Element #3 of the Safe Harbor defense in dram shop cases: The bar did not encourage violations of TABC rules:

When someone is injured in a drunk driving accident in Texas, if the drunk driver was served by a bar or restaurant while they were obviously intoxicated, those injured in the accident are permitted to bring a dram shop lawsuit against the bar or restaurant. One legal remedy available to bars and restaurants to defend themselves with in such cases is know as the Trained Server or Safe Harbor Defense. If a bar meets the three criteria, or elements, of this defense, then even if the bar is obviously guilty of over-serving a patron and that over-service leads to injuries, the case against the establishment is dismissed.

The three pieces, or elements, of the Trained Server Defense are:

1. The establishment must require all it its service staff to be certified by completely a Texas Alcoholic Beverage Commission(TABC)-approved alcohol safety course.
2. The establishment has to make sure that all of its staff had actually taken such a class and were certified on the day of an incident.
3. The management of an establishment cannot encourage, directly or indirectly, the staff to violate TABC safe alcohol service rules.

In this article, experienced dram shop lawyer, Michael Grossman will explain what the third element of the Safe Harbor Defense the prohibits bars and restaurants from encouraging their staff to break the law, when serving alcohol.

Questions answered on this page:

• What does not encouraging improper alcohol service mean?
• What is considered encouraging improper alcohol service?
• How do common alcohol service practices encourage alcohol to be served dangerously?
• How can an experienced dram shop lawyer defeat this element of the Safe Harbor defense?

Before delving too far into this article about Sfe Harbor Element #3, we'd recommend reading about Safe Harbor Element #1 and Safe Harbor Element #2.

What does it mean to not encourage staff to break the law?

It may seem like a silly question to ask, but it is important to understanding this element of the Safe Harbor Defense to answer, what does it mean when the law says that "employers cannot encourage staff, directly or indirectly, to break the law?"

When this defense comes up in a dram shop case, the defendant, a bar or restaurant accused of improper service, will try to quickly prove the first two elements and then say, "Of course, we don't engage in any behavior that encourages our staff to break the law."

This shifts the burden of proof to the plaintiff's attorneys, who to defeat the defense, have to give evidence that the management or ownership of a restaurant directly or indirectly encouraged the staff to over-server alcohol, or ignore TABC safe-serving guidelines.

Why this element is important?

Even if a bar, restaurant, or liquor store proves that they truly required TABC certifications for their servers or cashiers, that does not automatically mean that they get to use the Trained Server Defense. It does shift the burden from them to the plaintiff's lawyer to show that while all of their service staff may have been TABC-certified, and were educated about how to safely serve alcohol, specific policies within the establishment encouraged staff to serve people who legally should not have been served. In other words, the mere fact that employees were certified isn't enough if an experienced dram shop attorney can show that they repeatedly violated the very laws that TABC certification was supposed to teach them.

Safe Harbor was designed as a defense for bars that followed all the rules, but had one rogue bartender or waiter who once or twice sold alcohol unsafely. The thought process was that the an otherwise responsible organization shouldn't suffer because one person had one bad night behind the bar.

We've been practicing law in this area for over a quarter of a century and we've yet to find the elusive rogue bartender. Instead, we always find a corrupted culture where alcohol establishments routinely have flouted the law for years.

In fact, given that most restaurants, large or small, prioritize alcohol sales, due to their importance to staying in business, far more attention is devoted to increasing alcohol sales than to safe service. Generally, in the restaurant industry, when the choice is between selling more and serving safely, safety usually loses. This culture of pushing alcohol sales to their limit means that more often than not, even if a alcohol seller can advance their Safe Harbor defense to this element, this is where Safe Harbor is sunk as a valid defense.

How your attorneys can invalidate the Safe Harbor Defense.

It is important to note that unlike the first two elements of the Safe Harbor Defense, which must be proved by the defendant, the third element is assumed to be true, unless the plaintiff's attorneys can demonstrate to a court that the restaurant did encourage its staff to break the law.

Fortunately for those injured by negligent alcohol service, when dram shop defendants use the Safe Harbor Defense, it opens up all of their actions to scrutiny in regard to the service of alcohol. There are number of bits of evidence that, if pieced together, plaintiffs can prove that a bar or restaurant was serving alcohol irresponsibly and is therefore not entitled to the Safe Harbor Defense, including:

• The bar routinely allowed patrons to become intoxicated, and no employees were ever reprimanded.
• The bar's management knowingly ordered an employee to over-serve a customer.
• The defendant rewarded an employee for over-serving a customer with a bonus of some sort.
• The bar allowed employees to drink on the job.
• The bar either allowed or instructed bartenders to short pour drinks (pouring a mixed drink with less alcohol than normal) to customers who appeared to be intoxicated.
• Setting sales quotas that are too high to achieve without intoxicating patrons.
• Evidence of prior dram shop lawsuits against the bar.
• Evidence of past employees allowed to work without TABC certifications.

The examples above are just some types of bad behavior that an experienced dram shop attorney can use to defeat the bar's defense. In our experience, when an alcohol provider is being sued under the Texas Dram Shop Act, they rarely are guilty of just one or two unsafe serving practices, rather the tragedy that led to an accident and folks getting injured was usually the culmination of a long pattern of unsafe behavior.

Of even greater importance to those bringing suit because they, or a loved one, were injured by a bar's unlawful alcohol service is that when bar's assert Safe Harbor, they open themselves up to all kinds of inquiry to the bar's conduct.

In a Texas dram shop case where a bar does not try to assert Safe Harbor, the trial judge is very careful not to admit prejudicial information about past events such as over-service, drunk bartenders, or fights that may have taken place at a bar. The reason behind this is that the plaintiff's lawsuit alleges that over-service occurred at a specific time, to a specific individual, who later caused a specific accident. That is what the trial is supposed to determine. Therefore, previous events or instances that show the bar was not following the rules and regularly broke the law are generally not admissible. The judge simply says, "None of the past bad behavior is relevant to the specific issue at hand."

As soon as a bar argues Safe Harbor, all of those past misdeeds become relevant because the bar is contending that they did not break the rules. That is the only way they are allowed to use the Trained Server Defense. Well if they're saying they don't break the rules, then incidents that demonstrate they broke TABC rules in the past become relevant to the case. At that point the trap is sprung and all of the past incidents, previously irrelevant to the case, take on a new importance and have to be allowed in by the judge, so the defendant has the opportunity to show that Safe Harbor does not apply to the case.

Bars love Safe Harbor, because they see it as a way to avoid liability. From their perspective it seems like a no-brainer to plead the Trained Server Defense, because, if successful, it makes the dram shop case go away. However, their desire to make the case go away often proves to be even more damaging to their case. Incidents, which previously would have been excluded because they were irrelevant, make their way into evidence. The double whammy is that once these incident are entered into evidence, they can be brought up again at trial.

Not only is the Trained Server Defense scuttled, but the plaintiff's attorney has a new stockpile of damaging evidence to bring up in the event of a trial. Facing this prospect, many bars, after seeing the error of pleading Safe Harbor, do not want all of their dirty laundry aired before a jury and in the public record. In these instances, bars and restaurants usually change their tune from, "You can't sue us," to "What will it take to settle this case?"

People may wonder why do bars continue to argue Safe Harbor instead of just going to trial with the limited evidence that pertains to the evening in question? The most likely answer is that the possibility of having the case dismissed and being immune to damages is just too good to pass up. After all, it's human nature to do whatever one can to make a problem go away, even if the likelihood is that it will greatly complicate matters down the road.

Situations like these make our attorneys shake their heads when they hear about other law firms who refuse to take dram shop cases because they think that there is no way to beat the Trained Server Defense. In our experience, rather than being a curse, in the vast majority of dram shop cases that Grossman Law Offices has litigated, Safe Harbor has been a blessing.

You need experienced dram shop attorney on your side.

After 25 years litigating dram shop cases in Texas, our lawyers at Grossman Law Offices have the experience and the track record you need. We have never had the Safe Harbor Defense used successfully against a plaintiff whom we represented. That's not a coincidence. We know how to investigate drunk driving accidents, and we know how to make the responsible parties pay for the role they played in a drunk driving accident.

If you'd like to learn more about how we can help you prove a drinking establishment wasn't following TABC serving regulations, then call us now for a free consultation at (855) 326-0000 (toll free).

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