Overview of the Texas Dram Shop Act
Despite the fact that drunk driving has been a plague on Texas highways since for as long as cars have been around, until a little less than 30 years ago, there was no way for victims of drunk driving accidents to sue bars that over-served patrons. Without getting into the legal minutiae, accidents were considered the fault of the person who drank too much until a landmark decision Texas Supreme Court El Chico v. Poole (1987), changed that in the late 1980’s by creating a cause of action for those hurt in these accidents to seek compensation from bars.
Since El Chico v. Poole laid out that bars could be sued, without creating any specific criteria that made a bar liable, the Texas Legislature feared that this would create a free-for-all with lawyers bars over any perceived infraction of the law. They quickly responded by passing the Texas Dram Shop Act. which accomplished two things; First, it stated in definite terms what a bar can and cannot be sued for, and secondly it made a dram shop cause of action the sole remedy against bars, thereby nullifying the aforementioned Texas Supreme Court Decision.
In this article, our attorneys explain the effect of the Dram Shop Act in Texas and breaks down what the law says about over-service of patrons.
For a full explanation of the basic of how the ins-and-outs of the law, be sure to click over to our How Dram Shop Cases Work.
Questions answered on this page:
- What circumstances created the need for the Dram Shop Act?
- What does Texas law say about bars over-serving patrons?
- What are the elements of a dram shop case in Texas?
- How does my attorney prove these elements?
What Does the Texas Dram Shop Act Say About Suing Bars?
The relevant portion of the Texas Dram Shop Act that gives those injured by unlawful alcohol service the right to sue the alcohol establishments that over-serve patrons reads as follows:
Sec. 2.02. CAUSES OF ACTION. (. . .)
- (b) Providing, selling, or serving an alcoholic beverage may be made the basis of a statutory cause of action under this chapter of this code upon proof that:
- (1) at the time the provision occurred it was apparent to the provider that the individual being sold, served, or provided with an alcoholic beverage was obviously intoxicated to the extent that he presented a clear danger to himself and others; and
- (2) the intoxication of the recipient of the alcoholic beverage was a proximate cause of the damages suffered.
In plain English, this portion of Texas Dram Shop Act sets up three conditions that are necessary to enable an injured person to pursue a case against a bar:
- The establishment must have served an obviously intoxicated person.
- The intoxication of the illegally served patron must have been the cause of an accident.
- Having caused an accident due to intoxication related to over-service, injuries must result from that accident.
It is only when these conditions are met that a person can pursue a dram shop lawsuit against a bar. While some might disagree with being able to file suit against a bar, because after all (they reason) it is the person who drank too much that should be responsible, there are a couple of things to keep in mind.
The Texas Dram Shop Act does not remove the drunk driver’s liability for injuries that they cause to third-parties. If a guy gets drunk at a bar and plows into a minivan carrying a family, the family has just as much a right to go after the drunk driver financially as they did before the passage of the law. At the same time the law helps provide a remedy for what was, until El Chico v. Poole, an inconsistency in the law.Why The Law Holds Bars Accountable For Drunk Driving Accidents Read More >
It has been illegal for ages in Texas to sell alcohol to a person who was already drunk. Before the Texas Dram Shop Act passed, there was no remedy for when a bar broke the law. Essentially, a bar could break the law, and while they may have been fined by the Texas Alcoholic Beverage Commission, they could tell the victims who were injured by their over-service, victims many times who had never set foot inside a bar, “So what? There’s nothing you can do to us.” The changes to the law meant that bars now had some accountable for what was, and still is, an illegal behavior.
Does the Texas Dram Shop Act Only Apply to Bars and Restaurants or Can You Sue Individuals?
The relevant law to answer this question is found in Section 2.01 of the Alcoholic Beverage Code:
(1) “Provider” means a person who sells or serves an alcoholic beverage under authority of a license or permit issued under the terms of this code or who otherwise sells an alcoholic beverage to an individual.
The crucial part of the definition of an alcohol “provider” is that the alcoholic beverage must be sold. This excludes what are called “social hosts,” most commonly people having parties within their own homes among friends. While it is still morally wrong for them to over-serve their guests, unless they charge admission to their parties, or charge money for their alcohol, they cannot be sued under a dram shop cause of action.
One mistake that attorneys who are not familiar with dram shop lawsuits make when they come across this section of the law is that they misread it that only licensed providers can be sued in a dram shop lawsuit. While it is an easy misread, it is a misread nonetheless. The crucial part is for determining liability is whether or not a someone sells alcohol.
Dram Shop Lawsuits Are the Exclusive Remedy for Alcohol-Related Injuries
Section 2.03 of the Alcohol Beverage Code holds that:
- (a) The liability of providers under this chapter for the actions of their employees, customers, members, or guests who are or become intoxicated is in lieu of common law or other statutory law warranties and duties of providers of alcoholic beverages.
- (b) This chapter does not impose obligations on a provider of alcoholic beverages other than those expressly stated in this chapter.
- (c) This chapter provides the exclusive cause of action for providing an alcoholic beverage to a person 18 years of age or older.
In a nutshell, this section makes it clear that dram shop lawsuits are the only way for victims of unlawful alcohol service to recover damages for their injuries. This means that when it comes to alcohol-related injuries, this is the only applicable law. It means that gross negligence causes of action, which penalize folks who do something completely insane, that shocks the senses, or premises liability claims do not apply in any case where the over-service of alcohol is alleged.
The exclusive remedy provision matters, because the bar that bars have to meet to avoid being sued is so low. Basically, if they make sure that there whole staff is licensed by the TABC and they don’t serve really drunk people, they can cause as much chaos as they like and not face any consequences. In this way, one can see that the Texas Dram Shop Act really was a compromise between those who wanted to have open-season on every kind of misconduct that a bar could engage in when serving alcohol and bars who wanted to have not liability for their bad behavior.
How does the Texas Dram Shop Act Treat minors and juveniles?
Everything we have covered applies only to those who over the age of 18. For those under 18 there are a different set of rules (in Section 2.02). They read as follows:
(c) An adult 21 years of age or older is liable for damages proximately caused by the intoxication of a minor under the age of 18 if:
- (1) the adult is not:
- (A) the minor’s parent, guardian, or spouse; or
- (B) an adult in whose custody the minor has been committed by a court; and
- (2) the adult knowingly:
- (A) served or provided to the minor any of the alcoholic beverages that contributed to the minor’s intoxication; or
- (B) allowed the minor to be served or provided any of the alcoholic beverages that contributed to the minor’s intoxication on the premises owned or leased by the adult.
The basic takeaway is that all of the exceptions, which are permitted to defendants in other dram shop cases do not apply to adults who serve minors when those minors injure themselves or others. The social host exemption. Gone. The Safe Harbor, “silver-bullet” defense of alcohol establishments, worthless. Even the requirement that one must serve an obviously intoxicated person goes right out the window when that person is not 18.
Whatever protections that bars, restaurants, other alcohol providers enjoy when they server adults who are old enough to decide to drink are obviously not meant to apply when they serve children. For these reason the law treats those who engage in this behavior, much much more harshly.
One may notice that the threshold is 18 and not 21. This may strike some as odd since it is illegal for those under 21 to purchase alcohol lawfully, yet 18 thru 20-year-olds are treated just the same as adults who can legally purchase alcohol. The best answer for why this discrepancy exists is because that’s how the legislature wrote the law. An educated guess would be for the reason that 18-year-olds are treated in the same way as those who are over 21 is that without being treated the same way, another discrepancy would arise in the law.
The discrepancy would be that if someone is 18 and they choose to illegally purchase alcohol, they are an adult who is breaking the law, whereas those under 18 are obviously children for most legal purposes. In effect, if the standard applied equally to everyone under the age of 21, you would be rewarding young adults for breaking the law by having a lower standard to prove their dram shop claim than those who are actually of drinking age. This would mean that those adults would have special rights, unavailable to other adults that were actually following the law when they purchased alcohol. In effect, legislatures chose the little discrepancy that is treating everyone over 18 as an adult, versus the bigger problem of granting special privileges to 18-20-year-old drinkers who were breaking the law.
Grossman Law Offices has won more dram shop cases than almost any other firm in Texas. Let us help you.
When we say that Grossman Law Offices has pursued and won more dram shop cases than almost any other law firm in Texas, we’re not saying it to brag. We point this out because the issue of getting compensation for victims who have been injured by unlawful alcohol service is very important to us. One would think that in the early 21st century, bars, restaurants, liquor stores, and every other alcohol seller would realize the danger that their product exposes the community when served improperly. Sadly, far too many bad actors continue to make their livelihoods in ways that endanger entire communities, give honest merchants a bad name, and cause untold tragedy in our communities.
For the past 25 years, the attorneys at Grossman Law Offices have not only helped the victims of alcohol over-service seek the compensation they deserve under the law, the compensation they need to put their lives back together after a tragic, senseless accident, but we have helped send a message on behalf of our fellow Texans that the days of making money, while endangering the community are over. If a bar over-serves an intoxicated person and a tragedy results, our team of attorneys stand ready to help the victims hold that bar accountable.
We’re one of the few firms that actually sees the importance of seeking compensation for those involved in Dram Shop cases. Most attorneys will turn you away or say that Dram Shop cases are unwinnable. That is totally untrue. We’ve won hundreds of cases and held the establishment responsible for their negligence. Call today (855) 326-0000
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