The Dram Shop Act
In 1987, just a few days after the Texas Supreme Court ruled in El Chico v. Poole, the Texas Legislature enacted the Dram Shop Act. It was established to hold bars liable for over-serving patrons who then went out into public and got into a car accident and injured someone else.
In a standard Dram Shop Case, there is a victim who is injured by another person. The victim in those cases are truly innocent. But the truth is that many people walk into our office here at Guest and Gray and they’ve received a DWI as a result of getting into an accident after leaving a bar where they were served alcohol to excess. These people may have a Dram Shop Case too, even though it was them who became intoxicated and only they were injured.
In fact, something tells me that this is the most under reported Dram Shop case because no one but the drunk driver was injured, and the drunk driver is not really concerned with who they can sue because they are concerned with trying not to go to jail for a DWI.
The inherent problem with the Dram Shop Law is that the legislature has established a high bar and the courts adhere strictly to the letter of the law when enforcing it. This means a plaintiff’s case can be hard to prove, but it is by no means impossible.
Here are a few of the key hurdles to overcome when pursuing your Dram Shop Case.
The “Safe Harbor” Defense:
A standard Dram Shop case will necessarily involve the “Safe Harbor” defense. This defense is also known as the “Trained Server” Defense. It is a bar’s “get out of jail FREE” card because, if proven, the bar is shielded from liability in the case.
The good news is that the burden is on the bar to establish the defense and prove all the elements. In response, the plaintiff must then negate one or all of the elements of the defense to move forward with their case. Here are three elements:
- The bar must have a policy that requires employees attend a TABC-approved alcohol training course.
- The bar must ensure their employees actually attend the training program.
- The bar must provide proof that the employer hasn’t directly or indirectly encouraged the employee to violate the Dram Shop law.
The bar must prove that all three elements are met, but to survive summary judgment the plaintiff only needs to negate one of the elements for the motion to fail.
Proving the Case:
The Texas Dram Shop Act provides that liability for a bar exists when it became apparent to the server/bartender that the individual being served was obviously intoxicated to a point where they became a clear danger to himself and others and the intoxication of the recipient was a proximate cause of the damages suffered.
Note the issues here:
- It must have been apparent to the bartender that the patron was intoxicated.
- The patron must have been obviously intoxicated.
- The patron must have been so obviously intoxicated that he would seem to be a clear danger to himself and the public if he left the bar under his own supervision.
- The patron’s intoxication must have been the “proximate” cause of their injuries.
- Negating the “Safe Harbor” defense at summary judgment and at trial.
Need Advice? Give Us a Call.
As you can see, it can be a tough task to prove a Dram Shop case in Texas, and you need an attorney who can handle the job. If you have been hurt as a result of a drunk driver, or got into an accident after being overserved at a bar, give us a call. Scott Gray is an experienced Trial Attorney and is the only Personal Injury SuperLawyer located in Kaufman County. If you are in Kaufman county or the surrounding D/FW area, let our team fight for your rights. Call us today.