The Case of Caden Nieneker: How Do Texas Dram Shop Laws Relate to House Parties?

By Michael GrossmanJanuary 18, 2017Reading Time: 7 minutes

On the surface, house parties tend to seem like a great idea. However, they can have downsides: With less room it's harder to escape a boring conversation, the bathroom line can be ridiculous, some people don't know when to stop drinking (often with disastrous results), and depending on your guest list there's a risk of illegal underage consumption that's better controlled at bars. Not too many party hosts check their guests' ID to confirm they can legally drink.

That is an area where some tighter controls might be to everyone's benefit. After all, it's illegal to feed minors alcohol, and given how poor a turn events can take when adult partygoers overindulge, doubling down by involving kids is a recipe for disaster. This idea sadly seems to have been proven by the recent case of a 17-year-old who died in a car crash after attending a party in Spicewood, Texas.

What Happened?

According to investigators, Caden Nieneker attended a party in the Spicewood area just outside of Austin on December 17, 2016. This is a picture of the flyer circulated for the party:

Broccoli party Spicewood
Click the image for the full flyer.

The event was heavily promoted, with promises of multiple music acts and a sponsorship by "Boomin' Promotionz," whatever that may be worth. As you can tell from the flyer, attendees were required to purchase wristbands for entry, but in return were promised "Free Drinks & Drinks & White Owls" during their attendance. The double mention of "drinks" is either a typo on the flyer or separate beverages, presumably of better quality, were available for purchase if the presumably free watered vodka and discount beers were not to a patron's liking.

White Owls are a brand of cigar that can be purchased by the pack in a variety of flavors, though it's unlikely that the tobacco is really their selling point in this instance. Being that "broccoli" has been slang for marijuana since the 90's, the cigars might have been handed out to be emptied of tobacco and filled with another herb favored by partygoers. Of course, the party coordinators would plead ignorance of their use for said purpose if ever pressed to justify why they'd hand them out in the first place.

TO BE CLEAR: No news report has suggested that Caden Nieneker was in any way intoxicated at the time of his death. Neither I nor the firm are alleging that he partook of any intoxicants. I respectfully submit that it is a possibility, given their availability and the event's festive atmosphere, but I do not presume to suggest it as definite.

Caden allegedly contacted his parents later in the night and told them that the event had turned violent, with broken furniture and thrown glassware, and that he and his friends were leaving. He was a passenger in a car with two others when it veered off the road and hit a tree near the 8700 block of TX Highway 71.

Caden, tragically, was killed by the impact. The driver, 20-year-old Franklyn Montes De Oca, and the other passenger fled the scene of the crash on foot. De Oca later returned to the scene and was arrested. As of the last news I could find on the subject, toxicological tests were conducted on him, but the results have not been released.

There's a number of pretty serious red flags associated with this party, and we need to look at those in the wider lens of Texas dram shop laws.

Dram Shop Liability for Serving Alcohol to a Minor

The rules for alcohol service differ greatly between drinking at home, attending a social gathering, and going to a bar or restaurant. When you blend the two latter categories together, things can get more complicated. There's a few areas where this party's promoters may have overstepped legal boundaries:

  • Serving Alcohol to a Minor

    According to Texas law, "a person may provide alcohol to a minor if he/she is the minor's adult parent, guardian, or spouse, and is visibly present when the minor possesses or consumes the alcoholic beverage." Parents may allow their children to drink as long as they monitor the activity, but they also assume responsibility for any damage caused by the minors if they become intoxicated. That's only fair, as guardians are typically considered liable if their kids cause damage to people or property. While the "underage spouse" clause may see less exercise in Texas, state law allows minors of at least 14 years of age to be married with written parental consent, so I guess someone's child bride or groom could at least participate in the wedding toast.

    We cannot be certain that any minors were served alcohol at the party, but prior experience in cases such as this plausibly suggests that some underage drinking likely took place. It also seems reasonable to suggest that Nieneker may not have been the only minor, or even the youngest partygoer. Moreover, the special "parental supervision" exemptions cannot be a factor for all participants, even if a coordinator or partygoer's guardian offered the house as a venue.

Franklyn De Oca's erratic driving, coupled with the fact that he fled the scene after the accident, are strong indicators that he may have been intoxicated behind the wheel, though that has not been confirmed. If it is, then he was served alcohol illegally, as he was not 21. People between the ages of 18 and 21 are in a weird legal purgatory; while they have reached the age of majority (the age at which an individual is legally considered an adult), the law does not permit them to consume alcohol. Should they do so illegally (as they are no longer protected by special provisions) and drunkenly hurt someone, they are not afforded the same protections as a minor who commits a similar crime. This strikes many of these newly-minted adults as highly unfair; some version of "I can raise a rifle for my country but I can't raise a glass to it" is often heard from members of this age bracket. I haven't needed to make that complaint for over a decade, though, so let's skip it. Thanks to the way the law is set up, they are adults and are held to a higher standard of responsibility than their younger counterparts. To afford them additional protections after having just asserted that they're capable of managing themselves in society at large is to reward them for breaking the law.

  • Social Host Laws

    When you drink at a party and your host provides the alcohol (or allows its consumption), social host laws apply. A "social host" is generally defined as a person who:

    1. Furnishes alcohol as an act of hospitality, with no motive of fiscal gain (is not a commercial enterprise)
    2. Has no special relationship with the guest (employer, relative, etc)
    3. Serves alcohol or condones the consumption of alcohol on property that the host controls.

    In some states, social hosts are exempt from any liability if a guest who drank at their gathering is injured or injures someone else. If Bob drinks at Steve's house during a party, but has too much and crashes his car on the way home, Bob cannot sue Steve for damages caused while he was intoxicated, despite the fact that Steve provided the alcohol.

    Under many circumstances, social host rules would apply at a party, even a larger-scale one like we're seeing here. However, the organizers of the party charged up to 20 bucks a head. By charging money for the privilege of attendance, the coordinators violated social host rules and turned a house party into an unlicensed bar. While the spent money ostensibly was for entry to the party and then the drinks were free, people still paid for the right to drink that "free" alcohol, meaning that the organizers still sold it in a manner of speaking. That's a no-no without licensure.

    There is plenty of case law that backs up this reading of the law, since fraternities and sororities have made this specious argument as long as the Texas Dram Shop Act has been in effect.

    Another concern here ties back to serving alcohol to a minor, because doing so nullifies any attempt at social-host exemption. Violating The Texas Alcoholic Beverage Code (TABC) statutes by allowing a non-exempt minor to drink on premises, without supervisory exemptions, turns a house into a dram shop in the eyes of the law.

    In short, the organizers of this party may have screwed up twice, in that it appears from reports that they could have charged for alcohol and served minors.

  • Dram Shops and Over-Serving

    Texas dram shop law is designed as a measure to hold alcohol vendors responsible for over-serving patrons. The idea is that once someone is drunk, enough is enough. Bar or restaurant patrons who show visible signs of intoxication are meant to be cut off and refused further service (at least as far as getting any more drinks goes). Dram shop law indicates that if employees of the establishment do not refuse an obviously-intoxicated patron further service, they are held complicit in any injuries caused by that drunk person.

    The fact pattern of the Spicewood crash suggests that Franklyn De Oca may have used some form of substance or another. That is based on the police reports suggesting that De Oca's 2004 BMW drove off the highway around 3:40 a.m. Both the late hour and the description of the vehicle's departure from the roadway are indicative of a driver who may not have been in a fit mental state to drive at the time.

    Many folks might focus solely on the driver's potential intoxication when looking at a crash like this. However, unlike with adults, obvious intoxication is not necessary when the person who was injured is a minor. Any amount of alcohol that contributes to a minor's injuries is enough to create liability for the alcohol provider under the law.

    We all know that teenagers aren't the best decision makers. We also know that alcohol compounds this problem. While many teenagers would never knowingly get into a vehicle driven by a drunk person, a slightly intoxicated teenager may not make the same decision. If that impaired decision leads to the teenager being injured, then it seems only just that the person who helped the teenager become impaired would share in the consequences of their bad decision.

  • No Party is Worth A Life.

    By charging admission to the party--regardless if it was for profit or just to cover the costs of promotion, DJ's, and alcohol--its organizers transitioned from social hosts to unlicensed alcohol vendors. Between this initial error in judgement and their willingness to allow minors into a place where alcohol was simply handed out for free, the party's organizers opened themselves to multiple possible sources of litigation. Families whose children are injured under these circumstances would only need to prove one of these allegations in order to be able to hold the organizers responsible for their behavior.

    Any time someone other than a parent or a spouse gives alcohol to a minor, they immediately open themselves up to a tougher standard of scrutiny than a standard dram shop that only serves adults. Even then it's obviously important to restrict the intake of people too drunk to coherently order another round. That importance is magnified for minors, since American society believes their agency is nonexistent until their 18th birthday and then is highly suspect until their 21st.

    Texas dram shop law exists to ensure that justice is served the best it can be when such misfortune happens. When an accident involves a minor, most parents are primarily interested in learning how and why the vehicle crashed. When the source of an accident is an unscrupulous promoter, the party's organizers may owe the parents more than an explanation.