Overview of the Trained Server Safe Harbor Defense in Texas dram shop cases:

Under texas law, if a bar serves alcohol to someone who is already obviously intoxicated, the bar can be held liable for any injuries caused by or to the drunken patron. The way these cases work is the injured party files a lawsuit against the bar under the Texas Dram Shop Act on the basis that the bar "sold, served, or provided" alcohol to an obviously intoxicated patron.

However, the lawmakers who drafted the Texas Dram Shop Act didn't want bars that were normally law-abiding to get dragged down with the bars that typically break the rules. Their reasoning was that some bars are habitual offenders and should be punished for recklessly serving alcohol in violation of the law, yet bars for whom a drunken customer merely slipped through their grasp despite their best efforts should be afforded the opportunity to essentially say, "Maybe we did break the rules, but this is an isolated incident. Please let us off the hook."

The way lawmakers accomplished this balancing act of letting drunken driving victims sue bars that are bad while providing some protection to bars who just made a mistake is through a provision in the Texas Alcoholic Beverage Code that creates a defense called the Trained Server Safe Harbor Defense. When applicable, a bar can plead this Safe Harbor Defense and the case against them is dismissed.

In this article, Texas attorney Michael Grossman explains how the Trained Server Safe Harbor Defense works, how bars and restaurants use and abuse it, and how our attorneys beat it.

Questions answered on this page:

• What is the Trained Server Defense?
• What is the Safe Harbor Defense in Texas dram Shop law?
• What criteria must be met for this defense to work?
• How do experienced dram shop attorneys counter this defense?
• How can an experience attorney help you successfully pursue your dram shop case?

How defenses work, generally.

In any legal case -- whether it's a suit for defamation or a criminal case for corporate espionage -- the burden is on the accuser to prove that conduct of the accused meets all of the elements necessary to secure a verdict, which is a fancy way of saying that the accuser must prove that the defendant did ALL of the bad things that make up the legal charge.

So, if someone is charged with murder in the 1st degree, it's not enough for a prosecutor to show that the accused shot someone. No, it must be shown that they killed someone with malice aforethought in an unlawful fashion. Just shooting someone could mean a variety of different things, most of which aren't murder in the first degree. Shootings related to self-defense, insanity, or a firing squad all produce the same result of a dead person who was shot, but none of them are murder in the first degree. The point is that when you accuse someone of something specific, you must prove that their conduct matches the elements of the charge entirely. If you prove that they meet most of the criteria but not all of it, that's not good enough.

Consequently, when most people get sued, their defense strategy revolves around showing the jury that the injured party did not prove everything that they must prove. That is to say, most defenses are essentially an argument along the lines of, "Well, maybe we did something bad, but since the plaintiff can't prove that we did the specific bad thing we're accused of, you have to find us not guilty."

However, there are some defenses that don't work by simply showing that the plaintiff failed to prove all of the elements of his or her case. One such type of defense is called the "affirmative defense," wherein the burden is on the defendant to defend themselves by making their own positive claims. In other words, rather than defending themselves by saying, "The plaintiff failed to prove their accusations," an affirmative defense is more like, "Even if the plaintiff proved their accusations, here is something else to consider that nullifies what they said." This may seem like a trivial distinction, but in the eyes of the court, affirmative defenses are drastically different than normal defense arguments.

To delve even further into the topic of defenses, a special category of affirmative defenses, called "safe harbor" defenses," are defenses that, in one way or another, provide a legal safe haven for defendants, shielding them from liability, wholly irrespective of the evidence against them. You can think of this category of defenses as a legal bullet-proof vest. There are many different kinds of safe harbor defenses, but the one germane to the discussion of bars and alcohol service is the safe harbor defense called the Trained Server Defense.

We should note that lawyers in Texas have their own slang for referring to this defense. It's very rare for a lawyer to call it the Trained Server Defense, even though that's its technical name. Instead, we typically called it "Safe Harbor" or the "Safe Harbor Defense," or we say that a bar is "pleading Safe Harbor."

Elements of the Trainer Server Safe Harbor Defense

Unlike most defense tactics where the defense can simply sit back and try to undermine the plaintiff's evidence, the Safe Harbor Defense is an affirmative defense. This means that in order to use the Trained Server Defense to avoid liability for alcohol-induced injuries, the defendant has to prove the elements that make the defense work. Per the statute:

Sec. 106.14. ACTIONS OF EMPLOYEE.

• (a) For purposes of this chapter and any other provision of this code relating to the sales, service, dispensing, or delivery of alcoholic beverages to a person who is not a member of a private club on the club premises, a minor, or an intoxicated person or the consumption of alcoholic beverages by a person who is not a member of a private club on the club premises, a minor, or an intoxicated person, the actions of an employee shall not be attributable to the employer if:
  • (1) the employer requires its employees to attend a commission-approved seller training program;
  • (2) the employee has actually attended such a training program; and
  • (3) the employer has not directly or indirectly encouraged the employee to violate such law.

In the 20801, Inc. v. Parker case of 2008, the Texas Supreme Court interpreted this statute to mean that the defendant must prove that they meet the first two criteria, but the defendant does not have to prove the third. Instead, if the plaintiff wants to attempt to counter this defense, it is the plaintiff's burden to prove that the bar does indeed encourage their employees to violate the rules.

In summary, if a bar gets sued, they can argue that their servers participated in a specific training program that qualifies them for immunity. To counter this claim of immunity, the plaintiffs must show that, even though the bar's employees were duly trained, the bar still broke the rules because of a permissive culture of rule breaking.

When is Safe Harbor raised as a defense by the alcohol provider?

Some defense arguments are put forth at trial, but not Safe Harbor. Since the question raised by this defense is not one of whether or not the bar broke the law, but whether or not the bar should be punished for breaking the law, the answer comes from the judge, not from a jury. As such, this defense is usually raised soon after suit is filed but long before trial, in a court filing called a Motion For Summary Judgment (MSJ). In an MSJ, the defendants ask the judge to dismiss the case, and they cite Safe Harbor as the reason that the judge should do so.

If the court agrees with the defendant bar, the case is dismissed. If the court agrees with the plaintiffs, the defense is obliterated and the case continues onward through litigation.

How our attorneys beat the Safe Harbor Defense.

In many instances, the Trained Server Defense falls apart simply because the alcohol establishment does not require all of its employees to be certified. In other instances, shoddy record keeping lets slip through the crack servers who were never certified, or who have let their certification expire. While there is no criminal penalty for a bar or restaurant that does not have all of their servers TABC certified, the lack of certification of even a single server on the evening of an incident means that the Trained Server Defense cannot be used.

But here's where things get interesting. Most law firms do not represent clients in dram shop cases at all, precisely because they're scared of bar's ability to plead Safe Harbor, resulting in a dismissal. Frankly, our firm is incredibly good at beating Safe Harbor. In fact, we have litigated literally more than 100 liquor liability cases, and in nearly all of them the bar pleaded Safe Harbor, yet we've been able to defeat it every single time.

The way we defeat it is simple: hard work. You see, a bar who over-serves their customers to such an extent that the customer then goes out and kills themselves or someone else didn't get caught the one time they broke the rules. On the contrary, the bars we sue have all been found to be repeat offenders who don't follow the rules very well at all. Virtually all of them pretend to follow the rules well enough so that they meet the first two criteria to be eligible for Safe Harbor protection, but, beneath the surface, the bars that kill people with the over-service of alcohol all have skeletons in their closet, and we are one of few firms that know how to find them.

In every case we've had thus far, through rigorous investigation, we've been able to uncover all of these bars' dirty secrets. It's hard for a bar to convince a judge that they don't encourage their employees to violate the laws set forth by the Texas Alcoholic Beverage Commission when we present to the judge evidence of:

• Bartenders getting drunk on the job
• Dozens of 911 calls made by customers and nearby businesses to report fights and drunken conduct at the bar
• Customers being so drunk that they can't even make it out of the parking lot without wrecking their cars
• Drunken patrons defecating on the floor in the middle of the bar
• Servers consuming and selling drugs behind the bar
• Bartenders selling alcohol to kids
• Bouncers sexually assaulting intoxicated female customers

And those examples represent but a small fraction of the lawlessness that we've uncovered in the bars we've sued, all of whom asked the court for special protection because they are such "model business owners."

But here's the really great part. Normally, judges will not allow us to submit into evidence past misconduct of a defendant. The idea is that judges want a jury to consider only the matter before them, not what someone did in the past. While that makes sense and is the most fair way to do things, it's also a source of frustration for trial lawyers who often know bad things about a defendant who hurt their client, yet they're not able to share that information with a jury.

But by pleading Safe Harbor, bars make their past misconduct part of the matter at hand. In essence, in an attempt to swing for the fences and get the case against them dismissed, they inadvertently open Pandora's box and allow us to dig through their past and make it part of the evidence to be used in court. Again, most attorneys see Safe Harbor as an insurmountable defense. Our attorneys view it as an opportunity to expose negligent bars for who they really are.

But aside from the egregious lawlessness we often uncover at bars, here some of the more down-to-earth violations that make them ineligible to use Safe Harbor.

• Most blatantly, many larger chain restaurants have serving guidelines that require servers to offer alcohol during various points of a meal. Often these guidelines include suggesting that a patron purchase an alcoholic beverage at four or five different points during a meal. Since most people cannot drink four or five drinks during a meal, without becoming obviously intoxicated, the company's own policies often becomes its downfall.

• We once litigated a case where a Texas bar had a written policy that once a patron had become intoxicated, then they could only be served drinks with lower alcohol content, such as beer. So instead of getting their intoxicated customers even more intoxicated quickly, they figured it was alright if they got them more intoxicated at a slower pace. Either way, drunk people were getting drunker. Well, the TABC is quite clear that no alcohol can be sold to patrons who have become intoxicated.

In the end, if the drinking establishment has its employees become TABC certified and follow the alcohol sales rules, then it can plead the Safe Harbor Defense and move for summary judgment. In almost every dram shop case, that's exactly what they will attempt to do, and in every case that our firm has ever been involved in the defendants have failed to do so successfully.

The difference between Grossman Law Offices and other firms.

At Grossman Law Offices, our attorneys have litigated far more than 100 dram shop cases in our 25 years of helping injured clients. In all of those cases, no drinking establishment has ever been able to successfully use the Trained Server Defense to avoid compensating our clients. We may very well be Texas' most experienced dram shop attorneys.

Simply put, if a bar has over-served someone to such a degree that they are involved in a serious accident, there is next to no way that they were serving alcohol responsibly. It is a good dram shop lawyer's job to dig deep and see where in the bar's policy the encouragement to over-serve came from. With persistence and tenacity, the answer invariably is found and the Trained Server Defense falls apart.

If you need an attorney who will fight for you and knows Texas dram shop law inside and out, give us a call. Also, if you have any questions to ask, call us today for a free consultation at (855) 326-0000 (toll free). We answer the phone, 24/7.

If you suspect negligent alcohol service has contributed to your accident, you may be interested in these related articles:

• Safe Harbor Element 1: Servers Must Be Certified
• Safe Harbor Element 2: Establishment Must be Able to Prove Servers Are Certified
• Safe Harbor Element 3: Establishment Cannot Encourage Violation of the Rules
• How to Defeat Safe Harbor Defenses