was “no evidence indicating whether [he]

was ever on the bridge.” Id. at *2. The police and medical records indicated that the

plaintiff could have been assaulted or, alternatively, could have fallen or jumped from

the bridge. Id. at *1–2. The plaintiff—theorizing that his intoxication had proximately

caused him to fall from the bridge—sued the bar under the Act.18 Id. The court of

appeals affirmed the trial court’s take-nothing summary judgment in the bar’s favor

        The plaintiff also sued the bridge owner under a premises-liability theory. See
       18

Stumph, 2015 WL 5655835, at *1–2.


                                             25
because there was “no evidence in the record of what happened” to the plaintiff

during the roughly six-and-a-half-hour period between the plaintiff’s leaving the bar

and his being found in the creek. Id. at *4.

      But unlike the plaintiff in Stumph, Lopez was found by his two friends a short

time—likely just a few minutes—after being expelled from the bar, not hours later.

And because one friend had been prevented from assisting him from the bar by

CBE’s security personnel and the other friend, who had committed to being Lopez’s

designated driver, was in the restroom at the time, under either liability scenario the

gap in time between when Lopez was ejected and when he was discovered injured

appears attributable to the manner of ejection itself. Because there is far less

unaccounted-for time here than in Stumph, the link between Lopez’s intoxication and

his injury is stronger and the range of reasonable causation inferences is narrower. In

further contrast to Stumph, in which there was no evidence that the plaintiff had ever

even been on the bridge from which he had allegedly fallen, the record in this case

indicates that CBE’s security personnel had aggressively shoved Lopez while expelling

him from the bar and that Lopez could barely stand or walk at the time that he was

expelled. Thus, the circumstantial evidence supporting Lopez’s intoxication-based

causation theories is much stronger than the evidence in Stumph.

      Because Lopez remembers nothing, no video evidence exists, and there are no

witnesses, the specific events giving rise to Lopez’s eye injury will likely never be

known. But he is not required to prove his case with absolute certainty or to negate

                                               26
every possible non-intoxication-related causation theory. See Havner v. E-Z Mart Stores,

Inc., 825 S.W.2d 456, 460 (Tex. 1992). Rather, “it is enough to introduce evidence

from which reasonable persons may conclude that [it is more likely that] the event was

caused by [Lopez’s intoxication] than [that] it was not.” Id. (quoting W. Keeton,

Prosser and Keeton on Torts § 41, at 269 (5th ed. 1984)); see Helena Chem. Co., 664

S.W.3d at 73. Thus, by presenting summary-judgment evidence supporting an

inference that, more likely than not, his eye injury was caused either by (1) a security

guard’s assaulting him while forcibly ejecting him from the bar due to his extreme

intoxication or (2) by losing his alcohol-impaired balance and falling after being

removed from the bar to its parking lot, Lopez satisfied his burden to create a genuine

issue of material fact on his dram-shop claim’s causation element. See Helena Chem. Co.,

664 S.W.3d at 73; Havner, 825 S.W.2d at 460. Accordingly, the trial court erred by

awarding CBE summary judgment on Lopez’s dram-shop claim. 19 See Tex. R. Civ. P.

166a(c), (i).

                                  III. CONCLUSION

       In light of the foregoing, we reverse the trial court’s summary judgment as to

Lopez’s dram-shop claim and affirm it as to his negligence, gross-negligence, and



        As noted, Lopez presented ample evidence to create a fact issue regarding the
       19

other two elements of his dram-shop claim—that CBE (1) had served him alcohol on
the night that he was injured and (2) had continued to serve him when it was apparent
that he was obviously intoxicated to the point that he was a danger to himself or
others. See Tex. Alco. Bev. Code Ann. § 2.02(b).

                                          27
respondeat superior assault claims. We remand this case for further proceedings

consistent with this opinion.

                                                /s/ Wade Birdwell

                                                Wade Birdwell
                                                Justice

Delivered: April 23, 2026




                                      28