Dram Shop Attorneys

The Texas Supreme Court decision in the precedential El Chico v. Poole (1987) case, created a cause of action for those hurt in drunk driving accidents and other accidents so that victims could seek remedy from the establishment or provider of alcohol that served the intoxicated party.

El Chico v. Poole established that bars, nightclubs, and restaurants could be sued. However, at the time there was no criteria for the liability of alcohol serving establishments. So the Texas Legislature responded by enacting the Texas Dram Shop Act, which had two main purposes:

1. it defined the terms of what an establishment is potentially liable for, hence when it can and when it can’t be sued.
2. it made a dram shop cause of action the exclusive remedy against bars and other establishments and this nullified the landmark El Chico v. Poole Texas Supreme Court decision.

The Texas Legislature enacted the Texas Dram Shop Act to protect against involvement of the criminal component in the trafficking of alcohol. For those who provide alcoholic beverages the Act is also an exclusive remedy in terms of civil liability for the actions of an establishment’s employees, customers, members, or guests who are or become intoxicated. Proof of civil liability against a provider of alcoholic beverages is required. Under Texas Alcoholic Beverage Code Ann. §2.01 a person who is licensed to sell or serve alcohol in Texas (a “provider”) can be liable for damages if it was clear that the individual being served alcohol was intoxicated to to the degree that he presented a danger to himself and others. Evidence must be provided to the effect that when a patron or guest was sold, provided, or served alcoholic beverages, that the person was clearly and dangerously intoxicated and that the inebriation of the recipient of the alcohol was a proximate cause of the injuries, losses, and other damages suffered due to the actions of this person.

1. Texas Dram Shop Act and Exclusive Remedy

Dram shop lawsuits are the sole way or exclusive remedy for victims of over-serving of alcoholic beverages to recover damages for their losses and injuries. As far as injuries related to alcohol provision, this is only law that can be used as a cause of action. Other causes of action such as gross negligence and unsafe property liability claims are not applicable to a case where dram shop laws are involved or overservice of alcohol is the basis for a lawsuit.

2. The Actions of the Intoxicated Guest or Patron Under Texas Law

In Texas courts a jury is able to consider the actions of the intoxicated person to determine liability in dram shop accident cases. The business should add the at-fault intoxicated guest or patron to the lawsuit either as a responsible third-party or a defendant defendant. The fact-finder is then tasked with calculating and assigning the percentages of liability for damages and/or injuries caused as a result of the actions of the intoxicated person.

3. The Safe Harbor Defense

The Safe Harbor Defense offers protection for alcohol serving establishments. To be shielded from liability under the Safe Harbor Defense in Texas courts, the following three criteria must be met:

a. the establishment or employer has a requirement that its employees attend a Texas Alcoholic Beverage Commission (TABC) approved training program for sellers;
b. there is proof that the employee actually attended a TABC approved training program; and
c. the establishment or employer did not indirectly or directly encourage the employee, bartender or server to violate the laws regarding over-serving or distribution of alcoholic beverages.

For a business to gain safe harbor or protection from civil liabilities relating to over-serving of alcohol under Texas state law, the defendant establishments involved in a dram shop lawsuit is required to prove that the employees involved attended a TABC-approved seller training class.

4. Selling Alcohol to Minors: Liability in Texas

In Texas the legal drinking age is 21. The Texas Dram Shop Act defines a “minor” as anyone under the age of 21, despite the fact that in most cases under other laws 18 years of age is considered to be the legal age of adulthood. When a seller distributes alcohol to a minor that seller is subject to liability and the repercussions under the law, unless the minor presents a seemingly valid identification that falsely represents the minor buyer as being 21 years old or older.

The Section 2.01 of the Alcoholic Beverage Code contains a provision, often referred to as the “social host liability”:

(1) “Provider” means a person who sells or serves an alcoholic beverage under authority of a license or permit issued under the terms of this code or who otherwise sells an alcoholic beverage to an individual.

To meet the definition of being an alcohol “provider” the alcohol has to be sold. This would exclude “social hosts,” or people who have guests or had parties in their homes. Unless these social host charge for the alcohol server to their guests in some manner, the law does not apply to these hosts.

To sue a responsible party, they do not have to be operating under the authority of a license or permit. The key part of the definition in such cases is that the responsible party sold alcohol in some manner directly or indirectly.

There is an exception to the protections that social hosts have when serving alcohol, and it relates to minors.

Though Section 2.01 of the Alcoholic Beverage Code limits “social host liability,”  the social host liability law (Section 2.02) states that providers of alcohol can be held liable for accidents and the related damages or losses caused by an intoxicated minor if:

• the minor is under the age of 18 years old
• the provider of the alcohol is not the minor’s parent, custodian, or spouse; and
• the alcohol provider knowingly a) served the minor alcohol that contributed to the minor’s intoxication or b) allowed the minor to be provided with alcohol that contributed to the minor’s intoxication and did so on the provider’s premises.

For example, 16-year-old Leslie attends a neighbor’s birthday party in his apartment complex. Leslie takes a few alcoholic beverages from the cooler that James has provided for guests. James is aware that Leslie is consuming alcohol from the cooler and chooses to ignore this. Leslie leaves the birthday party intoxicated to drive to meet another friend, and she mistakenly runs through a red light and hits a person on a bicycle (Paul), injuring him severely. Paul can pursue a claim for damages against Leslie for causing the collision and James for knowingly serving alcohol to a minor at his apartment.

Any exception that defendants might have in other dram shop cases that do not involve a minor are not permitted or allowed for adults who serve minors when those minors do damage to themselves or others.

This includes:

1. the exception of being a “social host” and not selling alcohol
2. the Safe Harbor Defense
3. and the requirement that the minor was “obviously intoxicated”.