Dram Shop Overview
Intro to Dram Shop
Difference Between 1st Party and 3rd Party Claims
Dram Shop Statute of Limitations
Litigating Dram Shop Cases
Spoliation of Evidence
Dram Shop Evidence – TABC BAC Chart
Dram Shop Evidence – Quantity Served
A dram shop or dramshop is a term that describes a bar, tavern or similar commercial establishment where alcoholic beverages are sold. Traditionally, it referred to a shop where spirits were sold by the dram, a small unit of liquid.
San Antonio Personal Injury Lawyers – San Antonio Drunk Driver Accident Attorney
Our Attorneys Can Help You and Your Family Following a Serious Injury Accident With a Drunken Driver
Were you aware that you can sue both a drunken driver and the drinking establishment that over-served him, if you’ve been injured in a drunken driving accident? When you bring a lawsuit against a drinking establishment, this is called a dram shop case, and this right stems from a section of the Texas Alcoholic Beverage Code.
What is a Dram Shop Case?
A dram shop case is a liquor liability case that allows you to sue bars, restaurants, clubs, and other establishments that serve alcohol under very specific conditions whereby they break rules regarding the service of alcohol set forth by the TABC.
What is the Concept Behind Dram Shop Laws?
Many years ago, the Texas state legislature recognized that drunken driving accidents and other intoxicated injuries are often the result of 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 a general negligence-based theory of liability, but our lawmakers decided this issue needed to be codified into law. The creation of the Dram Shop Act limited the injured parties ability to sue bars, but wasn’t necessarily a bad thing for plaintiffs. While the Dram Shop Act provided bars protection from all but certain types of lawsuits, it also specifically instructed plaintiffs when and how they may go about filing lawsuits.
From state-to-state, dram shop laws will differ, but in Texas, it’s 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 the rights of bars and plaintiffs and limiting the ability of plaintiffs to seek compensation to only those cases when the drinking establishment has broken specific rules.
Who Can Sue a Bar under a Dram Shop Cause of Action?
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 done 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.
What are the Different Types of Plaintiffs who Can File Suit in a Dram Shop Case?
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 – a passenger in the intoxicated motorist’s car, the driver of another vehicle, the passenger(s) of another vehicle, pedestrians, motorcyclists, or bicyclists. The dram shop act is not limited to motor vehicle accidents involving intoxicated motorists, but 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 had been over-served in a bar.
On the other hand, a first party dram shop claim involves the drunken driver, either when the drunken driver sues the bar who over-served him 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. 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.
What Makes a Bar Liable?
Although our dram shop laws allow you to sue a bar for contributing to the cause of a drunken driving wreck, you can only succeed with such a suit if the 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. According to Texas’ dram shop laws, a bar is not actually liable for serving alcohol until a person becomes noticeably intoxicated, and there is no immediate assumption that a bar is liable just because an intoxicated patron left a bar and caused an accident. Rather, Texas considers the act of selling alcohol negligent only when a bar serves additional alcohol to a person who is already dangerously intoxicated.
What Constitutes a Dangerous Level of Intoxication?
Technically speaking, according to TABC guidelines in order to have a viable dram shop lawsuit, you must be able to show that the recipient of the alcohol was displaying obvious signs of intoxication such that he presented a clear and present danger to himself and others and the bar continued serving him. Now, these obvious signs of intoxication can include changes in the patrons’ physical characteristics, such as bloodshot eyes, an inability to balance while standing or walking, or a loss of control of bodily functions, or they can also include altered behavior. 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 can also be an indicator of intoxication.
How Can a Bar Recognize Obvious 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 thing is diligence – bartenders and wait-staff 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 we mentioned, 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 been ordered by this person. Once the amount of beverages purchased has surpassed the amount it would take to make the customer intoxicated, then service should be cut off in compliance with TABC mandates on safe service of alcohol.
The fact of the matter is that until drunken driving accidents happen most drinking establishments are more concerned with making profits than protecting themselves against liability. Therefore, if you’ve been injured in a drunken driving accident, the chances are strong that the drinking establishment that served the driver wasn’t taking the necessary precautions to avoid liability.
What is a Plaintiff Required to Prove?
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, along with establishing that this act was a proximate cause of the accident and your injuries.
Eye-witness accounts from bar patrons and surveillance video from the bars can demonstrate that the drunken driver was obviously intoxicated before leaving the bar. Sometimes, our 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 are 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.
What Amount Can You Sue the Bar For?
If you can prove the 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:
Any property that may have been damaged in the wreck
Pain and suffering felt during the accident
Mental anguish experienced during rehabilitation
Lost wages during recovery time
Detrimental effects of lifelong disabilities that result from your injuries
If, conversely, your loved one is killed in a drunken driving accident, then you may be able to pursue both wrongful death damages and survival damages. 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:
Loss of monetary support
Loss of parental services for children losing parents
Loss of child’s services for a parent losing a child
Loss of spousal services
Psychological counseling for the surviving family members
Loss of companionship and society.
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:
Compensation for the mental agony experienced due to the realization of imminent death
Medical bills charged prior to death
Compensation for the physical pain of the accident
Of note, when we begin an investigation, we send a spoliation of evidence letter to the defendant informing the bar that it’s 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, damages in a drunken driving accident are split between the drunken driver and the negligent drinking establishment, provided the liability of both can be proven in court. The attorneys on all sides 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.
You Need Help with a Dram Shop Case
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 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 lawyer who knows what to expect from dram shop 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.
Our 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. If you’d like to learn more about how we can help with you dram shop case, then call us today for a free consultation.
First Party and Third Party Dram Shop Cases
San Antonio Personal Injury Lawyers » First Party and Third Party Dram Shop Cases
What are the Differences Between a 1st-Party Dram Shop Claim and a 3rd-Party Dram Shop Claim?
San Antonio Texas drunk driver accident attorney
Whether you or your loved one has been injured by a drunk driver or you or your loved one was intoxicated and was injured as the result of being over served by an establishment licensed to sell alcohol, it is possible to recover for these injuries under the Texas Dram Shop Act. However, it is essential that you understand the differences between a First Party Dram Shop Claim and a Third Party Dram Shop Claim.
Understanding the distinction between the two is necessary because though the two cases have similarities, they also have unique differences that require a different approach. If you are facing either situation, handling a Dram Shop case on your own is not advisable. Our attorneys can help you with your case and we know how to navigate through the different phases of litigating a Dram Shop Claim.
First Party Claim vs. Third Party Claim… What’s the Difference?
When you or a loved one has been injured, understanding your status as a plaintiff is critical. In a Dram Shop Claim depending on your status in the claim you could be considered a First Party or a Third Party. In a First Party Dram Shop Claim, the injured person is typically the intoxicated person that has been over served by the bar or other establishment licensed to sell alcohol. In these cases the intoxicated person is the only person that has been injured or killed as the result of being served alcohol while obviously intoxicated. In a Third Party Dram Shop Claim, the injured person is typically an innocent third party that has been injured by the intoxicated person that has been over served by the bar or other establishment licensed to sell alcohol. Third party claims are usually related to injuries from drunk driving accidents, but injuries to an innocent third party can also happen when the intoxicated person assaults them in some manner. Regardless of your status as a First Party or Third Party plaintiff, our attorneys can help you take legal action on your Dram Shop Claim. Dram Shop cases are not easy and having a lawyer on your side who knows how to litigate these claims will make the difference in your ability to be successful in your claim.
Commonalities in First Party and Third Party Dram Shop Claims
If your claim is a First Party claim or a Third Party claim, there are certain common issues present in both cases. The elements that will need to be proven are essentially the same. In both instances the plaintiff has the burden of proving that the licensed establishment provided alcohol to an adult person that was obviously intoxicated and in both cases a thorough investigation must take place.
Proving Obvious Intoxication
A dram shop case hinges on the plaintiff’s ability to prove that the bar or other establishment licensed to serve alcohol provided alcohol to an obviously intoxicated person. In a dram shop case the intoxication must be obvious or should have been obvious to the employees or bar tenders of the licensed establishment. If you as a first party or third party plaintiff are unable to prove that the establishment licensed to supply alcohol knew or should have known the defendant was obviously intoxicated, you will not be successful in your Dram Shop Act claim.
Proving obvious intoxication is done primarily through one of two ways. First, the fact the defendant was obviously intoxicated can be established through eye witness testimony of the bar employees and patrons of the bar. For example, some signs of obvious intoxication include trouble standing, smelling of alcohol, slurred speech, or being unable to communicate effectively. If the defendant was supplied alcohol by the bar or licensed establishment while exhibiting these behaviors, the bar could be liable under the Dram Shop Act for serving alcohol to an obviously intoxicated person.
Second, obvious intoxication can be established through considering the knowledge and training the employees or bartenders of the licensed establishment providing the alcohol. The Texas Alcoholic Beverage Commission (TABC) requires that establishments licensed to serve alcohol provide training to its employees related to the effects of alcohol, spotting under-aged drinkers, and other alcohol and safety related topics. This training includes understanding how many and what kind of alcoholic drinks served to a person results in intoxication. For example, if a defendant was served 5 shots of tequila in an hour, the TABC training indicates that a person that has consumed that much alcohol in such a short period of time is legally intoxicated. Therefore if an establishment has served the defendant in such a manner they could be liable under the Dram Shop Act because by the TABC regulations the person is now legally intoxicated and the obvious intoxicated standard has been met.
Conducting a Thorough Investigation
In a First Party or Third Party Dram Shop claim a thorough investigation must be completed if your claim is to be successful. The investigation will include securing police reports, any video surveillance or security tapes from the bar, eye witness and employee testimony, locating any receipts that indicate how many drinks were served to the intoxicated person and other documents. The investigation is important because it will help demonstrate to the jury the role the licensed establishment played in serving an obviously intoxicated person and ultimately you or your loved one’s injuries.
Conducting the investigation is not as easy as it might seem. Even though there are documents to obtain from the accident or altercation, if these are needed for a third party claim they can be especially difficult to obtain. This is because in third party claims the third party does not have automatic access to the documents needed for their case. For example witness testimony may be difficult to come by because many of the witnesses may be employees of the establishment that will be made party to the law suit at some point, so even talking to these witnesses will be an uphill battle. Another reason conducting the investigation may be difficult is because the drunk driver that caused the accident may be under criminal investigation as well so getting a statement from them or an account of the accident and where they were served the drinks after they were already intoxicated is going to be difficult to obtain because they will not be willing to voluntarily incriminate themselves.
The investigation needs to take place as soon as possible because the more time passes the greater the risk that evidence could be lost, witnesses memories could fade and crucial documents becoming unavailable. The difficulty of securing the information needed for a successful investigation is a major reason why handling your Dram Shop claim on your own is not a good idea. Our attorneys are knowledgeable and know how to conduct investigations like these. Contacting us early on in your case will increase the odds that information helpful to your case will be discovered. We know how to conduct investigations and gather the evidence necessary for you to prevail against the licensed establishment that supplied alcohol to an obviously intoxicated person.
Unique Aspects of Third Party Claims
As discussed above, though first party and third party claims have similarities and common issues that must be addressed, each type of case also has unique aspects and challenges to overcome. These challenges require an approach tailored to the situation. What will be sufficient in one case will not be in another, so handling this without the benefit of an attorney like the ones at Our Law Offices can complicate and damage your case.
In a third party claim the injured person is typically someone that has no existing connection to either the intoxicated person that injured them or the licensed establishment that served the intoxicated person the alcohol. For example, an innocent motorist is involved and injured in an accident by a drunk driver. In a case such as this, the motorist hit by the drunk driver may have a case against the drunk driver as well as the licensed establishment that continued to serve them alcohol when they were obviously intoxicated. Another scenario that could result in a third party claim would be when the passenger of the intoxicated person is injured by the drunk driver. Although this does not happen as often as another motorist being injured by the intoxicated driver, it does happen and our attorneys can assist with this as well.
There are also cases where a third party has been injured without any involvement in an auto accident. Cases such as a physical altercation between the injured third party and the intoxicated person can also give rise to a Dram Shop claim. Though less a less likely occurrence than an auto accident, in this example, the innocent third party was still injured as the result of the actions of the intoxicated person and the licensed establishment that served them. Intoxicated people are often belligerent, argumentative, and confrontational and are often more likely to cause an unprovoked altercation with someone than they would sober. When this happens the innocent third party that was attacked and drawn into a physical altercation with the intoxicated person may have a case against both the intoxicated person and the licensed establishment that served alcohol to the intoxicated person.
Apportioning Fault in Third Party Claims
In many cases before making an award the jury will determine the proportion of fault that each party in the case is responsible for. When fault is apportioned the damages are looked at from a total of 100% and the jury will determine which percentage each party is responsible for. The percentage of fault that belongs to each party directly relates to the amount of the damages they will be responsible for. For example, if an innocent third party was injured in a drunk driving accident and has $100,000 in damages, the jury may find that the drunk driver was at 60% at fault for the accident and the licensed establishment that served the alcohol to the drunk driver was 40% at fault for the accident based on their actions in continuing to serve an obviously intoxicated person. In simple terms, the driver would be responsible for $60,000 of the innocent third party’s damages, and the bar would be responsible for $40,000 of the damages.
In third party Dram Shop claims the injured third party is often seen as an innocent party because they were injured due to no fault of their own. They were not intoxicated and may have no direct connection to the drunk driver or the licensed bar that served them the alcohol. This is different than in a first party claim because obviously the injured person played no direct part in their injury. Even if the injured third party does have some fault in their injury, this will probably not be as detrimental to the case as in a first party claim. For example, the third party was injured in a physical altercation with the intoxicated first party, but the third party contributed to the start of the fight. They will bear some liability for their injuries, but the jury probably will see their actions as less offensive than the actions of the obviously intoxicated party and the licensed establishment that supplied them the alcohol.
Unique Aspects of First Party Claims
First party Dram Shop claims are unique because it is typically the intoxicated person or their family that is bringing the claim against the licensed establishment that served them alcohol. This often happens when the intoxicated person has been injured or killed due to their intoxication from either hurting themselves in an accident, or succumbing to alcohol poisoning or dying an alcohol related death. First party claims must be handled carefully because the jury will see the first party as directly contributing to the intoxication that injured them. This is important because when it comes to apportioning fault if the first party is found to be more at fault for their injuries than the licensed establishment that continued to serve them alcohol though they were visibly intoxicated. For example, if the family brings a wrongful death claim of $1,000,000.00 for their loved one after they died as the result of their intoxication after being served alcohol by a licensed establishment, if the jury finds that their loved one was 60% at fault for their own death the family will not recover anything. This is because the first party was found to be more at fault for their injuries than the licensed establishment that served them the alcohol. This is why it is so important to have lawyers like ours on your side.
To be successful in a first party Dram Shop claim it is crucial that the first party demonstrates to the jury that the licensed establishment bears more responsibility for the injuries or death that has occurred. The jury must see that though the first party does bear some responsibility, the establishment licensed by the Texas Alcoholic Beverage Commission bears more responsibility because they were in a position to demonstrate better judgment than the intoxicated first party by not continuing to serve them alcohol. The privilege of being licensed by the State of Texas to serve alcoholic beverages to the public comes with responsibility to the public as well, and that includes not serving alcohol to obviously intoxicated people. If the licensed establishments did not have this responsibility the Dram Shop Act would not exist. Having a lawyer on your side that can effectively make this argument and demonstrate to the jury how the licensed establishment was derelict in their duties is important to a successful case. This is why our Law Office is the smart choice for litigating your first party Dram Shop claim. We have the experience and skills needed to be successful in Dram Shop claims.
San Antonio drunk driver accident lawsuit attorney
Either Way, It’s a Challenge
Whether you are the first party or the third party in a Dram Shop claim, your case will be met with challenges. From understanding the different aspects of your case to conducting a thorough investigation, each phase has its tests and hurdles that must be cleared before your case can move forward to a successful conclusion.
Going at this alone will not only be difficult, but can jeopardize the success of your case. Our lawyers have the skills and experiences necessary to face the challenges Dram Shop cases present and we can work through them for you. Contact us today.
Statute of Limitations in a Drunk Driving Accident – San Antonio Personal Injury Lawyers
What is the Statute of Limitations for a Texas Dram Shop Accident Injury or Death?
San Antonio drunk driver accident attorney
The statute of limitations for dram shop cases in the state of Texas is two years. This is codified in the Texas Civil Practice and Remedies Code. This is because all civil cases based upon personal injury, trespass for injury to the estate or to the property of another, and conversion of personal property are grouped under the umbrella of a two year statute. The public policy reason why the Texas Civil Practice and Remedies Code established this time frame is that individuals who suffer an injury are expected to bring their lawsuits timely.
Basis of the Personal Injury Lawsuit
The interesting thing about dram shop cases unlike typical negligence cases is that there is a statute which enforces the law criminally and the statute allows for civil causes of action. The actual dram shop statute is found in the Texas Alcoholic Beverage Code § 2.02 and it states that the statute does not affect the right of a person to bring a civil lawsuit based on personal injury. The statute does not state what the statute of limitations is to bring your suit. The reason for this is because the statute can be used in criminal or civil cases. You will need to go to the corresponding resource material to find the statute of limitations. This means, if you are suing civilly, you would look to the Civil Practice and Remedies Code; and if you are filing a criminal charge you would go to the Texas Code of Criminal Procedure.
Chapter 16 of the Civil Practice and Remedies Code sets out the statutes of limitations in Texas for civil claims. Specifically, § 16.003 in the code is for the two year statute of limitations and this section covers all general personal injury claims. The chapter sets out an umbrella for two year statutes of personal injury claims. A violation of the dram shop statute that lead to a car wreck where people were hurt and property was damaged would fall under that umbrella. If the state also wanted to charge the individual or establishment that violated the dram shop act, then they would follow the statute of limitations found in the Texas Code of Criminal Procedure. A violation of the dram shop act would most likely be a misdemeanor and would fall under the Texas Code of Criminal Procedure § 12.02. Like, the comparable civil statute the criminal statute would also run in two years.
Two Years to File
The reason for the statute of limitations is to encourage people to act in a reasonable time period on their claims. The person claiming injury has the responsibility not to let their claim languish and to file timely. Public policy dictates that we do not want people to have the cloud of potential litigation hanging over their heads for an unreasonable amount of time and instead have the claimant resolve the matter efficiently. Experience tells us that witness memories fade over time; evidence is lost, corrupted, or destroyed; and crime scenes can change. The better course of action is to act on their claims quickly. In the case, of a dram shop statute violation, this is even more so because we want the state to act quickly if they are going to criminally indict someone and we don’t want persons to be constantly worried whether or not criminal charges are going to be issued against them.
If you have a dram shop case you should contact our Law Office today. The longer you wait the more likely that your case could be preempted by the statute of limitations. In order for us to help you, the investigation into the facts and evidence of your case should be done as soon as possible while evidence is still fresh. Contact our attorneys and get your case moving today.
Drunk Driver Lawsuits, Litigation & Going to Trial – San Antonio Personal Injury Lawyers
The Process of Filing a Dram Shop Lawsuit in Texas, Litigating it, Going to Trial, and Presenting Your Case to a Jury
Once you have met with one of our attorneys the next step will be for one of our attorneys to file your lawsuit for you and to serve the defendant with notice of the lawsuit. A proper venue based on the facts of the case will be determined by the attorney and the attorney will file the case with the court located in that jurisdiction. The defendant will have twenty-three to twenty-five days to respond. If the defendant fails to respond to the lawsuit, the court will find that the defendant has defaulted and will automatically rule in favor of the plaintiff.
If the defendant does respond, the time period for discovery will complete twenty days after their response. The discovery process is the time period allowed for both sides to complete their factual investigations and to exchange their findings regarding the case. Due to the nature of dram shop cases, there is a lot more information that needs to be collected than in a standard personal injury case. Because of this, it is important to get your case started as quickly as possible so as much information as possible can be collected and reviewed.
Types of Discovery Evidence
Both sides require specific information that is not only unique to a dram shop case but unique to whether the injured party has survived their injuries or whether they have died and their family is bringing a wrongful death suit on their behalf. The defendant will want to have access to information such as:
The identities of the deceased’s children
Copies of their birth certificates
Past medical history
Autopsy photos or photos that prove injury
Plaintiff’s witness statements
Reports from plaintiff’s expert witnesses
Any police reports, photos or video of the accident
And the plaintiff’s attorney will also be conducting an investigation and collecting evidence from the defendant in the discovery process. The type of information required will determine whether the case is an injury or wrongful death case; and whether the plaintiff’s attorney is bringing suit against only the drinking establishment that served an intoxicated person or whether the attorney is suing both the drunk driver and the drinking establishment. Some examples of required evidence would be:
The drunk driver’s credit card receipts
Surveillance video from the bar
Training manuals that are supplied to employees
Training videos that are shown to employees
List of all employees who worked at the time of the incident
Mugs or glasses that the bar utilized to be used as trial exhibits
Reports from Defendant’s expert witnesses
Defendant’s witness list and their statements
Reports of previous lawsuits against the bar
Reports of prior incidents at the bar
Depositions are one of the most important parts of the discovery process in a dram shop case and there are a lot more depositions that have to be taken than in a standard personal injury case. The reason for this the plaintiff will have to show what the servers knew or should have known at the time they served the inebriated patron. In order to show what the servers knew or should have known they will testify under oath in a deposition. The wait staff, bartenders, bar backers, and other employees will all be deposed.
The testimony provided by the employees can be used to prove up the dram shop case but can also be used to defeat affirmative defenses such as the safe harbor provision. Safe harbor is an affirmative defense which means that the defendant has to prove the elements of the defense by putting on evidence. In particular, the defendant will have to show that he attended required certification classes offered by the Texas Alcoholic Beverage Commission (TABC), his employees also attended the training, and after the training was completed the defendant did not actively encourage his employees to break TABC rules. If the defendant does so successfully, the burden then shifts to the plaintiff who is then required by the court to provide at least a scintilla of evidence that defeats the defendants claim. A scintilla is a term of art which means any evidence at all.
Ending Discovery, Mediation, & Trial
If after discovery has been completed, the defendant has attempted a motion for summary judgment and it has failed the defendant may then offer to submit to mediation. Mediation is a form of dispute resolution where the parties agree to allow a mediator or a referee help to negotiate a resolution that both sides deem to be fair. Mediation can be helpful because it can lower the cost of litigation and allow both parties to resolve their differences. However, mediation is not required and neither party is bound to submit to the mediator or to the final terms of the mediation. Mediation is more akin to a contract where both parties agree to be bound by the terms unlike a final adjudication by a court of law where a party is ordered to submit. As such, a mediator has no legal authority.
And if the mediation does fail, the next step is to set the case for trial. Once the case is set for trial, the attorneys on both sides will have to prepare their witnesses and evidence to present before a jury. Both sides will have several types of expert witnesses that will be presented to the court. Toxicologists will be needed to testify as to the blood alcohol level of the drunken patron that was served more alcohol by the bar. A safe alcohol sales consultant may testify to her review of the bar policies of serving liquor. Damages experts will testify to the extent of the injuries to the plaintiff or, if it is a wrongful death suit, a medical examiner will testify has to what the cause of deceased death was.
In the case of a wrongful death suit, you may also need to address the issue of the survival claim. A survival claim is ancillary to a wrongful death claim and addresses the pain and suffering that the deceased person had to endure in the time period after they were injured and prior to their death. It can also be applied to lost income the deceased person would have earned for their family and for loss of consortium. This can be proved up with testimony from emergency medical teams, financial analysts, doctors, and emergency room personnel. A medical examiner may also be used to show the exact time of death and the relative pain and suffering the deceased would have experienced in that time frame.
If the plaintiff survived the injury, medical doctors, pain analysts, and psychologists can testify to the injury the plaintiffs suffered, how long the injury will last, continuing rehabilitation that may be needed, whether the plaintiff will be able to work again, whether he will be able to provide for his family financially, and the mental state of the plaintiff. All of this testimony will be used at trial in order to give the court and the jury a complete picture of the severity of the plaintiff’s injury and how it may have permanently affected their life and the lives of their family. After the plaintiff’s attorney has completed their case, the defense will have an opportunity to rebut, and the court will adjudicate the claim.
It is important in your case that you hire an attorney that has a strong understanding of how bars are supposed to operate, how alcohol affects the human body, and be able to translate all of that information into an easy to understand argument the jury can comprehend. Juries tend to be biased against only the drunk driver and not against the drinking establishment. They will tend to believe that all of the blame should rest only on the drunk driver. This is why it is important to have an attorney who can help the jury understand what is required under the law, why the law is in place, and why drinking establishments should be held accountable when they violate the law.
Our attorneys have litigated dram shop cases. We have the experience to navigate the tough dram shop case. Our attorneys will guide you through your case from inception, investigation, discovery, mediation, trial, and adjudication. If you have been injured by a drunk driver or if someone you care about has been killed by a drunk driver, you can still help them by fighting for them against all responsible parties. Call Our Law Offices and speak to one of our attorneys today.
Spoliation of Evidence in a Dram Shop Case – San Antonio Personal Injury Lawyers
Preventing the Defendants From Erasing or Destroying Evidence Following a Drunken Driver Accident
Spoliation is a huge problem in dram shop cases. In this instance, spoliation is the intentional withholding, hiding, altering, or destroying of any evidence that would be relevant in a dram shop case. Part of the reason why is the limited availability of evidence the liquidity of working staff in establishments that are more likely to violate dram shop laws. In order to properly investigate a dram shop case the litigants must act quickly to ensure that no evidence is lost before it can be accounted for and recorded. In order to have the best case for trail as much evidence, whether it is direct evidence or circumstantial evidence must be preserved so that it can be presented to a jury. The best way to ensure that no evidence is lost is with a spoliation letter to the defendant.
The spoliation of evidence is best prevented by having your attorney issue a spoliation letter. What the letter does is put all parties on notice that litigation in a matter concerning them is about to be commenced and that all evidence relating to the matter must be preserved. For dram shop cases, this means that the bar or restaurants records need to be protected so that they are not destroyed, lost, or altered. This would also include records and testimony of employees that work at the establishment. Because of the volatility of service industries like bars and restaurants this must be done quickly. Many establishments have high turnover rates for staff and the testimony of those persons could be lost if the employee did not leave accurate contact information. Many establishments also are owned by a single proprietor who may have an inferior system or no system at all for keeping track of employees or the records of the sales of liquor.
Sanctions for Spoliation
Prior to litigation, if a defendant has altered, concealed, or destroyed evidence the court has wide discretion to issue discovery sanctions. The Texas Rules of Civil Procedure grant this wide discretion to courts because the act of spoiling evidence interferes with their ability to determine the facts of the case based on the entirety of the evidence. A court has several options on what sanctions it will impose and will do so based on the severity of the offense. A court may hold a party in contempt, strike a portion or the entirety of a party’s pleadings, issue financial charges against the party who spoiled evidence with the other side’s discovery costs, dismiss the lawsuit in its entirety, or issue a summary judgment against the party responsible for the spoliation.
Spoliation by Inference
Another part of the reason that courts are given wide latitude to punish is based on the theory of spoliation by inference. Spoliation by inference has been established because of the unique logical reversal that must be made in order to prove a piece of evidence must have existed and that the reason the spoliator concealed it is because, even if there is no direct evidence to prove the evidence is negative to the spoliator, it can be inferred that the evidence is or would have been and that is why the evidence was spoiled. Essentially, the theory allows the judge or jury to make a negative evidentiary inference.
The resulting conclusion from the inference is referred to as “consciousness by guilt”. That is, the person knows this evidence is going to destroy their case so instead they destroyed the evidence in order to get rid of it. Thus, in order to address the conscious guilt and to discourage other future litigants from attempting the same action the court may issue such severe penalties as completely dismissing the case or giving a winning judgment to the party who did not spoil evidence. In some jurisdictions there can also be separate civil liability. You could have a party who lost an original case because they spoiled evidence only to turn around and be sued civilly by the party whom you just lost your original case to.
In sum, spoliation of evidence is a bad idea with harsh penalties but you only get punished if you get caught which is why some people will still attempt it. In order to make sure that your interests are protected, a spoliation letter must be sent out to put all parties on notice and a full investigation by an independent third party should be to take account of all the available evidence. Even finding something small could start a trail to a concealed piece of evidence that could easily prove your entire case. To speak with us about your case, call today.
Dram Shop Evidence: TABC Blood Alcohol Chart – San Antonio Personal Injury Lawyers
Information on Content in Relation to Time and Number of Drinks
In a successful drunken driving accident lawsuit in San Antonio or any other major metropolitan area, the pursuit of damages rarely ends with obtaining compensation from only the impaired or intoxicated motorist. Oftentimes, there was a negligent provider of alcohol (a “dram shop” known colloquially in the legal community) that served the influenced individual too much. If this is the case in your accident, then you may be able to go after both parties in civil court.
To beat a dram shop in court, you need convincing evidence to back up your claim. A major piece of evidence that could achieve this purpose is the Texas Alcohol Beverage Commission’s (TABC’s) Blood Alcohol Percentage Charts for men and women. We at our Law Office hope that, as you learn more about these charts, you will see just how negligent the bar involved was, as well as understand how attorneys such as ourselves can further clarify the negligence of a defendant.
The TABC’s has two charts on blood alcohol percentage, measuring how much a given number of drinks will influence you based on weight and sex. Although not everyone has the same tolerance, the charts do make some critical generalizations:
Obviously, the more alcoholic beverages you consume, the quicker you will become intoxicated. While this is true, what the chart does not suggest is the very real possibility that the drinks consumed will not all be of the same alcohol percentage. For example, high alcohol content beverages, such as hard liquor or even wine, should get a person intoxicated much faster than a small can of beer would.
The less someone weighs, the faster he or she will become intoxicated with each new beverage. Put simply, smaller bodies are less capable of taking a substance as intense as alcohol.
Females have a lower tolerance for alcohol than men. This is clearly not always the case: some women can be very heavy drinkers, while some men can be relative “lightweights.” Be that as it may, the point of intoxication for women comes much sooner – especially for those who weigh 180 pounds or less.
In proving that the restaurant, bar, or night club over-served you, each generalization is helpful in establishing negligence. When an outfit is TABC-certified, established in a community, and receives constant business, they are all things that vigilant servers should watch out for. Naturally, those people whose consumption of heavier, darker liquors should be watched by employees, and denied alcohol far sooner than someone who is simply sipping on Tom Collins cocktails with very little actual gin. Likewise, consumption of the female patrons, as well as the lighter visitors, should also be observed carefully by dram shop staff. If all of these basic duties of care are abdicated, then they are said to have been “breached.” So in the examples above, one person driving off and causing an accident could be enough for a cause of action to sue.
Be that as it may, you and your liquor liability attorney must account for the defendants in front of you. After all, people deal in generalizations, stereotypes, and prejudices every day, so for the most part, drawing conclusions based on those is a simple process; however, it takes a greater degree of skill for a lawyer to deal in specifics. It would be easy enough to say, “Look at these charts: because the driver who received alcohol from the defense was 100 pound woman, she was far more susceptible to intoxication.” However, simply being a 100 pound woman is not enough to establish negligence on the alcohol provider’s part; rather, you must establish that she was over-served, which requires contextualizing the scene of the bar that night: how well off she was after two beers, whether or not she could even move after four, and so on. Part of the reason why we have civil trials in the first place is because you cannot “calculate” a dram shop’s negligence – a stark contrast from the holistic, comprehensive approach that makes our justice system so great.
Understand Evidence with Our Law Office
While the TABC’s charts are useful tools both in and out of court, definitive conclusions cannot be drawn from only the charts. You need legal representation to tie everything together – legal representation such as ours. We’ve been handling personal injury and wrongful death cases for residents of Texas since 1990, putting our talents to work so that hundreds of victims could see the financial compensation they so rightfully deserve. In particular, we have handled a considerable number of dram shop cases, so we know the ins and outs of dealing with multiple defendants at once.
If you have further questions about dram shop claims, or want to begin your pursuit of justice today, then call our Law Office. We know the law, and can give you consultation at no out-of-pocket expense, so reach us with confidence.
Dram Shop Evidence: Amount of Alcohol Consumed – San Antonio Personal Injury Lawyers
How the Amount of Alcohol Consumed can Affect Your Dram Shop Case
If you have been injured in an accident by a drunk driver, not only do you have rights against the drunk driver but you could also bring a lawsuit against the establishment that sold alcohol to the drunk driver if they were obviously intoxicated at the time. The law suit against the bar or establishment is called a Dram Shop Act claim.
To be successful in this kind of claim you must demonstrate that the drunk driver was obviously intoxicated when they were sold more alcohol by the bar or establishment and the intoxication was a cause of the accident and your injuries. To be able to demonstrate this to a jury, understanding alcohol effects the body based on the amount consumed and the person’s body type is very important to your case.
Alcohol’s General Properties
Alcohol works as a depressant and primarily affects your central nervous system. The extent in which your nervous system is impacted by alcohol depends on the proportion of alcohol concentration in your blood. When alcohol is consumed, it is absorbed quickly into the blood and distributed throughout your body. Because this happens so quickly, even a little bit of alcohol in your system can alter your body’s ability to function normally and can impact your behavior. Those changes in body function are often displayed very early on when alcohol is being consumed, so odds are the drunk driver that injured you in the accident displayed some of the signs of obvious intoxication, yet was continuously served by the bar or other establishment they visited. If this was the case in your accident the establishment that served the drunk driver needs to be held responsible as well.
Based on the amount of alcohol consumed and the amount of alcohol concentration in the blood, the body can go through 7 stages of intoxication. In the chart below, each stage of intoxication and the signs and symptoms that are often displayed during each stage are explained below. Understanding what signs were displayed and when the signs were displayed by the drunk driver that hit you can go a long way in proving your case to the jury.
Blood Alcohol Content Intoxication Stage Symptoms
0.01 – 0.05 Subclinical Stage Behavior appears normal just by casual observation.
0.03 – 0.12 Euphoria Stage (Legal intoxication in Texas [0.08 BAC] begins between this
stage and Excitement Stage below) Mild euphoric state, more
lively personality traits displayed, decreased inhibitions, decrease
in judgment and beginning of sensory and motor skills
0.09 – 0.25 Excitement Stage Emotional instability, loss of critical judgment skills, perception,
memory and comprehension impaired, sensory-motor
coordination issues, and drowsiness.
0.18 – 0.30 Confusion Stage Disorientation, mental confusion and dizziness, slurred speech,
staggering, increased pain threshold.
0.25 – 0.40 Stupor Stage Approaching loss of motor functions, vomiting, inability to stand
or walk, impaired consciousness.
0.35 – 0.50 Coma Stage Complete unconsciousness, drop in body temperature,
impairment of circulation and respiration.
0.45 + Death Death from respiratory arrest.
With the exception of the Subclinical Stage, each stage of intoxication can include signs of direct evidence of obvious intoxication that can be used against the bar or establishment that served the drunk driver that injured you. The intensity of the intoxication symptoms will depend on other factors such as body composition, but very early on when a person is drinking signs of intoxication appear.
Body Weight, Rate of Consumption, Amount of Alcohol Consumed, and Gender Differences
Many factors can go into the rate a person becomes intoxicated or displays signs of obvious intoxication. A person’s body weight, the rate of their consumption of alcohol and the amount and type of alcohol they have consumed are all big factors in determining intoxication levels and obvious intoxication. Individuals vary and so does the rate at which they become obviously intoxicated. Our lawyers understand this and can explain these differences so a jury understands as well. We can help demonstrate that the drunker driver was obviously intoxicated and the establishment that served them alcohol despite this obvious intoxication needs to share in the liability for your injuries.
Body Weight as a Factor
Generally speaking, a person that weighs less will feel the effects of alcohol and probably display signs of obvious intoxication sooner than a person that weighs more. The concentration of alcohol in the blood and its affects are directly related to the amount of water in a person’s system as well. To understand the level of blood alcohol concentration you can simply take the amount of alcohol in a person’s system divided by the amount of water in their system. That means that in general terms, if two people of similar body compositions but different weight, the person that weighs more will have a lower concentration of alcohol in the blood even if they consume the same amount. Conversely, if two people that weigh the same but one has more muscle and one has more fatty tissue, the person with more fatty tissue will be more impacted by the alcohol consumption because fatty tissue does not contain much water nor can it absorb much alcohol. Therefore more alcohol will be in the blood stream affecting the nervous system and causing impairment.
Rate of Consumption as a Factor
As we have discussed, blood alcohol concentration largely depends on the amount of alcohol consumed and how quickly the person’s body breaks down the alcohol that was consumed. The body typically breaks down alcohol at a consistent pace for elimination from the body, so consuming alcohol at a rate faster than the body can break down the alcohol results in a cumulative effect. This cumulative effect is what contributes to the stages of intoxication. More and more alcohol enters the blood faster than it can be eliminated and the body’s natural reaction to this is impairment. That is why it is important to understand that it is not just the kind of alcohol that is consumed, but the amount consumed and the time frame in which the alcohol was consumed is key. For example a person can consume three mixed drinks in a setting and depending upon the time frame that passes between drinks, it is possible that they will not display any signs of intoxication or even be legally intoxicated. Three drinks over the course of a two hour meal will usually not have the same impact that the same three drinks will have over just an hour’s time and if no food is consumed during this time period.
Demonstrating how much alcohol the drunk driver had at the bar can be done through direct evidence such as time and date stamped receipts from the bar as well as the amount of alcohol or number of drinks purchased. One person consuming 10 drinks, regardless of the time period in which the drinks were consumed will more often than not result in some level of intoxication and the receipt from the bar can be evidence of that and bolster your claim.
Gender Differences and Amount Consumed
Gender differences also play a role in the level of intoxication and the display of obvious signs of intoxication. Generally speaking women tend to have more body fat than men, thus less water in their systems to balance out the alcohol and the amount consumed. This means that taken from a general perspective, that if a woman and a man weigh the same amount and consume the same amount of alcohol at and consume the alcohol at the same rate, the woman will feel and display the effects of intoxication before the man does because of her body composition. The more body fat that women generally have allows for more concentration of alcohol in the blood and the display of obvious signs of intoxication. Obviously this does not mean this will always be the case, but generally speaking this break down applies. The differences in alcohol concentration in the blood based on average body composition differences by gender is between 16% and 10% depending on the age of the people involved.
Age also plays a factor in the concentration of alcohol in the blood based on the amount consumed. As both men and women age each gender has a decrease in the amount of water available in the body. Therefore older men and women will have a higher concentration of alcohol in the blood and will probably present signs of obvious intoxication before a younger person will.
The Amount of Alcohol Consumed As Evidence
As discussed above, the amount of alcohol the drunk driver that hit you consumed can be powerful evidence in you Dram Shop Act case against the bar or restaurant that served them. When their body composition, gender, and rate of consumption are considered together along with the amount of alcohol they were served by the business involved, that business’ liability for your injuries can be assessed by a jury. Gathering this evidence and presenting to a jury in a manner that not only demonstrates the drunk drivers’ liability, but also highlights the business’ failure to act responsibly when serving them is crucial to a successful Dram Shop Act case. Our attorneys not only have the experience and resources to help you with your case, but we have the desire to as well. Drunk drivers cause many injuries and deaths each year in Texas. We work to make sure drunk drivers are held accountable and we will help you go after the businesses that aided the drunk driver by continuously supplying alcohol to an obviously intoxicated person. Call us today. We can help you.