                          NUMBER 13-11-00392-CV

                          COURT OF APPEALS

                THIRTEENTH DISTRICT OF TEXAS

                   CORPUS CHRISTI – EDINBURG

CHRISTOPHER ARTHEY AND
DENISE ARTHEY,                                                        Appellants,

                                        v.

SCHLUMBERGER TECHNOLOGY
CORPORATION,                                                           Appellee.


                  On appeal from the 267th District Court
                        of Refugio County, Texas.


                                 OPINION
        Before Chief Justice Valdez and Justices Garza and Vela
                       Opinion by Justice Garza

      Appellants, Christopher and Denise Arthey, challenge the trial court’s summary

judgment in favor of appellee, Schlumberger Technology Corporation (“Schlumberger”),
in a personal injury case. By two issues, the Artheys contend that the trial court erred in

granting summary judgment on the basis that Schlumberger owed no duty to the

Artheys, either under general maritime law or the Texas Dram Shop Act.1 We reverse

and remand.

                                           I. BACKGROUND

       The accident made the subject of the underlying lawsuit occurred on the

afternoon of May 16, 2008. The Artheys, riding motorcycles, were struck head-on by a

vehicle driven by David Huff on State Highway 35 north of Port Aransas, Texas. The

Artheys suffered severe injuries, with each requiring the amputation of a leg. Texas

Department of Public Safety officer Danny Leon White, who responded to the accident,

stated that there was no detectable odor of alcohol on Huff’s person. Nevertheless,

witness statements established that Huff was driving erratically immediately prior to the

accident. Moreover, three hours after the accident, Huff’s blood alcohol content (“BAC”)

was measured at .25.           Huff subsequently pleaded guilty to the criminal offense of

intoxication assault and was placed on community supervision.

       The Artheys sued Schlumberger and several other individuals and entities not

parties to this appeal. Schlumberger filed a traditional motion for summary judgment,

arguing that it owed no duty to the Artheys as a matter of law. The summary judgment
       1
           The Texas Dram Shop Act provides in part:

       Providing, selling, or serving an alcoholic beverage may be made the basis of a statutory
       cause of action under this chapter . . . upon proof that:

       (1) 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; and

       (2) the intoxication of the recipient of the alcoholic beverage was a proximate cause of
           the damages suffered.

TEX. ALCO. BEV. CODE ANN. § 2.02(b) (West 2007).

                                                   2
evidence established that, at the time of the accident, Huff was returning home from a

three-day fishing trip organized by Schlumberger at the Shoal Grass Lodge in Port

Aransas. Huff, an employee of Petrobras America, Inc. (“Petrobras”), was invited by

Schlumberger to attend the fishing trip. According to Winston Hey, the Schlumberger

employee who invited Huff, “The reason I invited [Huff] is basically to thank him for his

business and hope to strengthen the business relationship.”2                      Huff and another

Schlumberger employee, William Ney, went out on a fishing boat on the morning of the

accident. The parties dispute whether alcohol was served or consumed on that boat. It

is undisputed, however, that Huff was extremely intoxicated at the time he collided with

the Artheys several hours later.

        Schlumberger claimed in its summary judgment motion that it owed no duty to

the Artheys to refrain from providing alcohol to Huff. It claims that, although alcohol was

provided at the lodge, none was provided on the fishing boats and, if individuals wished

to consume alcohol on the boats, they had to bring it themselves.3 Schlumberger noted

that Huff, in deposition testimony, did not recall consuming alcohol on May 16, although

he conceded that he was “significantly intoxicated” at the time of the accident.

        The Artheys filed a response that included deposition testimony and an expert

affidavit by Ernest D. Lykissa, Ph.D. Dr. Lykissa, a clinical and forensic toxicologist,

stated that he reviewed the deposition testimony in the case. He opined:

        It is my professional opinion that based on the above listed reviewed
        testimonies and particularly of the observation of the first responder DPS
        Officer Danny Leon White, that there was no detectable alcohol smell in

        2
           Petrobras America had previously purchased software from Schlumberger that assisted in
interpreting seismic data. Huff denied that any business was discussed during the trip.
        3
          As detailed further herein, the evidence showed that individuals were permitted to take alcohol
that was provided by Schlumberger at the lodge and bring it onto the fishing boats to consume.

                                                   3
      Mr. Huff’s breath on May 16, 2008 after the Motor Vehicle Accident, that
      Mr. Huff had consumed copious amounts of Ethanol (alcohol) drinks
      (equal to 12 beers or glasses of wine, or ounces of Crown Royal Bourbon
      Whiskey). This is substantiated by the facts that his blood alcohol
      registered 0.25 g/dL (%) 3 hours after the accident. The significance of
      lack of obvious alcohol smell to a trained observer is that, he had
      consumed the alcohol [a] long time before the accident, which fact places
      him in the boat he was fishing in 2 hours prior to the accident.

In an “addendum” to his affidavit, Dr. Lykissa added:

      The scientific methodologies utilized by my person to arrive at my
      conclusions are based on 0.02g/dL Ethanol burn-off per hour. Therefore,
      the alcohol level measured in a blood sample collected of Mr. Huff 3 hours
      after the accident, by utilizing retrograde extrapolation adjust the blood
      alcohol concentration of Mr. Huff up-to 0.31 g/dL (%).

      In addition consumption of alcohol containing drinks is associated with a
      characteristic odor of alcohol plus drink congeners for a period of 1–2
      hours post consumption. Therefore, the lack of a detectable alcoholic
      breath odor in Mr. Huff by the State Trooper, is very significant in a
      forensic extrapolation of the facts, in establishing a timeline for the
      consumption of the 12 drinks that were detectable in Mr. Huff’s system
      following the accident.

      The trial court granted Schlumberger’s motion for summary judgment and

rendered judgment that the Artheys take nothing. This appeal followed.

                                     II. DISCUSSION

A.    Standard of Review

      To obtain a traditional summary judgment under Texas Rule of Civil Procedure

166a(c), a movant must establish that there is no genuine issue of material fact so that

the movant is entitled to judgment as a matter of law. W. Invs., Inc. v. Urena, 162

S.W.3d 547, 550 (Tex. 2005) (citing Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471

(Tex. 1991)). In reviewing a summary judgment, we consider the evidence in the light

most favorable to the non-movant and resolve any doubt in the non-movant's favor. Id.




                                            4
       In a negligence case, the existence of a duty is typically a threshold question of

law which the trial court decides based on the particular facts surrounding the

occurrence in question. Van Horn v. Chambers, 970 S.W.2d 542, 544 (Tex. 1998);

Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995); Nat’l Convenience

Stores, Inc. v. Matherne, 987 S.W.2d 145, 148 (Tex. App.—Houston [14th Dist.] 1999,

no pet.). If there is no duty, liability for negligence cannot exist. Thapar v. Zezulka, 994

S.W.2d 635, 637 (Tex. 1999). “[F]actors which should be considered in determining

whether the law should impose a duty are the risk, foreseeability, and likelihood of injury

weighed against the social utility of the actor’s conduct, the magnitude of the burden of

guarding against the injury and consequences of placing that burden on the employer.”

Nabors Drilling, Inc. v. Escoto, 288 S.W.3d 401, 405 (Tex. 2009) (citing Otis Eng’g

Corp. v. Clark, 668 S.W.2d 307, 309 (Tex. 1983)). Foreseeability of the risk has been

called the foremost and dominant consideration in the duty analysis. El Chico Corp. v.

Poole, 732 S.W.2d 306, 311 (Tex. 1987). The test for foreseeability is what a party

should, under the circumstances, reasonably anticipate as a consequence of its

conduct. J.P. Morgan Chase Bank, N.A. v. Tex. Contract Carpet, Inc., 302 S.W.3d 515,

533 (Tex. App.—Austin 2009, no pet.) (citing Foster v. Denton Indep. Sch. Dist., 73

S.W.3d 454, 465 (Tex. App.—Fort Worth 2002, no pet.)).

       Though the existence of duty is a question of law when all of the essential facts

are undisputed, when the evidence does not conclusively establish the pertinent facts or

the reasonable inferences to be drawn therefrom, the question becomes one of fact for

the jury. Bennett v. Span Indus., Inc., 628 S.W.2d 470, 474 (Tex. App.—Texarkana

1981, writ ref‘d n.r.e.).



                                             5
B.     Jurisdiction

       In their seventh amended petition, the Artheys allege that their claims arise under

general maritime jurisdiction.   See 46 U.S.C. § 30101(a) (2012).        A holding that a

particular occurrence is within admiralty jurisdiction generally amounts to a holding that

the law governing that occurrence is substantive maritime law. Crear v. Omega Protein,

Inc., 2002 U.S. Dist. LEXIS 15759, at *5–6 (E.D. La. Aug. 20, 2002). Schlumberger did

not specifically address the applicability of admiralty jurisdiction in its motion for

summary judgment; nonetheless, we will construe its claim of “no duty” broadly.

Because the breach allegedly occurred on a vessel and the Artheys’ damages occurred

on land, it is appropriate to first determine whether admiralty jurisdiction is applicable.

See id.

       Section 30101 of title 46 of the United States Code provides that “[t]he admiralty

and maritime jurisdiction of the United States extends to and includes cases of injury or

damage, to person or property, caused by a vessel on navigable waters, even though

the injury or damage is done or consummated on land.” 46 U.S.C. § 30101(a). To

determine the applicability of admiralty jurisdiction, the United States Supreme Court

has devised a two-pronged test which focuses on both the location of the incident in

question and the connection between the incident and the federal interest in the

protection of maritime commerce. See Jerome B. Grubart, Inc. v. Great Lakes Dredge

& Dock Co., 513 U.S. 527, 534 (1995). Under the first prong, the “location” test, a court

must determine whether the tort occurred on navigable water or whether the injury

suffered on land was caused by a vessel on navigable water. Id.; see Young v. Players

Lake Charles, L.L.C., 47 F. Supp. 2d 832, 834 (S.D. Tex. 1999). Under the second



                                            6
prong, the “connection” test, the court must consider two issues: (1) whether, based on

the “general features of the type of accident involved,” the incident has a “potentially

disruptive impact on maritime commerce”; and (2) whether the general character of the

activity giving rise to the incident bears a “substantial relationship to traditional maritime

activity.”   Grubart, 513 U.S. at 534 (citing Sisson v. Ruby, 497 U.S. 358, 364 n.2

(1990)); see id. at 547 (recognizing a presumption in favor of “seeing jurisdiction as the

norm when the tort originates with a vessel in navigable waters, and in treating

departure from the locality principle as the exception”). In this case, the tort alleged is

the provision of excess alcohol on the fishing boat that resulted in Huff’s intoxication and

the general activity giving rise to the incident is the sponsored fishing trip.

        1.     The Location Prong

        Historically, admiralty jurisdiction hinged exclusively on location. See id. at 531–

32.   “The traditional test for admiralty tort jurisdiction asked only whether the tort

occurred on navigable waters.       If it did, admiralty jurisdiction followed; if it did not,

admiralty jurisdiction did not exist.”      Id.       The locality issue was addressed with

Congress’s passage of the Extension of Admiralty Jurisdiction Act. See 46 U.S.C. §

30101. After the Extension Act, the “location” test is satisfied if the act occurred on

navigable water or if the injury suffered on land was caused by a vessel on navigable

waters. Id. § 30101(a); see Grubart, 513 U.S. at 534. Although the Artheys’ injuries

occurred on land, the jurisdictional focus is on the activity that “caused” the injury,

regardless where or when the injury manifests itself or is “consummated.”            See 46

U.S.C. § 30101; Grubart, 513 U.S. at 535–46 (rejecting the argument that the property

damage at issue in that case “must be close in time and space to the activity that



                                                  7
caused it”); see also In re Asbestos Litig., 2012 Del. Super. LEXIS 177, at *18 (Del.

Super. Ct. Feb. 15, 2012).

      Courts have routinely held that admiralty jurisdiction applies in cases involving

passengers who are served excessive amounts of alcohol on vessels, and after

disembarking, are involved in on-shore automobile accidents. See, e.g., Bay Casino,

L.L.C. v. M/V Royal Empress, 199 F.R.D. 464, 465 (E.D.N.Y. 1999) (finding location

prong satisfied where claims arose from motor vehicle accident but alleged negligence

was “the provision of large amounts of alcohol to an underage customer attending [a]

gambling cruise”); Young, 47 F. Supp. 2d at 834 (finding location prong satisfied where

“the alleged negligence, the serving of copious amounts of alcohol on the casino boat,

occurred on navigable waters”); Horak v. Argosy Gaming Co., 648 N.W.2d 137, 145

(Iowa 2002) (finding location prong satisfied in automobile accident case where the

“harm complained of—the sale and service of alcohol to an intoxicated adult—occurred

on a vessel”). Here, the provision of alcohol is alleged to have taken place on the

fishing boat; if that allegation is correct, the tort occurred on navigable waters and the

case will sound in admiralty. Considering the evidence in the light most favorable to the

Artheys, see W. Invs., Inc., 162 S.W.3d at 550, we conclude that the first prong of the

Grubart test has been met.

      2.     The Connection Prong

      The first issue under the connection prong requires us to consider the potential

for a disruptive impact on maritime commerce. Grubart, 513 U.S. at 534. In Grubart,

the United States Supreme Court stated that, for purposes of the disruptive impact

factor, the incident at issue must be defined at an “intermediate level of possible



                                            8
generality” by “ask[ing] whether the incident could be seen within a class of incidents

that posed more than a fanciful risk to commercial shipping.” Id. at 538.        Defining the

incident at an “intermediate level of possible generality,” the Young court found that the

provision of “copious amounts of alcohol” to passengers on a boat was a potentially

negligent condition affecting passengers aboard the vessel. Young, 47 F. Supp. 2d at

834 (noting that “[i]t is not difficult to imagine a slightly different scenario from the case

at bar in which an intoxicated passenger falls down a stairway or into the

water. . . . Such an incident could lead to a disruption as rescue crews attempt to locate

and save the passenger or search for his body”).

       The second issue of the connection prong considers “whether the general

character of the activity giving rise to the incident shows a substantial relationship to

traditional maritime activity.” Grubart, 513 U.S. at 539. The relevant activity “is defined

not by the particular circumstances of the incident, but by the general conduct from

which the incident arose.” Sisson, 497 U.S. at 364. We must ask whether the alleged

tortfeasor’s activity “on navigable waters is so closely related to activity traditionally

subject to admiralty law that the reasons for applying special admiralty rules would

apply in the suit at hand.”     Grubart, 513 U.S. at 539–40.        “Navigation of boats in

navigable waters clearly falls within the substantial relationship.”       Id. at 540 (citing

Foremost Ins. Co. v. Richardson, 457 U.S. 668, 675 (1982)); see In re Asbestos Litig.,

2012 Del. Super. LEXIS 177, at *22–23. Here, the sponsored fishing boat is similar to

cruise and sightseeing vessels that regularly transport passengers over navigable

waters. Courts have consistently stated that torts on such vessels satisfy the traditional

maritime activity requirement. Young, 47 F. Supp. 2d at 835 (citing Palmer v. Fayard



                                              9
Moving & Transp. Corp., 930 F.2d 437, 441 (5th Cir. 1991); Butler v. Am. Trawler Co.,

887 F.2d 20, 21-22 (1st Cir. 1989); Carey v. Bahama Cruise Lines, 864 F.2d 201, 207

(1st Cir. 1988); Luby v. Carnival Cruise Lines, 633 F. Supp. 40, 41 n.2 (S.D. Fla. 1986);

Palmer v. Ribax, 407 F. Supp. 974, 978–79 (D. Fla. 1976)).

       Viewing the facts in this case at the level of generality that the Supreme Court

requires, and in light of the presumption in favor of finding maritime jurisdiction over

injuries caused by or on vessels in navigable waters, see Grubart, 513 U.S. at 537, we

conclude that the connection prong of the Grubart test is met. The type of activity at

issue in this case poses a risk of potential disruption of maritime commerce that is more

than merely “fanciful,” Grubart, 513 U.S. at 539, and the activities of Schlumberger in

sponsoring fishing trips can be viewed as bearing a substantial relationship to traditional

maritime activities. Because both the location and connection prongs of the Grubart

test are met, this case falls within maritime jurisdiction.

       Federal maritime law therefore governs the substantive law of this case. See

Crear, 2002 U.S. Dist. LEXIS 15759, at *5–6.           Federal courts exercising admiralty

jurisdiction have recognized that a defendant can be held liable at maritime law for

providing alcohol without adequate supervision. In Their v. Lykes Bros., Inc., 900 F.

Supp. 864, 866 (S.D. Tex. 1995), plaintiff Fred Their, an employee on a vessel owned

by the defendants, was seriously injured in a one-car accident that occurred shortly after

the car left the dock where the vessel was berthed. The chief officer of the vessel,

Robert Borzi, was driving the car and died as a result of the crash. Id. At the time of

the crash, Borzi was legally intoxicated. Id. The federal district court found that Borzi

consumed the alcohol while he was on the vessel. Id. at 869. The court concluded that



                                              10
the defendants, the owners of the vessel, were “negligent in operating a floating dram

shop with insufficient supervision to prevent Mr. Borzi from becoming intoxicated while

on the vessel, and this negligence was a proximate and producing cause of [Their]’s

damages.” Id. at 878. The defendants “were negligent in failing to monitor alcohol

consumption onboard, fostering a party atmosphere, and failing to prohibit drunk officers

from driving . . . .” Id. at 879. Accordingly, regardless of whether Their or Borzi were in

the course and scope of their employment at the time of crash, the defendants were

“completely liable, jointly and severally, to [Their] for his damages sustained as a result

of the subject incident . . . .” Id.; see Young, 47 F. Supp. 2d at 835; see also Reyes v.

Vantage S.S. Co., 609 F.2d 140, 141–46 (5th Cir. 1980) (holding that plaintiff could

maintain an action for negligent rescue and stating that, in assessing the plaintiff’s

contributory negligence, the lower court must consider the defendant’s role in operating

a “floating dram shop” from which crew members obtained intoxicants with no

supervision).

C.      Summary Judgment Evidence

        We now review the summary judgment evidence to determine whether

Schlumberger established as a matter of general maritime law that it owed no duty to

the Artheys. The summary judgment evidence included excerpts from the depositions

of Huff, Hey, and Ney. It also included the transcript from the punishment phase of

Huff’s criminal trial after his plea of guilty, and documents and information emailed to

Huff.

        Hey is a salesperson for Schlumberger. Hey had spoken to Huff in the past

about Schlumberger products that he would like to sell to Petrobras. Hey asked Huff via



                                            11
email whether he was interested in going on the fishing trip.         Subsequently Huff

received an invitation from Cindy Hassler of Schlumberger. Although Huff denied that

any business was discussed on the fishing trip, there is no question that the purpose of

the trip was to foster the business relationship between Huff and Sclumberger. The trip

was sponsored by Schlumberger and no friends of Huff went on the trip. Hey testified

that the reason Huff was invited was to thank him for his business and to strengthen the

business relationship. An email dated April 24, 2008, from Hassler set forth guidelines

for who should be invited on the trip: “Slots are for clients and account managers. (1)

Clients who have done significant business (revenue) over last six to 12 months. (2)

Clients who will be doing significant business in 2008.”

      Huff stated in his deposition that he is a geophysicist and exploration manager.

At the time of his deposition, Huff had been employed by Petrobras for nearly eight

years. Huff stated that he believes there were six people on the Schlumberger trip; at

least three were from Schlumberger. There were no other people staying at the Shoal

Grass Lodge other than those that were part of the trip.

      Huff arrived at the Shoal Grass Lodge on Wednesday evening. He ate dinner

there. There was an open bar at the lodge. Huff had a drink about an hour after he

arrived on Wednesday.      He drank bourbon and wine.        The meal and liquor were

provided free of charge.

      Huff stated that there was no alcohol available directly on board the boat: “If you

wanted some [alcohol], you had to—you had to physically go and get it from either the

bar—from the bar or your own if you brought some.” Huff recalled “several people

getting a bag of ice and putting beers in the bag of ice” on Thursday to take on the boat.



                                            12
He conceded that “[t]here was some beer on the boat.” He thought there was some

heavy drinking going on Thursday on the boat, and he did not recall any reason to

believe it was any different on Friday.

       Huff did not dispute that he was driving the vehicle that collided with the Artheys’

motorcycle while significantly intoxicated, although he had no recollection of doing so.

He did not remember consuming alcohol on Friday or driving from Aransas Pass to the

site of the accident. Huff thought he remembered walking to the dock that morning, and

he thought he remembered catching a fish.

       Ney met Huff on the fishing trip; he had not met him before. On Friday, Ney, Huff

and the boat captain went out on the boat to fish. Ney recalls that they fished for about

three or four hours and returned to the dock around 12:30 or 1:00 p.m. The fish were

cleaned at the dock. He left the lodge before Huff did. Ney testified: “I know that he did

not drink hard alcohol on the boat but there were cans on the boat.” When asked if

there was beer on the boat, Ney stated, “I do not remember beer being on the boat on

Friday. I know there was beer on the boat on Thursday and that I had one on the—on

the boat on Thursday. I do not know about Friday.” Ney testified that Huff spent most

of his time on the boat sleeping. Ney stated:

       I woke him up to catch the fish. . . . When a fish was hooked, I would
       wake him up; and then he’d reel—reel in the fish. . . . I recall seeing him
       drinking, but it was out of something in a koozie[4] on the boat but what
       was in that koozie, I don’t know, because he put it in the koozie.

Ney agreed that as the host of the event, Schlumberger could have decided not to

permit beer or alcohol on the boat. He acknowledged that Schlumberger controlled who



       4
         A koozie is a fabric or foam device that is designed to insulate a beverage can or bottle.
Wikipedia, “Beer Koozie,” http://en.wikipedia.org/wiki/Beer_koozie (last visited August 15, 2012).

                                                13
was on the boat, what was served on the boat, and how long they remained on the

boat.

        Officer White investigated the crash. When he first arrived on scene, he spoke

with Huff and other witnesses. He suspected intoxication based on witness accounts.

However, while talking to Huff, he could not smell alcohol on his breath so he obtained

Huff’s medical records. The medical records included an analysis of the blood sample

that was drawn at the hospital where Huff was taken following the incident. Huff’s BAC

was .25 approximately three hours after the crash.

        Dr. Lykissa, a clinical and forensic toxicologist, provided an affidavit in support of

the Artheys’ response to Schlumberger’s motion for summary judgment. As set forth

above, Dr. Lykissa performed an analysis to determine Huff’s BAC at the time of the

collision, and he also conducted forensic analysis to determine the time frame in which

the alcohol was actually consumed by Huff.          Based on the rate of elimination, Dr.

Lykissa determined that Huff’s BAC at the time of the accident—2:34 p.m.—was .31.

According to Dr. Lykissa, the fact that the Officer White was unable to smell alcohol on

Huff indicates that Huff was not drinking within one hour prior to the accident.

According to the evidence, the earliest Huff got off the water was 12:30 p.m.

        Dr. Lykissa’s stated that, in the one hour between when he got off the boat, at

12:30 p.m., and 1:30 p.m., when he departed, Huff would have had to consume at least

twelve drinks in order to attain a BAC of .31. In Dr. Lykissa’s opinion, Huff could not

have consumed twelve or more drinks in that hour; if he had done so, he would likely

have become so sick and incapacitated so as not to have been able to drive himself to

the scene of the accident, roughly 40 miles from where he got off the water, by 2:34



                                              14
p.m. This analysis led Dr. Lykissa to opine that Huff became intoxicated over a greater

period of time—that is, over more than the one hour between 12:30 and 1:30—which

means that he would have reached a BAC of .31 while still on the water, prior to docking

around 12:30 p.m. According to Dr. Lykissa, being unable to stay awake is a classic

symptom of high-level intoxication that is often exhibited by those whose BAC climbs

above the .2 level towards the .3 level.

       The invitation sent by Schlumberger described the trip as a “two-day fishing get-

away at Shoal Grass Lodge.” The invitation described the lodge as “a 10,000 square

feet facility [with] 12 bedrooms, a game room and a great room, bar, commercial kitchen

and a large conference room. . . . The lodge has a gorgeous great room looking out of

Aransas Bay with an open bar which is included.” (Emphases added.) The invitation

also included the following schedule:

       May 14        Arrive Shoal Grass Lodge for check-in after 3:00 p.m., where
                     you can relax, and enjoy the view and open bar from the
                     great room with dinner and appetizers in the evening. Pier
                     fishing options out back.

       May 15        After breakfast, you’ll be met at the private docket (right out
                     back) for a day of fishing with three anglers per boat. You’ll
                     enjoy lunch on the water and be back in time for an
                     afternoon cocktail to watch the sunset. Cocktails and dinner
                     will be served in the evening.

       May 16        After breakfast, you’ll be met for a second day of guided
                     fishing from which you’ll return based on travel
                     arrangements in time to catch your flight or ride home.
                     Check-out will be between 1 and 2 p.m.

(Emphases added.)      The questionnaire sent to participants for the “Schlumberger

Fishing Fling” asked for name, arrival time, angling experience, preferred reels,

preferred fishing method, and preferred liquors.



                                            15
       The invoice to Schlumberger from Fishing Tackle Unlimited reflected that the

price charged to Schlumberger included liquor at the lodge.        It also stated:   “Not

included: . . . alcohol for the boat (We can set this up ahead of time but is done

separately from the lodge) . . . .”

       In an email dated May 13, 2008, Hassler stated that she had reviewed the

contract, “including alcohol, tips, etc.” She further stated: “Shoal Grass Lodge has an

open bar and that is included in our package. The lodge does not provide alcohol on

the boats so if anyone wants beer while they are out on the water, get with Andy

[Packmore] and he can help to make that happen.” Packmore stated in an answer to an

interrogatory that “Shoal Grass Lodge served alcohol from an open bar as part of the

package purchased by Schlumberger.”

       The summary judgment evidence established that Huff was drinking an unknown

beverage from cans on the boat and was having trouble staying awake; that Huff was

extremely intoxicated at the time he got off the boat; and that Schlumberger

representatives, through their emails and invitations, encouraged alcohol consumption

during the entire trip, including while fishing from boats. This evidence raised a genuine

issue of material fact as to whether Schlumberger allowed a “party atmosphere” to

prevail during the entire fishing trip, whether Huff became intoxicated while on the boat,

and whether Schlumberger operated a “floating dram shop” that resulted in Huff’s

intoxication. See Thier, 900 F. Supp. at 866; Reyes, 609 F.2d at 141–46. If these facts

are proven true, then Schlumberger owed a duty of ordinary care to the Artheys under

maritime law. See Young, 47 F. Supp. 2d at 835.




                                           16
        Because a fact issue existed regarding Schlumberger’s duty to the Artheys,

summary judgment was improper. See Mitchell v. Mo.-Kan.-Tex. R.R. Co., 786 S.W.2d

659, 662 (Tex. 1990) (“While foreseeability as an element of duty may frequently be

determined as a matter of law, in some instances it involves the resolution of disputed

facts or inferences which are inappropriate for legal resolution.”), overruled on other

grounds by Union Pac. R.R. Co. v. Williams, 85 S.W.3d 162 (Tex. 2002). The Artheys’

first issue is sustained.5

                                          III. CONCLUSION

        We reverse the trial court’s summary judgment and remand for further

proceedings consistent with this opinion.




                                                        DORI CONTRERAS GARZA,
                                                        Justice

Dissenting Opinion by
Justice Rose Vela.

Delivered and filed the
8th day of November, 2012.




        5
         In light of our conclusion that maritime jurisdiction applies, we need not address the Artheys’
second issue, in which they argue that summary judgment was improper under the Texas Dram Shop
Act. See TEX. R. APP. P. 47.1.

                                                  17
