Texas Dram Shop Lawyer
A dram shop lawyers is a personal injury lawyers who specializes in a specific type of personal injury law involving accidents and injuries and alcohol. These attorneys bring forth claims against bars, restaurants, or other providers of alcohol that overserve their guests or patrons when they are already obviously intoxicated. Steven Booker Law’s expertise is handling these types of special personal injury claims. Alcohol sales in the United States are in the billions and unfortunately, some bars and restaurants prioritize profits over public safety and the overall wellbeing of society.
How Alcohol Affects Driving Ability and Leads to Drunk Driving Accidents
Alcohol reduces the functioning of the brain, negatively affecting the central nervous system. It impairs the ability to think and reason properly and it impairs muscle coordination, all of which are essential to the safe operation of a motor vehicle.
As alcohol levels increase in an individual’s system, these negative effects on the central nervous system increase. Alcohol is absorbed through the stomach and small intestine and then it passes into the bloodstream and accumulates until it is processed by the liver. Alcohol levels are measured by the weight of the alcohol in a volume of blood, called Blood Alcohol Concentration, or BAC. Whenever the BAC reaches the level of .08 grams of alcohol per deciliter (g/dL) of blood, the risk of crashes increases significantly. It’s because of this significantly increased risk that it is illegal in all 50 of the states, the District of Columbia, and Puerto Rice to drive with a BAC of .08 or higher. The exception is only in Utah where the BAC limit is actually lower at .05.
Did You Know There are About 28 Deaths Every Day from Drunk-Driving Related Accidents?
That's right. Every single day in the United States, approximately 28 people pass away in drunk-driving related accidents. That’s more than 10,000 fatalities from drunk driving crashes every year. The unfortunate thing about these types of accidents is that they are preventable.
Even though there are dram shops laws in place explicitly prohibiting the sale of alcohol to an already obviously intoxicated person, many of these drunk drivers were negligently overserved at a bar or restaurant before they got on the road and killed someone. This is precisely why dram shop law is so important. It is a deterrent and a way to keep alcohol providers in check from overserving potential drunk drivers, and a way to punish them when they do.
If you know someone who was injured or killed due to a drunk driver, talk to a dram shop lawyer about your rights today by filling out the form at the bottom of this page or by calling 940-569-4000 for a free consultation.
What is Dram Shop?
Dram Shop Liability is the legal liability that a bar, restaurant, or other server of alcohol holds for serving alcohol to a person who is already drunk or is already obviously intoxicated. States have put in place statutes and laws that place a high burden on those who profit from alcohol sales. These statutes and laws were put in place to ensure that providers of alcohol take the necessary measures to prevent people from drunk driving. These laws are referred to as the ‘Dram Shop Acts’, named after the term ‘Dram’, which is one measure of alcohol.
Before we get too far into Dram Shop, let’s cover some basic terminology you need to know.
Dram Shop Terminology and Other Common Legal Terms
Talking to lawyers about your situation can be frustrating because often times, lawyers use words and terms that are unfamiliar to you. When it comes to the ‘Dram Shop Acts’, there are probably many terms that you have never heard of before. A lot of these terms were chosen to be utilized in these acts because they have important legal meanings, so it’s critical for you to learn and understand them.
A provider’s dram shop liability is determined by whether or not they served an obviously intoxicated person, so it’s important to know exactly what obvious intoxication is.
As defined in the ‘Dram Shop Acts’, intoxication is obvious when a bartender or other server of alcohol knew (or should have known) their patron was intoxicated. Each state has their own standards and practices. Some states go by a standard “visibly intoxicated” to determine a provider’s legal liability. As the term suggests, these states only hold servers liable when they can literally see their patrons and be able to determine, based on visual cues, that their customer is drunk. This is not optimal as many indications of intoxication can be determined by factors other than visual cues.
Texas, thankfully, has a standard of obvious intoxication that requires servers to consider all available signs and not just what they can see.
The Texas Alcoholic Beverage Commission (TABC) requires the training of employees who will be serving alcohol to be able to identify all the signs of intoxication, including:
- Impaired coordination:
- Standing with feed wide apart to maintain balance.
- Leaning against structures to hold themselves up.
- Loss of balance
- Fumbling of personal belongings such as phone, wallet, and keys.
- Slurred speech.
- Impaired judgement:
- Overtly sexual talk and/or behavior
- Loud outbursts
- Using profanity
- Throwing objects
- Laughing for no apparent reason
- Getting angry for no apparent reason
- Violent behavior
- Red eyes
- Watery eyes
- Droopy eyelids
- Sleepy appearance
- Continuous squinting
- Closes or covers one eye to see
- Extremely slow movements
- Slow or no response when asked questions
- Slow or no reaction to actions such as spilling their drink
- Rubbing hands through face and hair often
- Tripping when trying to walk
- Vomiting or nausea
A provider of alcohol is any entity that sells or serves alcohol to people. According to the laws, there are two different types of providers.
- Licensed providers – A licensed bar, restaurant, pub, or establishment that sells alcohol to consumers.
- Unlicensed providers – Any individual, business, or organization that begins selling alcohol even though they are not licensed to do so.
The important thing to know here is that although one is licensed and the other is unlicensed, they are treated the same in the eyes of the law. Essentially, once you start selling and making a profit from alcohol, whether you are licensed or unlicensed, you are held to the same standard.
For Liquor Liability and Dram Shop Law, there are two types of recipients, each held to a different standard.
- Adults – Adult recipients are, as with other areas of law, defined as anyone 18 years of age of older. If a claim is being sough against an establishment that overserved an adult, it must be proven that the bar knew (or should have known) that the adult they were serving was already obviously intoxicated.
- Minors – Minors recipients are, as with other areas of law, defined as anyone under the age of 18 years old. If a claim is being sought against an establishment that served alcohol to a minor, then the bar is automatically liable for any injuries or death to that minor or the injures or death caused by the minor. With these recipients, there is no need to prove obvious intoxication. The simple fact that a minor was served alcohol at all is enough to determine liability.
You may have noticed that while these two groups account for adults (anyone 18 years of age and older) and minors (anyone under the age of 18), it doesn’t take into consideration the legal drinking age, which is 21. So, what about those people that are legally considered adults, but are under the legal age to drink alcohol? Anyone from the age of 18-20 are considered “minors” in terms of the legal drinking age, but when it comes to liability purposes, they are considered an adult. For example, let’s say a 19-year-old goes into a bar and is served alcohol. They should have never served him because he is under the legal drinking age, but the mere act of serving the 19-year-old doesn’t make the bar liable. In a case like this, you would still have to prove obvious intoxication.
Other Legal Terms
The individual (or party) who files the lawsuit against the defendant.
The individual (or party) who is being sued. In Dram Shop, the defendant would be a bar, restaurant, pub, caterer, homeowner, or any other provider of alcohol.
Claim/Cause of Action/Lawsuit
All of these terms basically mean the same thing and that is that legal action is being taken against an individual (or party).
Damages are the losses you have suffered as a result of someone else’s negligence. In a lawsuit, the damages are what you are attempting to recover from the defendant. You are trying to be compensated for the damages you suffered.
In personal injury cases, there are 3 types of damages:
1. General Damages:
General damages are meant to compensate the victim for any non economic loss. This means things such as pain and suffering and emotional distress. Because these types of damages are more subjective, and there is no true economic value that can be attributed to them, they are difficult to calculate. In most cases, a jury will award higher general damages to a plaintiff who has had to endure severe trauma.
For example, for a low impact car accident where the plaintiff only suffered minor injuries, a jury probably would not award general damages. But for an accident where the plaintiff incurred severe burns and had to endure multiple surgeries and months of physical therapy, general damages would typically be awarded to compensate the plaintiff for the pain and suffering they were forced to go through as a result of the defendant’s reckless action.
Other General Damages:
Loss of Consortium
Loss of Consortium means that you have been deprived of a relationship’s benefits due to an injury or a death.
Loss of Reputation
2. Special Damages:
Special damages are economic in nature, and they can be measured by direct economic loss. Special damages include medical expenses, property damage, and loss of earning from being forced off work.
Both general and special damages were put in place as means to return the plaintiff to where they were before the accident, and to make them “whole” again.
3. Punitive Damages:
Punitive damages are in place to punish the defendant for their negligent behavior. Unlike general and special damages, punitive damages are not meant to make the plaintiff “whole” again, but rather to deter the defendant from such reckless behavior.
For example, if you are in an accident that breaks your leg and the medical bills cost $5,000. Your medical damages are $5,000.
Compensation is the money a plaintiff receives from a defendant in a lawsuit.
Attorney typically attempt to settle a case before they have to file a lawsuit. Litigation refers to everything that happens from the moment you file a lawsuit until the resolution of your case.
A party is a person or entity that is involved in a lawsuit.
When discussing liquor liability, the term over-serve is often used. However, over-serving is not technically what providers are liable for. We know from the sections above that a bar is only technically liable if they serve a person who is already drunk, not if they over-serve. Aside from a small distinction, these terms summarize the same idea.
When is a Provider of Alcohol (Bar, Restaurant, Caterer, etc.) Liable for Overserving Alcohol to an Intoxicated Person in Texas?
Generally speaking, when bars or restaurants allow a person to consume too much alcohol, and then that person goes and drives and causes an accident, you may be able to take legal action against the establishment that negligently overserved that individual, and you need to speak to a Wichita Falls Dram Shop attorney immediately.
More specifically, under the Texas Dram Shop Act, restaurants, bars, and other servers of alcohol are explicitly prohibited from serving alcohol to individuals who are already obviously intoxicated. Under the Texas Dram Shop Act, a seller of alcohol may be held liable if:
- It was apparent to the provider that the recipient was already obviously intoxicated to the point he posed a clear danger to himself and others; and
- The accident that was caused was the direct result of the intoxication of the recipient.
The injured individual bringing forth the lawsuit has the burden of proof and must be able to prove the above criteria in order to win his case.
How Are Dram Shop Laws Fair to Bars?
A lot of people might think that these laws don’t really seem fair to bars. After all, as adults, you are responsible for your own behavior, so how can a bar be held responsible for someone else’s actions?
The most basic answer to that question is that the bar is not held responsible for someone else’s actions. The bar is only responsible for the bar’s actions. Servers of alcohol are required to go through training to identify signs of intoxication, and when they ignore those signs and continue to serve someone who is obviously intoxicated, they are risking putting that person and the general public in danger. This is what they are held responsible for. It’s really as simple as that.
The potential to be held liable disincentivizes bars, restaurants, and other providers of alcohol from continuing to serve people that they know should not still be drinking just in order to drive up profits.
Bottom line: Selling alcohol is not a right. Selling alcohol is a privilege.
Additionally, there are provisions put in place that defendants (bars, restaurants, pubs, and other providers of alcohol) can utilize to defend themselves against lawsuits.
What is the Safe Harbor Defense?
The Safe Harbor Defense is a provision under the Dram Shop Act that allows businesses that serve alcohol to avoid some responsibility for employees’ actions. Under this provision, there are certain conditions in which the businesses can avoid this liability, including:
- Requiring employees to take a Texas Alcoholic Beverage Commission training on alcohol serving and awareness
- The employees do, in fact, take the course above
- The employer does not encourage the overserving, either directly or indirectly, of alcohol by its employees to its patrons.
How the Texas Dram Shop Act Came Into Existence: The Case of El Chico v. Poole
In the legal world, the way in which new types of cases come into existence is by one of two ways:
- Someone files a lawsuit and alleges a theory of liability that the court permits (which sets precedent)
- The elected lawmakers (the legislature) passes a law that permits the right to file whatever new type of lawsuit
Dram Shop Liability was created by the first way and then clarified and more specifically set forth by the legislature.
Back in the 1980’s, an individual named Larry Poole was unfortunately killed when a drunk driver wrecked into him. After investigation, it was determined that the driver who caused the accident was “black-out” drunk after drinking at El Chico restaurant. This individuals BAC was more than twice the legal limit (0.08%) and he claimed to not remember anything about the wreck. Mr. Poole’s family subsequently filed a lawsuit against El Chico claiming that serving someone that much alcohol to the extent they did to this individual that caused the accident was an act of negligence and put the public safety at odds.
Texas allows injured parties to sue for any behavior or conduct that could be considered negligent, but up until this point, no court case in Texas had ever established that the service of alcohol could be considered negligent. This was the dispute that the lower courts were having in hearing this case: could the improper service of alcohol form the basis of a negligence lawsuit? After some back and forth in the lower courts, the case eventually worked its way to the Supreme Court of Texas, where it was determined that bars do in fact owe a duty to the public to serve alcohol properly and in a way that is reasonable and safe. The findings of the court said that once a patron becomes intoxicated to the extent that they are a danger to themselves or others, the bar is responsible for whatever harm follows and thus, the precedent was set by which bars could now be sued. What followed though, was some confusion on questions such as:
- What is the difference between negligent service and non-negligent service of alcohol?
- Is a bar always liable, or are they only liable under extreme circumstances?
- What can a bar do to avoid liability?
As lawsuits were filed and cases were tried involving a broad range of various scenarios, eventually all of these questions were answered. The Texas legislature figured, however, that it would be best to put into place law that was precise and clear cut that determined liability for bars under specific circumstances rather than them being liable under such a broad umbrella of “negligence”.
The law that was created was the Texas Dram Shop Act, which essentially states that if a bar served alcohol to an individual when they knew (or should have known) that the individual was already drunk or “obviously intoxicated”, and presented an apparent danger to themselves and others, or if they served alcohol to a minor, then they were liable for any injuries caused by the intoxication. This new standard was the means by which bars could be sued. Under no other circumstances would bars and other alcohol providers be liable. By updating the vague standard of negligence with more concise criteria, alcohol providers and those bringing forth lawsuits against alcohol providers knew exactly how the law worked.
The establishment of the Texas Dram Shop Act was two fold:
- It put into actual law what had previously been merely established by case law
- It constricted what kind of conduct a bar could be held liable for. Instead of suing for “negligence”, you now only had very specific reasons you could sue a bar:
- Serving someone who is already drunk
- Serving a minor
While this affected those filing lawsuits against bars, it also affected the bars themselves. Although things had been made easier for bars by narrowing the claim of negligence, it showed that Texas lawmakers agreed that bars play a part in alcohol-related injuries and that they have a responsibility to sell and serve alcohol safely.
Essentially, the Texas Dram Shop Act was a way to protect bars from being sued for merely serving alcohol at all, but also discourage them from serving it improperly.
The Texas Alcoholic Beverage Code:
In legal language, this is the actual statute that the Texas Dram Shop Act requires of licensed providers of alcohol:
Sec. 2.02. CAUSES OF ACTION.
- This chapter does not affect the right of any person to bring a common law cause of action against any individual whose consumption of an alcoholic beverage allegedly resulted in causing the person bringing the suit to suffer personal injury or property damage.
- 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:
- 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
- the intoxication of the recipient of the alcoholic beverage was a proximate cause of the damages suffered.
- An adult 21 years of age or older is liable for damages proximately caused by the intoxication of a minor under the age of 18 if:
- the adult is not:
- the minor's parent, guardian, or spouse; or
- an adult in whose custody the minor has been committed by a court; and
- the adult knowingly:
- served or provided to the minor any of the alcoholic beverages that contributed to the minor's intoxication; or
- allowed the minor to be served or provided any of the alcoholic beverages that contributed to the minor's intoxication on the premises owned or leased by the adult.
Texas Dram Shop Cases: How They Work
As we discussed above the ‘Dram Shop Act’ is a collection of statutes and court decisions that together make up a body of law. Within this law, it is established who can and cannot be sued for the improper service of alcohol:
The two different categories of Texas Dram Shop Law are:
- Lawsuits against licensed providers (bars, restaurants, caterers, pubs, etc.)
- Lawsuits against social hosts (homeowners)
Dram Shop Lawsuits Against Licensed Providers
For a business to sell alcohol, they must obtain a license from the state in order to do so. They obtain this license from the Texas Alcoholic Beverage Commision (TABC). Whomever obtains a liquor license from this commission are called “licensed providers”.
Licensed providers are liable to lawsuits for alcohol-related injury or death:
- When they serve alcohol to an obviously intoxicated adult; or
- When they serve alcohol (at all) to a minor.
We have covered this already, but the important thing to remember is that providers of alcohol are held to a different standard when they sell alcohol to adults vs when they sell alcohol to minors.
The most essential determining factor in winning a case against a bar or restaurant who sold alcohol to an adult is to show that the bar knew the customer was already drunk, and they served them anyways. On the other hand, the most essential determining factor in winning a case against a bar or restaurant who sold alcohol to a minor is simply to show that the bar or restaurant served the minor at all.
There are a few other determining factors that contribute to the proving of a Texas dram shop case, but we will touch on that later.
Dram Shop Lawsuits Against Social Hosts
Social hosts cover the broad range that do not fall under licensed providers. The most common social host is someone who throws a house party where alcohol is available.
Social hosts can be sued:
- When alcohol is served to a minor who is not the social host’s own child
I’m sure you noticed that nothing here was mentioned about liability for providing alcohol to adults. That’s because under Texas dram shop law, liability for adults is exempt for social hosts meaning social hosts can never be held responsible for providing alcohol to adults.
Furthermore, social hosts can not be held responsible when they provide alcohol to their own children if their child goes out and causes a wreck. The only time social hosts can be sued is when they serve alcohol to someone else’s minor child.
What is a Social Host?
A social host is any individual who hosts others at their home or any other premises and makes alcohol available. With this, many people misunderstand the law and think that if they have a party, they are responsible for everyone there. However, as Texas law states, social hosts are only responsible if they provide alcohol to minors who are not their own children.
There are a few things that should be clarified.
- Adults. Under normal circumstances, the legislature holds that adults are responsible for their own behavior. So, social hosts do not hold any responsibility for adults except if the host is charging for alcohol. By charging for alcohol and making a profit, the social host has acted like and taken on the role of a bar, restaurant, or other provider of alcohol and thus opened themselves up for liability. So, by simply charging for alcohol, the social host has transformed into an unlicensed provider and is treated like a bar or restaurant in the eyes of the law.
- Minors. Just as you wouldn’t leave a swimming pool unguarded when having a birthday party with small children, you should not leave alcohol unguarded when hosting an event with minors. As a social host, it is important to take measures to ensure minors do not drink.
The Two Kinds of Texas Dram Shop Cases
Now that we have defined some basic terms and established exactly what dram shop law is and why we need it, now we need to look at the two different types of cases that can be pursued against a bar in the event a customer was over-served and caused an accident. There are “first party” cases and “third party” cases.
First Party Cases
As you already know, a bar that over-serves a customer who then drives and causes an accident can be held liable for that accident and all that results from that accident. The injured party can be the driver or passenger of an entirely different vehicle, a passenger of the drunk driving vehicle, or even the drunk driver himself. Yes, that’s right, even if the person injured was the same one doing the drinking. For example, if a man gets drunk at a bar and later leaves and crashes into the ditch on the side of the road, that man might have a first party case against the bar for their part in getting him drunk. Of course, he is at fault as well, but it can be argued that the bar has partial responsibility as well.
In first party dram shop cases, the injured party is the party that was over-served. The way the case works depends on the age of the victim (plaintiff).
- Adults. If the plaintiff is an adult, then, as we have established above, you must establish that the plaintiff was served alcohol when they were already “obviously intoxicated” and the bar know (or should have known) to stop serving them but kept on anyways.
- Minors. If the plaintiff is a minor, then the only thing you have to prove is that the minor was served alcohol at all. You are not burdened with proofing obvious intoxication. All you have to establish is that the bar served alcohol to a minor, and the intoxication of that minor lead to the accident and injuries.
Third Party Cases
A third party case is when the person who was injured was not the cause of the accident. That is, they were an innocent bystander (third party). This could mean an individual who was in a separate car altogether, or it could simply be a passenger in the drunk driver’s car.
In third party dram shop cases, the third party is anyone other than the drunk individual that caused the accident. As with first party cases, when the drunk person who caused the accident was an adult, you will need to prove that the bar served alcohol to the drunk when they were already obviously intoxicated. But when the drunk was a minor, you simply must prove that the bar served the minor at all. These are the standards you must meet to be able to hold the bar responsible.
Tips for Handling Texas Dram Shop Cases
- Evidence. Until you can prove something with evidence, it is all just a “he said, she said” game. So in order to win your case, you will need evidence that proves that the bar served you alcohol while you were obviously intoxicated, this includes things such as receipts, video footage, and eye witness testimony.
- What a Typical Case Looks Like. Here is a brief overview of what a dram shop case would look like. Of course, there is a lot more detail that goes into it, but this will provide you with a basis of what to expect.
- Begin investigating your case as soon as possible by gathering evidence.
- Identify the defendant (bar, restaurant, or other alcohol provider) and file a claim.
- Verify that the defendant has insurance coverage.
- Calculate the value of your case.
- Litigate your case and either settle it or go to trial.
- Texas Dram Shop Cases Involving a Death. Unfortunately, many alcohol related accidents result in wrongful deaths.
- In first party cases, the victim is no longer around to tell their side of the story or bring forth a lawsuit. In Texas, a beneficiary (spouse, child, or parent) has the ability to bring a wrongful death claim.
- In third party cases, the victim was an innocent bystander and a claim can be brought on behalf of the innocent person who was killed as a result of the intoxication. This claim can be brought forth by a family member.
Common Dram Shop Injuries
Accidents where drunk drivers were involved are some of the worst accidents on the road and often times, they have devastating consequences. When these accidents don’t result in death, they can result in very serious, life-altering injuries, including:
- Traumatic Brain Injury
- Neck injury
- Spinal injury
- Bone fractures/breaks
When Can I Bring Forth a Dram Shop Claim?
Whenever a bar or restaurant overserves a customer and that customer goes out and causes an accident, any person who was injured by the drunk driver can bring forth a Dram Shop lawsuit. This could include the drunk driver himself, a passenger of the drunk driver, or the other car that the drunk driver hit.
Additionally, if someone was killed as a result of the accident, that persons spouse, children, or parents could have a wrongful death claim.
Do I Need a Dram Shop Lawyer?
A Dram Shop lawyer should be sought if there is evidence that the person who caused the accident drank at a place of business
Contact a Dram Shop Attorney
It can be difficult to prove a dram shop case, but it can be done. However, the more time that passes, the more difficult it may be to obtain the necessary evidence. That is why it is imperative that you take prompt action and contact a dram shop attorney if you believe you have a potential case. Don’t wait any longer. Call Steven Booker Law today at 940-569-4000 to set up a free consultation.