DRUNK DRIVING & TEXAS DRAM SHOP ACT - Liability for selling/serving alcohol to intoxicated person who then causes accident or other harm

SERVING DRUNKS: TEXAS DRAM SHOP ACT AND SAFE-HARBOR PROVISION FOR BAR OWNER

The "waiter/waitress/bartender-was-trained-and-certified" defense

LIABILITY FOR SELLING / SERVING ALCOHOL TO PERSON WHO ALREADY HAD HAD ENOUGH
The Dram Shop Act imposes liability on providers of alcohol for the actions of intoxicated customers if: (1) at the time of the provision it was apparent to the provider that the customer was obviously intoxicated to the extent that he presented a clear danger to himself and others; and (2) the intoxication of the customer was a proximate cause of the damages suffered. See Tex.Alco.Bev.Code Ann. § 2.02(b)(West 2007).

However, the Act also contains a section eliminating this liability under certain circumstances. See Tex.Alco.Bev.Code Ann. § 2.02(b); Tex.Alco.Bev.Code Ann. § 106.14(a)(West 2007). Under the “safe harbor” provision, 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 a commission-approved seller training program; (2) the employee has actually attended such a training program; and (3) the employer has not directly or indirectly encouraged the employee to violate such law.” Tex.Alco.Bev.Code Ann. § 106.14(a).

The provision intends to provide a broad shelter from liability for a provider who has complied with the first two elements while also ensuring that this shelter not be abused. 20801, Inc. v. Parker, 249 S.W.3d 392, 398 (Tex. 2008). As such, Section 106.14(a) has been interpreted to include both an affirmative defense, contained in the first two elements, as well as a potential rebuttal to that defense if the claimant can demonstrate that the employer directly or indirectly encouraged the server to continue to serve an intoxicated patron. See Parker, 249 S.W.3d at 398. Encouragement may be shown, at the minimum, by evidence of the provider’s negligence. Id. at 394.

By comparison, “negligence” in Dram Shop cases implies that the provider has engaged in behavior that a reasonable provider would not have done under the same or similar circumstances, or the provider has failed to do what a reasonable provider would have done under the same or similar circumstances. Parker, 249 S.W.3d at 398. The circumstances that should be taken into consideration include a provider’s awareness of, and reliance on, its employees’ successful completion of an approved seller training program. Id. For example, a provider might, without so intending, encourage its employees to over-serve by serving obviously intoxicated persons himself and thus modeling inappropriate behavior, or by failing to punish over-service, or by setting an excessively high minimum sales quota without regard to the number of patrons. Id. However, a provider, after having otherwise met its burden under Section 106.14(a), is not required to demonstrate enforcement on the occasion giving rise to the cause of action. Parker, 249 S.W.3d at 399.

SOURCE: El Paso Court of Appeals - 08-09-00263-CV - 8/11/11

There is no dispute in the case before us that JB’s established the first two elements, of Section 106.14(a). Every employee of JB’s Lounge, including those who worked on the evening in question, had seller training certifications from TABC. Having established those elements at trial, the burden shifted to the negligence claimant to prove that JB’s directly or indirectly encouraged the employee who served Mr. Flores to violate the Dram Shop Act. See Parker, 249 S.W.3d at 394. The record is silent on this issue. There was neither direct evidence that JB’s knowingly ordered or rewarded over-service, nor circumstantial evidence that he engaged in behavior which a reasonable provider under the same or similar circumstances should have known would constitute encouragement. See id. at 398. As there is no dispute that JB’s established the first two elements of the safe harbor defense, and as there is no evidence of “encouragement” which would rebut the defense, JB’s matter of law challenge on its affirmative defense must be sustained. See Parker, 249 S.W.3d at 394. Accordingly, Issue One is sustained. Having sustained Issue One, we decline to address the alternative legal and factually sufficiency arguments raised in Issue Two.

Having sustained Issue One, the trial court’s judgment as to Appellant will be reversed and a take-nothing judgment will be entered in JB’s favor.

SOURCE: El Paso Court of Appeals - 08-09-00263-CV - 8/11/11