Third Party Dram Shop Case - Step 2: We Research the Bar and File a Claim Against Them.
In a Texas dram shop case, it's not enough to know that a bar unlawfully over-served a patron who later caused an accident, the victim has to be able to prove it in a court of law. In 25 years of pursuing dram shop cases on behalf of injured Texans, our attorneys have yet to see a bar come forward and say "Yes it was our staff who over-served that person who caused that terrible accident, how much does the victim need to get back on their feet?" The second step to hold a bar accountable is to gather evidence, which will serve as that basis for a dram shop lawsuit.
A thorough investigation is the key to gathering the evidence that is crucial to holding bars accountable for over-service, which results in an accident. It isn't just a matter of identifying the bar and calling it a day. Our attorneys painstakingly analyze ever facet of the bar's behavior and policy that may have contributed to the alcohol related incident. The bars aren't always cooperative, which is why hiring an attorney as soon as possible is so imperative.
Investigating the bar's behavior prior to the accident helps our team of attorneys determine who was culpable, and to what degree. There are various moving parts involved in a Texas Dram Shop Act accident, that involves a keen eye and experience asking the right questions to the right people. We have to come up with answers to questions such as: What circumstance led to the bar over-serving the driver? How were the bar's employees were trained? Do they have TABC Certifications? Were other customers in the bar on the evening of the incident and if so, what can they reveal about the staff, their service, and the general atmosphere of the bar?
The answers to these questions determine the viability of a Texas dram shop case and encompass the elements that must be proved before a jury.
In this article, experienced Dram Shop Act attorney Michael Grossman will explain how we determine the bar's level of culpability and how we determine that level through thorough investigations.
If you are interested in the other steps in pursuing a Texas dram shop lawsuit they are:
Questions answered on this page:
- What does the bar's behavior have to do with my Texas Dram Shop case?
- What failures are Grossman Law Offices looking for in the bar's behavior?
- What are some scenarios that demonstrate levels of culpability?
- How does hiring an experienced attorney help my Texas Dram Shop case?
Texas dram shop cases require thorough investigation.
To win a dram shop case against the bar, you need to show that the bar is culpable, meaning responsible for wrong-doing, which results in injury to others. There is nothing in the Dram Shop Act that specifically requires this, but in our many years of practicing dram shop law before juries, we know that a jury will not hold a "mildly negligent" provider of alcohol financially liable for your damages.
Culpability in dram shop cases focuses primarily on the issue of "obvious intoxication." The Texas Dram Shop Act requires those seeking compensation to prove three elements in their case in order to prevail. They are:
- You have to show that the alcohol provider gave or sold alcohol to someone already obviously intoxicated.
- The person's intoxication caused an accident.
- The accident, caused by intoxication, was what caused the plaintiff's injuries.
Of course, mere allegations are not enough to prove the three elements in court, a victim needs evidence. The need to uncover evidence to prove the three elements is what gives a dram shop investigation its focus. Targets of the investigation include:
- The Driver: How the bar treated the driver will be key. For example, we will look through its records and see what it was selling the driver or drunk person who hit you, the time frame the alcohol was sold, and how much alcohol was sold. If a bar is simply piling on drink after drink to a single person within a small time frame, then that's a strong showing of negligent selling. If we cannot find evidence in the bar's records, the driver's testimony, or through other witnesses that the bar was selling too much alcohol too quickly, then culpability has to be established by other evidence.
- The Employees of the Establishment: How a bar trained and encouraged its employees is quite important. Bars and restaurants have the ability under the TABC rules to insulate themselves from liability entirely if they simply require proper training of their employees and properly encourage them to obey the dram shop laws. If the bar has flouted these provisions--whose purpose is to stop the sale of too much booze in the first place--then that is further evidence of the bar's culpability. Why would you ignore this rule unless you were too greedy in the first place? One issue that can arise at this stage of the investigation is that since a lawsuit has not been filed, the employees have no legal obligation to talk to our investigators. In most cases, this doesn't stop them from giving information in most cases.
- Other Customers: A bar's behavior towards other customers may prove as solid evidence as well. If the bar at the time your driver was drinking proved to be a madhouse of underage drinking and over-service of alcohol to other customers, then that's another piece of the puzzle in your favor. Additionally, many times another customer was able to tell that a patron was obviously intoxicated. If a member of general public feels someone was obviously drunk and can testify to that, it becomes more difficult for trained alcohol providers to deny that they didn't know someone was already intoxicated when they were served.
- Bar Management and Ownership: While the management or ownership of a bar may not have directly over-served the person who later caused an accident, they may have instituted policies that fostered a culture of law-breaking. For instance if management had never written-up a server or bartender for over-service, it can mean that they were either they luckiest employers ever when it came to hiring, or that there wasn't really any discipline in place for alcohol over-service. Additionally, unrealistic sales goals, mandatory points during a meal when alcohol had to be offered, regardless of the patron's level of intoxication, or prizes for alcohol sales contests are all evidence that the establishment did not prioritize safe alcohol service. As with employees of the restaurant and bars, until an actual suit is filed, management and ownership cannot be compelled to answer any of our questions. Unlike employees, management is much more likely to refuse to co-operate with an investigation. However, it is always a good idea inquire with the management, because in some instances the management is interested in clearing things up and will volunteer information.
Using the Investigation to Undermine the Trained Server Defense
Lurking in the background of every Texas dram shop lawsuit is the specter of the Trained Server Defense. This defense allows bars a free pass in the event that they unlawfully over-serve a patron, who later causes and accident. In order to use this defense, the alcohol serving establishment must show:
- The bar required all of their staff to be certified by the Texas Alcoholic Beverage Commission (TABC).
- At the time of an incident, all of the staff who were working had been certified by the TABC.
- The bar did nothing to encourage, either explicitly or implicitly, staff to violate the TABC safe-serving guidelines.
If it's a dram shop case, this defense will be used. It is designed to allow bars who have one rogue server, but otherwise follow the rules, to avoid punishment. If this defense is successfully asserted then that is the end of the case: The bar is immune from having to pay out on and damages claims from the accident. For this reason, in addition gathering evidence to prove a dram shop case, an experienced attorney will also direct the investigation towards uncovering evidence that refutes the Trained Server Defense.
To be clear, evidence that proves a dram shop case and evidence that refutes the Trained Server Defense are not necessarily parallel lines of investigation. Often the same evidence that defeats the Trained Server Defense also demonstrates the legitimacy of an injured victim's dram shop claim.
One area where looking for evidence to defeat the Trained Server Defense differs from an investigation into the facts surrounding the incident in the main dram shop case is that it focuses the investigation on any past misdeeds that are associated with the bar. This evidence is not normally admissible in a dram shop case, because judges view such past misdeeds as irrelevant and prejudicial. Judges try to keep the case narrowly focused on the incident, which is the basis for the dram shop lawsuit.
However, as soon as the bar or restaurant attempts to use the Trained Server Defense, those past misdeeds become relevant to the case. If an attorney had only thoroughly investigated the night of the incident, crucial information, such as past over-service lawsuits, fights at the establishment, TABC citations, or evidence of employee intoxication would not be uncovered. Once admitted to the case to disprove the Trained Server Defense, this evidence can then be used in trial. Essentially, a thorough investigation sets the stage for the offending bar or restaurant to sabotage their own case.
This is why, in the over 100 Texas dram shop cases that Grossman Law Offices has pursued, we have never had a bar or restaurant successfully argue the Trained Server Defense.
How do I file a Dram Shop lawsuit?
Once we've got as much information as possible, we file a lawsuit. This involves your lawyer drawing up a lawsuit in the correct county and court. The lawsuit itself doesn't require your assistance, nor is it the "end all be all" of the case, but is the initial document filed with the court that puts the defendant bar on notice and let's them know what the injured victim is alleging the bar did wrong and the type and quantity of damages sought.
After the suit is on file, we're now in the position to use the Texas Rules of Evidence to force the defendants to hand over yet more evidence for their culpability.
When you suspect that you or a loved one was injured because of a drunk driver, you need experienced attorneys to be able to prove he bar was culpable. Our lawyers have the investigative background and resources to prove your case. Call us at (855) 326-0000 to learn what we can do for you.
Related Articles for Further Reading:
- How Do Novelty and Over-Sized Drinks Contribute to Drunk Driving Injuries?
- What Is a Social Host Case?
- Mediating a Texas Dram Shop Lawsuit
