Tex. Alco Bev. Code ? 202(b) the "Texas Dram Shop Act" imposes liability on alcoholic beverage providers for damages proximately caused by the intoxication of individuals who were served despite being obviously intoxicated to the point that they present a clear danger to themselves and others.
Unfortunately, although the Texas legislature created the Dram Shop Act to help injured persons, the Supreme Court of Texas has actually interpreted the Act in such a way that the Dram Shop Act can sometimes actually work to protect alcohol servers from being held responsible for injuries and deaths that they cause by over serving customers.
In Part II we will further discuss bar's defenses to the Texas Dram Shop Act and how to counter them.
Texas Dram Shop Act Summary Part II
The Supreme Court of Texas developed a defense in the Dram Shop Act called the "Safe Harbor" defense. Under the safe harbor defense, the actions of an employee in over-serving a patron shall not be attributable to the employer if (1) the employer requires its employees to attend certain training classes, (2) the employee in question actually attended these classes; and (3) the provider did not directly or indirectly encourage the employee to violate the law. Since this is a legal defense, it should be be that the bar had the burden of proof. However, the Court ruled that the bar no longer has the burden on the third element, but instead, the injured person must prove that element.
Only experience and hard work will enable one to identify and prove an act of encouragement to violate the alcohol service policy. For this reason, it is important for people to consult with experienced and knowledgable Dram Shop lawyers from the beginning.
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