How to beat the Safe Harbor Defense in dram shop cases:

Back in 1987, when the Dram Shop Act was in the process of being passed, the hospitality industry lobbied for some kind of defense that granted them immunity from suit. What they got was the so-called Safe Harbor Defense. Simply put, this defense states that if an establishment that serves alcohol has their entire staff certified by the Texas Alcoholic Beverage Commission (TABC) and they follow all TABC guidelines when serving patrons, even if a patron is over-served and injures someone as a result of that over-service, the establishment cannot be held liable.

Many law firms consider this to be an insurmountable obstacle in pursuing dram shop cases and turn away many people with rightful claims. At Grossman Law Offices, in 25 years of pursuing and winning dram shop cases, we have never had an alcohol serving establishment successfully use this defense. Do we know something that other law firms don't? Who can say, but what we do know is that after a thorough investigation of all of the evidence in the case, without fail something comes up that the bar, restaurant, or liquor store was doing that violated TABC safe-service guidelines.

In this article, experienced Texas dram shop lawyer, Michael Grossman, explains how to defeat the Safe Harbor defense and what it means for pursuing a dram shop case.

Questions answered on this page:

• What burden's must a bar meet to successfully assert Safe Harbor?
• What usually prevents a bar from being able to use this defense?
• How does defeating this defense affect a dram shop lawsuit?
• How can an experienced dram shop attorney defeat the Safe Harbor Defense?

The bar's burden to invoke Safe Harbor.

While our firm has never had an alcohol provider successfully assert the Safe Harbor Defense, it does not mean that Safe Harbor is something to take lightly. In fact, if an establishment can successfully assert Safe Harbor, it stops any potential litigation in its tracks, and an otherwise meritorious case simply vanishes. For that reason, the attorneys at Grossman Law Offices take this defense very seriously and overcome it through extensive investigation and preparation.

Under the Safe Harbor Defense and corresponding Texas Alcohol and Beverage Commission (TABC) laws, an establishment that provides alcohol can completely avoid dram shop liability if the establishment meets three requirements:

1. The establishment requires all of its employees to attend a TABC-approved training course on how to safely serve alcohol.
2. The establishment can provide documentation showing that all of its employees had actually completed the course on the day of the incident.
3. The establishment has done nothing either directly, or indirectly to encourage their staff to ignore or break TABC safe-serving practices.

This is not as easy as it sounds. Bars and restaurants have very high turnover, and it's not uncommon for them to hire new people without checking to see if they're TABC certified. Additionally, certification only lasts for two years, at which point the servers must renew their certification. Quite often, employees forget about doing so or simply keep putting it off. Nonetheless, it does happen.

None of this is to suggest that the folks at these establishments are bad people, running roughshod over TABC requirements, rather than staying on top of certification requirements is a significant organizational challenge, one that many places are not up to.

Once an establishment has shown that all of their staff had up-to-date TABC certifications on the day of the incident, the burden shifts to the plaintiff's attorneys to show that practices, either direct or indirect, within the establishment encouraged the staff to serve in an unsafe manner. This could be requirements to offer drinks at certain intervals, the manager refusing to back up servers who cut off service to intoxicated patrons, or even sales contests to sell the most of a particular beverage on a particular evening.

The victims' burden to defeat Safe Harbor to hold the bar liable.

Just because the alcohol-serving establishment is able to meet the minimal requirements that all its staff be TABC certified does not mean that their Safe Harbor Defense will hold up. Under the Texas Dram Shop Act, following the spirit of the law is every bit as important as following the letter of the law. An experienced dram shop attorney can still prevail against the bar's Safe Harbor Defense, restaurant, or liquor store if they can prove to the court the following:

• Direct evidence exists that the establishment's management encouraged TABC violations. We've seen plenty of cases over the years where bar managers think they're smart by ensuring their employees are TABC certified, then telling them to ignore the rules and serve alcohol improperly. This could be in the form of telling servers directly that they should serve alcohol until the patron cannot see anymore, specifically ordering a server to provide alcohol to a patron who's already obviously intoxicated, or by directing an employee to serve a known minor.
• Circumstantial evidence that the employer behaved in a way that a reasonable person would know would encourage TABC violations. If the bar's management personally engaged in unsafe service like serving intoxicated employees, sets unrealistic drink sales targets, and didn't punish servers when patrons were over-served, that constitutes evidence that the bar was negligently managed. More commonly, restaurants and bars will offer sales contests with bonuses or prizes for those who sell the most of a specific cocktail, wine, or beer. In some instances, companies have mandatory times throughout a meal when an alcoholic beverage must be offered. These policies usually do not have an exception for guest intoxication.

Where do we get the evidence necessary to make these arguments? In the discovery process, we request all policies employees are to follow. In the employee manual, employers lay out their expectations of how employees are to behave with regard to intoxicated patrons. Many times, the instructions on what to do are shoddy or are intended to boost sales at the expense of safe alcohol service. In our formal depositions, we always probe management and employees' memories about what policies were in place, which were followed and which weren't, and who was or wasn't punished for violations.

The simple fact is that somewhere along the line, an alcohol establishment always screws up and engages in behavior that torpedoes the Safe Harbor Defense. We are not suggesting that the Safe Harbor Defense cannot be successfully asserted, just that in our experience the establishments that end up involved in dram shop litigation usually have appalling alcohol safety records that made an accident only a matter of time.

Holding these bad actors accountable not only helps give some measure of justice to those who have been injured by a bar's negligence, but also protects the community by penalizing those who place maximizing their alcohol sales at the expense of public safety.

Grossman Law Offices has substantial experience overcoming the Safe Harbor Defense.

Dram shop cases are some of the most important cases in civil law, because the harm that results from alcohol over-service is 100% preventable. By removing the profit-incentive for businesses to pollute our highways with intoxicated drivers, dram shop cases not only help the victims of over-service, but also work to ensure that each and every one of us is a bit safer on the roads.

Our attorneys have represented clients in over 100 dram shop cases, and we have never had the Safe Harbor Defense successfully asserted against us. Our attorneys have overcome this defense time and again by finding and presenting evidence to the jury showing that the defendant blatantly ignores employee violations of the TABC rules, does not have any policy in place to reprimand employees for breaking the rules, and/or has actually rules or policies in place that actually violate TABC rules.

If you've been injured in an alcohol-related accident, and would like to know more about dram shop claims, contact our attorneys today at (855) 326-0000. We answer the phone at any hour, day or night.

If you have been injured due to a bar's irresponsible alcohol service, you may be interested in the following related articles:

• A Look at Gathering Evidence in Texas Dram Shop Cases
• Who You Can Sue Under the Texas Dram Shop Act?
• What Are Third-Party Cases Under the Texas Dram Shop Act and How Do They Work?