Texas Dram Shop Laws & Liquor Liability

San Antonio Attorney Michael Grossman Explains the Texas Dram Shop law and Addresses the Criticisms of this Area of Plaintiff's Law

Liquor liability cases are an area of plaintiffs' law that can be confusing to most non attorneys. Many people criticize the validity of these cases and most simply do not understand them.

Rather than quote statistics, legal statutes, and case law to support the very fair and commonsense-based ideas that dram shop laws stem from, I felt it would be helpful to explain the idea behind these cases in plain English in order to shed some light on this often misunderstood area of the law.

Drunken Driving Accidents 101

Drunken driving accidents have considerably different and more severe legal implications than do typical car accidents. The difference between drunk driver accidents and conventional car accidents is two fold:

• The injuries sustained in intoxication accidents are usually more severe and are often fatal which leads to higher damages and, therefore, decidedly more aggressive legal battles.
• There are usually multiple defendants that have violated multiple legal duties owed to the victim which demands a multifaceted case strategy in order to best serve the client.

Defendants in a Drunk Driving Accident Case

Naturally, the drunken driver that caused a drunken driving accident would be a defendant in such an accident, and rightfully so. Their negligent actions violated a legal duty owed to the victim which resulted in the victim suffering and incurring damages. As most people are aware, Texas law stipulate that an accident victim is entitled to recover such damages from the defendant.

But what about the negligence of other parties? Specifically, what about the bar or restaurant that served the drunk driver to the point of intoxication?

The Texas Civil Practices and Remedies Code (the set of all Texas civil statutes) specifically addresses this issue with what are known as dram shop laws. Essentially, these laws state that if a bar, restaurant, or other entity serves alcohol to a person to the point of intoxication, that establishment is liable under the doctrine of vicarious liability; that is to say, they are seen as a major contributor to the accident even though the driver of the car was the one that physically "caused" the accident. Such liability is founded on the theory that accidents such as these are the culmination of a chain of events and not just a single split-second driver error. As such, any entity that significantly contributed to that chain of events is vicariously liable and a plaintiff may seek compensation from them.

But Why is it the Bar's Fault?

A lot of people struggle to understand how it makes sense to sue a bar or restaurant in a drunken driving accident. I assure you that the reasons behind these types of cases are well founded on logic and sound reasoning and the vast majority of the arguments against dram shop cases are based on misconceptions and ignorance, both passive and malicious in nature.

The common argument is usually some variation on the following:

Why is the bar liable when the drunk driver made a conscious decision (this is the common argument, though in reality, few people actually make such a conscious decision so the logic of such an argument is questionable to begin with) to go to the bar and get drunk. Why should the bar be held liable for the actions of the driver? The driver went to the bar to get drunk, that's what bars are for.

The short answer is that it takes two to tango. Certainly the negligent actions of a drunken driver are a tremendous contributing factor to a drunk driving wreck but such an event cannot happen if said driver is not intoxicated. That's where the negligence of the bar comes in.

The common misconception is that plaintiffs' lawyers such as me only sue bars because they have deeper pockets than the drunken driver. That is simply inaccurate. In most cases, a plaintiffs' lawyer will sue both the driver and the bar in order to recover an amount proportionate to their respective degree of liability. Imagine a scenario where a bar served a patron to twice the legal limit and that person caused someone to suffer $1 million in medical bills. If the bar is found to be 10% at fault, they are only liable for $100,000. If they are 50% at fault, the bar will owe $500,000. Contrary to the misconception, the bar does not have to pay for the sum total of the plaintiff's damages.

The idea is to sue the bar only for their portion of responsibility and it is most certainly not an attempt to make the bar pay for the actions of the driver. Rather, the goal is to make the bar pay for their own actions and to make the driver pay for his in a separate case; a rather significant point that opponents to liquor liability laws often fail to mention. They also fail to mention that it is usually the insurance or alcohol industries that are behind such misinformation, but that is a different topic altogether.

So what dram shop cases are all about is getting the bar to compensate the victim for the bar's own degree of participation in, or contribution to the accident. But that still doesn't address the criticism of, "The bar didn't do anything wrong. People go to bars to get drunk and the bar is just doing their job by serving alcohol."

This is a very simplistic outlook that many people have and it is patently wrong on several levels. Contrary to popular belief, it is illegal to be publicly intoxicated beyond a .08 BAC in Texas. What that means in realistic terms is that the state recognizes a person's right to imbibe alcohol and to become intoxicated but only to an extent that they are still sound of mind enough to make decisions that do not impose their drunkenness on the rights and safety of others. Beyond .08 you are in violation of the law. To put it another way, you can be drunk but the law clearly prohibits you from getting very drunk. Bear in mind that in the privacy of your own home you can get as drunk as you prefer so long as you don't impose your drunkenness on anyone else.

In that same vain, the law also clearly prohibits the servers of alcohol from serving you beyond the legal limit, meaning it is illegal for bar tenders or waitresses to give you enough alcohol for you to get quite drunk. Most of the opponents of dram shop laws are not aware of that fact but the bottom line is that if a bar serves a patron beyond the legal limit that bar is breaking the law. The fact that there is a law and that it is being broken should be a satisfactory enough explanation with regard to why or how you can sue a bar but I will delve into the philosophy behind it a little deeper.

Much like having a driver's license, selling alcohol is a privilege. No establishment has a natural right to serve alcohol, it is something that must be granted or sanctioned by the state and things of that nature always come with stipulations. Since the over service of alcohol can have such dire consequences and, more importantly, since bars have a financial incentive to want to over serve alcohol the appropriate response is to create rules that place limitations on their ability to over serve. Think about it. If bars had no rules and they were in a position to make more money by selling more alcohol (particularly to already drunken people who are easy to convince) do you think most of them would voluntarily choose not to make that extra money? Clearly that is not the case because even in spite of laws explicitly telling bars that they cannot over serve alcohol many still do to an extent that dozens of innocent people die every year and thousands of others are injured. In short, the honor system does not work and it only makes sense to have a system of accountability to keep the bars' desire to make money from interfering with public safety.

But let's delve a little deeper into the technical aspects of the matter. I am no doctor or scientist but I have employed the best of both to serve as expert witnesses in the numerous drunk driving injury and wrongful death cases that my firm has handled and the information they provide is factual, provable, and significant in the context of this discussion. The overwhelming consensus of the medical and scientific community is that alcohol does not just make you feel good, it also affects your ability to make sound decisions in the way that it affects your inhibitions. In practical terms, alcohol is a substance that can make an otherwise responsible person choose to do something that they would be less inclined to do while sober. Of course it is not going to make a well rounded individual go off the deep end but it certainly has an impact on a person's ability to make important decisions such as, "Am I too drunk to drive safely." That same person in a sober state may very well know what their limits are and when it is unsafe for them to drive. But after a few drinks they are more likely to do things which their sober self would know to be wrong.

Certainly the servers of alcohol are well aware of these effects (there is no denying that since they must all go through training that clearly educates them in that regard). As such, they are well aware that they are serving a substance that may potentially cause someone to make a poor decision that can result in harm to an innocent person.

An analogy that I think is helpful…

Remember in spy movies how the villains will sometimes inject the protagonist with "truth serum" in order to get him to reveal vital information? In a situation like that we easily accept that his reaction to the drug affects his ability to act how he normally would. He would not normally reveal such top secret information but he is ultimately at the mercy of the chemical reactions occurring in his brain. We don't blame the hero, we blame the person who administers the drug. Imagine that the villain only injects him with a tiny/ ineffective amount of truth serum and hero still reveals his secrets. Now it makes sense to cast some blame on the hero, right? Sure it does. You blame the hero for his indiscretions and you blame the villain for his.

What this establishes is that it is reasonable to assume that at some point it is out of the hero's hands and at some point the hero is more to blame because the substance did not have that much of an impact on him. In other words, in some situations they will both be to blame and in some situations one of them is more to blame than the other. In terms of alcohol consumption, there is a point of intoxication where the patron is in control and making a bad decision has nothing to do with alcohol or the servers of the alcohol. The poor decisions is entirely in the hands of the patron. However, there is a point where the alcohol has such a profound effect on the patron that he is incapable of making sound decisions. If a bartender has served him to this point, that bartender is complicit. Naturally, the difference between the spy analogy and someone drinking at a bar is that the bar patron chose to drink at the bar. But at some point their ability to make other decisions is impaired by the drug in their system and the continued service of alcohol to someone in that state, or the service of alcohol such that it puts someone in that state is certainly a contributing factor to the patron’s actions from that point forward.

Of the two people in that equation, the intoxicated patron and the sober and trained server, it should be pretty obvious which one is in a position to influence the other and control the outcome of patron's desire to consume. As such, the state created the alcohol service laws in such a way that a server is the "gatekeeper" of alcohol. They are the source of alcohol and they have the ability to take the alcohol away. By ignoring the rules of service that are designed to protect the general public they are significantly contributing to any negative chain of events that may follow.

But the server's negligence doesn't end there. Not only have they broken the law and over served the person an intoxicating substance which they know to have a profound affect on the patron's ability to make sound decisions, the server or other bar staff then allows that person to get into a car.

THAT, ladies and gentlemen, is the heart of the matter. You can argue forever that a bar should not be held liable for the patron's desire to drink to a point of intoxication, but once the person is at that point of intoxication the bar has to be held accountable for letting them drive their vehicle away.

Imagine if a person went to the dentist and underwent anesthesia. If after that person regained consciousness and the dentist let them leave while they were still incredibly intoxicated, surely we can all agree that the dentist should have kept the person sequestered until they were sound of mind enough to drive safely. I can't imagine any rational person that would disagree that the dentist could have prevented the accident and that they should be held liable.

How is this any different? In both situations the person went to the establishment with the foreknowledge that they may become too intoxicated to drive, and in both situations they were allowed to leave in an intoxicated state. Letting an intoxicated person get behind the wheel of a car, particularly when you are the person or entity that administered the intoxicating substance, is a negligent act.

This is the basis for and justification of dram shop laws.

Proximate Cause

Many of the opponents of dram shop cases also seem to have no knowledge of proximate cause. Proximate cause is the notion that a defendant is liable because they caused someone to suffer an injury even if they were not the direct means of that injury. For example, if a defendant steers into oncoming traffic and forces another car to swerve into a tree, the direct cause of the plaintiff's injuries was the collision with the tree. However, the cause of the collision with the tree was the defendant driving into oncoming traffic. Therefore, the defendant's actions were the proximate cause of the plaintiff's injuries.

Or another example, imagine that your doctor knows that a drug he is prescribing has a very high likelihood of causing paralysis and he conceals that information from you and prescribes it to you anyway. Although the doctor is not the direct cause of the injuries you sustained (the drug is the direct cause) he is still liable for prescribing the drug to you in spite of the known dangers. The plaintiff would be able to assert that the doctor's actions were the proximate cause of his injuries.

Since a bar tender knows that it is illegal to over serve you and since they know that tragic consequences are a likely outcome, if they disregard this and serve you anyway they are a proximate cause of any subsequent injuries.

What is a Bartender or Server Expected to do?

We should now all be able to agree that a bar tender has the ability and the obligation to influence the level of intoxication that a person achieves, what are the expectations that we place on servers? Can they really be expected to have that much responsibility? Wouldn't it be too hard for them to keep track of how much alcohol someone has consumed?

The answer is that it is actually pretty easy to avoid causing a drunk driving accident. Here's how it is supposed to work:

• A bar has to have all of its servers licensed by the Texas Alcoholic Beverage Commission
  • This means that all servers have been trained and are well aware of all of the rules, expectations, and consequences that come from their actions. In other words, they can't simply not know what they are supposed to do. You have to be certified to serve alcohol and training is part of that certification. It's much like getting a driver's license.
• A bar has to have written policies regarding how to deal with the distribution and tracking of alcohol
  • A bar is required to have polices that tell servers how to keep track of which patrons have been served which types and what quantity of alcohol. Good bars (read, bars that don't kill people and get sued) will have some sort of system that includes hand signals, a tally sheet, some form of electronic counting system, color coded glasses or coasters, and or various other forms of simple but effective means of informing all servers and wait staff what the patron has had to drink.
• A bar has to have written polices regarding how to deal with intoxicated patrons
  • In the event that the system breaks down and a patron does become intoxicated beyond the legal limit, a bar must have a written policy that tells servers how to deal with the patron. Most good systems rarely break down but sometimes a patron will deliberately try to defeat the system and they will get more intoxicated than the system allows for (for example, when they sneak their own alcohol into the bar in a flask). Good bars will have a person, typically a manager, that will intervene and remove the alcohol from the patron so that they cannot get more drunk. Next, the patron is usually provided with food to help neutralize the alcohol that has yet to be absorbed into their bloodstream. Last, arrangements are made to safely transport the patron back to their home. Usually it is as simple as calling a cab and making sure that the patron gets into the cab.
• Severs must be on the lookout for signs of intoxication
  • The standard as set by the alcohol service rules is that a server must monitor a patron for signs of "obvious intoxication". Examples include slurred speech, inability to form proper sentences or coherent thoughts, inability to sit upright or walk upright, falling asleep at the table, becoming aggressive, etc. If any such signs are displayed then the server has an obligation to cut the patron off and default to the written policy for dealing with such a situation.
  • However, some people are experienced drinkers and they can be quite intoxicated and not show any signs of intoxication(good at holding their liquor, so to speak). This too should be accounted for as servers are required to monitor the volume of alcohol that is served to a patron. If you serve someone numerous drinks it is safe to assume that they are intoxicated even if they are showing no visible signs of intoxication. The typical standard is two 20oz servings of beer, or two glasses of wine, or 1 shot of liquor/ 1 cocktail made from liquor per hour. Much more than that and it doesn't matter who the drinker is, they will become intoxicated beyond the legal limits.

If these reasonable steps are taken, the bar usually is absolved of liability. I don't think anyone can make the argument that any of this is unreasonable to ask of the bar or restaurant.

Golden Ticket

If a bar follows the above rules and an accident still happens then they are allowed to exercise a defense called "Safe Harbor". With a safe harbor defense the defendants merely need to prove that they did exercise the above tactics. If they have, in fact, put forth the proper due diligence, they receive what can be likened to a "get out of jail free card", so to speak, and they are immune from the lawsuit.

What this means is that if as long as they do the things that they are required to do anyway that they all given a pass based on the notion that the accident was unavoidable.

What other area of civil law does a defendant get that type of opportunity? Imagine if you caused a car accident that killed someone and so long as you were able to show that you have a good driving record, a current license, and valid insurance you would not be held liable. I understand the intention of the safe harbor defense. If bars were damned if they do AND damned if they didn't, then they wouldn't try to exercise the above techniques, so they are rewarded for doing so with the ability to exercise that defense. I'm not saying that the safe harbor defense should be changed at all. I am merely pointing out that all of those who cry foul over dram shop cases need to consider that, yes, bars can certainly be held liable but they also have advantages that other defendants are not afforded in other types of cases. It is an incredibly fair system for the bars.

The elephant in the room should now be that in order for a dram shop case to be successful the bar would have to have had such a blatant disregard for the rules that they did not even maintain the minimum standard that would afford them a foolproof safe harbor defense. They are given a clear set of guidelines and a loophole that works in their favor and they still managed to be so negligent that they are now susceptible to a lawsuit.

All of the arguments against dram shop cases never seem to mention that part. All of the people who are philosophically opposed to dram shop cases never seem to fully understand just how easy it is for a bar to just follow the rules and they will have nothing to worry about.

The simple fact of the matter is that dram shop cases are not the subjective, ultra-liberal, tort-law-gone-haywire cases that they are mistakenly described as. Rather, they are the product of wanton and willful violation of laws that exist for no purpose other than serving the general public.

The bottom line is that you can only sue a bar or restaurant when they deserve it because they blatantly violated the duties they owe to the public. It is a sad situation that so many bars just don't take the rules seriously enough to take the steps necessary to prevent these very preventable accidents. They are clearly putting profit considerations before safety concerns and I just can't feel sorry for any company that operates that way.

If you or a loved one has been injured or if you have lost a loved one do to a drunken driving accident in Texas, call the San Antonio drunk driver accident attorneys of Grossman Law Offices. Our attorneys have twenty years of experience in successfully litigating cases predicated upon a Texas Dram Shop cause of action and we can help you get the justice that you deserve. Call 1-855-393-0000 (Toll Free) for a free consultation.