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Can Changes in Behavior Be Used as Evidence in a Texas Dram Shop Case?

  • Last Updated: March 3rd, 2023
  • By: Mike Grossman
  • Dram Shop

Evidence of a Drinker's Change in Behavior Can Show That They Were Over-served

You don't necessarily need a degree in human behavior to spot the most obvious physical signs of intoxication. In all cases though, several key behavioral patterns should be detectable by a trained bar staff, and observing any of them should serve as a red flag that it's time for the server to stop serving that person alcohol. Whatever excuses someone might have for not being able to spot an intoxicated person go out the window if these signs were present, since at least 25% of TABC-required server certification classes deal with how to spot intoxication.

While visible indicators of intoxication, such as impairment of motor functions, an inability to judge depth (constantly dropping items and being unable to pick them up), and the like, are easy to see, there are many other more subtle signs that can be very easy for the layperson to miss. However, a server or bartender must be able to spot these subtleties in order to make sure an intoxicated customer is not over-served. In particular, we're talking about changes in the drinker's behavior.

In this article, Dallas dram shop attorney Michael Grossman discusses how evidence that a customer's behavior changed can help prove that a bar served an obviously intoxicated patron and how that is used as evidence in a dram shop lawsuit.

Questions Answered on This Page:

  • How can changes in behavior be proven in a Texas dram shop case?
  • What kinds of changes in behavior indicate a person is intoxicated?
  • How can you prove a drunk person is acting intoxicated?

Changes in behavior due to intoxication.

Even if some signs of intoxication are more subtle than others, this does not give a bartender or server the built-in excuse of "he didn't look drunk to me" as any sort of defense. Servers and bartenders undergo extensive Texas Alcoholic Beverage Commission training learning how to spot the signs of inebriation - both obvious and subtle. This training is mandatory if a bar, restaurant, or other alcohol-serving establishment is to in any way protect itself from these types of cases by using the so-called Safe Harbor Defense to defeat a dram shop claim.

If a bartender or server waits for the more telltale signs before refusing further service, then it is already too late. Studies show that a customer's blood alcohol concentration does not reach its highest level until 15-30 minutes after the person has stopped drinking. The time to cut a person off from service is before that person is showing the signs of obvious intoxication. These subtle signs are more a function of behavior changes rather than physical impairment:

  • Lack of inhibition. Most people feel less inhibited after drinking alcohol. Usually, people talk at an increasingly louder volume, become friendlier, and are also very relaxed. However, they can also experience sudden mood swings and become visibly emotional. If a person who is normally reserved all of a sudden begins speaking loudly or a typically quiet person decides to buy a round for the house, these are both signs of probable intoxication. For this reason, the TABC recommends that servers and bartenders maintain sufficient conversation with their patrons to establish a baseline personality reading, which makes spotting changes in behavior easier.
  • Decreased rationality. The higher a person's blood alcohol level rises, the less rational and reasonable they typically become. People may start consuming alcohol at a faster rate, increase their intake by ordering doubles, or become very "generous" and start ordering drinks for complete strangers. If a person smokes, he or she may light the wrong end or light one cigarette while another one is still burning in an ashtray. Eyes may become unfocused and glassy, with dilated pupils. Speech may be slightly slurred or noticeably deliberate. People who become inebriated also commonly utter irrational statements, or exhibit other obnoxious or otherwise anti-social behavior.
  • Inappropriate behavior. Also, the more the typical person imbibes, the more inappropriate his or her behavior may become. Signs include overly-flirtatious behavior, off-color jokes or vulgar language, or calling for a drinking game of some sort. We've likely all seen examples of people trying to pick fights when intoxicated, as well as the use of racist or sexist language.
  • Drinker becomes more reserved. Although it may seem contradictory that one sign of intoxication should be a person becoming louder and more obnoxious, while another is that they become more reserved, both behavior patterns are common to people who have consumed too much. The reserved drinker can be more difficult to spot than the loud obnoxious drunk, but they are in no way more capable of driving. Some people respond to alcohol by becoming exceptionally quiet and withdrawn. That is why striking up a conversation is essential to any experienced server who wishes to serve safely, because that is the only way to spot people who become more reserved when drinking.

Far too often, bar employees will view these types of behaviors as "normal," or even amusing. Further, the thinking often goes, if other patrons are offended or otherwise disturbed, they can just go home. But the problem is that drunk patrons leave bars too and bring these behaviors with them. They may then hurt themselves or others, and even cause fatal accidents. While it might seem funny to see an intoxicated man try to flirt with women at the bar who are plainly out of his league, it's not funny at all when he dies in a car wreck on his way home.

How Changes in Behavior Becomes Evidence in a Dram Shop Case

The reason that it is important for alcohol providers to closely monitor their patrons for changes in behavior is because that is the bedrock of safe alcohol service. The extent to which a server noticed (or should have noticed) changes in a customer's behavior can be crucial to establishing whether or not they served an obviously intoxicated person.

After an accident, bars will invariably try to plead ignorance in order to beat the "obvious intoxication" standard that a plaintiff has to meet in a Texas dram shop case. The thinking goes that if they don't admit to seeing anything that could have indicated the patron was obviously intoxicated, then the bar cannot be found liable for over-service. An experienced dram shop attorney will turn this tactic to their client's advantage.

Part of serving alcohol responsibly is watching for changes in behavior. In many depositions, servers and bartenders will start off claiming they did nothing wrong, but then are unable to recall much beyond the most basic details of the guest's behavior, if that. By the end of the deposition, many times they will freely admit they never talked to the guest to establish a baseline by which to judge potential changes in behavior. It becomes pretty hard for a bar to argue that they followed safe alcohol serving procedures when they cannot answer the most basic questions of how someone was feeling or it's clear they didn't converse with the guest for any longer than it took to get an order.

The rise of social media makes this type of evidence even easier to elicit from servers and bartenders who may be reluctant to co-operate. When people aren't talking to other patrons or staff at a bar, it is very likely they're on social media. When their social media posts indicate that they were profoundly depressed, or show changes in mood, this undermines the standard server line that the guest "seemed fine," while also demonstrating that the staff wasn't really paying attention to the patron and was therefore in no position to offer an informed opinion about the patron's state of intoxication.

Experienced attorneys don't stop there, of course. We also attempt to track down any witnesses who may have interacted with or observed the over-served patron. If the bartender is saying the over-served patron, "seemed fine" while other people at the bar noticed changes in their behavior, it hurts the bar's case. After all, if untrained amateurs could see that someone appeared intoxicated, it strains credulity to believe that a trained alcohol dispenser could not have picked up the signs.

However it is obtained, evidence that the service staff failed to observe changes in behavior that should have been noticed is crucial to demonstrating that an alcohol establishment served an obviously intoxicated person. Meeting that standard is necessary in every Texas dram shop case.

It's time to get the right dram shop lawyer on your side.

If you have been injured in a drunk driving accident or lost a loved one, the Texas Dram Shop Act gives you the right to seek compensation through a dram shop lawsuit. To receive compensation, the help of an experienced Texas dram shop attorney is crucial. Grossman Law Offices has successfully pursued more dram shop cases than almost any other law firm in Texas, helping literally hundreds of Texans in the process.

Call (855) 326-0000 (toll free) if you would like to find out how our attorneys can help you obtain compensation for the suffering you have been forced to endure. We answer the phone 24/7.

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

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