A Complete Guide to Texas Dram Shop Law by Dallas Dram Shop Attorney Michael Grossman
In theory, Texas dram shop law is simple. When someone is hurt or killed due to the improper service of alcohol, the victim (or their family) may sue the alcohol provider.
However, it's a bit more complicated than that. It would be unfair to alcohol providers if they were liable for every alcohol-related incident merely because they furnished the alcohol. Likewise, it would be unfair to the victims of alcohol-related injuries if bars and restaurants could never be held accountable for the role they play in drunk driving accidents, alcohol-related assaults, and other foreseeable consequences of excessive drinking.
What has evolved out of this attempt to strike a balance between the rights of alcohol sellers and the rights of victims is the body of law we call Texas dram shop law.
Like any area of the law concerning competing interests, Texas dram shop law features many technicalities and nuances that make it hard for non-lawyers and lawyers alike to understand.
But don't worry. In this article, our Texas dram shop attorneys will explain the law in a way anyone can understand. We'll walk you through what the law empowers you to do, the history of the law, the reason the law exists, who can sue, case strategy, and how these cases typically play out.
To make it easier to explain such a complex subject, we'll take a building block approach. We'll start by first outlining the basic components of dram shop law, and then we'll layer on more-nuanced explanations.
But before we get started, here are a few things you should know:
We're the most experienced dram shop attorneys in Texas. We've litigated against Applebees, Chili's, Hooters, Bombshells, and hundreds of others.
These cases are about more than just money. We make bars pay dearly, but we also make them change how they operate.
Michael Grossman, our firm's founder, has been recognized by Mothers Against Drunk Driving for his focus on drunk driving litigation.
If you ask most lawyers, they'll tell you dram shop cases can't be won. They're wrong. It just takes an effective strategy and the right evidence.
Dram shop cases are time sensitive. If you'd like to discuss your potential case please call us at (855) 326-0000 for a free consultation.
I think they’re the best dram shop firm in Texas and probably one of the best in America. Their knowledge of dram shop law is incredible and their knowledge of what it takes to move an insurance company in one of these cases is also incredible.
How Texas Dram Shop Cases Work
Although we talk about Texas Dram Shop law as if it's a single "thing," it's actually a collection of statutes and court decisions that make up a body of law. Together, these statutes and court cases spell out who can and cannot be sued for the improper service of alcohol.
Texas dram shop law can be broken down into two broad categories:
- Lawsuits against licensed providers of alcohol (e.g. bars, restaurants, caterers, etc.)
- Lawsuits against social hosts (e.g. homeowners who furnish alcohol to guests)
Lawsuits Against Licensed Providers
Businesses can't sell alcohol on a whim. They must first obtain a license to sell alcohol by the Texas Alcoholic Beverage Commission (TABC). In dram shop law parlance, businesses who obtain a liquor license from the TABC are called "licensed providers."
Licensed providers can be sued for an alcohol-related injury or death when they:
- Serve alcohol to an obviously intoxicated adult, or
- Serve alcohol at all to a minor.
One thing that should jump out at you is that bars are held to a different standard when they sell alcohol to adults vs. when they sell alcohol to kids.
The key to winning a case against a bar that sold alcohol to an adult (who then hurts themselves or others) is to show that the bar knew the customer was drunk, yet the bar served them anyway. On the contrary, the key to winning a case against a bar that sold alcohol to a minor (who then hurts themselves or others) is simply to show that the bar served the minor at all.
Is that all that must be proved? No, there are few other necessary ingredients for a Texas dram shop case against a licensed provider to be successful, but we'll come back to that later. For now, just know that the foundation of suing licensed providers rests on their having either served an obviously intoxicated adult or having served a minor basically any alcohol.
Lawsuits Against Social Hosts
If "licensed providers" are businesses who are licensed to sell alcohol by the TABC, then social hosts are basically everyone else. The most common type of social host is someone who throws a party at their house where alcohol is made available.
Social hosts can be sued for an alcohol-related injury or death when they:
- Serve alcohol to a minor who is not the social host's own child.
One thing that should jump out at you is that there was nothing on the above list about liability for providing alcohol to adults. Under Texas dram shop law, social hosts are never liable for providing alcohol to adults. Additionally, social hosts are not liable for accidents caused by providing alcohol to their own children. Social hosts can only be sued on the basis that they served alcohol to someone else's kids.
Why This Is Important To Us
Before we get started, let us explain a little bit about why handling drunk driving accidents is such a huge part of our law practice. You read about drunk driving accidents all the time in the news and, perhaps, you or your family have been affected by one. This is a pain we know all too well. One of our attorneys, Keith Purdue, lost his father when a drunk driver crashed into his motorcycle in 2010 as he was on his way to a shift at the county hospital in Dallas. Though we had been litigating these cases for many years prior to Dr. Purdue's passing, you can only imagine how personal these cases have become since then, and we have dramatically changed the focus of our firm accordingly. You can click the link below to read the story about Dr. Gary Purdue in full.
But, it's not just the personal motivation that drives us. Did you know that there were 1,296 fatal alcohol-related accidents in Texas in 2012? In 2011, there were 1,039 alcohol-related deaths in Texas. This is a major problem and it only seems to be getting worse. As we'll explain later, we believe that one of the ways to curb alcohol-related accidents is to hold the appropriate parties responsible. Here are some more statistics about alcohol-related accidents in Texas:
The best place to start is with the Texas Dram Shop Act, which gives us rules and guidelines for filing lawsuits against bars and other licensed providers of alcohol.
How the Texas Dram Shop Act Was Born: El Chico v. Poole
The way that new types of cases come into existence is either by:
- someone filing suit and alleging a novel theory of liability that the court allows (thereby setting precedent)
- the legislature (elected lawmakers) passed a law that specifically grants the right to file the new type of suit.
Dram shop liability was first "loosely" created in the courts and was then specifically spelled out and modified by the legislature. Here is how that happened.
In the late 80s, a man named Larry Poole was killed when his vehicle was struck by a drunk driver. It was later determined that the driver was "black-out" drunk after having been at El Chico restaurant. He claimed to remember nothing from the wreck and his BAC was revealed to be more than 2X the legal limit of 0.08%. Mr. Poole's family sued El Chico, claiming that serving someone to a point of black-out intoxication was an act of negligence.
Now, even though Texas law allows injured parties to sue for any conduct considered to be negligent, prior this case no court in Texas had ever established that alcohol service (even serving a drunk customer) could constitute negligence. After some disputes in the lower courts regarding whether or not improper service of alcohol could form the basis of a negligence lawsuit, the case eventually wound its way to the Supreme Court of Texas. The Supreme Court heard the case and ultimately determined that bars do indeed owe a duty to the general public to serve alcohol to customers in a manner that is reasonable and safe. They explained that once a patron becomes intoxicated to the point that they are dangerous to themselves or others, the bar has essentially created a monster and is responsible for whatever harm is to follow.
This ruling effectively created the precedent by which bars could be sued in the future. However, the ruling created just as many questions as it did answers. What exactly is the difference between negligent service and non-negligent service of alcohol? Is a bar always liable, or just under extreme circumstances? What specifically should a bar do to avoid liability?
Eventually, the questions would have been answered on a long enough timeline by the court, as cases representing various scenarios were tried, but the Texas legislature decided that it was better to replace the court's decision with written, codified law that was precise, unambiguous, and which made bars liable only under very specific circumstances, as opposed to them being liable anytime they were "negligent," which is a term that can mean many different things. The law they created came to be titled the Texas Dram Shop Act. The basis of the law is this: if a bar served alcohol to someone when they knew or should have known that their customer was obviously intoxicated and presented a clear danger to themselves and others, or if they serve alcohol to minors, then they're liable for any injuries caused by the intoxication. But that's literally the only time they're liable. By replacing the obscure standard of "don't be negligent or you can get sued" with the more precise "if you do exactly this you can get sued," bars and those injured by alcohol suddenly knew exactly how the law worked in specific terms.
The Texas Dram Shop Act really accomplished two things:
- It put into code what had previously been established in case law (court precedent).
- It very narrowly constricted what kind of conduct a bar could be held liable for. Instead of suing for some type of "negligence," you now only sue the bar when they serve alcohol to someone who's already drunk or serve minors, period.
Now, this doesn't just affect people trying to file lawsuits against bars, it affects the bars themselves (remember, there are other providers of alcohol like social hosts, caterers, etc, not just bars). On one hand, things have been made easier for bars because instead of being vulnerable to many different types of negligence-based lawsuits, they only have to worry about one type of lawsuit. But it also sent a message: Texas lawmakers agreed with the courts and understood that bars play a role in alcohol-related injuries, and they made sure the bars knew, in unambiguous terms, that they have a legal responsibility to sell alcohol safely.
Simply put, the goal of the Dram Shop Act was and is to discourage bars from over-serving customers while also protecting bars from being sued for merely serving alcohol in the first place. You can visit the pages below to learn more about the Texas Dram Shop Act and its history.
Again, because of this law, anyone who is hurt or who loses a loved one in an alcohol-related accident can file suit against a bar, wherein they're provided an opportunity to prove that the bar is responsible. Click the link below to read more about who can file a lawsuit.
Are Dram Shop Laws Really Fair to Bars?
How can a bar be responsible for someone else's conduct? That's the big question most people ask when they hear that someone filed a lawsuit against a bar in a drunk driving accident case.
The short answer is that they're not. The bar is liable for the bar's conduct and the drinker is liable for the drinker's conduct. It's up to the jury to decide whose conduct was the bigger factor in the accident, and that means that it's subject to interpretation.
For instance, imagine that someone goes into a bar and tries to get drunk on purpose, hoping to get into an accident later and hurt someone, simply because they're sadistic. Surely all reasonable people can agree that even if the bar over-serves that driver and that customer later drives away and gets into an accident, killing someone, that the customer was exclusively at fault. After all, that person was literally trying to get drunk enough to kill someone, and a willful act is the most pure and well-understood example in determining fault; of course it's your fault if you do something on purpose.
However, on the opposite end of the spectrum, let's imagine another scenario. A 21-year-old girl goes into a bar for her first taste of alcohol ever, and an over zealous bar staff serves her until she is sick and can't even sit up straight. Surely any reasonable person would agree that whatever her intentions were when she walked through the door, she is now in a state that keeps her from being able to make decisions at all. So, it doesn't really make sense to say that the bar is free and clear from responsibility for whatever harm can come to this 21-year old girl leaving the bar in that state. If we're saying that the 21-year old girl is completely responsible for her own actions, that fails basic logic since it defies everything we know about how alcohol affects the body. She was just served copious amounts of a drug whose principal side effect is its impact on a person's decision-making ability, and therein lies the rub. If alcohol had its normal effect on people (makes them feel good, loopy, euphoric, etc), but it didn't affect their decision-making abilities, then bars would not be regulated in this fashion and there would be no such thing as liquor liability. But since it does, bars are regulated in this fashion since they are literally providing a drug that eradicates a person's ability to make sound choices. If the young woman was sober and someone said, "Here, drink enough alcohol to get sick and die," she would not do so if she were a normal person of sound mind. But surely she would be willing to have a few drinks; that's perfectly reasonable. The problem is that there is a huge difference between asking a sober person if they want to drink enough to get hurt and asking an intoxicated person the same question. By the time they're drunk, they will not make decisions the same way they did when they were sober. Period. Because of this phenomenon, the drunker a person becomes, the more a jury is inclined to blame the bar rather than the drunk. By the time someone is two or more times the legal limit, that person is usually incapable of making remotely sound decisions. Bars know this, yet they are happy to keep selling alcohol so long as the patron's money is still green, and our elected officials have decided that such reckless service of alcohol is not reasonable behavior.
But Does All This Indicate A World Gone Wrong?
No. Unlike what many people would have you believe, the fact that alcohol providers can be held liable under Texas law does not somehow create a trend toward blaming other people for a drunk driver's mistakes. Nor does the rationale behind dram shop law bleed into other areas of life. When a person is of sound mind, they are responsible for their own actions. But when someone makes profit from selling them a substance that is known to destroy their ability to be of sound mind, then that's clearly a more complicated situation and special circumstances need to be considered. Alcohol service, dram shop laws, and liquor liability in general are special circumstances, we can all agree on that. It's certainly more special than, say, selling soda or water. So, the fact that dram shop laws exist and are enforced doesn't really say anything at all about how ordinary circumstances are evaluated in any other area of the law. Keep in mind that a bar is only held liable if they break certain rules and the plaintiff (victim) can prove it using evidence. By no means is this a free-for-all situation where anybody can walk into a bar, have a drink, get into an accident, and then arbitrarily claim the bar was responsible and get compensation. The bar's liability must be "earned" by the bar's conduct, and juries usually won't punish a bar unless the bar's conduct is rather unsafe.
Selling Alcohol Is a Privilege, Not a Right
Let's take this a bit further. Bars actually have no natural right to sell alcohol. Since alcohol has been proven to be a drug with potential negative side effects, a bar must apply for a license to sell alcohol. This license is given by the Texas Alcoholic Beverage Commission. Frankly, this should be the end of the discussion. When you're licensed, you can be held to any standard the license issuer feels is necessary.
Think of it this way: if you visit a friend tomorrow and give them bad medical advice, you can't be sued for it. Why? Because you're probably not a licensed doctor. Since doctors and other licensed professionals hold themselves out as experts and get paid for dispensing their services, they must agree to abide by the rules set forth by the law - whatever they may be - as a condition of obtaining licensure. For instance, lawyers have very specific advertising rules that they must follow, but most other businesses do not. Is it fair that lawyers have to abide by these advertising rules? Who cares if it's fair or not, that's not the point. The rules exist, and if you want to be a lawyer in Texas, you have to abide by them. If you don't like them, find another profession. In the same way, bars have to be licensed to sell alcohol in Texas, so it's only natural that they also have certain conditions imposed upon their licenses. Licensure and conditions go hand in hand, and liability for the service of alcohol is a condition they agree to when they get the license. That means they know the rules before they ever sell their first beer. If you can't stand the heat, stay out of the kitchen.
To sum up what we said earlier, dram shop law is fair to bars because, in the eyes of Texas law, bars are not liable for a drunk driver, they are liable for themselves and the drunk driver is liable for himself. That's not lip service. The law, as interpreted by the Supreme Court of Texas in the Duenez case (more on this later), clearly states that a jury is asked to evaluate the evidence in an alcohol injury or death case and answer the question, "What percentage of the injuries are the bar's fault and what percentage of the injuries are the drunk's fault?"
So, no, we do not live in a world where bars are liable simply for serving alcohol. Rather, we live in a world where bars 1) knowingly ask for permission to sell a substance that they know can affect a person's decision making abilities, 2) are granted permission so long as they agree to follow specific rules, and 3) are only held liable for their contribution to an injury, not the whole thing. Sounds fair once you know how it actually all works, right? We think so.
You should take away two things from the above text:
- Bars can't be sued for just anything, only specific things allowed by law, which protects the bars in the end.
- Dram shop cases are difficult since bars are only liable for their contribution to the accident, not the whole accident itself.
That said, we've won hundreds of dram shop cases for the simple fact that bars do horrendous, illegal things all of the time. If you've been injured or lost a loved one, don't just assume that this was the bar's first mistake and that they are normally saints. If that's the case and the evidence shows it, then the bar won't be unfairly punished. But in our experience, the bars that break the rules enough so that someone gets hurt or killed in alcohol-related accident - well, that accident is usually just the tip of the iceberg and our investigation reveals just how dirty they are. Here are some more articles that explain why we hold bars responsible for their behavior and what kind of punishments they can face.
- Punishments & penalties for bars and other alcohol providers
- How much alcohol is too much?
- Liability for over-sized and novelty drinks
What Texas Law Requires of Bars
This is simple, really. Here's what the Texas Dram Shop Act actually requires of bars and any other licensed provider of alcohol. Specifically, the law says:
Sec. 2.02. CAUSES OF ACTION.
- (a) This chapter does not affect the right of any person to bring a common law cause of action against any individual whose consumption of an alcoholic beverage allegedly resulted in causing the person bringing the suit to suffer personal injury or property damage.
- (b) Providing, selling, or serving an alcoholic beverage may be made the basis of a statutory cause of action under this chapter and may be made the basis of a revocation proceeding under Section 6.01(b) of this code upon proof that:
- (1) at the time the provision occurred it was apparent to the provider that the individual being sold, served, or provided with an alcoholic beverage was obviously intoxicated to the extent that he presented a clear danger to himself and others; and
- (2) the intoxication of the recipient of the alcoholic beverage was a proximate cause of the damages suffered.
- (c) An adult 21 years of age or older is liable for damages proximately caused by the intoxication of a minor under the age of 18 if:
- (1) the adult is not:
- (A) the minor's parent, guardian, or spouse; or
- (B) an adult in whose custody the minor has been committed by a court; and
- (2) the adult knowingly:
- (A) served or provided to the minor any of the alcoholic beverages that contributed to the minor's intoxication; or
- (B) allowed the minor to be served or provided any of the alcoholic beverages that contributed to the minor's intoxication on the premises owned or leased by the adult.
- (1) the adult is not:
Translation: They can serve all the alcohol they want, so long as they stop serving once they know or should know that someone is drunk.
Dram Shop Terminology
One of the most frustrating things about talking to lawyers is that they often use words and terms you don't understand simply because you're not exposed to those terms on a daily basis. In the above quoted legal statute, there are probably a lot of terms with which you aren't familiar. All of the words in our legislation were chosen carefully and they have important legal meaning, so it's equally important that you are familiar with these terms.
Obvious Intoxication
As you saw above, the standard by which a bar's liability is determined is whether or not they served an obviously intoxicated recipient. But what is "obvious intoxication?"
Intoxication is obvious when a bartender or server knew (or should have known) their customer was intoxicated. Some states use a standard called "visibly intoxicated" to determine when a bar should be liable. In those states, a bartender is only liable when they can literally see their customer and determine, based on visual cues, that the customer is drunk. On the contrary, Texas' standard of obvious intoxication requires that the bartender take into consideration all available signs, not just what you can see.
A really good example of obvious intoxication that has nothing to do with visible signs can be illustrated using the "man-in-a-box" thought experiment. If there's a man in a box and the bartender can't see him, and can only serve him alcohol through a hole in the box, the bartender will never actually witness the drinker's conduct. That means he can't assess whether man is visibly intoxicated. But, if the bartender simply thinks back to his liquor license training, he'll recall that you can determine whether or not the man in the box was intoxicated based solely on the quantity of the alcohol sold, or other clues that have nothing to do with what you can see him doing. So what's the implication of this intoxication standard? Since a bartender can be held liable for serving someone who is obviously intoxicated, that means the server needs to be on the lookout for any sign that they've served too much. Texas law doesn't allow bartenders to turn a blind eye, as they can under the "visibly intoxicated" standard.
The TABC requires that all providers train their employees to look for all signs of intoxication. Here are some examples:
- Slurred speech
- Over-sexual behavior
- Outbursts or profanity
- Violent behavior
- Speaking loudly
- Stumbling or loss of balance
- Using walls, etc. to balance oneself
- Sleepiness
- Vomiting or nausea
- The quantity of alcohol consumed relative to body mass
- Inability to answer simple questions
Provider
A provider of alcohol is anyone who sells, serves, or otherwise makes alcohol available to people. There are two types of providers:
- Licensed providers - A licensed bar (or restaurant, tavern, pub, etc) that sells alcohol to their customers
- Unlicensed providers - A person or business who simply starts selling alcohol even though they're not licensed.
What you need to know is that even though one is officially licensed and the other is unlicensed, they are both treated the same under the law. It's simple: once you start selling and profiting from the sale of alcohol, it doesn't matter if you are licensed or not, you get held to the same standard. Click below to see more information about identifying providers of alcohol.
Recipient
For the purposes of liquor liability, there are two different kinds of recipients of alcohol: adults and minors. The standard that a bar is held to is different for each.
- Adult recipients are defined as anyone 18 years of age or older. If a claim is brought against a bar that they over-served an adult, it must be proven that the bar knew or should have known they were serving someone who was obviously intoxicated. If you wish to hold the bar liable, that's the standard of proof applicable.
- Minors are defined as people under the age of 18. If a minor was served alcohol by a bar (or other licensed provider), then the bar is automatically liable for injuries or death to the minor or injuries or death caused by the minor. You don't have to prove they served an obviously intoxicated minor. The mere fact that they served a minor a single drop makes them liable if the minor's intoxication is what causes the harm sustained.
But what happens when a person is under 21, but over 18? This is a little tricky, but even though the person is considered to be a "minor" as far as the legal drinking age is concerned, for liability purposes, they're considered an adult. So if, for example, a 19-year old goes into a bar, the bar should never serve them because they're not of legal drinking age. But the mere fact that a 19-year old was served alcohol at all doesn't make the bar liable, you still have to prove the 19-year old was obviously intoxicated at the time they were served. This is a tricky concept.
Other Legal Terms
Defendant
The person (or party) who is being sued. In this case, it will be a bar, restaurant, caterer, homeowner, or other provider of alcohol.
Plaintiff
The person who is bringing a lawsuit against the defendant.
Claim/Cause of Action/Lawsuit
These terms are all roughly synonymous and they mean that legal action is being taken against some party.
Damages
These are the losses you've suffered. If a car accident breaks your arm and it costs $2500 in medical bills and pain medication, your medical damages are $2500. In a lawsuit, damages are what you're trying to recover from the defendant in terms of compensation.
Compensation
The money you receive from a defendant in a lawsuit is called compensation, and it's similar to getting a reimbursement. If you establish that you deserve the compensation, then a jury will award you compensation for the losses (or damages) you have incurred. We're splitting hairs over the semantics, but as a matter of preference, we usually say that one seeks compensation for the damages they incurred, but, technically speaking, you can use the term "damages" interchangeably with compensation and it's still right. Personal injury cases are often called "damages suits."
Litigation
This refers to everything that happens from the moment you file suit to the moment your case is resolved.
Party
This is a fancy way of referring to people in a legal sense. A person - or group of people - can be called a party, as can a business or a corporation. The term is used like, "The injured party filed suit against the negligent party," etc.
Over-serve
We use the term "over-serve" when talking about liquor liability, but technically speaking, a bar's not liable for over-serving, they're only liable for serving a patron who's already drunk. Notwithstanding the legal distinction, it still encapsulates the same idea.
There Are Two Kinds of Cases Against Bars
Now that we've defined our terms and explained what dram shop law is and why we have it, let's look at what kind of legal case can be brought against a bar in the event that they over-serve a customer. The two types of cases are "first party" and "third party" claims, and we'll explain how those claims work in relation to both adults and minors.
First Party Cases
As we established earlier, a bar that over-serves someone who's obviously intoxicated can be held liable if that person gets into an accident and hurts somebody. That injured party can be another person in a different car, a passenger, or even the drunk driver himself. That's right, the same rules apply, even if the person injured by an accident that ultimately stemmed from the negligent service of alcohol was the person doing the drinking. For instance, imagine a woman gets drunk at a bar and leaves on her motorcycle, crashing off the side of the road later that night. In that example, the woman might have a first party case against the bar for their contributions to her injury. Obviously, she was at fault as well, but it's possible that the bar is partially responsible, too. That's for a jury to decide.
We won't go into all the details here, but we'll give a basic overview of "first party" cases. Click the link below to get more information about this topic.
In a first party dram shop case that results in injuries, the injured party is the person who was over-served. If that describes you, then here's what you need to know.
- Adults First party cases work differently depending on the age of the plaintiff (victim). If the person who was over-served by the bar was an adult, then the same things apply that we've been talking about. You first have to establish that the driver was served while they were obviously intoxicated and that the bar knew or should have known to stop serving them but kept serving them anyway.
- Minors However, if the person over-served was a minor (18 years of age or younger), then you only have to prove that a minor was served alcohol at all. You don't have to prove obvious intoxication or anything of the sort, just that the bar served alcohol to a minor and that the intoxication of the minor lead to the minor suffering injuries.
Let's go over the basics of a first party case and any special tips you need to know
- Evidence You Need For A First Party Case You can't prove any case without evidence, and this is no exception. In order to prove that a bar served you alcohol while you were obviously intoxicated, you'll need several things - including receipts, video surveillance footage, and any kind of eyewitness testimony.
- Play-by-Play of a First Party Case Here's a look at how a first party dram shop case works, from start to finish. We'll get to the specifics and expand some of these points later, but this will give you a good idea of what your case should look like so you can prepare for it. These articles below spell out the basic steps of a first-party dram shop case.
- Get started on your case as soon as possible with an investigation
- Identify the defendant and file a claim
- Verify insurance coverage for defendant
- Determine value of your caseLitigate your case and settle it
- First Party Cases Involving Fatal Accidents The examples we've been giving above have been for injury accidents, but a large number of alcohol-related accidents are also fatal. In the case of a first party claim, the victim has died and can't tell their story. Under Texas law, another beneficiary (spouse, child, parent) will be bringing a wrongful death claim or a survival claim. The following article will tell you more about this process, as well as how to determine if a bar (or other alcohol provider) was involved at all.
Third Party Cases
A third party accident is one where the injured person was not the cause of the injury. That is, they were an innocent third party. Now, if the cause of the injury was a car accident, that doesn't mean the victim has to be in a separate car, though that's often the case. Passengers in a drunk driver's car are also considered to be innocent third parties. In other words, an innocent third party is anyone other than the drunk that caused the injury.
Just like we did above with the "First Party Cases" section, we'll provide a basic overview of third party cases and tell you what you need to know about them. If you want a more detailed explanation, here's an entire article about third party cases.
- If the Drunk Was an Adult In a third party case, if the drunk who injured the innocent third party was an adult, you need to prove that a bar served the drunk while they were obviously intoxicated in order for the bar to be held liable.
- If the Drunk Was a Minor If the drunk person who injured the innocent third party was a minor, then the victim would only need to prove that the bar served the drunk at all in order for the bar to be held liable.
- Evidence in a Third Party Case
This can be anything from a bartender's testimony to a computer program on a bar's register that show's how many drinks were sold in a given period of time. The article below talks some more about the evidence you'll need. The bottom line is that you can't expect to get anywhere unless you prove through evidence that the bar over-served their customer.
- Gathering Evidence in a Third Party Case
- Play-by-Play of a Third Party Case Like the above section, there are 5 basic steps to handling a third party case, outlined in the articles below.
- Fatal Third Party Accidents A fatal third party accident is very similar to a third party injury accident. The claim is brought by the family of the innocent person killed due to intoxication. In Texas, spouses, children, and parents are allowed to bring wrongful death claims on behalf of a deceased family member. If that family member was killed by someone who was over-served at a bar, then the family can hold the bar liable for their contribution to the accident as well as the drunk driver. Here's an article that explains third party fatality accidents further.
- Fatal Third Party Dram Shop Cases
- Identifying a Bar in a Fatal Third Party Case
- Overview of Texas wrongful death law
It's important to note that - with either a third party or a first party fatality case - the burden of providing evidence and establishing the damages is still very much expected by the court. In those situations, it's even more important to act quickly and make sure all your bases are covered, legally speaking, so that your family member's death does not go unpunished.
Quick Recap
If you've read this far, you should have a pretty basic understanding of the differences between a first party case and a third party case. You should also know that it's not just enough to prove that a drunk driver had been at a bar, you have to prove that the bar had knowingly served them when they were obviously intoxicated - or at least that the bar should have known their customer was intoxicated.
We've mentioned that bars aren't the only providers of alcohol, and the next few sections address the different types of providers, starting with social host situations.
Social Host as an Alcohol Provider
The term social host refers to any person who hosts others at their home (or other premises) and makes alcohol available. This is a hugely misunderstood area of the law, and most people think it means that if someone hosts a party, they're responsible for everyone present. As far as the Texas Dram Shop Act is concerned, social hosts are only liable if they provide alcohol to minors. So if their guests are under the age of 18 and they provide alcohol or otherwise make it available to minors, that means they're at least partially liable if the minors get into an accident. Further, this is not exclusive to parties. Making alcohol available to children any time can result in liability. But just to be clear, we'll show you in the sub-sections below how social host law applies to different age classifications of drinkers.
- Adults Normally, adults are all responsible for their own behavior; so if a social host over-serves an adult, the social host bears no liability. But there is an exception if the host of the party is charging for alcohol. By serving alcohol at a party and charging money for it (aka, making a profit), the host of the party has acted just like a bar, restaurant, or pub, and is therefore treated like one in the eyes of the law. The act of charging for alcohol basically transforms the social host into an unlicensed provider, which is bad news for the social host.Under normal circumstances, where alcohol is simply provided or brought to a social event, the host doesn't bear any liability for adult guests.
- Minors Social hosts have a duty make sure alcohol is not consumed by minors. Using another situation as an analogy, you wouldn't just leave your swimming pool unguarded or unwatched if you were having a birthday party for small children. But if you're having a barbecue with adult guests, then it's not unreasonable to leave the pool unguarded because adults can take care of themselves.It's the same way with alcohol. It's not enough to simply expect minors not to drink, a social host needs to take preemptive measures to ensure minors don't drink and become a danger to themselves or others.These kind of alcohol-related incidents can precipitate a lawsuit, to be sure. However, there are other circumstances that can lead to regular homeowners being liable for providing alcohol, which you can read about in the article below. Common Providers of Alcohol and Common Scenarios Where Alcohol is Served Common Providers Of Alcohol
Much like the section above, many people have the wrong idea about how the sale and service of alcohol is regulated at things like sporting events or restaurants. This next list of articles addresses the most common providers of alcohol and whether or not they can be held liable for the over-service of alcohol. This list isn't exhaustive by any means, but we think it's a pretty good start.
- Entities that are subject to dram shop liability
- Bars
- Restaurants
- Liquor stores
- Caterers
- Private clubs
- Fraternities & sororities
- Football stadiums
- Rodeos
- State fair
- Baseball stadiums
- Basketball arenas
- Other sports arenas
- Drunk driving accidents
- Accidents that kill or hurt the drunk driver. These are known as first party cases, as was mentioned above.
- Accidents that kill or hurt another party. This is described as a third party case.
- Minors who are served alcohol
- Like we said earlier, minors can't be served alcohol at all, but a bar's chance to defend themselves really goes out the window if they serve someone under the age of 18. If a minor under 18 years of age is served alcohol and that causes an accident, the bar is in trouble with the law because they broke very specific TABC regulations, as well as state law.
- Alcohol-related slip-and-fall accidents can be the bar's fault
- When someone becomes intoxicated, they obviously lose their sense of balance and are prone to falling down or otherwise endangering themselves. Often times, slip-and-fall accidents happen at a bar.
- Bars can be liable for intoxication-fueled assaults
- Alcohol can cause a lot of foolish decisions to be made, and it's certainly not conducive to calm, gentle behavior. It's not just car accidents that can cause injuries, being assaulted by an intoxicated person can cause injuries as well, and alcohol providers may bear liability therein.
- Alcohol Poisoning Accidents
- Being served too much alcohol can have negative effects on your health, alcohol poisoning and liver damage being the most obvious ones.
- Walking Into Traffic While Intoxicated
- We've handled cases where an intoxicated customer at a bar was continually served more alcohol until they decided to leave. Unfortunately, these bars were on busy streets and the customer stumbled into traffic, getting hit by passing cars.
- Accidents with Someone Who Was Drinking on the Job
- When someone decides to drink on the job, there's the possibility for two claims: one against the bar for over-service (if there was a bar at all) and one against the employer of the intoxicated person, but only under certain circumstances.
- Negligent Entrustment of Vehicle to an Intoxicated Person
- Sometimes, people allow their friends to drive their vehicles for any variety of reasons. Unfortunately, if someone knowingly lends their car to an intoxicated person, then the car's owner can be held liable for negligently entrusting his vehicle to an intoxicated individual.
- Parties and Other Social Gatherings
- As we've mentioned in the previous sections, social hosts and homeowners can be liable for serving alcohol to minors on their premises. This article gives a few more specific examples and explains which scenarios precipitate a lawsuit and which do not.
- That the bar served an obviously intoxicated patron
- That the intoxication was the proximate cause of the accident
- Direct evidence - such as blood alcohol test results
- Circumstantial evidence - such as eyewitness testimony that describes the intoxicated patron as having impaired balance or slurred speech
- Quantity of alcohol served
- TABC "Know your limit" chart
- Purported changes in behavior, balance, etc. of the patron
- Serving size
- Eyewitness testimony
- Testimony from police officers who encountered the intoxicated patron
- Expert witness testimony
- Expert witness testimony is essentially testimony provided by qualified experts who you hire to analyze the details of the accident and then render an opinion that can be shared with the jury. For instance, if an intoxicated patron is killed in a car accident and they suffer massive blood loss in the accident, their BAC when they arrive at the hospital may appear to be low since they have had clean blood or lactated ringers infused into their body while en route to the hospital (this issue is actually quite common in these cases). So, in order to explain to a jury that, despite the fact that the decedent's BAC makes it seem like they were only, say, a .12, they were actually far drunker since their blood was so far diluted by blood transfusion. An expert witness is usually a college professor, licensed professional (like a doctor or engineer), or some other leader in their particular industry who lends their knowledge and analysis to your case. The expert witnesses that are typically used in dram shop cases are:
- Toxicologists
- Safe alcohol sales consultants
- Expert witness testimony is essentially testimony provided by qualified experts who you hire to analyze the details of the accident and then render an opinion that can be shared with the jury. For instance, if an intoxicated patron is killed in a car accident and they suffer massive blood loss in the accident, their BAC when they arrive at the hospital may appear to be low since they have had clean blood or lactated ringers infused into their body while en route to the hospital (this issue is actually quite common in these cases). So, in order to explain to a jury that, despite the fact that the decedent's BAC makes it seem like they were only, say, a .12, they were actually far drunker since their blood was so far diluted by blood transfusion. An expert witness is usually a college professor, licensed professional (like a doctor or engineer), or some other leader in their particular industry who lends their knowledge and analysis to your case. The expert witnesses that are typically used in dram shop cases are:
- In a First Party Case: Recall that if a jury says that the injured person is more than 50% responsible for their own accident, they can't recover any compensation. So if you are the the injured party and were also the one drinking (or if your loved one was the one drinking and they passed away in their accident), the bar doesn't have to convince a jury to put ALL the fault on your side, just slightly more than half. If they can convince the jury that your side is more responsible than their side, they won't have to pay anything. This means that they really only have to work just hard enough to make the jury slightly more upset with you than them.
- In a Third Party Case: In a third party case (where you or your loved one were hurt by a drunk), when you sue the bar, the drunk driver is also part of the case. The bar can then make comparative fault arguments against the drunk driver to distract from their own culpability. In other words, the law allows them to convince the jury that they, the bar, are not the ones who should pay, rather, it is the drunk driver who should be solely responsible for your injuries. If the jury buys their arguments, then the majority of fault gets put on the drunken driver. And for every percent of fault put on the drunk, that's one less percent of your injuries the bar has to pay for.
- What To Expect in a Dram Shop Case: Defenses
- Click the link above to learn more about what types of generic defenses are commonly used in dram shop cases
- Dram Shop Defense: Proximity
- Proximity just means distance, in this context. A plaintiff who sues the bar must show that the bar's improper service was the primary cause of the plaintiff's injuries. A good defense used by bars to undermine that goal is the proximity defense, which essentially just means that the drunk driver drove really far away from the bar before the accident happened, the implication being that if his drunkenness was really a big deal, that he likely would have caused an accident much closer to the bar. But since he made it quite far from the bar before the accident happened, they reason that the accident must have been caused by something other than intoxication, and the fact that he was drunk was just a coincidence. This defense argument has some obvious problems, namely that the drunk could have had dozens of near misses between the time he left the bar and then caused an accident. Despite its problems, bars often use this defense. An example of when such a defense actually was plausible was in a case we were hired on wherein a young man left a bar and crashed into a tree sometime later. What we learned during our investigation was that he left the bar, was getting pulled over, and then he fled from the cops, traveling several miles at high speed, all of which was caught on camera. He eventually crashed, but the camera showed that he was evading the police with expert precision. You would never guess from the footage that he was drunk by the way he negotiated turns. In fact, he nearly got away from the police. Since these cases are only valid if the decedent crashed because of intoxication (and not just because high-speed pursuits are risky in their own right), we, of course, declined to represent the client further once we learned the specifics of the accident. It's hard to argue that the alcohol was the main cause of his crash, given how well he was driving.
- Dram Shop Defense: Temporal Proximity
- Temporal proximity just means time, and the defense works much like the one showcased above. In a nutshell, the defendants argue that they are not responsible for accidents caused by their overservice since so much time passed between the service of alcohol and the injuries. We had a case once where an elderly gentleman went to a bar and was grossly over-served. He later died when he went back to his home, lost his balance, and struck his head on the wall. His time of death was about six hours after he left the bar. The bar tried to show the court that the the over-service was not likely to be the cause of the death since so much time had passed since he was served.They reasoned that the elderly gentleman could have just tripped, as older people are wont to do. However, we defeated this argument by showing that even six hours later, the decedent's BAC was more than two times the legal limit. The court didn't buy their arguments and we ultimately won the case.
- Safe Harbor Defense
- While most defenses simply allow the party you're suing to chip away at your case, a "Safe Harbor" defense is one that allows a defendant to have your case completely rejected by the court, provided that they prove to the court that they meet the criteria to plead such a defense. It's basically the civil equivalent of a "get out of jail free card." Safe Harbor defenses are only allowed to be used by certain types of defendants who the lawmakers feel deserve special protection, and Texas lawmakers decided to include bars in that group.The particular Safe Harbor defense that bars are allowed to use is called the "Trained Server" defense. In a nutshell, it is a defense wherein the bar gets complete immunity from your lawsuit if they can prove that their employees meet specific training requirements. The Trained Server defense is an affirmative defense, meaning that the onus is on the defendant to offer evidence to the court which proves that they are eligible to use it.A bar qualifies for the Trained Server defense if they meet the following criteria:
- The bar must require their servers and support staff are TABC certified within 30 days of hire. That is, that they have undergone a Texas Alcoholic Beverage Commission-approved seller-server training class and have obtained the certificate proving that they have done so.
- Read more about Safe Harbor Element: TABC certification required
- The bar must actually be able to prove that their employees indeed obtained such training.
- Read more about Safe Harbor Element: TABC training is provable
- The bar must not do anything to directly or indirectly violate the law.
- How to defeat the trained server safe harbor defense
- The bar must require their servers and support staff are TABC certified within 30 days of hire. That is, that they have undergone a Texas Alcoholic Beverage Commission-approved seller-server training class and have obtained the certificate proving that they have done so.
- While most defenses simply allow the party you're suing to chip away at your case, a "Safe Harbor" defense is one that allows a defendant to have your case completely rejected by the court, provided that they prove to the court that they meet the criteria to plead such a defense. It's basically the civil equivalent of a "get out of jail free card." Safe Harbor defenses are only allowed to be used by certain types of defendants who the lawmakers feel deserve special protection, and Texas lawmakers decided to include bars in that group.The particular Safe Harbor defense that bars are allowed to use is called the "Trained Server" defense. In a nutshell, it is a defense wherein the bar gets complete immunity from your lawsuit if they can prove that their employees meet specific training requirements. The Trained Server defense is an affirmative defense, meaning that the onus is on the defendant to offer evidence to the court which proves that they are eligible to use it.A bar qualifies for the Trained Server defense if they meet the following criteria:
- Statute of Limitations Another factor you'll need to consider is the statute of limitations for a Texas dram shop case. Every type of case has a statute of limitations, which is a period of time in which your case is valid and whereupon once this period of time runs out, your case has expired and you can no longer sue. The SOL in for a dram shop cause of action is two years from the date of injury or death.
- In a wrongful death case...
- lost wages
- survival damages
- bystander claims (only for spouse, parent, or a child)
- loss of companionship
- In a personal injury case...
- medication costs (past & future)
- disfigurement
- pain & suffering
- loss of consortium
- lost wages (past & future)
- mental anguish
- loss of enjoyment of life
- physical impairment
- Property damage compensation (this is damage to something other than a person)
- damage to a car
- damage to a house
- damage to recreational vehicles
- Entities that are subject to dram shop liability