How Does a Texas Jury Apportion Responsibility Between a Bar and a Drunk Driver?

By Michael GrossmanFebruary 08, 2017Reading Time: 5 minutes

I talk a lot about Texas dram shop law, wherein an establishment that serves alcohol may be held liable if a drunk person causes injury to himself or others, but it's definitely important to keep individual accountability in the equation. Dram shop laws don't excuse the drivers themselves; it only acknowledges that the bars who provided them with too much alcohol may have played a role in any damages caused by that intoxicated person.

The importance of that distinction came to mind when the office learned of an accident that happened recently in Houston, TX on Saturday, January 28.

Houston, TX: The Tragedy of Daly and Genise Sutton

According to authorities, the crash happened on the feeder road to Interstate 45 near Rankin Road in Houston. At approximately 12:15 a.m., 45-year-old Jose Juan Flores was headed north at at high speeds in a Chevrolet Corvette. At Rankin Road he rear-ended a Kia Soul, driven by Genise Sutton. The force of the impact drove the Kia off the road, at which point it collided with a concrete wall.

Mrs. Sutton, 53, suffered serious bodily injuries from the crash; she was taken to nearby Ben Taub Hospital. Her spouse in the front passenger seat, 53-year-old Daly Sutton, was pronounced dead at the scene. Jose Flores reportedly was unharmed by the collision. Officers at the scene suspected him of alcohol intoxication and obtained a warrant to take a sample of his blood; he was subsequently arrested on charges of intoxication manslaughter.

Authorities continue to investigate, but no further information is available at this time.

How much of what happened should be laid at the feet of Flores himself, and how much should be assigned to wherever he was drinking before hitting the road?

Details Are Key In Determining Liability.

When engaged in a dram shop case, defense counsel may argue that the plaintiff's attorney is overlooking the actions of the drunk driver to pursue a bar or restaurant for negligence. While these establishments may have greater resources with which to compensate injured parties, theirs is not the singular cause of an accident, and that is not the contention made by the plaintiff. No one is seeking to absolve a drunk driver; it is simply important to recognize that whoever helped them become drunk should be held liable for their part.

The division of liability between the driver and the dram shop often involves consideration of certain factors:

  1. Severity of the over-service. Anything over a .08 is illegal, and I wouldn't encourage anyone to tempt justice by driving impaired. With that said, there's a fairly wide disparity between a .09 BAC and a .33 BAC in terms of physiological effects. Toward the lower end, reflexes are dulled and decisions harder to make effectively, but towards the upper, drivers could lose consciousness entirely behind the wheel. We at the firm have seen and litigated cases where bar patrons were served a dozen or more drinks beyond when they should have been cut off. Their obvious intoxication was not enough of a sign to bar employees that they should not be served any more alcohol--not when there was still profit to be wrung from them. To provide another example, we've also worked on cases where bartenders literally carried patrons out to their cars and put their keys in the ignition, because the people were too drunk to do it themselves.

These are examples of willful negligence, a concept in which someone may act in a manner that does not immediately or directly cause harm, but disregards potentially harmful consequences. Schlepping a drunk person out to his or her vehicle and turning it on for them is acting with blatant disregard for the likely outcome of that person being on the road. If there is a defense for this behavior, it is that bar and restaurant employees are often strongly encouraged to push alcohol on patrons due to its high profit margins. Our own Jeffrey Carr wrote a thoughtful piece about some of the internal reasoning behind dram shop violations. Many places offer drink specials, overly-abundant pours, or promotions (happy hours, ladies' nights, sporting event parties) designed in part to keep a patron's drinks flowing, and to distract said patron from exactly how many he or she may have consumed. The more they have, the better another one sounds, and the higher their tab climbs.

  • An establishment's history of over-service. Depending on whom you ask, heavy pours and cavalier over-service might be a good thing, but in the eyes of the law they most certainly aren't. Most bars serve alcohol responsibly, within the regulations outlined by the TABC. When we start working dram shop cases against establishments that serve alcohol, we often find ourselves managing more than one claim against the same location. That usually stems from management deciding to take a hands-off approach to safety in order to maximize profits. In such "anything-goes" locations, patrons are routinely over-served on the premise that they are adults who know their limits and can make their own decisions (there's that driver accountability argument from before). No matter the bars' point of view on over-service, though, the law is not so willing to absolve them of their role. Some things to consider when investigating an establishment over dram shop allegations:
    • Have the police often been called to the bar?
    • Is there any record of the TABC taking action against the bar for improper service?
    • Examining the bar's inventory, an investigator can assess its liquor stock versus its sales receipts. Using that data, it can often be determined if the bartenders are pouring heavy, or if free drinks have regularly been given out. These are indicators that bars are improperly distributing liquor to their patrons.
  • Is the staff properly trained and supervised? Employee attrition at bars and restaurants can be fairly high for one reason or another. Moreover, employees aren't always interested in following the rules if they get in the way of better tips. In some bars with more of a "hands-off" managerial approach, bartenders often turn to alcohol or drugs to survive long shifts. This in turn can lead to some cognitive impairment, including maintaining the right liquor proportions while pouring drinks for patrons.
    The liability may not fall entirely onto the ground-level employees, either. The management of some bars and restaurants run sales initiatives behind the scenes. Contests are held between wait staff and bartenders to see who can sell the most alcohol on a shift, or who can most effectively promote a specific new liquor. The reward for winning such a contest is often a cash prize, coupled with possible commissions (or "spiffs") for each successful sale. It's understandable as a marketing initiative, but it means that employees may be likely to more aggressively push sales and ignore the current inebriation of their customers.
  • Bars Aren't Blameless for Drunk Driving Accidents.

    Drunk driving as a phenomenon is puzzling. It's a direct contravention of common sense--a bad decision made as a culmination of several others. It's silly for me to try and shout all that down from my high horse, though; nobody's going to pop up with a respectable argument in favor of intoxicated driving.

    Responsibility for any injuries caused by an intoxicated driver should be split between that driver and the place that got him drunk. That's the role of dram shop law. Just because it argues that a bar's liability be taken into account, no one is contending that the driver is blameless or should get off scot-free. I'm only contending that per the circumstances listed above, there are circumstances where a bar behaves so recklessly that it deserves a large share of the blame for an accident. We've handled hundreds of these cases, and we have never encountered one where a jury didn't assign some of the blame to the drunk driver. It only stands to reason that the driver's agency be accounted for in apportioning responsibility; that's how it should be. However, to propose the complete innocence of a bar that serves people up to 3 or 4 times the legal limit, watches them stagger and slur their speech, then walks them out to a car and sends them on their way, strains credulity.