Dram Shop Cases

I’ve been hit by a drunk driver. Can I sue the bar that served him?

The answer to that question is found in a Texas law known as the Dram Shop Act. But first, what does the word “dram” even mean? A dram was a small (think an ounce or so) unit of liquid measure. Places that sold liquor or alcoholic drinks came to be referred to as dram shops. Flash forward many years and today, many states, including Texas, have adopted so called dram shop laws. These are laws that hold liquor sellers legally responsible for the acts of an intoxicated person who was served alcohol at their place of business. These laws apply to any establishment that sells liquor, such as restaurants, bars, convenience stores, and liquor stores.

In this article you will learn:

• The specifics about the Texas dram shop law
• Whether you have a dram shop case when injured by an intoxicated driver
• What evidence can be used to prove a dram shop case
• Who can sue the restaurant/bar/ liquor store who served the intoxicated driver
• What defense is available to the establishment which served the intoxicated driver
• How to counter the establishment’s defense

TEXAS LAW:

The Texas Alcoholic Beverages Code, Chapter 2, Section 2.02 states that a person injured by an intoxicated individual can sue the establishment that over-served him. The injured person must show: (1.) that the establishment served alcohol to someone who was obviously intoxicated to the extent that he presented a clear danger to himself and others, and, (2.) that the intoxication of the person served was a proximate cause of the Plaintiff’s injuries.

EVIDENCE IN A DRAM SHOP CASE

Proving a dram shop case can involve many different types of evidence. An eye witness, for example, can testify that he observed the intoxicated driver while at the bar or restaurant and that the intoxicated driver was being served alcoholic drinks even after showing clear signs of intoxication, such as being belligerent, staggering, slurring his speech, exhibiting emotional swings, and smelling strongly of alcohol. Video evidence from surveillance cameras or from an individual can demonstrate to a jury that the person who was over-served showed clear signs of intoxication. Documentary evidence, such as the bar tab or credit card records can be used to show the intoxicated person purchased a high volume of alcoholic drinks within a short span of time. The police officer who investigated the traffic accident can testify that the driver who caused the accident exhibited signs of intoxication and failed a field sobriety test and/or a breath or blood test. The officer can establish that the accident occurred shortly after the intoxicated driver left the bar or restaurant. A toxicologist can testify as to how alcohol affects the body and how many drinks within a certain amount of time can affect a person’s ability to drive safely. The toxicologist can also explain to the jury how many drinks it would take over a given amount of time to render a person intoxicated to the degree reflected in the blood or breath test.

WHO CAN SUE UNDER THE DRAM SHOP ACT

The intoxicated driver:

Under the Texas dram shop law, the establishment who sold the alcohol can be sued by the intoxicated driver for injuries he caused to himself. In the event the intoxicated driver was killed in the accident, his heirs under the Texas Wrongful Death statute (see my article on Wrongful Death cases) can sue the establishment. Of course, these first party cases are difficult because a jury could determine that the intoxicated driver has more blame than the establishment, but, nonetheless, these cases can often be successfully brought.

The victims of the intoxicated driver:

Anyone who has been injured as a result of an intoxicated person’s action can bring a dram shop case, assuming they can meet the requirements of Chapter 2 of the Texas Alcoholic Beverages Code. In the event the victim was killed in the DWI accident, the victim’s heirs under the Texas Wrongful Death statute can bring suit. This is the easiest case to bring and is what I usually see in my practice. These cases are important because typically, the intoxicated driver’s car insurance limits are not sufficient to fully compensate a Plaintiff for his injuries. Invariably, the bulk of a plaintiff’s compensation from a DWI crash comes from the dram shop case and not from the intoxicated driver’s car insurance.

The Safe Harbor Defense:

Under Title 4, Section 106.14 of the Texas Alcoholic Beverages Code, an establishment whose employee over-serves a customer can avoid liability if it can show that it requires all of its employees to attend a commission-approved seller training program, the offending employee actually attended such a program, and that the establishment has not directly or indirectly encouraged the employee to violate such law. This provision incentivizes liquor sellers to send their employees to training programs approved by the Texas Alcoholic Beverages Commission. In this way, the legislature hopes to reduce the number of DWI accidents caused by over-served customers.

Countering the Safe Harbor Defense:

Although the Safe Harbor provision seems good protection for the establishment whose employee over-served an intoxicated driver, in practice, it does not prove to be such a great shield. The bar owner must show that every employee has attended a class. As a practicable matter, with high turn-overs of servers, it can be hard for an employer to always keep up with every employee’s certificate.

Even if the establishment’s employees have all attended the certification classes, the bar owner will usually have a hard time establishing that the bar does not directly or indirectly encourage its employee to violate the law on over-serving customers. After all, the bar/restaurant has a monetary incentive to increase its sale volume. The plaintiff can also show that the bar owner has set the wrong example for his employees by over-serving customers himself. Additionally, in trying to increase sales, the bar may set minimum sales quotas that in effect encourage over-serving. The owner may inadvertently encourage over-serving by failing to take appropriate action or “looking the other way” when an employee over-serves a customer. The evidence may show that the bar owner witnessed the actual over-serving and did nothing to stop it. In short, the defense is not impenetrable by any means.

If you have any questions about dram shop cases or if you or a family member have been injured by a drunk driver, call me and I will be glad to discuss your options with you.