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Common defenses in Texas dram shop cases:

In Texas, when someone’s injuries are caused by a bar who served an obviously intoxicated patron, that bar can be held liable under the Texas Dram Shop Act. This law provides the legal framework for victim’s to file lawsuits against bars (and other licensed providers of alcohol) when their unlawful service leads to injuries.

To recover compensation, a victim must pursue a Texas dram shop lawsuit. These lawsuits identify which alcohol serving establishment over-served someone, show that a drunk patron’s intoxication lead to an accident, and demonstrate that the accident was responsible for the victim’s injuries. Upon being named in a dram shop lawsuit, bars to rarely step up to the plate and do the right thing by offering the victim compensation, instead they retain attorneys and mount vigorous defenses.

In over 25 years of helping injured Texans pursue (and win) their dram shop cases, our attorneys have come across numerous defenses again and again. In this article, one of Dallas’ most experienced dram shop lawyers, Michael Grossman explains the common defenses that bars have used over the years.


Questions answered on this page:

  • What defenses does Texas law afford defendants in dram shop injury cases?
  • What obstacles do these defenses present to dram shop injury victims?
  • How Grossman Law Offices can help?

Common Defenses in Dram Shop Cases

It’s important to note that there is no such thing as a “slam dunk” dram shop case because of the aggressive defense presented in the vast majority of these cases. Specifically, we’ll explore the following defenses:

The one thing all of these defenses have in common is that if they are successful, they allow a bar to pay less in compensation to the victim. While they scare many firms away from even taking Texas dram shop cases and are certainly obstacles to recovering compensation, they should not discourage an injured Texan from pursuing a legitimate claim.

The Safe Harbor Provisions in the Texas Dram Shop Act

In passing the Texas Dram Shop Act, the Texas Legislature adopted certain exceptions to dram shop liability for establishments called “safe harbor” provisions. Essentially, a provider can avoid liability from a dram shop claim by establishing:

  1. The establishment offered training to its employees regarding not over-serving and identifying intoxicated patrons
  2. The staff which served the patron in question attended this training
  3. The establishment didn’t directly or indirectly incentivize the over-service of obviously intoxicated patrons.

Safe Harbor holds a special place in our attorneys’ hearts and we’ll tell you why. Basically, if a bar can meet the three criteria for the Safe Harbor Defense, it doesn’t matter that one of their employees served an obviously intoxicated person, they cannot be held liable. This may sound like a pretty intimidating defense, since the rest of the case can be perfect, but this defense could theoretically still shield a bar from liability. This defense even scares away a lot of other lawyers who think dram shop cases are unwinnable.

Our attorneys love this defense because the burden to show that the establishment encouraged improper service is on the victim’s attorney to prove. How do you prove that an alcohol establishment encouraged their staff to break the law? The easiest way is to look up every time they’ve been fined by the Texas Alcoholic Beverage Commission, track down witnesses who have seen the bar unlawfully serve, check police reports for fights that have broken out at the bar, and check the company’s employee files for write-ups for improper service.

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The funny thing is that in most cases none of that dirty laundry is normally admissible in a dram shop case. Judges tend to want to limit the scope of the lawsuit to the events that occurred on the evening of the accident. All of that other stuff is irrelevant. However, when a bar pleads Safe Harbor, that information becomes relevant. Not only does it get admitted into evidence to disprove the Safe Harbor Defense, but it can then be used at trial. In effect, the bar blows up their own case in the hope that they can avoid liability altogether.

In over 25 years of litigating Texas dram shop cases, Grossman Law Offices has never had a bar successfully assert Safe Harbor. That’s a 0% success rate for alcohol establishments. Since the bars never win with this defense and damage their case at the same time, our lawyers and our clients really like this defense.

New and Independent Cause

Texas law defines a “new and independent” cause as an intervening force that wasn’t a foreseeable result of the defendant’s conduct. The Texas Supreme Court has established several factors for determining if an outside force was truly not foreseeable. The most notable for dram shop cases include:

  • The victim suffered a different type of harm they would not have otherwise sustained from the establishment’s wrongful over-service of an obviously-intoxicated individual
  • The cause of the victim’s injuries were completely independent of the establishment’s wrongful behavior

This defense is basically a restaurant saying, “Sure we broke the law, but our law-breaking isn’t what caused the accident,” a valid in some instances. For instance suppose a restaurant over-serves an obviously intoxicated patron and then on the way home that patron, driving drunk, suffers a heart attack and crashes into another vehicle, killing the other driver. In most instances the other driver could sue the restaurant and hold them liable, but in this instance the bar would argue, it’s not the alcohol that caused the accident, but the heart attack. They would also argue that their was no way they could know that over-serving the patron would cause the heart attack, since getting drunk one time does not typically result in a heart attack.

Even in cases that are not as clear-cut as the example above, defendants will still try to use the New and Independent Cause Defense. Usually juries see through this defense, but every once in a great while it sticks.

Assumption of the Risk

Another defense at the defendant’s disposal is the doctrine of “assumption of the risk.” Essentially, Texas law allows defendants to avoid liability for an plaintiff’s injuries if they can prove that, although the victim was subjectively aware that their conduct posed a significant risk to their health, they elected to pursue that activity anyway.

Assumption of the risk usually arises in dram shop cases where the passenger is injured in a collision after deciding to ride with a driver they knew or should have known was intoxicated. In these cases, Texas law prevents the injury victim from suing the driver and the establishment that served the obviously intoxicated patron, as the passenger assumed the risk of injury by deciding to ride with a drunk driver with actual or constructive knowledge of their inability to safely operate their vehicle.

The Injury Victim Failed to Mitigate Their Damages

Finally, if a bar can’t find a defense that is able to totally convince the court that it isn’t completely off the hook for the victim’s injuries, they will try to reduce their liability by claiming that the injury victim failed to “mitigate” or “limit” the severity of their injuries. To achieve this objective, they’ll elicit testimony from their expert witnesses to counter the testimony of the victim and the victim’s experts.

An example of this defense would be if someone was over-served, drove home drunk, and got in an accident on the way home. In the accident, the drunk driver suffered what they thought were broken ribs and refused medical treatment. Sadly, for our hypothetical driver, instead of having broken ribs, the driver had a small amount of internal bleeding, from which he subsequently dies. The bar would argue in that case that many of the normal damages that are available to relatives in a dram shop wrongful death case should not be available because the driver failed to seek medical treatment and would likely not have died had he done so.

Grossman Law Offices Can Help You Defeat Common Defenses Advanced by Defendants in Dram Shop Cases

If you suspect you or a loved one’s injuries were caused, in whole or in part, by an alcoholic beverage provider over-serving an obviously intoxicated patron, our attorneys may be able to help you recover the compensation you deserve. Over the past 25 years, Grossman Law Offices has handled more dram shop cases than almost any other firm in Texas. In that time we have helped hundreds of victims recover compensation for their injuries.

The dram shop attorneys here at Grossman Law Offices have proudly represented victims for 25 years. For more information and a free and confidential consultation regarding your potential dram shop lawsuit, give us a call anytime at (855) 326-0000. We’re available day or night, 24 hours a day.


If you have been injured by a bar or restaurant’s unlawful alcohol service, you may be interested in the following related articles:

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