Drunk Driving Accidents & Dram Shop 101
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Step 1 – Understanding a Dram Shop Case
For more than 22 years, the Austin drunk driving accident lawyers of Grossman Law Offices have helped accident victims pursue justice against the drunken drivers who harmed them and the bars and restaurants that provided the alcohol. In this article, we will describe how our Austin drunk driving accident attorneys can help you pursue compensation for alcohol-related injuries by explaining:
- How dram shop cases work
- How you can identify the specific type of dram shop case that you have
- How you prove the necessary elements of a dram shop case in order to win
What is the Texas Dram Shop Act and How Can This Law Benefit Me?
In the 1980s, Texas lawmakers decided that it was important to hold bars and restaurants accountable for their actions if they improperly serve, or over-serve their patrons which then cause the intoxicated person, or another, harm. The resulting law came to be known as the Texas Dram Shop Act.
The purpose of this law is to first hold every responsible party accountable for alcohol related injuries, and second to further help the victim recover everything they deserve. The entire goal of the state prosecuting the drunken driver, or you filing a civil suit against them, is to hold them accountable and punish them for their reckless behavior. But it is also important to understand that many accidents and injuries caused by intoxicated drivers often result in severe physical injuries, and sometimes actually kills people.
The physical injuries you may have incurred in a drunken driving accident can be incredibly expensive to treat, occasionally resulting in lifelong difficulties. Furthermore, if your loved one has been killed by a drunk driver you have obviously suffered severe emotional trauma which the responsible defendants are accountable, and the financial strain which the loss of your loved one has placed on your family can also be daunting.
Obviously, these are all valid and strong reasons why you should not limit your lawsuit to the actual intoxicated driver, but that leaves the question of who qualifies as a responsible party under the dram shop laws? If the drunk driver was drinking at a friend’s house and then, while driving home, hit and killed your family member is the friend of the drunk driver also responsible if he provided the alcohol? Generally, no.
Who Can I Deem as a Liable Party in My Dram Shop Lawsuit?
To qualify as a responsible party under the dram shop laws, you must sell the alcohol. Under this standard liquor stores, grocery stores, restaurants, and bars would all qualify as long as they sell the alcohol. When you go to your friend’s house for a few drinks they are probably not charging you to imbibe, and therefore they cannot be classified as provider or a “dram shop.”
So why hold the bar responsible and not your friend who allowed you to drink way too much? The law understands that these companies and businesses (the bars, restaurants, and stores) are ultimately responsible since they choose to partake in a business that serves alcohol for profit and inherently creates the risk of injury.
Furthermore, in order to legally sell alcohol they must have a valid liquor license which requires the owner of the store and all employees serving alcohol to undergo special training to protect patrons from being over-served. This means that they have special training and have a great sense of whether a person has had too much to drink. And since they are selling for their own benefit, they have a greater responsibility to make sure that other people are not injured due to their actions.
Is the classification of a “dram shop” limited to traditional places of business like a store, restaurant, or bar? No. Fraternities occasionally qualify as liable under the dram shop laws if they sell the alcohol or charge admission to their party. This classifies them as selling the alcohol and making a profit. Therefore, in certain instances, we can help you file a lawsuit against a fraternity based on the dram shop laws.
Why Would I Want to File a Civil Lawsuit Against the Establishment That Served the Alcohol?
Drunk driving accidents often have both criminal and civil ramifications. Obviously if a person drives while intoxicated, whether they cause an accident or not, they can be prosecuted by the state for their dangerous and reckless behavior. Additionally, the bar, restaurant, or store which served the drunk driver alcohol could suffer potential criminal consequences including losing their liquor license and paying a fee to the state.
While suing the drunk driver is an obvious choice, and widely considered a rightful action, but suing only the drunk driver is generally not the best option. When you sue only the intoxicated driver, you are missing a very large part of the equation and leaving out someone who is greatly responsible for your injury: the business that served or sold the drunken driver the alcohol which caused them to become intoxicated.
Step 2 – Identifying the Type of Dram Shop Case You Have
There are essentially two different types of dram shop cases: the first party dram shop lawsuit, and the third party dram shop lawsuit. Both claims are based on the same set of laws and filed under the same cause of action: the store, bar, or restaurant was negligent which caused you to be injured. But the status of the plaintiff, the person filing the suit, is very different in these two claims.
In a first party dram shop lawsuit the plaintiff is the person who was actually served the alcohol. In this instance, you are claiming that you were negligently over-served at the defendant’s establishment and you are now suing the owner of the bar claiming that they are responsible for your injury.
For example, if you suffered severe alcohol poisoning and needed medical treatment, the bar may be held responsible since they should have known that you had consumed too much. Or maybe you were over-served at the bar, drove home, and subsequently hit a lamp post with your car. No one else was injured except you, but, again, the bar is responsible for allowing you to become intoxicated and then drive home.
In contrast, a third party dram shop lawsuit implies that you are an innocent third party who was injured by an intoxicated driver. In this situation the first two parties are implied, the drunk person and the bar who served him, making you the third party who was not involved until the actual accident. Third party claims allow you to hold the bar responsible for their actions and are generally the most common type of drunk driving lawsuit.
For example, if you were hit by a drunk driver and wish to sue the bar, then your claim would be considered a third party dram shop lawsuit. Or if your loved one was killed by a drunk driver and you decided to sue the bar that served the drunk driver, your claim would also be classified as a third party dram shop lawsuit.
Step 3 – Proving the Necessary Elements of a Dram Shop Case
There are certain basic definitions which you must be familiar with when proving the required elements of a dram shop case. The first is the definition of an alcoholic beverage. This simply means any drink which contains any amount of alcohol. So let’s consider a drink known as O’Doul’s which many people mistakenly believe to have no alcohol. In actuality, O’Doul’s has a very small amount of alcohol content, and, surprisingly to many, is considered an alcoholic beverage.
More importantly, you it is important to clarify what is factually considered one drink. For instance, is a double shot of whiskey considered one drink or two? Many people would be surprised to learn to a double shot is actually considered two drinks since it is literally two shots.
The same is true for mixed drinks. Often hurricanes have four or more shots of various alcohol. Even though it is in one glass, the drink is classified as having four drinks since there are four shots. It is crucial that you understand what the Texas Alcoholic Beverage Commission deems as one drink because this will be incredibly important when establishing whether the patron was over-served, and whether the bar should have known he was intoxicated.
The second element which we must establish whether the recipient of the alcohol was an adult. This is important because it establishes the degree with which the bar, or restaurant, acted negligently.
If the bar or restaurant served an underage patron, or a minor, then they likely acted with gross negligence and are held to an even greater standard for your injuries. However, if they over-served an adult, then they were legally providing them with alcohol up until the point that they became intoxicated.
Another necessary element is establishing that the defendant was a provider. This relates to our previous discussion about whether a friend could be held liable if they gave alcohol to the defendant who then injured you. Again, the provider is an establishment like a liquor store, grocery store, restaurant, or bar who is selling the alcohol for profit. And as mentioned above, if a fraternity charges admission for a party where they serve alcohol they can be held liable as a provider under the dram shop laws.
Another important term is obvious intoxication. This is an central element for proving your case because it shows negligence, or gross negligence, on the part of the defendant who served the alcohol. There are certain signs which these establishments, and their employees, are trained to watch for involving a person’s physical appearance, their speech patterns, and their actions.
Establishing a Dram Shop Lawsuit Through Direct and Indirect Evidence
We often prove this element of obvious intoxication through investigation producing direct and indirect evidence. Direct evidence includes eye witness testimony of the bartender or other patrons. We also use video surveillance to show that the intoxicated person was at the establishment and to prove how they were acting while there. Direct evidence also includes credit card receipts showing how much the drunk person purchased at the establishment and blood tests which scientifically prove exactly how intoxicated they were.
Indirect evidence often involves producing circumstantial evidence which tends to show that the intoxicated person was actually drunk and showed obvious signs of being inebriated. Social networking posts are incredibly useful in establishing indirect evidence that the person was at the establishment and that they were in fact intoxicated. A misspelled post on Twitter, or a check-in on Facebook showing them at the bar help to prove that they were drinking at the defendant’s location and that they were over-served.
It is also important to realize that if you are pursuing a civil claim against the drunk driver, or business which served him, the district attorney is probably also pursuing a criminal claim against the defendant. This means that the state is gathering evidence and collecting information to prosecute the defendant, and much of the evidence they produce will be equally helpful in your civil lawsuit.
It is imperative that your Austin attorney have a good working relationship with the Travis County district attorney to ensure that all important evidence and information discovered can be shared in order to provide you with the best lawsuit possible against the defendant.
Proving the Foundational Element of Proximate Cause in a Dram Shop Case
The previous elements are pretty basic; they show that the store had a right to sell, or did sell alcohol, that they legally served an adult, and that the adult was clearly intoxicated which means the bar new or should have known that they were illegally over-serving the person. The next element essentially ties all of these elements together and shows that the dram shop’s actions directly caused your injury.
The foundation of any personal injury case is proximate cause, but it is sometimes uniquely challenging to prove in dram shop cases. The three elements comprising proximate cause are: 1)cause in fact, 2)foreseeability, and 3)actual harm.
Cause is fact in a dram shop case basically means that the bar’s actions must have actually caused the person to become drunk. Therefore, if the bar over-served the person allowing them to become drunk, then they violated their duty to properly serve alcohol and limit the amount which customers can consume. Consequently, the bar’s actions are the “cause in fact” for the person becoming drunk.
The second element of foreseeability is a little bit more complex. It is easily foreseeable that if a person is over-served and allowed to become drunk that they would likely cause harm to themselves or others. This concept of foreseeability is the entire reason why these dram shop laws exist: lawmakers saw that drunk people are a danger to themselves and others.
It is obvious that drunk people can be a hazard, so the question of foreseeability then becomes an issue of whether the person serving the alcohol could identify that the person was intoxicated and then posed as a foreseeable risk. Again, this determining relies upon evidence which we can produce to show that the person serving the alcohol should have known that the intoxicated person was obviously drunk.
The third issue is far less complex. We must show that you suffered actual harm due to the defendant’s negligent actions. This can be physical harm if you were hit and injured by a drunk driver, or it can mean emotional or financial harm if your loved one was killed due to a drunk driver. We simply need to show that you have been harmed in some way in order to establish proximate cause.
Specialty Drinks and Proving a Defendant’s Liability
A unique way of proving the defendant liable in your dram shop case is by showing that the establishment encourages its patrons to become intoxicated, and therefore directly caused your injury. Many restaurants and bars offer specialty drinks which are intended for multiple people to consume, but they will regularly sell them to just one person. A popular drink like a fish bowl drink is often meant to be consumed by 3 or more people and is easily considered four or more drinks in one large container.
Many bars are now holding “beer pong” tournaments in which they encourage their customers to play multiple rounds of the game which requires them to drink in order to advance in the competition. Furthermore, many people who play these games have an additional drink that they consume while also consuming drinks associated with the game.
These kinds of promotions encourage patrons to ingest large amounts of alcohol in a short period of time creating a huge hazard for the person drinking, and others they may come in contact with later on. Establishments who act negligently in this fashion are legally responsible for the resulting harm you suffer. It is vital that you understand how the law is specifically molded to protect your interests and hold these negligent parties accountable. To learn more about how Grossman Law Offices may be able to assist with your dram shop lawsuit, call Grossman Law Offices at 1-855-257-1111.