What is the Texas Dram Shop Act?

The Texas Dram Shop Act protects the general public from the dangers caused by drunk drivers. It does this by banning bars, taverns, and restaurants from overserving alcohol to patrons. Notably, this law allows a person hurt by a DWI driver to sue the bar that overserved the drunk driver.

But the Dram Shop Act comes with two major catches. First, it sets a high bar to win a Dram Shop case. This is because it requires the injured person to show that the bar’s conduct was over the top.

For example, you must show that the bar served alcohol to a clearly-drunk patron. And as a direct result of that conduct, the drunk driver caused the car wreck. This is the first hurdle you must jump through.

Second, even if you can prove the bar overserved the drunk driver, the Dram Shop Act provides an extra level of protection for the bar owners. The law calls it the Safe-Harbor defense.

Of major interest, the safe-harbor law is a simple and low-cost defense for bar owners to make. In a nutshell, the bar owners must show they properly trained and supervised their staff. More to the point, it shields bar owners from the harm caused by the drunk driver.

In this post, we will show you how these two parts of the Dram Shop Act work. We will do this by outlining the elements of a dram shop case and a safe-harbor defense. From there, we will show you why this law is important to victims of drunk drivers.

Tex. Alc. Bev. Code Sec. 2.02 Protects the Public from Drunk Drivers.

Tex. Alc. Bev. CodeTexas Dram Shop Act Law
Sec. 2.02 (a)Causes of Action. This chapter does not affect the right of any person to bring a common law cause of action against any individual whose consumption of an alcoholic beverage allegedly resulted in causing the person bringing the suit to suffer personal injury or property damage.

Sec. 2.02 (b)Providing, selling, or serving an alcoholic beverage may be the basis of a statutory cause of action under this chapter and may be the basis of a revocation proceeding under Section 6.01(b) of this code upon proof that:

(1) at the time the provision occurred it was apparent to the provider that the individual being sold, served, or provided with an alcoholic beverage was obviously intoxicated to the extent that he presented a clear danger to himself and others; and

(2) the intoxication of the recipient of the alcoholic beverage was a proximate cause of the damages suffered.
The Texas Alcoholic Beverage Code (TABC) contains two important definitions that help explain how the Dram Shop Law works.

First, TABC defines a "provider" as "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.

Second, TABC states the term ""provision" includes, but is not limited to, the sale or service of an alcoholic beverage."

What are the Key Elements of a Dram Shop Case?

The elements of a case are the set of facts you must prove to win your case. We can find the basic elements of a dram shop case listed in the table above. Chiefly, this law requires an injured person to prove three things.

Namely, you must show:

  1. The bartender served alcohol to an obviously drunk patron;
  2. The drunk patron must be a clear danger to himself or others; and
  3. The patron’s drunkenness is the direct cause of the damages.

The words in italics show why Dram Shop cases require strong proof that the bar overserved a patron. This is because the law gives bar owners clear guidelines on when not to serve alcohol to a patron. Equally important, these guidelines give bar owners a wide range of discretion on how when to stop serving a patron.

To put it differently, you need to show more than the bar fouled up. You need to show that the bar really fouled up. Judges compare this level of proof to gross negligence.1 Nevertheless, technology makes these types of fact questions easier to prove.

What type of proof should I look for after a Drunk Driver crash?

The first thing your attorney may do is contact the bar and ask them to save evidence for the time in question. From there you can look for the following types of proof to help your case:

  1. Video and surveillance camera footage inside and outside of the bar;
  2. Credit card receipts for the drunk driver;
  3. Social media posts; and
  4. Eye witnesses at the bar;

Another great source of information are the body cameras and dash cameras of police who respond to the accident. Your attorney can make an open-records request for these videos. And this information will help you find out what bar or bars the drunk driver was at before the crash.

The end result is that you should act quickly to find this evidence. Otherwise, the bars may lose it or not save it. On top of that, it is the type proof that is powerful at trial. Jurors will relate to it. And they will use it to decide if the bar should pay for the DWI accident.

In sum, this is the first part of a Dram Shop case. Next, we review the Safe Harbor defense.

What does Tex. Alc. Bev. Code Sec. 106.14 say about the Safe Harbor Defense?

Tex. Alc. Bev. CodeSafe Harbor Elements
Sec. 106.14.(a)ACTIONS OF EMPLOYEE. For purposes of this chapter and any other provision of this code relating to the sales, service, dispensing, or delivery of alcoholic beverages to a person who is not a member of a private club on the club premises, a minor, or an intoxicated person or the consumption of alcoholic beverages by a person who is not a member of a private club on the club premises, a minor, or an intoxicated person, the actions of an employee shall not be attributable to the employer if:

Sec. 106.14 (a)(1)the employer requires its employees to attend a commission-approved seller training program;

Sec. 106.14 (a)(2)the employee has actually attended such a training program; and

Sec. 106.14 (a)(3)the employer has not directly or indirectly encouraged the employee to violate such law.

How does the Safe Harbor Law protect Bars and Restaurants from Paying for Drunk Driver Crashes?

The TABC gives bars a simple defense that protects them if a bartender overserves a patron. This defense has three parts:

  • First, the bar must require its employees to attend TABC training;
  • Second, its employees must actually attend the training; and
  • Third, the bar must not encourage the bartenders to overserve the patron.

Strikingly, the law shifts the burden on who must prove these three facts. The Texas Supreme Court requires bars to prove the first two elements. While it places the burden of proof on the third element with the injured person.2

Plus, the Safe Harbor defense acts as a counterbalance in Dram Shop cases. In the first part, the law opens the door for victims of drunk drivers to sue the bar. Conversely, it lets the bars off the hook if they can prove the Safe Harbor defense.

How do you defeat a Safe Harbor Defense?

The first two parts of the Safe Harbor defense are straightforward. You can check with TABC to see if the bartender is certified. You can also ask the bar for its training manuals. This will usually be enough for the bar to prove the first two elements. However, the third element gives an injured person room to work with.

To illustrate, a major theme in Dram Shop cases is money. Bars want to make money. Alcohol sales will help them do that. But often times, the bars go too far. They want to make money more than they want to protect the public.

For this reason, you want to look for facts3 that follow this theme:

  • Did the bar reward bartenders who overserved?
  • Did the bar owners model bad behavior by overserving drunk patrons themselves?
  • Similarly, did the bar owners fail to punish bartenders with a history of overserving drunk patrons?
  • Finally, did the bar set high sales goals for its wait staff that encourages overserving?

Often times, you can get the answers to these questions directly from the bartenders themselves. As an example, you can depose the bartenders and ask them these basic questions. You can then use these sworn answers at trial.

To be exact, you can ask them how many drinks they served the drunk driver. What was the patron drinking? Was it beer, wine, liquor, or mixed drinks? Did the drunk driver get into a fight with other patrons? What time did the drunk driver arrive? What time did the drunk driver leave? These are just a few questions that will tie the drunk driver to the alcohol he drank at the bar.

To sum up, you will want to show the bar encouraged its staff to overserve patrons. If you can prove this main fact, then you can defeat the Safe Harbor defense.

Why is the Dram Shop Act so important?

In many cases, the Dram Shop Act is the only real remedy for someone hurt by a drunk driver. This is because many drunk drivers do not have enough insurance or money to pay for the harm they caused. This can add insult to the DWI injuries.

To make matters worse, the Dram Shop Act has an “exclusivity provision.” That is to say, the only way to sue a bar for the harm caused by a drunk driver is to file a Dram Shop case. And this can become a big deal in car wrecks that cause serious injury or death.

The good news is that many car-wreck cases can be worked out with the other driver’s insurance. But if someone is badly hurt or killed after a DWI wreck, then you will need to consider suing the bar that overserved the drunk driver. This will give you a deep pocket to help cover your medical bills, lost wages, or the loss of a loved one.

Attorney Genaro R. Cortez. Phone: 210-733-7575

Genaro Cortez is an injury and criminal law attorney in San Antonio, Texas. He’s represented hundreds of people charged with DWI cases. And he’s also helped victims of drunk drivers get fair settlements from insurance companies.

  1. Romero v. Blazin Wings, Inc., 2019 U.S. Dist. LEXIS 6199, at *9 (W.D. Tex. Jan. 14, 2019). ↩︎
  2. 20801, Inc. v. Parker, 249 S.W.3d 392, 397 (Tex. 2008). ↩︎
  3. Molly McArdle’s L.L.C. v Lara, 2021 Tex. App. LEXIS 2822, at 13 (Tex. App. Corpus Christi, Feb. 27, 2019) (not designated for publication). ↩︎