Common Dram Shop Liability Scenario: Drunk Driving Accidents

Most lawsuits that are pursued under the Texas Dram Shop Act are the result of a drunk driving accident. In these cases, the driver responsible for the accident had been unlawfully over-served at a bar prior to the accident, and was subsequently involved in a drunk driving accident, which caused injuries or fatalities.

These type of lawsuits are considered controversial in some quarters, because people believe that the responsibility for a drunk driving accident rests entirely with the person who chose to drink too much and get behind the wheel. In their eyes, dram shop lawsuits, which seek compensation from bars who unlawfully over-serve, represent an unethical attempt to shift responsibility from the drunk driver to the bar, so that attorneys have a target to make money off of.

Grossman Law Offices would respectfully disagree with that position, because the Texas Dram Shop Act does nothing to lessen the liability of drunk drivers. Instead it is designed to allow victims to seek compensation from bars and restaurants who profit by unlawful alcohol service that later results in injuries to those in the community.

In this article, Michael Grossman, one of Texas' most experienced dram shop attorneys, gives an overview of lawsuits against alcohol-serving establishments whose over-service causes a drunk driving accident.

Questions Answered on This Page:

• When can bars and restaurants be sued after a drunk driving accident?
• What are the requirements for proving a dram shop lawsuit under Texas law?
• What is the difference between a first-party dram shop case and a third-party dram shop case?
• How do drunk driving dram shop cases work?

What is a dram shop and when are bars not liable for damages due to unlawful alcohol service?

There are three elements, or parts of a case, that must be met in order to successfully pursue a dram shop case in Texas. They are:

• An establishment must have served an obviously intoxicated patron.
• The patron's intoxication must have caused an accident.
• That accident must have resulted in injuries.

This means that not every drunk driving case ends up in a dram shop lawsuit. Some examples of drunk driving accidents that do not result in accidents include:

1. When the drunk driver consumed alcohol that was given, but not sold to them. For instance, if someone gets off work, goes over to friend's house and they drink to the point of obvious intoxication, should that driver cause an accident on the way home, there is no dram shop cause of action. In that instance, the provider of alcohol would be considered what's called a social host. As long as the person to whom such a person provides alcohol was 18 or older and no money changed hands between drinker and host, there is no liability under the Texas Dram Shop Act.
2. If the person was not obviously intoxicated when they were served by an establishment, then there is no dram shop liability. For instance if a 180 lb. man has consumed 3 drinks in 45 minutes, his Blood Alcohol Content (BAC) will be around .06, under the legal limit. Should the bar serve that man another drink, it will raise his BAC to .08, or the threshold for legal intoxication. If the man leaves the bar after that drink, drives drunk and injures someone, the bar likely has no liability, because it is unlikely that the man showed signs of obvious intoxication.
3. If a sober person ends up causing an accident with a drunk driver who was served while obviously intoxicated, a bar will have no liability. The intoxication has to be the proximate cause of the accident and resulting injuries for a dram shop case to be viable. (In other words, the collision would not have occurred had the driver not been intoxicated.) In this fact pattern, it was the sober driver who was at fault, so it does not matter that the drunk driver was unlawfully served alcohol.
4. If a drunk driver is involved in a fender-bender with a sober driver that does not result in any injuries, the establishment that over-served the drunk driver cannot be sued, because no injuries resulted from their negligent service.

This list is by no means exhaustive, but it helps to illustrate that the goal of the Texas Dram Shop Act is not to shift responsibility away from drunk drivers, but to hold bars accountable when their over-service to obviously intoxicated individuals causes harm to other members of the community. Before the Texas Dram Shop Act, it was still illegal for an alcohol provider to serve a drunk person, but there was no legal avenue for victims of that over-service to hold bars accountable. The Texas Dram Shop Act provides them with one.

What is the difference between a first-party dram shop case and a third-party dram shop case?

There are roughly two types of dram shop cases in Texas where drunk driving can be involved. They are known as first-party and third-party cases, respectively. A first-party dram shop case is when the drunk driver in the accident was unlawfully over-served and either he or his family seek compensation from the bar for the injuries or death they received in a crash resulting from over-service. (These are generally the result of single-vehicle accidents.) The second type of case is a third-party case, where any passengers in the drunk driver's car, people in other cars struck by the drunk driver, or pedestrians seek compensation against the bar who unlawfully served the driver for the harm done to them. As you might expect, each of these cases must be approached in a completely different manner.

First-party dram shop cases

First-party cases are by far the more difficult of the two kinds of drunk driving dram shop cases to litigate successfully. There are two primary reasons for this. Understandably, a contempt for drunk drivers permeates American society, and usually finds its way on to a jury. In addition, first-party dram shop plaintiffs are almost certain to heavily emphasize the supposed shifting of responsibility from the person who chose to drink too much and drive to the establishment that helped facilitate their drunkenness any first-party dram shop claim appears to represent.

However, it should be noted that the law makes no distinction between first-party and third-party victims in dram-shop cases. If a person was unlawfully over-served after they were intoxicated, they or their families have just as much right under the law to collect compensation for injuries or death that result from that over-service as other people who may be harmed in an accident they cause.

The fact that a drunk-driver can pursue a dram shop lawsuit against the bar that over-served them doesn't mean that the law doesn't punish them for their role in the accident. The drunk-driver still faces their share of the civil liability if they have injured others in the accident, and they will certainly face criminal sanctions. In many cases, the money that a drunk driver wins in a first-party dram shop case is used to compensate other victims in the accident who have sued the drunk driver.

Third-party dram shop cases

In a third-party dram shop case, one or more persons are injured by a drunk driver who was over-served while obviously intoxicated. While many people have fewer moral issues with these cases, because the victims did nothing to contribute to the harm they suffered, most juries would still rather punish the drunk driver than the bar.

The fact is that most drunk driver's insurance policies do not have enough money available to fully compensate the harms done to victims of drunk driving accidents. Furthermore, these people, who were injured by being in the wrong place at the wrong time, have a reasonable expectation, as citizens of the state of Texas, that bars will follow the laws pertaining to alcohol service in this state. When bars choose profit over being responsible actors in the community, when they choose to break the very laws that permit them to sell alcohol (laws every bar agrees to abide by when they get a liquor license) it is really hard to muster any sympathy for the bar who is being sued.

People who have moral issues with third-party dram shop cases are essentially saying that it is okay to pursue the drunk driver, since their behavior and violation of the law caused the accident, but it's not okay to go after the bar, because "the drunk chose to get drunk, the bar didn't make them drunk." The bar may not have made anyone drink, but they sure made money off of illegally serving an obviously intoxicated person. It seems only fair that, when they choose to make money off of breaking the law, that there should be some way for victims to recover money for the harm that a bar or restaurant's lawbreaking inflicts on that victim.

When you get right down to it, dram shop is one area where a lot of people seem to think a lawbreaker should get to keep the money they made from breaking the law. As we said before, we respectfully disagree with that opinion and thankfully, so does the Texas Legislature.

What Types of Compensation Are Potentially Available For Dram Shop Injury Victims?

The types of compensation available to a particular dram shop injury victim depends on if they've suffered personal injuries or died as a result of the crash.

Victims who have sustained personal injuries may be able to recover compensation for the following economic, emotional, and/or physical injuries by filing a dram shop lawsuit:

• Past paid, currently due, and future medical bills and expenses (including visits to the doctor and rehabilitative services)
• Wages lost while recovering in the hospital and for future diminished earning capacity
• The physical and emotional pain, disfigurement, and mental distress suffered as a result of their injuries

Somewhat similarly, those whose loved one sustained fatal injuries due, in whole or in part, to the wrongful actions of a provider may potentially recover compensation for:

• The lost love and comfort of their loved one
• Loss of child and household services
• Loss of income and benefits
• Loss of spousal services

Importantly, every dram shop injury victim (whether they've suffered injuries themselves or their loved one was killed) also have a duty to mitigate their damages, or take affirmative steps to ensure they don't become worse.

Potential Defenses in Dram Shop Cases

Just as Texas law allows injury victims to pursue compensation from the party that caused them, defendants are allowed to assert a number of defenses to reduce or eliminate their liability to a injury victim.

Perhaps the most remarkable defense available in the defense's arsenal are those found in the Safe Harbor provisions of the Texas Dram Shop Act. Under these provisions, a provider can effectively eliminate their liability to an injury victim if:

1. They offered training designed to identify and prevent the service of alcohol to intoxicated patrons
2. The waitstaff or bartender who served the patron actually attended these safety meetings
3. The provider didn't directly or indirectly incentivize the continued service of intoxicated patrons

Perhaps the most important thing to know about this defense is that in over a quarter of a century of pursuing Texas dram shop cases, Grossman Law Offices has never had an alcohol provider successfully assert Safe Harbor. The types of bars and restaurants who usually find themselves involved in dram shop litigation are generally places with cultures that encourage their staff to break the law and endanger the community.

Pursuing a Texas Dram Shop Case After a Drunk Driving Accident

Dram shop injury cases are extremely similar to other injury lawsuits in a variety of aspects. Like other injury lawsuits, dram shop claims follow a rough timeline, consisting of:

1. The injured person hiring an attorney.
2. The attorney conducting an initial investigation concerning the facts of the case.
3. A demand letter being sent and settlement negotiations beginning
4. The case proceeding to trial if negotiations do not result in a successful resolution and settlement.

Importantly, all dram shop cases must be filed in a court of law within the two-year time period prescribed by the applicable statute of limitations. This means you should contact an attorney as soon as possible to ensure that your rights to pursue compensation for your injuries aren't eliminated by the passage of time.

Enlisting the help of an attorney also maximizes the amount of evidence that can be recovered. Tracking down witnesses at the bar, making sure documents are not destroyed, and ascertaining who has insurance in what amount, all need to begin as soon as possible after an accident. Only an experienced dram shop attorney has the training necessary to make sure that all of these things happen.

Our Experienced Dram Shop Attorneys at Grossman Law Offices Can Help You

Not just any personal injury attorney can pursue a Texas dram shop lawsuit. In fact, many personal injury firms are under the mistaken impression that dram shop cases are unwinnable. Our attorneys find this a little odd since we have successfully litigated more dram shop cases than almost any other law firm in Texas. The experience that our attorneys have gained over that time benefits our clients in each and every dram shop case we take on.

Our award-winning drunk driving accident attorneys here at Grossman Law Offices have developed the skills and extensive resources necessary to win even the most complex dram shop cases. The hundreds of injured Texans we have represented in dram shop cases can attest not only to our legal prowess, but to our client-friendly approach. To ensure that your rights are fully protected, do not even SPEAK to the defendant, their attorneys, or insurance adjusters; give us a call first. Our attorneys and staff are standing by to help you, and are available any time, day or night, and are just a toll-free call away at (855-326-0000.

Other articles about Texas dram shop cases that may be helpful:

• Common Dram Shop Defenses
• How to Overcome Safe Harbor Defenses
• Texas Doesn't Require Bars to Carry Liquor Liability Insurance