A Quick Refresher on Temporal Proximity and Dram Shop Law

By Michael GrossmanFebruary 14, 2017Reading Time: 6 minutes

Few articles that we write are more contentious than those that touch on the topic of dram shop law, or liquor liability. These provisions of Texas law hold bars accountable for their role in drunk-driving accidents. Rather than spend time getting into the merits of such laws, I'll simply say that dram shop is the law of the land in Texas. Whether we agree with it or not, we are all bound by it.

Many people get particularly upset when they read about a law firm suggesting that a bar may have liability in an accident that occurred hours after bars are required to close in Texas. Whether these folks realize it or not, they are making a legal argument, centered on the idea of temporal proximity.

Temporal proximity simply refers to how close in time an initial event is to its consequences. In law we'll always looking for the event that without which, none of the other events would have followed. This is known as the proximate cause. To illustrate how this works in practice, it's best to leave the law aside altogether.

Recall the last time that you had the flu. For most of us, we track the beginning of the disease to when we started to show symptoms. When someone asks, "When did you get sick?" We count from the onset of symptoms. Almost everyone knows that this isn't actually when we got sick. In order to get sick, we have to be exposed to a disease, it has to enter our bodies, and then it incubates. For the average flu, this incubation period is about two days.

So when we get the flu, the proximate cause is the person we were near, or the surface we touched that was infected with the virus. However, the temporal proximity to that event and when we begin to show symptoms is roughly two days. Of course, no one subtracts two days to determine when they were infected, they say that they got sick the day they started feeling bad.

While almost everyone would agree that coming into contact with a disease won't manifest an illness for a period of time, people tend to get a little uncomfortable when the same logic is applied to an accident. Part of this disconnect is likely due to the fact that most people underestimate how much some bars over-serve their patrons, while overestimating the time it takes for alcohol to leave our system. As a result, many are shocked when we suggest that an accident that occurred at 5, 6, or even 7 o'clock in the morning may have been due to a bar over-serving a patron.

Bars often mount defenses based upon this perception; they make temporal proximity defenses. These defenses are often unwarranted and can create complications for those seeking compensation when they have been injured by unlawful alcohol service.

How Alcohol Can Still Cause Accidents Hour Later

What brought all of this to mind was a recent accident on I-30 near Grand Prairie. According to reports, some time around 5 in the morning, Vanessa Nayelloy Montes was allegedly driving the wrong way on Interstate 30 when her vehicle crashed head-on into the vehicle of Hector Castro Banuelos. The 36-year-old Banuelos was pronounced dead at the scene and there are reports that the police believed that alcohol was a factor in the accident.

In our experience, the vast majority of wrong-way accidents on limited access highways, such as I-30, are the result of the wrong-way driving being impaired in some way. In most locations, it is quite difficult for a person in control of their faculties to accidentally find themselves going down the road against the flow of traffic. The few cars I've seen in my time that honestly went the wrong way, quickly notice something amiss and reverse course.

From a legal perspective, one thing that stands out about the accident that claimed the life of Hector Castro Banuelos is that it occurred at 5 am. While the report makes it clear that alcohol is a suspected factor in the accident, the fact that it occurred over 3 hours in last call in Texas means that many people will ignore the possibility that a bar over-served the alleged drunk driver.

How can the bar be responsible for something that happens 3 hours after they're turned on the lights and kicked everyone out? The answer lies in the science of how we metabolize alcohol and just how much some bars blatantly flout liquor laws.

As a firm, our attorneys have handled more dram shop cases than almost any other law office in Texas. One of the toughest thing to convey is just how drunk most drivers are who cause accidents that we become involved in. It's not uncommon for our clients to have been injured by a driver who was two times or three times the legal limit. This means that at the time of the accident their blood alcohol content (BAC) is between .16 and .24.

Suppose an average-sized woman has a .24 BAC when she leaves a bar at last call. To get that drunk in the first place, such a woman would have to consume roughly 7 drinks in the course of an hour on an empty stomach. Alcohol metabolizes at a rate of .015 per hour, regardless of weight or gender. This means that by the time 5 am rolls around, that woman would have a BAC in the neighborhood of .195. That's almost one and a half times over the legal limit.

Even using a less extreme example of the same woman, but she's only had 5 drinks, which puts her BAC at .16, twice the legal limit. After three hours her BAC is still .115, well over the legal limit. In fact, it wouldn't be until around 7:30 in the morning that our hypothetical woman would be able to drive a vehicle without breaking the law.

All of this is to say that just because an accident occurred hours after a licensed seller closed, there are instances where they so wildly over-served a person that caused a drunk driving accident that the bar still bears responsibility.

How Temporal Proximity Complicates Liquor Liability Cases

Just because a bar has some liability for an accident that occurs hours after closing time, doesn't mean that holding them accountable is ever easy. The main reason is that the gap between the last drink the bar served and when the accident occurred is a gray area. Any bar is certain the challenge the temporal proximity of the two events.

The thinking behind a temporal proximity defense is goes a bit like this. Sure, it's possible that we, the bar, over-served this person, but we didn't over-serve them that much. The drunk driver must have gone somewhere else and continued drinking, that's the only way they would still be intoxicated hours later.

On the surface, temporal proximity defenses sound reasonable. However, in our experience, bars invariably underestimate the degree to which they over-serve intoxicated patrons.

Temporal proximity arguments play to the imaginations of juries. After all, each of us will naturally wonder what happened in the hours between when a bar closed and an accident occurred. Did someone simply stop drinking? Did they find another party to attend at a private residence? Is there something in this gap that better explains why an accident happened?

Inexperienced attorneys may be ill-prepared to deal with the issues raised by temporal proximity defenses. The key to combating these defenses is to fill in the missing time. A lot of people leave the bar and go to late-night restaurants, where they spend time hanging out with friends until they drive home. There are after-hours dance clubs that don't serve alcohol. In some cases people sleep in their cars for a couple of hours, then drive home.

Whatever they were doing, experienced attorneys know that the gap has to be filled in. Witnesses and receipts become vital evidence in these cases. In many instances, bars over-serve their customer to such an egregious degree that regardless of what a person did after they left the bar, they would still be severely intoxicated based solely on their prior consumption.

To neuter the relevance of a temporal proximity argument, attorneys will often subpoena the sales records of the bar, the credit cards of the drunk driver, and use those to demonstrate that based upon the what was sold to the drunk driver, there is no way that they could have sobered up until well into the morning.

While getting justice for victims is easier when the drunk driver causes an accident shortly after leaving a bar, it is still possible for victims to hold the drunk driver and the bar accountable even hours after last call.

Holding Bars Accountable at Any Hour

In one of the most outrageous dram shop cases that Grossman Law Offices has ever handled, our clients lost their daughter to a drunk driver who had a BAC of .26, more than 3 times the legal limit. The drunk driver in that case consumed all of his alcohol at a bar. Presumably, that bar closed at 2 in the morning as required by law. If the drunk driver in that case had left the bar at closing, they would not have been under the legal limit to drive a car until 2 in the afternoon, a full 12 hours after last call.

Some may look at a firm like ours and see that sometimes we pursue liquor liability claims long after a bar is closed. They may consider our behavior to be outrageous. What they miss is the real outrage, some bars are serving people so much alcohol that they're unable to legally drive for half a day after the bar finishes serving them.

People often argue that we're trying to shift the responsibility for drunk driving accidents from the driver to the bar. This isn't true. The law apportions responsibility between both parties. Others might think it's ridiculous that a bar can be sued for accidents that happen hours after they close. If one feels that way, I would point out that a bar's liability stops the moment their client sobers up. If a bar doesn't want to have liability for accidents and injuries that happen 12 hours after last call, they shouldn't serve their patrons so much that they're still drunk the next day.