Welcome to the inaugural edition of Lewis Brisbois' National Hospitality Newsletter, a roundup of noteworthy developments in the hospitality industry around the country. The accomplished professionals in our Hospitality Practice are constantly tracking news of interest to clients in the industry, including hotels, casinos, restaurants, and sports and entertainment venues, among others.

Read on to learn about Taco Bell's recent victory in a trademark battle over the phrase "Taco Tuesday" and soaring sales figures for "ready-to-drink" mixers, and enjoy an illuminating article from our Houston and New Orleans Managing Partner David Oubre regarding the "unreasonable risk of harm" standard in Texas premises liability cases.

Finally, don't forget to register for Las Vegas and Reno Managing Partner and Hospitality Practice Chair Josh Cole Aicklen's upcoming trial practice seminar in Nevada!

Hospitality News & Articles

Taco Bell Wins "Taco Tuesday" Trademark Battle

Mark now freely available to all who celebrate tacos. A lengthy legal battle between one lone restaurant in New Jersey and the mega fast food chain Taco Bell over the "Taco Tuesday" trademark ended in late October.

The co-owner, Gregory Gregory (yes, that's his real name) of Gregory's Restaurant and Bar in Somers Point, New Jersey, informed news outlets that the legal battle was just too much for his small business to maintain, as he had already amassed one hundred thousand dollars in legal fees. Gregory's Restaurant and Bar held the trademark nationally for over 40 years. Taco Bell did not take the trademark for themselves; instead, their goal was to make "Taco Tuesday" a mark "freely available to all who make, sell, eat and celebrate tacos."

Twentysomethings Say: "Hold my Beer, Boomer. I Don't Want It."

As ready-to-drink mixers approach $21.1B in U.S. Canned cocktails continue to soar, according to IWSR Drinks Market Analysis. Ready-to-drink mixers (RTDs), such as hard seltzers, are expected to hit at least $21.1 billion in valuation by the year 2027. Growth of RTDs has been spurred by the twentysomething generation.

While RTDs have been in the market since the early 1990s, the category took a leap forward with the arrival in 2016 of disruption brands White Claw (Mark Anthony Brands) and Truly (Boston Beer Company).

Traditionally, RTDs were made from wine or malt (beer) based. What we have seen since 2020 are RTDs made from spirits, especially vodka. The RTD trend appears to be a threat to the golden age of craft beer. With twentysomethings gravitating toward spirits-based RTDs instead of beer, will that have a lasting impact over the long term?

Unreasonable Risks of Harm in Texas Premises Liability Cases

By David A. Oubre - Managing Partner, Houston and New Orleans

In the typical Texas slip-and-fall or trip-and-fall case occurring on a business owner's premises, the plaintiff is a business patron (invitee). This class of plaintiff is afforded the widest protection in a premises case. To recover damages in a slip-and-fall case or trip-and-fall case, a plaintiff who is an invitee must prove:

  1. Actual or constructive knowledge of some condition on the premises by the owner/operator;
  2. That the condition posed an unreasonable risk of harm;
  3. That the owner/operator did not exercise reasonable care to reduce or eliminate the risk; and
  4. That the owner/operator's failure to use such care proximately caused the plaintiff's injuries.

A condition poses an unreasonable risk of harm for premises-defect purposes when there is a "sufficient probability of a harmful event occurring that a reasonably prudent person would have foreseen it or some similar event as likely to happen."

When invitees are aware of dangerous premises conditions — whether because the danger is obvious or because the landowner provided an adequate warning —the condition will, in most cases, no longer pose an unreasonable risk because the law presumes that invitees will take reasonable measures to protect themselves against known risks, which may include a decision not to accept the invitation to enter onto the landowner's premises.

Austin v. Kroger Tex., L.P., 2015 Tex. LEXIS 559, 58 Tex. Sup. J. 1154 (Tex. 2015)

The following restaurant or bar conditions were examined by Texas courts to determine if they constituted an "unreasonable risk of harm":

A Bar Fight
Del Lago Ptnrs. v. Smith, 307 S.W.3d 762 (Tex. 2010)

A patron was seriously injured when a fight broke out among bar customers. The owners observed, but did nothing to reduce, an hour and a half of verbal and physical hostility in the bar. The owners had a duty to protect the patron because the owners had actual and direct knowledge that a violent brawl was imminent between drunk persons. The duty arose because the owners were aware of an unreasonable risk of harm at the bar that night.

However, a bar proprietor does not always or routinely have a duty to protect patrons from other patrons, and a duty to protect the clientele does not necessarily arise when a patron becomes inebriated, or when words are exchanged between patrons that lead to a fight.

Elevated Booth in a Restaurant
Messer v. Tex. Roadhouse Rest., 2007 Tex. App. LEXIS 3610, 2007 WL 1373880 (Tex. App.Waco 2007)

The plaintiff was escorted by a waitress to an elevated booth, and took an inside seat beside the wall and away from the drop-off. The plaintiff forgot about the drop-off when she exited the booth and fell to the floor, suffering fractures of the wrist and pelvis and other injuries to the shoulder and back. A motion for summary judgment for the restaurant was reversed. The court determined that the following evidence created a fact issue on whether there was an unreasonable risk of harm:

  • Photographs of the elevated booth;
  • An incident report prepared by the manager on duty at the time which stated that the lighting was "dim" on the occasion in question;
  • Plaintiff's deposition testimony that the area was dimly lit and she was unaware that the booth area was elevated.


Sprinkler Valve Box on Lawn
Villalon v. Kollman & Kollman, 2015 Tex. App. LEXIS 3040 (Tex. App. Amarillo 2015)

The plaintiff alleged she stepped into a hole in the lawn next to a restaurant. The hole was a sprinkler valve box. Though the box had a lid, she did not know if the lid was off the box or placed on it but in an improper manner. The unreasonably dangerous condition in question consisted of either a covered sprinkler box appearing on the lawn or an uncovered or improperly covered sprinkler box appearing on the lawn.

Summary judgment for the restaurant was affirmed. There was no evidence suggesting either that others stepped into the box when the lid was affixed or that restaurant employees knew that others had stepped into the hole when the box was covered.

Hardwood Floor in Restaurant
Welcome v. Tex. Roadhouse, Inc., 2014 Tex. App. LEXIS 13800, 2014 WL 7335183 (Tex. App. Houston [1st Dist.] 2014)

The plaintiff slipped on a restaurant's hardwood floors as she was walking to the ladies' room and broke both of her arms as she tried to break her fall. She testified that although she did not see what actually caused her fall, she assumed that it was the peanut and peanut shell debris on the restaurant's hardwood floor, coupled with the fact that the floor was slightly slanted. Two other witnesses testified to having visited the restaurant before this accident and noticed a slight slant in the floor where the the plaintiff fell. One witness testified that she had almost fallen there many times. Neither witness, however, saw the plaintiff's feet when she fell or reported the slant in the floor to the restaurant.

The jury determined the restaurant was not negligent and the plaintiff appealed. Court concluded that the plaintiff did not conclusively establish that there was a condition on the restaurant's premises that posed an unreasonable risk of harm to her and other invitees.

Slipping in Vicinity of Wet Floor Sign
Golden Corral Corp. v. Trigg, 443 S.W.3d 515 (Tex. App. Beaumont 2014)

As the plaintiff stepped onto a restaurant's tile floor, her left foot slipped toward a yellow sign that contained language warning of a wet floor. Her left foot hit the sign before she hit the floor. The plaintiff testified that she did not see the warning before she fell. Nonetheless, a surveillance video admitted into evidence during the trial showed that before she fell, a yellow sign with a "Caution Wet Floor" warning on each of its four sides, and approximately three feet tall, had been placed on the tile floor in front of the food station where she fell.

The appellate court, reversing a judgment for the plaintiff noted that a premises owner's duty to keep their premises safe for invitees against known conditions that pose unreasonable risks of harm is discharged by warning the invitee of unreasonable risks of harm either known to the owner or which would be known to him by reasonable inspection.

Practice Group News & Events

Josh Cole Aicklen to Moderate NBI Trial Practice Seminar Featuring Nevada Civil Court Judges

Las Vegas and Reno Managing Partner Josh Cole Aicklen will moderate a panel with Nevada civil court judges on trial practice, hosted by National Business Institute (NBI) on Friday, December 8 at 9:00 a.m. PT.

This informative session, titled "Nevada Civil Court Judges Discuss Trial Practice," will feature a distinguished panel of civil court judges who will share valuable insights on trials in the state. Mr. Aicklen will be joined by Hon. Jacqueline Bluth, Hon. Mark R. Denton, Hon. Crystal Eller, Hon. Nadia Krall, and Hon. Jessica K. Peterson for a candid discussion about what they see in their practice, what works, and what they would prefer attorneys avoid. CLE credits are available.

Mr. Aicklen is chair of Lewis Brisbois' Hospitality Practice and an ABOTA trial lawyer with almost 30 years of experience in litigating cases in Nevada and California state and federal courts. He practices in the areas of hospitality litigation and works with local and national hospitality clients in all aspects of claims of premises liability, food service and against grocery and retail stores.

Learn more about this this seminar and register here.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.