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Overview: Types of Evidence Needed to Win a Texas Dram Shop Case

Dram shop cases can only be won if you can prove to a jury (or convince the defendant's attorneys you can prove) that the establishment served an obviously intoxicated person whose intoxication directly led to an injury or fatality. How do you prove that this happened? With evidence. As with any other civil claim, compelling evidence is the bedrock of any successful Texas dram shop case.

Our firm has won more of these cases than any other law firm in Texas we know of, but we've never had a bar come right out and admit, "We sold too much alcohol to the man who caused the accident." In fact, even the most negligent bars universally claim to have been following the rules, and hope that victims' attorneys won't be able to prove them wrong. To gather the evidence required to do so will require the help of an attorney with extensive experience investigating liquor liability cases.

In this article, Texas dram shop attorney Michael Grossman explains the different types of evidence used to hold bars accountable for drunk driving accidents, intoxication assaults, and other harmful incidents stemming from the over-service of alcohol.


Questions Answered on This Page:

  • What kinds of evidence will I need to prove my case if I was injured by a drunk driver?
  • Is it possible to prove the driver who hit me was intoxicated?
  • How do lawyers prove that a bar over-served someone?
  • What must be proven to win a Texas dram shop case?
  • What evidence is used to prove that a bar sold an obviously intoxicated patron?

What must be proven in a dram shop case?

In order to win a dram shop case, the injured party (or their family in the case of a wrongful death) must show that:

  • A licensed provider of alcohol...
  • sold, served, or provided alcohol...
  • to an adult recipient...
  • who was obviously intoxicated to an extent that he presented a clear and present danger to himself or others...
  • and that the recipient's intoxication was the proximate cause of the plaintiff's injuries.

As you can see, there are many different elements that must be proven. If your lawyer were to show, for instance, that your accident was caused by a drunk driver and that they were drinking at an establishment, but he failed to show that the bar sold, served, or provided the alcohol (for instance, if the drunk driver snuck a bottle into the bar and served himself), then you will lose your case. The point is that ALL of the elements of the case must be established in order to win.

Let's delve into these elements a bit further.

  • What is a licensed provider? This is someone that sells, serves, or provides alcohol. This includes places like bars, restaurants, catering companies, sports venues, etc., or any company licensed by the TABC to sell alcohol. Unlicensed providers are held to the same standards if they sell alcohol, but someone who simply serves alcohol without a license and doesn't charge money for the alcohol is NOT a licensed provider, and therefore would not be subject to liability under Texas dram shop law. Such non-liable provision would include house parties, alcohol being provided at work at no charge to employees, and the like.
  • What is an adult recipient? According to the Texas Dram Shop Act, an adult recipient is anyone over the age of 18. Even though the legal drinking age is 21, anyone 18 and younger is considered a minor when it comes to dram shop law. Now, to be clear, if a bar serves a minor who goes on to hurt themselves or others, you most certainly have a dram shop case on your hands, it's just handled differently than the vast majority of dram shop cases which involve adult drinkers.
  • What is proximate cause? It's also necessary to prove that the over-service of alcohol was the primary cause (proximate cause) of the accident. This means it has to be the event but for which the damages alleged would not have occurred. For example, if an intoxicated person is driving a car, their tire blows out and they hit anther car, there would not be a case against the bar because the proximate cause of the injuries was the tire blowout, not the drunk driver's intoxication.
  • What is an obviously intoxicated person? In order to prove all the elements of a dram shop case, you must prove that the bar served additional alcohol to someone who was obviously intoxicated or to someone whose intoxication should have been obvious to a licensed and trained provider.

But, practically speaking, proving that a bar served someone isn't hard. Proving that the customer was an adult or a minor is easy. Proving that a bar or restaurant had a liquor license is a given. Proving that the intoxication caused the accident is straightforward, too. The only aspect of a Texas dram shop case that is hard to prove is also the most pivotal element of the case: proving that the bar served someone who they knew was already dangerously drunk.

What makes this element of the case so challenging to prove? It requires showing what the bartender or server knew at the time of the alcohol service. While some lawyers have deemed this "an impossible standard," our lawyers know how to accomplish this task, and we've done so successfully in hundreds of cases.

The types of evidence you need to prove "obvious intoxication."

As stated, the crux of a Texas dram shop case is proving that the alcohol provider served alcohol to someone they knew (or should have known) was obviously intoxicated. Here are the types of evidence we obtain to help us do so:

  • Direct evidence of obvious intoxication: The best evidence is reliable testimony from witnesses and video evidence of the patron being thoroughly drunk.
  • Circumstantial evidence of obvious intoxication: By culling different types of testimony, documents, and medical evidence, we can "rewind the clock" and piece together an argument that the patron was intoxicated and still served. This is an inference-based type of evidence, but it is still very valuable. In fact, it's how most cases are won.
  • The amount of alcohol consumed: Evidence like bar receipts or records can show that, given the amount of alcohol consumed, there was no way the patron was sober when they consumed their last drink.
  • The TABC blood-alcohol chart: The Texas Alcoholic Beverage Commission has published a chart that enables rough estimates of how much alcohol it takes to get a patron drunk. This chart is not only useful for illustrating to juries how intoxicated a person was at the time of the accident; it is also something that every TABC certified server has seen during their alcohol-service training. That means it can establish conclusively that the bar staff should have known that a patron was drunk, based upon the number of drinks they had consumed.
  • Changes in behavior: Telltale signs of intoxication should alert bartenders to cut patrons off. While not technically evidence in its own right, this is one of the things that witnesses will likely be asked about, because service staff are trained in TABC certification courses to look out for these behaviors.
  • The drinks' serving size: When bars and restaurants serve unusually large or potent drinks, that can lead to serious and rapid intoxication, making it a dubious practice from a liquor liability perspective. BAC charts used to estimate intoxication are based upon standard serving sizes. When bars choose to use different sizes, it makes keeping track of intoxication more difficult, for both the patron and for the service staff.
  • Eyewitness testimony: Getting information from people who saw the drinker, how he behaved, what happened, etc., can be invaluable.
  • Police officer testimony: The police, generally viewed as objective witnesses, can explain what they saw after the accident to a jury, such as how the driver was evidently drunk.
  • Expert witness testimony: Those with special knowledge about the science involved in dram shop claims can help the jury understand the sometimes confusing field of forensic science. Typically medical experts are very useful for communicating to juries in plain English the effects of a certain number of drinks. Generally, they show that based upon the number of drinks served, it would be impossible for a reasonable person not to conclude that they were serving an obviously intoxicated person.
  • Toxicologists: Experts in the science of intoxication, these individuals help juries understand how impaired the driver was when he was last served.
  • Safe alcohol sales experts: These consultants know TABC rules and regulations and can show the jury what the bar did wrong. These witnesses are particularly effective because they can show what servers were should have known as a condition of being certified by the TABC to serve alcohol, and where they failed to employ their training.
  • Social media: Often when people are out drinking, they like to use social media to show their friends that they're having a good time. s Consequently, social media posts often show clear signs of intoxication. It is pretty hard for a bar to argue that they didn't know they were serving a drunk person when that person has an hour or two hours worth of obviously drunk material on their social media pages.
  • Sharing evidence with law enforcement: When we get evidence that may be useful for a criminal prosecution for the person who hurt you, we of course turn it over to the proper authorities.

This list of evidence types is by no means exhaustive. In a Texas dram shop case, an experienced attorney will use whatever reliable evidence is available to prove that a bar or restaurant served an obviously intoxicated patron.

Spoliation of Evidence

One of the primary concerns in any Texas dram shop case is the loss or destruction of evidence. In the legal community this is known as Spoliation of Evidence. There are two factors which generally lead to Spoliation of Evidence. The first is the intentional destruction of evidence by an establishment who is being sued in a dram shop case. Sometimes, people get sued and figure that there's no way they'll have to pay money if they just get rid of the incriminating receipts, surveillance footage, or other evidence that the bar or restaurant should not have done.

Perhaps more common, and a concern in every case, is that evidence degrades over time. Witness testimony becomes less reliable the longer it takes to interview and depose them. Heck, sometimes witnesses move away or are impossible to track down. This can even be a concern in the immediate aftermath of an accident. Usually, the first people on an accident are not police or first responders, but good Samaritans. They can make invaluable witnesses in a trial, but they also tend to head off as soon as first responders arrive, since they no longer have a good reason to hang around. If a victim waits months before hiring an attorney, these good Samaritans can be next to impossible to find.

Ultimately, an experienced lawyer knows that gathering good evidence is just as much about preventing evidence from being destroyed or disappearing as it is collecting evidence.

How Grossman Law Offices Can Help Obtain The Evidence for Your Dram Shop Claim

Following an alcohol-related injury, your success against the bar or establishment hinges on your ability to demonstrate that they knew (or should have known) that the person was obviously intoxicated. This is best demonstrated to the jury through the use of direct and circumstantial evidence.

Gathering the evidence you need can be difficult, because you will likely be unaware what evidence is actually needed, or too much time may pass and that evidence could no longer be available. This is why it is important for you to contact us as soon as you can after you have been injured in a drunk driving accident. Getting the direct evidence you need such as receipts, video surveillance and other things will become harder and harder as time passes.

You need someone on your side to help you hold both the drunk driver and the establishment that negligently served them to justice and compensate you for your injuries. The attorneys at Grossman Law Offices have won more Texas dram shop cases than almost any other law firm. Call us at (855) 326-0000.


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