This article will explain how drunken driving cases work against both a drunk driver and a bar by covering the following topics:
You can bring a claim against the drunken driver’s insurance policy and their personal assets (where applicable) for their negligent act of driving drunk. However, it is not as easy as you might think. The drunk driver’s insurance company will argue that they do not have to compensate you for your injuries because motor vehicle insurance policies are designed to cover negligent acts, not criminal acts.
Their argument works like this: “Driving drunk is illegal. Our policy only covers accidental injuries, not injuries caused by crime. As such, the insurance policy doesn’t apply.” Of course we do not subscribe to this concept and we will overcome their arguments, but the insurance carrier will attempt to exploit this technicality nonetheless. The claim against the drunken driver, however, is relative child’s play compared to the highly technical dram shop claim that is made against the bar.
In addition to suing the drunken driver, you can sue the bar as well by pursuing a dram shop case. A dram shop case is a claim for liquor liability that allows an injured party to sue bars, restaurants, clubs, and other establishments that serve alcohol where someone is injured after the establishment broke the rules regarding serving alcohol as set forth by the TABC.
Many years ago, the Texas legislature recognized that drunken driving accidents and other injuries attributable to intoxication are often caused by bars breaking the rules of safe alcohol service set forth by the TABC. Prior to the codification of the Dram Shop Act in 1987, the victims of drunken driving accidents could theoretically sue bars under general negligence-based theories of liability, but our lawmakers decided this issue needed to be codified.
Much of the Dram Shop Act just took what had already been the practice in the common law and set it in stone, striking a balance between protecting bars from all but the most significant claims and limiting the ability of plaintiffs to seek compensation to only those cases when the drinking establishment has broken specific rules.
By adopting the Dram Shop Act, an injured party’s ability to sue bars was clarified and bars also benefited from protection from all but certain types of lawsuits.
Anyone who is physically injured by virtue of a bar violating safe alcohol service rules as laid out by the TABC has the right to pursue compensation from the drinking establishment. However, the path to securing remedies for the harm won’t be the same for all injured parties. Different classifications of plaintiffs will need to take different approaches to reach the same end of obtaining compensation, and they will face different challenges along the way. There are two classifications of plaintiffs in a dram shop claim.
Injured parties in a typical dram shop case fall into one of two categories: third party plaintiffs, or first party plaintiffs. A third party plaintiff is someone other than the drunken driver who was injured in a drunken driving accident. This person can be a passenger in the intoxicated motorist’s car, the driver of another vehicle, the passenger(s) of another vehicle, pedestrians, motorcyclists, or bicyclists; any innocent third party who was harmed by the drunken driver due to a bar breaking the safe alcohol service rules.
A first party plaintiff is typically the drunken driver themselves who was injured. They can sue the bar who over-served them following an injury sustained in a drunken driving accident, or the driver’s family files a wrongful death lawsuit after their loved one drinks past the point of intoxication at a bar and then dies in a drunken driving accident, or by some other means. Since Texas law considers negligent drinking establishments to be a cause of drunken driving accidents, then they can be held partially accountable even for harm done to the drunken driver.
The applicability of Texas’ Dram Shop Act is not limited to motor vehicle accidents involving intoxicated motorists; rather, it extends to any type of alcohol-induced harm that an intoxicated patron caused. For example, you could pursue a dram shop lawsuit after being attacked and beaten by an intoxicated person who was over-served by a bartender.
Although Texas’ dram shop laws allow injured parties to sue a bar for contributing to the cause of the injuries they suffered in a drunken driving wreck, those parties can only succeed with such a suit if a bar has violated very specific rules. So long as alcohol is legal to sell and consume, there must be some balance between a bar’s right to free enterprise and the public’s need to be protected from the dangers of drunken drivers. But bars cannot feasibly be held liable for every instance of drunken driving, so the Dram Shop Act applies a standard that must be met to establish the liability of a bar.
According to Texas’ Dram Shop laws, a bar is not liable for over serving alcohol until a person becomes noticeably intoxicated, yet the bar continues to serve that person.
TABC guidelines require plaintiffs pursuing a Dram Shop lawsuit to prove that the drunken driver was served alcohol after showing obvious signs of intoxication, and although a clear and present danger to himself and others, the bar continued serving him. These signs of obvious intoxication can include changes in the patrons’ physical characteristics (such as bloodshot eyes, loss of balance, and lost control of bodily functions), or may be noted by altered and abnormal behavior. For example, some people are prone to violence when drunk, while others become more sexually uninhibited. While some people get loud and extremely extroverted when intoxicated, others become uncommonly quiet and withdrawn. Since some drinkers are more able to conceal the outward signs of intoxication than others, the sheer number of drinks ordered by a single patron is perhaps the most reliable indicator of intoxication.
First, a drinking establishment needs to make sure all of its employees have attended and completed TABC training. Not only is this required to avoid liability for harm caused by drunken patrons, but this training teaches servers how to detect obvious signs of intoxication in their customers. The most important component in server training is diligence – bartenders and waitstaff must keep a constant watchful eye on their patrons. If you’ve ever spent any time in bars and clubs, then you know that it’s usually not that hard to spot the intoxicated patrons. Usually, you only need to look for them. Although, as mentioned above, some drinkers can hide the signs of intoxication, so servers need a way of detecting when these customers are intoxicated. Just as with observing patrons, this isn’t that difficult either. To order food and drinks, most bars and restaurants now use some sort of computerized system. Thus, every time a patron orders a drink on his tab, a bartender just needs to be observant of how many drinks have they’ve ordered. Once the amount of beverages purchased has surpassed the amount it would take to make the customer intoxicated, service should be cut off in compliance with TABC mandates on safe service of alcohol.
Unfortunately, most drinking establishments are more concerned with making profits than protecting their customers until a drunken driving accident happens. Therefore, if you’ve been injured in a drunken driving accident, odds are that the drinking establishment that served the driver wasn’t taking the necessary precautions to avoid liability.
To win a dram shop case, it’s not enough just to know that the bar served an obviously intoxicated patron, but you’re going to have to be able to prove it. Moreover, you’ll need to establish that the bar’s wrongful actions were the actual and proximate cause of the accident and your injuries.
Eye-witness accounts from bar patrons and surveillance video can demonstrate that the drunken driver was obviously intoxicated before leaving the bar. Our Houston drunk driving accident attorneys have even been able to use the driver’s phone records and social network page to track down drinking buddies who can help demonstrate the recipient’s level of noticeable intoxication while he was still drinking in the bar. Moreover, other bar patrons can testify as to whether not the bar habitually serves patrons past the point of intoxication. We’ve even sent private investigators armed with surveillance cameras into bars we’re investigating to attempt ordering alcohol when they’ve already had enough to become intoxicated. Interviews with employees can reveal whether or not they’ve been properly trained according to TABC regulations. Sales records and/or debit and credit card receipts can show just how many alcoholic beverages the patron bought before leaving the bar. By questioning the arresting or investigating officer, your attorney can also demonstrate the driver’s intoxication and the role it played in the accident.
If you can prove a bar violated the TABC rules for the safe service of alcohol, and this violation caused your injuries, then you can sue the bar for damages. In a personal injury lawsuit, these damages may include compensation for:
Conversely, if your loved one is killed in a drunken driving accident, then you may be able to pursue a wrongful death claim and survival claim against the responsible party. Wrongful death damages can be sought by the surviving spouse, children, and parents and are intended to compensate these people for the harm done to them by virtue of the death of their loved one. These wrongful death damages may include compensation for:
On the contrary, survival damages are intended to provide compensation for the losses of the decedent as a result of the accident and may only be pursued by the personal representative of the estate in the name of the closest living relative. Survival damages may include:
Of note, when our firm begins an investigation, we send a spoliation of evidence letter to the defendant informing them they’re being sued and instructing it not to destroy or tamper with evidence in any way. When a drinking establishment ignores a spoliation of evidence letter and tampers with any evidence covered by the letter, then the court will likely enforce Death Penalty Sanctions as punishment, increasing the amount of damages.
Also, the drunken driver and the negligent drinking establishment are jointly and severally liable for the damages you’ve suffered in a drunken driving accident, provided you can prove they are both liable for your injuries in court. The attorneys for both of these defendants will present arguments as to the respective degree of liability for each party, and the damages owed by the liable parties will reflect this percentage of liability as decided by the court.
If you’ve been injured by a drunken driver whom you suspect may have been over-served by a bar or restaurant, then you will likely need the assistance of an experienced Houston dram shop lawyer to successfully sue for the damages you deserve. You stand very little chance of finding the evidence you need to prove the drinking establishment’s negligence without the assistance of a professional investigator who has handled investigations like this on numerous occasions and knows what to look for. However, you also need an attorney who understands the wide scope of financial harm that can result from serious injuries and the importance of consulting with a number of different medical experts to accurately estimate the harm caused in your accident.
Finally, you need an experienced Houston dram shop attorney who knows what to expect from the alcohol provider’s defense attorneys and how to overcome the challenges they will present, as well as, the importance of proving up the value of damages to allow you to hold all liable parties accountable and get maximum compensation.
At Grossman Law Offices, our Houston drunk driving accident lawyers have spent more than 22 years litigating dram shop cases, so we’ve worked hard to obtain the experience you need to help you get the damages warranted by the injuries you’ve sustained or the loved one you’ve lost. While many law firms avoid the dram shop cases because of their complexity, we rise to the challenge. If you’d like to learn more about how we can help with your dram shop case, then call us today for a free consultation at 1-855-392-0000 (toll free).