Dram Shop and Sexual Assault

Michael GrossmanSeptember 17, 2018 6 minutes

The news broke yesterday in Dallas that around 3:00 a.m. Saturday, a man, potentially posing as a driver for a ride-sharing service, picked up a woman who was looking for a ride home and sexually assaulted her.

The news reports I heard on KRLD news radio made it sound less like he was driving around pretending to be an Uber driver, and more like his victim was looking for a ride share vehicle that she ordered and this creep was simply willing to let her think he was the driver she had called for.

UPDATE: Saturday authorities arrested Loai Faheem Laila, 34, in connection with the alleged sexual assault. According to reports, the suspect was identified by the victim. It has also been confirmed that Mr. Laila was an actual Lyft driver.

The incident began in the 2900 block of McKinney Avenue and ended between 30 minutes and one hour later when the victim was dropped off at the Chevron station on the corner of Fitzhugh Avenue. Police have released video of the suspect and if anyone has information that will help bring this predator to justice they are encouraged to call 214-671-3584.

Sadly, this type of story is not an isolated incident. In India, Australia, and closer to home, in Boston men have posed as ride share drivers only to lure victims into their clutches. These stories generally have four things in common. The first three are pretty obvious, a man posing as a driver, a female victim, and they seem to take place late in the evening. The fourth thing, that is only mentioned in the story from Australia but can be inferred in the others, is a woman coming from a bar.

Let me be clear about a couple of things before I go any further. We are not blaming a woman having a few drinks for bringing a sexual assault upon herself. A person could be blackout drunk on a sidewalk and it would not be acceptable for anyone to violate them like that. The second is that while the sexual assault is far and away the bigger concern to the public, there is another issue in these stories that no one is talking about, and that is the role that bars play in these incidents.

This comes to mind because my firm used to have an office in Uptown, just a couple of blocks from where the woman was picked up by the alleged perpetrator. Anyone who lives or works on McKinney Avenue can tell you that at 3 a.m. on a Saturday morning, odds are that the people you see out and about did not come from a late-night book club. Someone on the street at 3 a.m., almost always, was at a bar until last call and then finds herself making her way home. From my admittedly anecdotal experience, overhearing the fights, the screaming, the crying, and all of the other late-night shenanigans of the bar set, a lot of these people demonstrate all the signs of having been over-served, which is illegal for bars to do under Texas law.

If the women who are getting picked up and suffering these brutal attacks are in the same condition as a lot of the other people hanging about Uptown at that hour, then it is quite possible that they, too, have been over-served. If that is the case, then a bar has just taken some portion of these ladies' hard earned money and dumped them on the street, at a ridiculous hour, with no means to protect themselves. In a lot of states that is just how things work. Thankfully, we live in Texas, a land where things are slightly more civilized. That civilizing agent is the Texas Dram Shop Act.

If you've read the blog before, you've heard us mention Dram Shop in relation to people injured by drunk drivers who were over-served in restaurants. It also means that the restaurant has a duty to ensure their patrons are not over-served or injured due to the effects of intoxication. For instance, if there are bars out there that are over-serving women to the point that they cannot distinguish a real Uber driver, from a fake, that is definitely a problem, one which may expose the owners of the bar or restaurant to civil liability.

I have used the example before, but the common Dram Shop scenario in a drunk-driving case is that the restaurant over-serves the patron, the drunk driver goes out and hits someone, injuring them severely. Without Dram Shop law, the innocent bystander is damaged in part due to the role the bar played in the driver's intoxication, and the restaurant gets to count the money they made, free and clear. In essence, the alcohol provider, who has an incentive to sell more and more alcohol, is divorced from the ill effects of their over-service.

If you think about it, the states that don't allow alcohol provider's to be sued when they grossly over-serve their patrons sort of contradict their own reasoning. Virtually every state in America charges special taxes on alcohol specifically to offset the damage that alcohol use does to society. When many of those same states then claim through their courts that alcohol providers do not play a role in the harm done by improper service of alcohol, it naturally seems a bit inconsistent with their tax policy.

Dram Shop cases are even more specific than alcohol taxes, since only those bars and restaurants who do not serve alcohol properly have to pay what amounts to a negligence tax, straight to their victims. For instance, we all pay taxes (taken out of our gasoline purchases) to pay for damage done to bridges and roads caused by everyday use. But when a driver commits a specific wrongful act (such as driving their car into a light pole), that particular driver pays extra to account for that specific wrongful act. The same philosophy applies in dram shop cases. Dram shop law does not affect the establishments in the community who follow the law and serve alcohol responsibly, just those who serve our mothers, daughters, and sisters until they are so intoxicated that they are sitting ducks to be preyed upon. Such laws provide a remedy to victims that is paid for by the bad actors themselves.

In these stories of women being abused after getting into the wrong car; The bar takes a woman's money, she is over-served, goes out unable to distinguish a safe situation from a dangerous one, and she gets sexually assaulted as a result. In this case, the woman certainly pays a large price for her actions and the bar is rewarded and counts their money at the end of the night. Dram Shop law says otherwise and is a tool to make this situation more just.

Some people will say something, "So a woman gets to get as drunk as she wants, consumes alcohol irresponsibly, then when something bad happens, she gets to sue the bar? That's not right." Such arguments are a bit of a red herring. Fortunately, Texas lawmakers are neither stupid nor crazy, so we don't have a law which says that all alcohol providers are liable under all circumstances and the fault of the intoxicated patron is not part of the equation. In actual fact, the way Texas dram shop law works is that bars are only liable when they knowingly serve someone who is already too drunk to be lawfully served more alcohol. The idea here is that our state's lawmakers don't want bars to be sued just because they sell alcohol; that wouldn't make any sense. Instead, they are only liable when it can be proved that they knew or should have known that they were breaking the law, or taking advantage of an intoxicated customer (in so many words). We are not talking about someone being served one or two drinks too many. The law isn't designed to keep you from enjoying a drink or two with your dinner. It is designed to hold those who sell far too much alcohol to a single person accountable for the damage that their reckless service causes.

Naturally, I have no way to know the particulars of what happened with the young woman who was victimized here in Dallas. Perhaps she was sober as a priest and was simply confused, or perhaps the alleged sexual predator who took advantage of her willfully mislead her and alcohol had nothing to do with it. But I think we can all agree that it's at least reasonably likely that, given the hour, the fact that she called a cab, and the location itself, intoxication may have played a role in affecting this poor girl's awareness and decision making ability. Again, to be perfectly clear, I'm not blaming her if she was intoxicated. Intoxication at a bar can only happen if the bar breaks the rules, and, as we all know, alcohol affects a drinker's decision making ability. You can no more blame a drunk person for poor decision making than you could blame someone for telling the truth when they've been given the truth-telling serum you see in all the spy movies.

Of course, none of this should take away from the larger issue that there is an alleged sexual predator loose in the community who needs to be apprehended as quickly as possible. With this guy's picture plastered on all of the news, hopefully it will only be a matter of time until he is brought to justice. In the meantime, the rest of us can lament yet another marriage between technology and scum bags that makes it easier for them to prey upon their innocent victims. Sadly this is another thing where one's sympathies go out to women since they have another potentially dangerous scam to be on the look-out for.