In 1987, the Texas Court of Appeals ruled that a bar, lounge, tavern or similar business where alcohol is sold has a legal duty not to sell alcoholic beverages to a patron who is showing “… obvious signs of intoxication …” (Poole v. El Chico Corp). Within days of that ruling, the state legislature passed what has become known as the “Texas Dram Shop Act” (after the English term for an establishment that sold alcohol “by the dram,” where 1 fluid ounce = 8 drams).
The key provision of the Dram Shop Act is that it prohibits the sale of alcoholic beverages to anyone who is showing the physical signs of intoxication (e.g. slurred speech, lack of coordination, or maintaining their balance). Furthermore, the Act also allows anyone who has been injured by an intoxicated patron to file a lawsuit against the establishment where a patron was “overserved” if it can be shown that the patron’s intoxication led to an accidental injury to another and the patron’s intoxication occurred as a foreseeable consequence of being served alcohol while they were intoxicated to the point of posing a danger to themselves or to another.
On this page the Texas DUI/DWI accident lawyer at The Doan Law Firm will explain how the Dram Shop Act may be used in a lawsuit seeking damages from a retail business that sold alcohol illegally to someone who was later deemed to have caused an accidental injury.
What is the Dram Shop Act?
Prior to 1987, it was very difficult to hold an establishment liable in cases where it had sold alcohol to a customer who had obviously had too much to drink. Since there was no law “on the books” that made such sales illegal, it was all but impossible to convince a jury that a bar or tavern “owed a duty” to its patrons and the general public to protect them from the dangers of drunken drivers. After the ruling in Poole v. El Chico Corp., the state legislature made it a crime to serve alcohol to an “obviously intoxicated” individual.
The key provisions of the Dram Shop Act are:
it is a crime to sell alcohol to someone whom the seller has “reason to suspect” is already impaired.
Since it is a crime to sell alcohol to an intoxicated individual, and the commission of a crime is considered proof of negligence, selling to an impaired individual makes the seller liable for damages if the purchaser is later involved in an accident.
It is the responsibility of the seller to reliably identify such individuals.
As with any law, a person accused of a crime is entitled to “raise a defense” if they are accused of violating that law. Under the Dram Shop Act, the most common defenses are “Safe Harbor” and “Social Host.”
”Safe Harbor” and the Dram Shop Act
While there are certainly establishments that will sell alcohol to anyone that can drink without the assistance of another, the majority of bars and taverns make every effort to comply with the rules and regulations of the Texas Alcoholic Beverage Commission (TABC). Since no one wishes to see a business harmed because an employee made an “honest mistake,” Texas allows what is commonly known as the “Safe Harbor Defense” to protect employers whose employees may have inadvertently served a patron who was later involved in an accident.
Under the “Safe Harbor Defense,” an employer can argue that it should not be sued if it can show that:
it requires that any employee who serves alcoholic beverages to either attend a TABC-approved “responsible server” training program or furnish proof of having attended such a program in the past
the employee satisfactorily completed such training
the employer had not encouraged the employee to disregard such training by serving obviously-impaired patrons
While some employers may believe that the Safe Harbor Defense gives them a “Get Out of Jail Free Card,” an experienced DUI/DWI accident injury lawyer will know how to challenge this defense. Since the challenges will usually vary from case to case, this is a topic that should be discussed in detail by the lawyer who will be filing the lawsuit on behalf of an injured client.
”Social Host” Exemption and Texas’ Dram Shop Act
When the state legislature crafted the original Dram Shop ACT in 1987, they recognized that parents should be allowed to provide their own children with alcoholic beverages if those children are over 18-years-of-age. Under the Social Hosts Exemption, an adult social host cannot be held liable if he or she:
Provides alcoholic beverages to their own children, regardless of the child’s conduct after being served. Thus, if a drunk 19-year-old is served by his or her parents, the parents cannot sued regardless of the amount of mayhem caused by the child’s later behavior. Or,
is at least 21 years-old and provides alcoholic beverages to a guest who is between the ages of 18 and 20, regardless of a guest’s state of sobriety, and
provides alcoholic beverages “free of charge”and not by the drink and/or collect a fee such as a “cover charge” or an admission fee.
Although there can be situations that “blur the line” separating a social host from a commercial operation, if the above criteria are met it will usually be difficult to convince a court that the Social Host Exemption should be rejected and allow a lawsuit seeking damages to be filed.
Contacting a DUI/DWI accident injury lawyer
Although the Texas Dram Shop Act has made it easier to hold alcohol sellers responsible for the actions of their customers, unscrupulous sellers have learned how to take every advantage of every word in the Act to protect themselves from lawsuits filed against them by those who were injured as a direct consequence of the seller’s greed.
If you have been injured by a drunk driver, you should contact an experienced Texas DUI/DWI to discuss the legal options that may be available to you. Obviously, you will want to know a lawyer’s opinions regarding the potential success of a lawsuit filed under the provisions of the Texas Dram Shop Act. One Houston car accident lawyer with considerable experience in managing such lawsuits can be found at The Doan Law Firm, a Texas law practice with offices located throughout the state.
When you contact our firm to arrange a review of the facts in your potential DUI/DWI lawsuit, your first consultation is always free and does not you to hire us to manage your lawsuit. Should you later decide to file a DUI/DWI lawsuit, and that you would like for us to represent you in court, we are willing to assume full responsibility for all aspects of preparing your case for trial in exchange for a percentage of the final settlement that we will win for you.