The Texas Dram Shop Act: Civil Liability of Serving Alcoholic Beverages to Drunk Patrons

43 states, including Texas, have laws that impose a duty on bars and restaurants not to serve intoxicated patrons alcohol, and if they do, then the statute provides a means for injured individuals to sue the liquor licensee for their own negligence. The law is very good for a lot of reasons.

For those of you who may not be familiar with the reasons why dram shop laws are so prevalent, you may be wondering, “why should the bar be liable for the actions of their patrons? That is not fair?” Well, let me ask you this: is it fair that the injured party will likely not have enough money from the drunk driver’s insurance policy to cover their medical expenses, but the bar that took the drunk driver’s money and continued to serve him or her to the point of and passed the point of intoxication gets off Scot-free? Who was in a better position to protect themselves from such liability? Why should an injured victim be unable to hold a bar accountable for over-serving a drunk patron who’s inhibitions are lowered to a point where they can no longer make good decisions and competently drive home?

Serving Alcohol is a Privilege; Not a Right

Simply put, bars need to be held accountable for over-serving patrons and legislatures throughout the United States recognized that fact. Serving alcohol is a privilege; not a right. Liquor licensees agree to follow these rules in exchange for a license to serve alcohol. It is just like your driver’s license, or my Texas bar card that says I get to practice law. There are rules you must abide by or you lose the privilege that comes with having that license. Bars should have to abide by certain rules just like everyone else, and if they don’t, they should be held accountable for the damages that they proximately cause.

In the Texas Dram Shop Act, the Legislature created a duty, not recognized at common law, on alcohol providers and increased the potential liability of providers as a means of deterring providers from serving obviously intoxicated individuals. F.F.P. Operating Partners, L.P. v. Duenez (Sup. 2007) 237 S.W.3d 680.

The Texas Dram Shop Laws

The pertinent portion of the Dram Shop Act in Texas is found in the Texas Alcohol and Beverage code under section 2.02(b) which says that: 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.

In order to protect the bars from a flood of lawsuits, the Texas statute provides a “safe harbor” provision that limits the liability of the liquor licensee in many circumstances.

What’s the alcohol limit in a bar? The limit is “obvious intoxication.” Signs of intoxication can be clear and obvious. Things such as slurred speech, droopy or red eyes, cloudy judgment, lack of inhibitions, aggressiveness and poor balance all point to the fact that a person is obviously intoxicated. The number of drinks served to a customer can also be an indicator of whether or not the individual is obviously drunk. Bar tenders and servers are all required to take alcohol training provided by licensed agents Texas Alcohol and Beverage Commission. That training teaches the servers and bartenders what to look for in patrons that indicate different levels of intoxication.

Under the Texas law, drinking establishments are NOT allowed to serve alcohol to any patron who is obviously intoxicated, even if they were obviously intoxicated when they arrived at the bar. If a bar employee notices that they’ve over-served a patron, they may opt to call a cab for the drunken individual in order to ensure that no one is harmed in a dunk driving accident. However, being responsible and not overserving the patron in the first place is always the first, and best, course of action.

The Statutory Safe Harbor or Trained Server Defense

Still on the fence about the Dram Shop Laws? Well fear not, there is a clause within the Texas Dram Shop Act which specifically protects drinking establishments from civil claims in certain cases. This Safe Harbor provision severely limits an injured party or patrons ability to sue the liquor licensee for their injuries. This is known as the Safe Harbor Defense, or Trained Server Defense. If an establishment can prove that they followed guidelines set forth by the state with regards to serving their patrons, they may be exempt from a lawsuit! These requirements include:

Having the employees attend a TABC-approved seller training program,
Ensuring the employee actually attended such a program, and
Proof establishing that the employer hasn’t directly or indirectly encouraged his employee to violate the law.

These requirements may be backed up by proof such as documentation detailing training and clear, written policies which talk about over-serving patrons. How about that for a break? Bars, clubs and restaurants are given the opportunity to protect themselves, yet many of them simply do not care enough to comply with this provision. This means that when they violate the Dram Shop Laws and don’t fall into the Safe Harbor Defense, they care more about the money they make off of their patrons than they do the safety of their patrons and everyone else on the road.

That being said, establishments may try to use the Safe Harbor Defense but will often be denied in court due to clear evidence establishing the fact that employees of the establishment were encouraged to break these liquor liability rules. One reason for this is that the bars who actually get sued for dram shop liability are usually the ones who blatantly violate these rules. Most bars act responsibly to ensure that these type of incidents happen. But when they do happen, and they will, the injured victim needs to contact an experienced drunk-driving accident attorney who can help shoot down this defense where it clearly does not apply.

INJURED IN A TEXAS DRUNK DRIVING ACCIDENT? CALL THE TRUSTED LEGAL TEAM AT GUEST AND GRAY, P.C.

If you have been injured in a drunk driving accident in the Dallas, Kaufman or Rockwall county areas, or anywhere in the State of Texas, you need to call the trusted personal injury team at Guest and Gray, P.C. Our firm is the largest and highest rated firm in both Kaufman and Rockwall counties. Our personal injury attorneys are caring, trusted and local. We pride ourselves in hard work and results.

Don’t call just any law firm to guide you through the courts. When you hire an attorney from Guest and Gray, P.C., you not only get an attorney assigned to your case, but you get a knowledgeable and caring support staff. Dealing with injuries or the loss of a loved one is stressful enough. Don’t waste your time having to hassle with your legal team. Call the law firm that cares. Call Guest and Gray, P.C. at 972-564-4644