by Daniel M. Karp
Handling the prosecution or defense of Dram Shop (Tex. Alc. Bev. Code Title 1, CH. 2.01 et. Seq) claims takes knowledge of the statutory requirements and a thorough understanding of the science involved to prove or refute the required proof of “obvious intoxication” and being a “danger” to yourself or others.
To succeed on a Dram Shop claim, the plaintiff must prove the establishment sold, served, or provided alcohol to a person who was both obviously intoxicated and a clear danger to himself or others. This seems simple, yet it is incredibly complex. Most of the time, the bar or restaurant is unaware of the existence of the claim until days or weeks after the accident. By the time it has notice, video of the night is often long gone, bartenders may no longer be employed, and nobody remembers the person who was allegedly over-served. In those situations, both the plaintiff and defendant face significant challenges.
For the plaintiff, the earlier the notice is, the better. Preservation letters are great tools, yet with many establishments, letters go unopened until an owner comes in to check the mail. As a result, always hand deliver notice to the manager on duty. Get the information for the general manager and owner and call them. Send an email. Oftentimes the manager is the one who can preserve the video and handles the day-to-day operations of the establishment. That same manager knows the bartenders and can lock down key information, including TABC certifications and contact information. The preservation of video can be the difference between making a case and being dead at the starting line. Do not forget to preserve the credit card receipts and the electronic POS system printout for the night in question.
For the defense, a site visit cannot be stressed enough. Knowing where the bartender is located, whether there is an outside seating area, the sight lines, music, volume when crowded, etc. all come into play as important factual aspects to show the jury that it would have been impossible for a bartender to notice one intoxicated person. Unless that person came to the bar swaying, slurring, and barely able to stand and personally ordered the drinks, almost every bartender I have ever spoken with has no recollection of any individual patron. If the plaintiff is deceased, or if the plaintiff was a third-party with no knowledge of what occurred at the bar that night, this leaves the plaintiff having to prove obvious intoxication by science alone.
Some claims are easier than others. If the individual over-served was three times the legal limit, video shows the person stumbling around, a receipt puts him at one location, and then ten minutes later there is an accident, it is not difficult to prove the case. That almost never happens. Instead, there is argument regarding the “obvious” nature of the alleged intoxication at the time alcohol was provided.
Most experts (plaintiff and defense) will tell you that the minimum Blood Alcohol Content (BAC) to cross the “more likely than not” line with obvious intoxication is .15%. That is a LOT—and in fact, is almost double the legal limit for operating a vehicle. For an average man to reach .15% over the course of three hours, he would have to consume between 8-10 alcoholic drinks. That presumes a .02% increase of alcohol level per drink, and .015-.020% elimination of alcohol per hour. These numbers are critical, but they are just an average. Take any 10 people with the same alcohol consumed over the same time, and you will get 10 completely different results.
From the defense side, attacking these experts and having them admit this scientific reality allows a demonstration that the allegedly over-served patron may have had a good tolerance, was a heavy drinker, and while his BAC may have been elevated, he was not demonstrating any “obvious intoxication.” Texas law does not require bartenders to make a BAC analysis. What bartenders must observe are outward signs of intoxication, such as stumbling, slurring, over-tipping, obnoxiousness, etc. No matter how good a plaintiff’s expert may be, none of them can ever say that they witnessed the intoxicated person demonstrating those signs, because they were not there on the night in question. Rather, taking the expert through other possible intoxication levels using the same amount of drinks in the same time by simply changing the elimination and absorption rates within the normal range will show a jury that scientific calculations to prove obvious intoxication really are nothing more than a best guess.
In closing, master the science, win the case.
Daniel Karp is a Partner at Fee, Smith, Sharp & Vitullo, L.L.P. and can be reached at firstname.lastname@example.org.