Every year hundreds of Texas residents sustain a serious personal injury as a result of a drunk person. These injuries sometimes come from an intoxicated drunk driver that causes a car wreck, or sometimes come...
Every year hundreds of Texas residents sustain a serious personal injury as a result of a drunk person. These injuries sometimes come from an intoxicated drunk driver that causes a car wreck, or sometimes come from an intoxicated person that assaults an innocent victim. Injured persons obviously have legal rights against the drunk person. However, in many cases, there is also an opportunity to seek recovery against a bar / alcohol provider that over-served the drunk.
Obviously, having the ability to hold an insured company responsible for over-service of alcohol that leads to personal injury and damages is a good and fair thing. The sale of alcohol can be a very profitable business. However, as will be discussed, recovering money against an alcohol provider is challenging, thus, it is critical that the personal injury lawyer have experience in this area.
The "Dram Shop Act"
Tex. Alco Bev. Code § 202(b) the "Texas Dram Shop Act" imposes liability on alcoholic beverage providers for damages proximately caused by the intoxication of individuals who were served despite being obviously intoxicated to the point that they present a clear danger to themselves and others. Sounds good, right? Bars that make money off of serving a potentially dangerous product should have to pay when they abuse their license.
Unfortunately, although the Texas legislature created the Dram Shop Act to help injured persons, the Supreme Court of Texas has actually interpreted the Act in such a way that the Dram Shop Act can sometimes actually work to protect alcohol servers from being held responsible for injuries and deaths that they cause by over serving customers.
Yes, even if its proved that the bar over-served a customer who then causes a serious injury or even a death, the Supreme Court of Texas has worked hard to reduce the chance that an innocent victim may recover anything. How's that for justice?
Provision Providing Defense for Bar Owners
The Supreme Court of Texas has developed a provision in the Dram Shop Act called the "Safe Harbor" provision. Under the safe harbor defense, the actions of an employee in over-serving a patron shall not be attributable to the employer if (1) the employer requires its employees to attend certain training classes, (2) the employee in question actually attended these classes; and (3) the provider did not directly or indirectly encourage the employee to violate the law. Since this is a legal defense, it used to be that the defendant had the burden of proof on all elements of the defense. However, the Court ruled that the bar no longer has the burden on the third element, but instead, the injured person must prove that element.
So, in other words, if an injured person files a lawsuit against a bar for personal injury or death caused by the bar's over-service of alcohol, the injured person or their family must prove that the other person was obviously intoxicated at the time that he or she was served. Then, the bar will raise the "Safe Harbor" defense and produce certificates of training for each of its servers and contend that it can be held responsible for nothing. In order to overcome the Safe Harbor defense, the injured person has to prove that the bar indirectly or directly encouraged its employees to violate the law. If the injured person is not able to develop proof of encouragement, the Court will likely throw out the case and the injured person would get nothing.
Experience with Dram Shop Cases
It is critical to hire an experienced and aggresive Dram Shop lawyer. We are experienced Dram Shop lawyers that know the Texas Dram Shop act backwards and forwards (including the current legislative attempt to fix part of the Act). Without a superior understanding of the law and experience handling these types of cases, a lawyer may quickly find that they are in over their head. The law is not favorable to the plaintiff. Plus, rest assured that the bar will fight these cases very hard. However, we are ready able and willing to fight for our clients.>
In order to prevail in a Dram Shop Act case, it is critical that the lawyer develop a great deal of evidence – in many cases much more than an average negligence case. In order to develop the required evidence, it is obviously important that the lawyer know exactly what is needed. Further, it is frequently necessary for the lawyer to hire a toxicologist and an alcohol policy and procedure expert. Many lawyers don't hire the necessary experts, or make the mistake of hiring a person who claims that they're an expert, only to later be overwhelmed by the opposing experts or stricken by the court. Obviously, this results in not only lost expenses for the lawyer, but probably a lost case for the client! We only work with the best experts and have a great deal of experience in forming a case and gaining an early understanding of exactly what types of experts are needed.
