Dram Shop Liability and Overserving in Texas
Nearly 37 % of all traffic fatalities in Texas in 2020 were alcohol related, and Over 70% of alcohol-impaired drivers involved in fatal accidents had BAC readings of 0.15% or higher. What does this mean, and where are these 37% of drivers drinking before hitting the roads? These individuals often come from bars, restaurants, or nightclubs before deciding to drive under the influence, and those establishments are required by law to not overserve their customers.
When drinking establishments and alcohol are involved in accidents in Texas, the server or bartender who served the customer can be held liable for injuries arising from the drunken conduct of the customer they served, on top of any liability the business itself may face. The most common example of this is when an individual is served too much alcohol or served alcohol after they are already showing signs of having enough, and then leave and hurt themselves or others.
While cases with clear cut liability for drinking establishments are out there, the nuances to Dram Shop liability in Texas are wide in scope and fascinating, and the facts surrounding each case are often complicated and unique due to the nature of alcohol and the uniqueness of everyone’s ability to process it. Many restaurant and bar owners in Texas may wonder when their staff, management, or establishment expose themselves legally when overserving alcohol to a patron. This can be a daunting barrier to entry for potential business owners and should certainly be a concern when it comes to training staff and opening to the public and serving in a safe manner.
What the Law Says
So, what law controls here? Section 2.02(b) of the Texas Alcoholic Beverage Code provides three requirements for an actionable Dram Shop claim against an alcohol provider in Texas:
- Proof that the establishment provided alcohol to the driver.
- Proof that it was apparent that the customer was “obviously intoxicated” and presented a clear danger to themselves and others (more on this later).
- Proof that the driver’s intoxication caused injuries to plaintiff.
When does a customer’s behavior cross the line into “obviously intoxicated,” and isn’t that different for everyone?
Answer: It depends, and yes and no.
Let’s unpack this. In general, a patron is obviously intoxicated if there are any signs of intoxication that a reasonably prudent bartender should have been able to pick up on at the time of service. These can be physical manifestations such as slurred speech, stumbling, falling asleep, or acting overly loud or sexual in public. More subtly, these signs can be inferred by the experience of a trained employee. How? For instance, if a server knows or should have known that 8 drinks in a two-hour timeframe for a 120 lb. woman is too much, then it is implied that providing her with a ninth drink would be negligently serving an obviously intoxicated person.
Any reasonable information that would indicate a customer is obviously intoxicated at the time of service, or that the bartender should have known the customer was obviously intoxicated when they were served can potentially expose both the bartender and establishment to legal liability under a Dram Shop lawsuit.
Examples of this standard:
- A man with a BAC of .263 left Beer Belly’s Sports Bar in Corpus Christi, TX in 2017 and hit and killed a family of two after being served 11 drinks and evading bartenders by opening a second tab in a separate part of the bar. The jury awarded $301 billion in damages.
- A man leaves a Dallas nightclub in 2012 after ordering three bottles of champagne for himself and a friend and flips his car, killing a passenger. There was testimony that the driver had bloodshot eyes and smelled of alcohol when the last bottle was served. The jury awarded $25 million in damages.
Safe Harbor Defense: Saving Grace for Establishments?
An establishment can potentially avoid liability arising from the conduct of its employees in Dram Shop cases if they can assert what is called a Safe Harbor defense. This means that so long as the business did not encourage the employee to violate the law and the employee attended a seller training course through the Texas Alcoholic Beverage Commission as required by the employer, then the establishment can avoid liability for injuries incurred or caused by a customer when they leave the establishment.
The standards for obvious intoxication as they relate to Dram Shop cases in Texas are a low enough bar (no pun intended!) that they should raise the eyebrows of any Texas drinking establishment owner or server/bartender. Any scintilla of evidence that a customer was impaired when served can expose a business and its employees to millions of dollars in damages and potential criminal charges. It’s not worth it. Play it safe. Look for signs and do not serve customers that are obviously intoxicated.
Next month we will explore a few cases where a homeowner throwing a house party can be held liable under Dram Shop laws.
Have you or a loved one been injured by the negligence of an alcohol provider in Texas? If so, give us a call at (817) 335-5100 to discuss your story.