Step 1 of a First-Party Dram Shop Case - Preserve Your Right to Sue
When you have something that's important and valuable, you do what's necessary to protect it. Whether it's a family heirloom, a baseball card collection, or a piece of jewelry, you take steps to keep it from getting damaged. The same thing applies to first-party dram shop cases. There are measures that must be taken to keep such a case from being ruined.
In this article, Texas attorney Michael Grossman will explain what must be done to keep your Texas dram shop case from falling apart.
Be sure to read about the other steps of pursuing a first-party dram shop case
What about first-party dram shop cases makes them so "fragile?"
Any case can be damaged beyond repair. Failing to obtain all of the necessary evidence to prove your accusations, failing to properly plead the case, not meeting deadlines, etc. can all have a disastrous affect on a legal case.
However, first-party dram shop cases are particularly vulnerable to missteps. Why is this? Well, a first-party dram shop case is one where a bar or restaurant over-serves a customer, and then that patron goes out and injures or kills themselves, prompting a lawsuit against the bar. So, by definition, dram shop cases are fairly controversial on their face. Many people hear of these cases and think, "Let me get this straight. The person who was clueless enough to get drunk in the first place can sue the bar who served them? Is that right?"
Our position (and that of Texas lawmakers) is decidedly less cynical. The way we see it, when someone has one drink too many, it's hard to blame a bar. Maybe even if they have two or three drinks too many, it's still a little hard to say that the bar played a bigger role in the drinker's injuries that they themselves inflicted. But, in most of our firm's first-party dram shop cases, the bar or restaurant in question broke every rule in the book and over-served the patron to the point that they were absurdly, dangerously intoxicated.
For instance, we had a case recently where a client went to a bar and was served between 15 and 20 drinks in two hours. His BAC was in the .40 range, which is five times the legal limit. He was so drunk that he got lost on his way to his car and ended up wandering instead to the highway, where he was run over by a car.
The takeaway, here, is that most first-party dram shop cases involve people who were grossly over-served, to the point that they simply were not at all in a clear state of mind. In order for that level of intoxication to be achieved, a bar would have to consciously violate several important laws, all in the name of making a few extra bucks. As mentioned, the laws of our state say that such reckless profiteering at the expense of others is unlawful, whether the person hurt is an innocent third-party or the drunk customer themselves. But, since this is nevertheless a controversial matter, and some jurors will just never be able to accept that a bar should be held liable for a drunk driver's injuries, first-party dram shop cases are always an uphill battle.
This is why these cases are fragile. Since it takes a great deal of compelling evidence that a bar wantonly disregarded the law to convince a jury to side with injured person, if you leave any evidence on the table, fail to exercise proper due diligence, or simply hire a lawyer that doesn't know how to win first-party dram shop cases, it's very easy to damage your case beyond repair. This is why it's so important that the first step in an first-party dram shop case is to take proactive steps to preserve your right to sue.
What steps must be taken to preserve your right to sue?
In order to preserve your right to sue, you must lay the foundation for a strong case. The first step of this process is to hire the right attorney. Few firms in Texas litigate dram shop cases; fewer still handle first-party cases.
There are only a handful of firms in Texas that we would consider truly qualified to handle these cases, yet many firms advertise for them. Why? The short answer is that they either intend to refer them to firms like ours, or they are really only trawling for car insurance claims. In other words, they advertise that they can help you if you've been injured due to the over-service of alcohol or if you've lost a loved one who was over-served, and then they simply file the (frankly, rather simple) auto insurance claims, make a few quick bucks, and then tell you that they can't pursue the case against the bar for this reason or that.
While there are many genuine obstacles that can make suing a negligent bar impossible (for instance, we had a case where both the bar and their insurance carrier went out of business, so there was no legal recourse against them), many lawyers will tell clients things like, "Until the TABC does their investigation, we just can't know if there is a case," or, "Juries really don't ever pay money in these cases, so we shouldn't even try," or, "Texas law makes it impossible to hold the bar accountable when they drinker is the one who is hurt," or, "The Texas Supreme Court just issued an adverse ruling that makes it harder to win these cases."
Make no mistake about it, these cases are challenging, but all of those excuses are either over-stated or outright inaccurate. If anything, when a lawyer offers such an excuse after taking a case, it really makes one wonder why their firm agreed to take the case in the first place. That is, of course, unless you consider the obvious answer: they never intended to sue the bar. They just wanted to help themselves to the insurance monies and claiming to be able to handle the dram shop portion was just their way to get new clients on board.
To be clear, it's often quite beneficial to have a lawyer represent you in an automobile insurance claim. But it's simply unfair to the client for a lawyer to claim that he wants to help the client pursue a case against the bar when he only truly intends to go after the easiest part of the case to win. For all these reasons, getting the right lawyer is imperative.
The other part of preserving your right to sue is acting quickly. Evidence waits for no one, so it's important to get the case started immediately, before what's in their possession has been destroyed or tampered with by the bar's management, or witness's memories have begun to fade.
What's more, barring a few exceptions, you can't have a liquor liability case without physical evidence of intoxication. As you probably recall from most detective shows, many a cop and district attorney has lamented the lack of evidence in murder trials, and the cliched utterance accompanying these feelings of dismay are usually, "We need a weapon. I can't prosecute without the murder weapon."
What they mean is that even though they technically can pursue the case without this vital piece of evidence, the case won't get very far in front of a skeptical jury. The same thing applies to first-party dram shop cases. Without a BAC sample (usually taken from medical records in the case of an injury or from an autopsy in the case of a fatality), it is practically impossible to get anywhere in a first-party dram shop case. As such, one of the major steps that must be taken to preserve your right to sue in a first-party case involves making sure that toxicology testing is performed. We've been contacted by more than a few prospective clients whose loved one was killed after a night of drinking, yet they had no case since the coroner did not request an autopsy and there was simply no evidence of intoxication.
Statute of Limitations For Dram Shop Cases
Even if you don't make many missteps, your case could still "die on the vine." In Texas, you only have 2 years to bring a lawsuit against a bar for negligent over-service of alcohol. The clock starts ticking the day you were hurt or the day your loved one died. This may seem like plenty of time, but in dram shop cases, it's not. Why? There are a few reasons:
- We need time to find the bar. You might know the bar where the over-service occurred, but not necessarily. If it was a loved one of yours who was drinking and then died in a car accident, a full investigation into where he or she was drinking will be required before we can file a case against them. We've had many cases where family members were absolutely certain that their daughter or husband was drinking at this or that bar, and it later turned out they were drinking somewhere else.
- A thorough attorney may sue other parties as well. It's not always just a bar's fault when someone crashes their car while intoxicated. There could be any combination of other parties' at fault as well. For example, in one dram shop case we had, a young man crashed his car on a freeway after being considerably over-served at a restaurant. The truck driver who hit him (and killed him) was negligently playing with his cell phone rather than paying attention to the road. After discovering this, we filed a lawsuit against him and his company. Had the client waited too long to hire us, we likely would have missed the window of opportunity to get the truck driver's dash cam footage before it was erased.
- It takes time to draft, file, and serve a lawsuit. No two lawsuits are the same. In order to properly invoke the legal system, your attorney will need to not only find the proper bar, but research it to discover if it has a "parent" or "holding" company. Further, defendants like to hide from process servers, so we may need several months to find the person who actually owns the company and have them properly served with the lawsuit.
All of the above is to say that the 2 year statute of limitations after the date of the incident to file a dram shop claim is not as much time as you'd think.
Grossman Law Offices Has Over 25 Years Of Experience In Dram Shop Cases
In order to properly preserve and file your claim, you need an attorney who knows how to handle these cases. We've helped hundreds of people in your exact same position, and we can help you as well, but we need to act fast. Call the dram shop attorneys at Grossman Law Offices in Dallas, TX at 1-855-326-0000 to see how we can help you with your case.
Related Articles for Further Reading: