Hernandez v. Diaz

We did not deal with a possible recovery under the “by” theory in the original opinion because of ambiguous statements of waiver of the theory in the appellant’s brief. Our opinion remains unchanged under an application of the “by” theory.

Appellant has called our attention to statements in various articles and dicta in recent cases to the effect that where the theory is “by” an intoxicated person there is no requirement of proximate cause between the intoxication and the injury and that plaintiff need only prove the intoxicated person caused the injury by an affirmative tortious act. See, St.…