Who Pays When a Drunk Driver Hits a Pedestrian?

By Michael GrossmanMarch 31, 2017Reading Time: 6 minutes

I realize that we have touched on this topic many times before, but there are still many people who believe that liquor liability, or dram shop, laws unfairly punish bars for the behavior of drunk drivers. The common perception is that a person goes out, decides to drink too much, hurts themselves, and then turns around and files suit against a bar. This ignores the fact that the vast majority of dram shop lawsuits are brought by people who were minding their own business and were injured by drunk drivers that were unlawfully served by bars.

In fact, the past two weekends have seen 3 Texans, who were simply walking down the street, killed in separate drunk driver accidents, when allegedly drunk drivers lost control of their vehicles and hit them. If it were not for dram shop law, the drunk drivers would be in jail, and the victims' families would be left footing the bill for someone else's recklessness. Without liquor liability law, the message to these victims' families would that the right of those in the community to go out drinking, outweighs the rights of people who choose not to drink to be able to safely walk down our streets.

Perhaps most disturbing of all, if the logic of dram shop opponents were to be applied by insurance companies in the wake of these accidents, pedestrians who are killed or injured by drunk drivers would get nothing at all. I fail to see how someone walking down the street has an obligation to pay for another person's party or to ensure that bars who insist upon breaking the law can avoid consequences of their illegal behavior.

Two Deadly Weekends for Texas Pedestrians

Before discussing why it's important for drunk driving accident victims and their families to have access to our courts, it's illustrative to see just how pervasive this problem is. On two consecutive weekends, 3 people were killed in separate accidents, in different parts of Texas.

Saturday, March 18: Dallas

In the incident that garnered quite a bit of attention from the media, Rachel Spelman, 23, was killed when she was struck by alleged drunk driver, John Adrian Esparza, 38, in the 2200 block of Cedar Springs Road. The incident occurred early Saturday morning.

What likely caught the media's attention was that Mr. Esparza, allegedly fled the scene and ended up being apprehended a couple of days later in Oklahoma. There are also reports that witnesses saw Mr. Esparza exit his vehicle after Ms. Spelman was struck and killed, look at her body, and then get back in the vehicle to flee the scene. Additionally, some outlets suggest that Mr. Esparza was at a club prior to the accident.

Friday, March 24: Port Aransas

Around half past 10 in the evening, Brandon Phelps, 20, was struck and killed in the 1400 block of 11th St. The alleged drunk driver, Jason Howard Auvenshire, 47, allegedly left the scene, only to return later, while police were investigating the incident.

Police spotted damage on the Mr. Auvenshire's car, which appeared to match where they would expect to find damage on the car that hit Mr. Phelps. It was later determined that Mr. Auvenshire was intoxicated and he as since been charged with intoxication manslaughter.

Sunday, March 26: McAllen

A 61-year-old man was killed killed in W. Business 83 while walking, after being struck by an alleged drunk driver. Elena Cristal Cavazos, 23, allegedly left the scene of the accident, was apprehended later, and charged with intoxication manslaughter.

In an interesting twist, her defense attorney claims that Ms. Cavazos was not drinking alcohol, but may have been drugged on the night in question.

What Would the Consequences for Pedestrians Be Without Dram Shop Laws

In each and every one of the accidents, it is reasonable to suspect that the alleged drunk driver may have been drinking at a bar or restaurant before they got behind the wheel. If they were served while they were obviously intoxicated, the bar may have some liability for their role in facilitating the drunk driving accident. This is known as dram shop law.

A lot of folks have problems with this part of the law. They believe that such laws shift responsibility from the person who made the decision to drink too much to establishments that were just plying their trade. These folks think, "It's a bar, of course they're going to get people drunk, that's what they're there for." For such people, any blame that is placed on a bar for these accidents is blame that is taken away from the drunk driver.

I am a big proponent of individual responsibility, but arguing that intoxicated drivers are the sole cause of drunk driving accidents treats alcohol providers as abstract inhuman constructs, not organizations made up with individuals who have their own responsibilities. Texas law is very clear that one of the conditions for receiving a liquor license is to not serve obviously intoxicated people. The bedrock of any system of individual responsibility is that when you say you're going to do something, you have an obligation to keep your word.

Those that believe bars should never be responsible for the actions of a drunk driver, a driver the bar helped get drunk, seem to think it's alright for a bar to lie to get a liquor license and not face consequences. It's as if the provisions in the law that prohibit selling alcohol to those who are already drunk are some sort of wink, wink, provision to make us feel better, because in reality we all know the real purpose of bars and liquor stores is to allow people to get blind drunk, if they so choose.

If someone truly feels this way, then in in our system of government, they possess an obligation to communicate their feelings to their elected representatives, organize their fellow citizens, and fight to change the laws. Then bars will be free to serve whomever they want, as much as they like. Until that time, Texas liquor law makes it illegal to serve people who are already intoxicated. Refusing to enforce provisions of the law that prohibit the sale of alcohol to the intoxicated or hold bars accountable when they serve obviously intoxicated people who go on to hurt themselves or others isn't a recipe for individual liberty, it's a road map to anarchy.

But for the sake of argument, let us suppose that we did away with liability for bars in drunk driving accidents. Victims will only have the right to go after the drunk driver because, "They're the ones who broke the law."

Let's apply these assumptions to an accident where a drunk driver runs over a pedestrian who had the right of way. The pedestrian, or their family in the event they are killed, would have a cause of action against the drunk driver. Driving drunk is obviously negligent and everyone agrees that drunk drivers should be held accountable for their actions. The problem that arises when the victims attempt to recover compensation for their hospital bills, or funeral costs, is that insurance companies generally aren't particularly happy paying out on these claims. As a rule, they don't knowingly write insurance policies for drunk drivers, or any other people committing criminal acts for that matter.

This means that insurance companies have a fairly solid argument that the policy doesn't cover drunk driving accidents, since they are criminal acts. There are certainly ways to hold them accountable, but they are beyond the means of most non-lawyers. To be honest, there are even times when these arguments work when a competent attorney helps the victim in the case.

When these tactics succeed and remove insurance money from the equation, then the only source of victim's compensation is from the drunk driver's personal assets. Texas law, specifically Homestead provisions, specifically shield most houses, cars, and a fairly large chunk of financial assets from jury verdicts. This effectively walls off the means that most people would have to raise the sums of money necessary to compensate a victim.

So if it's difficult to collect compensation from the drunk driver and we decide to erect a legal moat around alcohol providers, who ends up paying for the medical bills, lost wages, funeral expenses, etc. of pedestrians injured by drunk drivers? For those who believe in individual responsibility, the best-case scenario is that the pedestrian or their family has to pick up the tab. In the vast majority of these instances, it will be the proponents of individual responsibility for drunk drivers who end up having to pay for the drunk driver's poor decisions.

How would this happen? If the drunk driver doesn't have the assets to pay for their mistake, it's just as likely neither does the victim. This means that hospitals go without being reimbursed, which drives of the costs for everyone. Similarly, orphaned dependents, deprived of their parents' financial resources frequently end up forced into public assistance programs, which we all pay for. So in the name of protecting bars who break the law and holding drunk drivers accountable, opponents of dram shop litigation expect everyone to pay for these mistakes. To put it another way, partying is individualized, while the costs are socialized.

By removing consequences for bars who break the law, they impose burdens on pedestrians who don't. From my perspective, a key component of individual responsibility is accepting the consequences for breaking the law. One of the few things I can be fairly certain of in the accidents I mentioned earlier, it was the pedestrians who were following the law when they were killed. There was likely a drunk driver who broke the law and possibly bars who did, too.

That's why Texas' dram shop laws are vital tools of public policy and morality, a morality based on offenders being accountable when their dangerous behavior hurts or kills someone in the community, even when that offender has a liquor license.