It was after 2:00 a.m. one Saturday morning when a young lady was returning home from her friend’s home. It was drizzling. Suddenly, an intoxicated driver in a large pick-up truck swerved and crossed four lanes of traffic resulting in a head-on collision. When the young lady awoke, she has two broken legs and a compound fracture of her arm. The drunk who hit her was staring at her through her smashed-out window saying: “please don’t die, please don’t die.”
A criminal trial ensued. After it resolved, the district attorney informed us that the man had been drinking at a particular bar. We brought a claim against the bar. As expected, the bar took the position that the drunk was not “obviously intoxicated” and; even if he was, they pleaded the protection under the Safe Harbor provision of the Texas Dram Shop Act.
The Texas Dram Shop Act
The Texas Alcoholic Beverage Code sets out the grounds for civil liability for sellers/servers of alcohol under a section known as the Dram Shop Act. A “dram” is a measure of alcohol. Under this Act, a seller/server of alcohol such as a bar or restaurant can be held strictly liable by a skilled Texas Dram Shop lawyer if their employees serve alcohol a person who is obviously intoxicated or underage. If that person goes out and causes an accident due to their intoxication, the establishment that served the drunk can be held responsible.
The Safe Harbor Provision
The Safe Harbor provision of the Texas Dram Shop Act is a section of the law that shields sellers/servers from liability if they require all employees to undergo a T.A.B.C. certified course. It can pose a serious stumbling block to a Dram Shop defense team. The course is shorter than a defensive driving class. The cost of the class is generally $10.00-15.00 online. The purpose of the course is to train sellers of alcohol to identify the signs of intoxication and what to do when you see that a patron is becoming intoxicated. If a bar or restaurant requires all of its employees to take the course, then the establishment is shielded from liability for an employee overserving a patron unless the management encourages overserving.
Social Media as Implied Acceptance of Overserving
In an effort to provide my client with zealous representation and fully investigate the case, I looked into the social media of the bar. I looked at what was being said both before and after the time of the accident. As it turns out, this bar’s business model was to hire attractive young women as bartenders run “events’ that kept these women scantily clad such as lingerie parties and bikini days. They also regularly posted these events and these girls’ photos on social media to keep the regulars informed as to what was going on.
As I scrolled back through the posts, I realized that the employees were posting daily with drink specials and statements aimed at creating a “party atmosphere” feeling at the bar. There was clearly little screening going on to some of the comments.
One of the posts read “On a scale of one to David Hasselhoff, how drunk are we getting tonight?” The comment that the lead-bartender had written above it was: “I’m getting DH drunk tonight come party with us.”
Another 4th of July meme advertising their 4th of July party read: “Let’s get star-spangled hammered.”
As I started taking the deposition of the employees, I learned that there was a computer terminal in the back room of the bar by the time clock. When a new bartender came on shift, she was required as a part of her job to post on social media something that tells everyone she is working that shift. A manager was responsible for overseeing this, but it was clear that his concern was the promotion of the bar more than what was being said. No one with legal training was screening the comments.
Using this information, I presented my theory of the case: the bar management had not just fostered a party-atmosphere that allowed for the over-serving to occur, they had created it. Management was in control of the social media accounts and was doing nothing to stop the image that the bar was one big wild drunken party. They required employees to promote this appearance that the bar was a place to get drunk and get wild. They allowed the bartenders to make public statements that implied that they were going to get intoxicated along with their patrons. This, in turn, suggested to the employees that overserving was an acceptable practice in this bar.
Without this theory, I had no way to avoid the Safe Harbor provision of the Texas Dram Shop Act. The wagons were circled. All of the employees were claiming they had no idea the guy was intoxicated, they never over-served anyone, and that the managers never encouraged overserving of alcohol. Fortunately for my client, this theory was sufficient to make the defense go to mediation and settle the case for a significant amount without us having to go all the way to trial.