What is Dram Shop Law?
Dram Shop Law are the rules which govern the safe and responsible service of alcohol. Many states have enacted these laws in efforts to recognize the role that drinking establishments can play in alcohol related injuries and deaths. These laws have allowed victims to sought monetary compensation against establishments that contribute to an accident through negligent service of alcohol. Any bar, restaurant, liquor store, or any establishment that serves alcohol can ultimately be sued for the role they may play in any alcohol related injury or death.
Dram Shop Laws can be used for many alcohol related injury scenarios, however the most common of these scenarios are those related to DWI injuries and fatalities. Many people do not understand that a bar can be held accountable for injuries caused by an intoxicated patron.
Both bars and intoxicated drivers can be held liable for causing injury to a plaintiff in an applicable dram shop claim. Keep in mind that there can be many causes of action that a plaintiff may bring against an intoxicated driver; although a plaintiff is limited to the sole remedy of a dram shop cause of action against a provider of alcohol.
In order to establish liability in a dram shop case, one must prove that the bar served someone who was obviously intoxicated. This standard is imperative in a dram shop case because it implies that the bar was aware of the person being intoxicated and therefore a danger to themselves and other, yet continued to serve the person alcohol.
Signs of Obvious Intoxication:
Alcohol is processed differently by different people. The reasons for this can vary depending on body mass, sex, how and when the person ate, what they consumed, and many other factors. Common signs of obvious intoxication include:
- Loud or belligerent behavior
- Poor coordination
- A loss of inhibitions or self-control
In an Austin dram shop case the burden of proof is on the plaintiff to prove that the bar knew or should have known that the person they were serving was intoxicated.
Do You Sue the Bar or the Drunk Driver?
Typically, a plaintiff will generally file a lawsuit against both the drunk driver and the bar. A common roadblock at this point is obtaining information about the pending DWI case, such as the blood alcohol level and police videos.
Not Just Bars
When speaking of dram shop cases, we typically discuss bars and drunk driving incidents. However, dram shop liability accounts for many other providers of alcohol as well. The law applies to restaurants, convenience stores, alcohol served at baseball games, an open bar at a wedding, liquor stores, or any other form of licensed provider of alcohol.
Social hosts also have a general duty that is owed to the public, in regards to the distribution of alcohol; although they are not required to maintain a liquor license. This means that a homeowner does bear some responsibility if they choose to serve alcohol to a person who then goes out and hurts someone else; however, the extent is much more limited than that of a licensed provider of alcohol. Specifically, social hosts bear no responsibility for the actions of adults who consume alcohol on their premises; but the law clearly states how this changes if alcohol is provided to minors. Social hosts bear a great deal of responsibility for the safety of the minor and the general public as a result of providing alcohol to the minor.
TABC and How Bars are Required by Law to Operate
The TABC licenses the providers of alcohol and police their activities. Every entity that provides alcohol does so with the knowledge of a correct and incorrect way to serve. Providers of alcohol understand that their license is dependent upon their understanding that they are potentially liable for alcohol-related injuries or death that have resulted for the improper service of alcohol. What should a bar do to avoid such incidences? All that is required of the bar, is to make sure that all their staff understands and follows the laws in regard to the safe service of alcohol. Which include having a system to account for how much a patron has consumed, then to monitor the patron’s activity, and knowing when they should cut them off if they become obviously intoxicated.
Whereabouts and Actions of the Intoxicated Patron
A common defense that bars use is to say that the person was not at their bar. Disproving this statement is most times fairly easy; and not to mention statistically most drunk driving incidents occur in close proximity to the drinking establishment. Although it can be difficult to prove that the person was ever drinking at the establishment, and evidence that would prove this becomes more tenuous as time passes. For most juries, the simple fact that an accident occurred; it involved a drunk driver, and the driver was at a bar is sometimes not compelling enough.
In any Austin personal injury or wrongful death suit it is the plaintiff’s burden to prove that they have a valid cause of action. While most people are truthful, sometimes others are not so much. Therefore, it is vital that a thorough investigation is conducted as soon as possible to get the evidence needed in order to win your case.
If the defendant is also charged with DWI, the plaintiff usually can’t get evidence from the criminal case (i.e. blood test data, police videos, offense reports, etc.) due to the “investigative privilege.” One option to overcome this is to talk to the drunk driver’s lawyer and convince him or her that it benefits their client to cooperate in prosecuting the provider.
Proving Obvious Intoxication
Legally a bar is permitted to serve a person alcohol, and they are only to be held liable when the plaintiff can prove that the bar served an obviously intoxicated person. Typically, the bar will try to argue that the person did not appear to be intoxicated at the time of service, and therefore argue that they are not liable. Most times the level of intoxication is determined by a blood test, which if high enough could prove the person was in fact very intoxicated while at the bar. Other times, when the blood alcohol content of the person taken at the scene of an accident is marginal and does not necessarily show that they were undeniably obviously intoxicated at the bar.
Safe Harbor Defense
A bar is eligible to argue an affirmative defense, known as the “safe harbor defense,” which is basically a defense that allows for the bar to simply prove all of their bartenders are TABC certified and that they do not have a policy in place that encourages the over-service of alcohol, then the bar is allowed to ask a judge to dismiss the case irrespective of the validity of the claim. Simply put, even if the actions of the bar caused the death of an innocent person, the bar is absolved of any liability if they can just prove that this was a mistake and they did their best in avoiding this situation. While this is an option, most times it is unsuccessful.
Contact an Austin Dram Shop Law Attorney
In addition to the challenges mentioned above, there are many other challenges that include bars who do not have insurance, which would require your Austin DWI attorney to investigate much further. Also, in 2003 the Texas Supreme Court ruled that actions of drunk drivers are admissible, which allows the defendants to put the focus of the jury on the drunk driver to distract them from the bar’s liability. If you were injured by a drunk driver and want to seek compensation, contact the Austin Dram Shop Law Attorney at Buford Law for help.