Dezi is a 25-year-old female, 5'6" in height and weighs 140 pounds. Raheem stated Dezi slurs her words after two cocktails. Dezi and her friend, Grace, carpooled to the Secret Patio on the evening of August 14, 2020 to meet friends for drinks. Dezi and Grace each consumed three shots, two beers, and two cocktails while at the Secret Patio. A bartender noted the group had visited several times prior, but on this occasion the group seemed louder and happier than on prior visits. Dezi's bar tab was $55 plus a $60 tip for a total of $115, and Grace's bar tab was $55 with a $30 tip for a total of $95. Dezi and Grace left the bar together around 12 a.m. Grace got in the driver's seat of her car, and Dezi sat in the passenger seat. While driving near Exit 782 on the Baytown-East Freeway, Grace crashed her car. Grace was arrested at the scene and noted to have a 0.16 BAC. Grace did not need medical attention, but Dezi was rushed to the hospital with life-threatening injuries. Grace later told Raheem the crash occurred when she took her eyes off the road to reach for her phone.

The bartender serving Dezi and Grace, Marshawn (Marsh) Strawberry, had worked at the Secret Patio for five years. Mr. Strawberry received the 2018 and 2019 annual bartender bonus for largest total tabs during the calendar year, of which a minimum 30% of sales must be specific food items. Mr. Strawberry enjoys educating patrons about craft cocktails and beers by giving them free samples. Mr. Strawberry attended commission-approved TABC training in Spring 2020 and had attended every spring since he began working at the Secret Patio.

QUESTIONS PRESENTED

1. The issue is whether the Secret Patio is liable for Grace's impairment and Dezi's damages under the Texas Dram Shop statute, when Grace and Dezi had similar amounts to drink and various witnesses could have seen they were intoxicated, while the bartender kept serving them.

Why Yes? and Why no?