"Drunk drivers take a grisly toll on the Nation’s roads, claiming thousands of lives, injuring many more victims, and inflicting billions of dollars in property damage every year...The problem of drunk driving arose almost as soon as motor vehicles came into use." https://www.supremecourt.gov/opinions/15pdf/14-1468_8n59.pdf. In a recent opinion the United States Supreme Court has recognized the dangers that drunk drivers pose to people and property.
In a recent blog post, I discussed drunk driving lawsuits. Closely related to drunk driving lawsuits are Dram Shop lawsuits.
Dram shop laws impose civil liability on the owner of an establishment that sells alcoholic beverages to an intoxicated person who causes injury to another as a result of the intoxication. The reason it is called a “Dram Shop” is because a Dram is an old method of measurement which was common in old England. A dram was basically a shot of alcohol.
After a serious of cases relating to car accidents from intoxicated drivers, the Texas Legislature passed the dram shop act we operate under today.
The Texas Dram Shop Act can be found in Section 2.02 of the Texas Alcoholic Beverage Code. The purpose of the Dram Shop Act is to protect “the welfare, health, peace, temperance, and safety of people of the State.” Courts have interpreted this to mean the legislature intended to discourage providers of alcoholic beverages from serving obviously intoxicated individuals. This is because intoxicated individuals are much more likely inflict serious injury among themselves or others.
The Dram Shop Act provides that a bar or other licensed liquor selling establishment may be liable for providing, selling, or serving alcohol if it is shown that: (1) at the time the provision occurred it was apparent to the providers 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. To be successful, the plaintiff must prove it was apparent to the defendant that the patron being served alcohol was obviously intoxicated, presenting a clear danger to himself and others. The Texas Dram Shop Act does not require proof that the defendant or its employees actually witnessed the intoxicated behavior. Rather, it requires evidence establishing only that the recipient showed obvious signs of intoxication
But, there is a catch. Bars and other licensed alcohol dealers can insulate themselves from liability. The Dram Shop Act provides a “safe harbor” provision. The “Safe Harbor” provision is an affirmative defense to Dram Shop suit. The Safe Harbor provision says the actions of an employee in over-serving a patron will not bring liability on to the employer (bar) if the employer required its employees to attend certain training classes, the employee in question actually attended these classes, and the provider did not directly or indirectly encourage the employee to violate the law. The direct or indirect encouragement prong reflects the Legislature’s concern that an employer might exploit this protection from liability by encouraging its employees to violate the law, increasing its profits while defeating the statute’s purpose. In reference to the encouragement of employees to over serve, Courts acknowledge that “there may be encouragement in some form in a reasonable percentage of cases” and that “the variety of acts and omissions that could constitute encouragement is potentially limitless.” Court have rejected the argument that “encourage” means some form of knowledge. Courts have held that it is possible for providers to negligently encourage their employees to violate the law. This means a plaintiff can show encouragement by direct evidence that the provider knowingly ordered or rewarded serving intoxicated patrons, but also by circumstantial evidence that the provider engaged in behavior that a reasonable provider should have known would constitute encouragement.
Not only is the Safe Harbor provision a hurdle to suing, but the meaning of provider for Dram Shop purposes does not include a social host. A social host who serves alcoholic beverages to adult guests is not a provider under the Dram Shop Act so long as the beverages are served without charge. A social host is someone who has a party at their home where alcohol is sold, think birthday parties, BBQs, Super Bowl parties. Texas courts have consistently rejected the idea that social hosts owe a duty to refuse to provide alcoholic beverages to obviously intoxicated persons. The courts have reasoned that to impose such a duty would pose substantial foreseeability issues, noting that “it is far from clear that a social host can reasonably recognize a guest’s level of intoxication.”
Dram Shop cases are complicated. They require an experienced personal injury attorney who understands how to navigate the legal landscape. #TheMcAllenPersonalInjuryLawyer understands dram shop law and has experience handling these types of case. If you or a loved one have been injured by a drunk driver, call me today to see if a Dram Shop claim is available for you.
