When an attorney brings a dram shop case on behalf of a victim, what needs to be proven is that the bartender over-served alcohol to an obviously drunk customer. So how can the TABC "Know Your Limit" chart be used as evidence in a dram shop case?
Answer: The Texas Alcoholic Beverage Commission's "Know Your Limit" chart can be used as evidence in a lawsuit to show that a bartender didn't use the TABC chart.
What is the TABC "Know Your Limit" Chart?
Let's do a quick recap on what the "Know Your Limit" chart is and what it does.
In a nutshell, the TABC chart is a piece of paper which servers can reference to know that a customer is drunk long before they get to the point of being dangerously drunk. The chart enables servers to cut a customer off long before they become dangerously drunk. To see how servers use the chart, click here.
Before there was a "Know Your Limit" chart, the only way a bartender could know that it was time to cut a customer off was to observe signs of intoxication, such as slurred speech, disorientation, impaired judgment, belligerence, etc. The problem is that, by the time a customer would display these signs, it was already too late; they were already dangerously drunk.
A system for knowing when to cut customers off that depends on the bartender waiting for the customer to display signs of severe intoxication, is a little like a gun range that won't kick a customer out until after they already shot a hole in the ceiling. Naturally, a better approach for a gun range is to eject a customer when they first display signs of unsafe weapons handling, long before an accidental discharge. And a better approach for a bar is to cut someone off long before they're sloppy drunk.
And that's exactly what the TABC chart enables servers to do.
How is the Chart Used as Evidence?
In dram shop cases, lawyers primarily use the TABC chart to show that bartenders didn't use the chart when serving alcohol to customers.
It works like this: A server is liable for the improper service of alcohol and has a legal duty to not over-serve customers. In order to fulfill that duty, a server must be able to know when it's time to cut a customer off. By failing to PROPERLY determine when to cut a customer off, a server is negligent. The TABC chart is the most effective and easy-to-use way for a server to fulfill their duty. Thus, when they fail to use the TABC chart, we get to make the argument that their failure to use it (or use it properly) constitutes negligence.
Consider the following deposition transcript, which is fairly typical of a bartender deposition:
Lawyer: Did you cut Mr. Smith off at any point?
Lawyer: Why didn't you cut him off?
Bartender: He seemed fine to me.
Lawyer: When exactly did he seem fine to you?
Bartender: Every time I served him a drink, he seemed fine.
Lawyer: He seemed fine after the first drink, right?
Lawyer: And he seemed fine after the second drink, right?
Lawyer: And he seemed fine after the fifth, sixth, and seventh drink, right?
Lawyer: And he seemed fine when you served him drink number 10, correct?
Lawyer: So, you never saw any change in his behavior or demeanor, right?
Bartender: Yes. That's right.
Lawyer: And you're not a doctor or a toxicologist, right?
Bartender: That's right.
Lawyer: But you have at least a lay person's familiarity with how alcohol affects the human body, right?
Lawyer: So, then, you'd agree that humans become more drunk as they are served more alcohol, right?
Bartender: Yeah, that's generally true.
Lawyer: You'd agree that it's actually true for all people, right?
Bartender: Yes. Well, some people hold their liquor better than others.
Lawyer: Nevertheless, you still acknowledge that even the most experienced drinker gets more drunk as more alcohol is consumed, right?
Lawyer: As you now know, Mr. Smith's BAC moments after leaving your establishment was a .21, meaning he was not actually fine, right?
Bartender: Yes. But I thought he was fine at the time.
Lawyer: And what did you base that on?
Bartender: He didn't appear too drunk. Like, he seemed like he was in control.
Lawyer: And you now acknowledge that, based on what we showed with Exhibit 5, the receipts from the night in question, you served him 10 drinks in an hour, right?
Bartender: Yes. That sounds right.
Lawyer: Is it safe for a 180 lb. male to consume 10 drinks in an hour?
Bartender: I'm not sure. Probably.
Lawyer: Do you know what the approximate BAC of a 180-lb. male would be when served 10 drinks in an hour?
Bartender: Not very high, I guess. I'm not sure. Maybe a .08.
Lawyer: Are you familiar with the TABC "Know Your Limit" chart?
Lawyer: Do you often use it?
Bartender: Not really. I don't think I need it.
Lawyer: I'm going to offer the TABC "Know Your Limit" chart for males as Exhibit 5. Can you please take a moment to review Exhibit 5?
Lawyer: Do you know how to use this chart?
Bartender: Yes. You just find the person's weight in one part of the chart and the number of drinks served on the other part of that chart, and then where those lines intersect, you can see their BAC.
Lawyer: But to be clear, you did not use this chart when you served Mr. Smith, right?
Lawyer: And to make sure I understood your prior testimony, you in fact stated that you didn't need to use it because, in your estimation, a customer who weighs 180 lbs. that is served 10 drinks is probably still sober or just barely intoxicated, right?
Bartender: That's right.
Lawyer: But not dangerously intoxicated, right?
Lawyer: Go ahead and walk us through how you would use this chart if Mr. Smith were standing right here asking for his 10th drink.
Bartender: Well, I could tell he's about 180 lbs., so I'd go to the 180 lbs. section. And I know he's had nine drinks already. So, I'd go to the nine drink section. Then I'd match them up to see the BAC.
Lawyer: And what does Exhibit 5 tell you his BAC would be under those circumstances?
Lawyer: And what color is the .19 section of the chart?
Lawyer: And what does the color red indicate on this chart?
Bartender: Well, it means danger.
Lawyer: Does it denote anything else?
Bartender: Yes. It means "don't serve the customer any more alcohol."
Lawyer: And why not?
Bartender: Because they're already too drunk.
Lawyer: And a .19 is dangerously drunk, right?
Lawyer: And you'd agree that if you had been using Exhibit 5, the TABC "Know Your Limit" chart when Mr. Smith asked for drink number 10, you would have been able to determine that it was unsafe for you to serve him, right?
Bartender: Yes. According to the chart, it would be unsafe.
Lawyer: Do you have any reason to doubt the chart?
Lawyer: Is there any other system that you use other than the TABC "Know Your Limit" chart that helps you know when it's time to cut someone off?
Bartender: Just my experience as a bartender.
Lawyer: Would that be the same experience that led you to testify moments ago that a 180 lb. man who was served 10 drinks in an hour is not dangerously drunk?
Bartender: Yes. I guess.
Lawyer: And you now see that your experience told you wrong, right?
Bartender: Yes. I guess so.
Lawyer: Is there anything that you could do in the future to prevent over-serving customers?
Bartender: Well, I guess I could use the chart.
This transcript shows that the bartender didn't use the TABC chart, guessed wrongly that it was safe to keep serving Mr. Smith, and then admitted that she got it wrong and would have been better off had she used the chart.
That's the stuff a successful dram shop case is made of.
There Are Two Ways for Servers to Get It Wrong
What usually happens is either the bartender didn't use the TABC chart or they used it improperly. Both situations can leave a bartender having to answer in court.
Not Using the Chart
The fact of the matter is, without using the TABC chart, bartenders have no consistent or reliable way of knowing when a customer has had too much to drink and needs to be cut off. As we showed above, we use the TABC chart to guide them toward an admission that, yes, they actually did serve an intoxicated customer.
Using the Chart Incorrectly
There are a few ways a server can use the TABC chart incorrectly, but the most common mistake is when they don't understand what constitutes "a drink."
For example, a server dutifully checks the TABC chart before serving a customer each new drink. "They've only had three drinks, so according to the chart, it's safe for me to serve a fourth drink," the server thinks. The only problem is that, per the chart, "a drink" is equal to 12 oz. of beer, 5 oz. of wine, and 1.5 oz. of 80 proof liquor. Well, the "three drinks" that the server already served were 32 oz. beers. So, in fact, the server technically gave the customer eight drinks. At eight drinks, a customer of any size or gender will be dangerously intoxicated. So, when an accident happens and the customer hurts themselves or someone else, the server might think that they did nothing wrong since they followed the chart, but in actuality, they misused the chart.
Dram Shop Cases Are Highly Technical Cases
In a Texas dram shop case, the details matter. More specifically, there are many technical moving parts to a dram shop case, which is why you need a highly-exp