After the tragic collision last weekend in Austin only a few blocks from where our state legislators and Supreme Court justices convene, we should examine the permissive law that abets drunk drivers.
Most states, including Texas, have enacted what are called dram shop laws which supposedly hold businesses liable for the harm their intoxicated customers cause to innocent motorists and others. A dram was akin to a shot glass in England in the 1800s. These laws were created to discourage restaurant and bar owners from overserving alcohol and serving any alcohol to minors. They are also a way for injured people to be compensated, since the drunk driver usually lacks significant insurance or assets, if he has them at all.
In Texas, the dram shop law is set forth in the Alcoholic Beverage Code, Section 2.02(b):
Providing, selling, or serving an alcoholic beverage may be made the basis of a statutory cause of action under this chapter … upon proof that:
(1) at the time the provision occurred it was apparent to the provider that the individual being sold, served, or provided with an alcoholic beverage was obviously intoxicated to the extent that he presented a clear danger to himself and others; and
(2) the intoxication of the recipient of the alcoholic beverage was a proximate cause of the damages suffered.
But a far more liberal Texas Supreme Court than our present one noted back in 1987 that the plaintiff’s burden of proof in these cases was “onerous” in the landmark decision of El Chico Corp. v. Poole, 732 S.W.2d 306, 314 (Tex.1987).
And that onerous burden was watered down by our Supreme Court in cases like the 2007 decision in FFP Operating Partners v. Duenez. In that case, after spending a day cutting firewood and drinking 1.5 cases of beer, Roberto Ruiz drove to a Mr. Cut Rate convenience store owned by FFP Operating Partners. The store’s assistant sold Ruiz a 12-pack of beer, which he opened and placed between his legs. Ruiz later swerved across a center line and hit the Duenez family’s car head on, causing all five to suffer serious injuries. The Duenez family sued FFP Operating Partners under the then-existing Texas Dram Shop Act. A divided Texas Supreme Court found that providers should not be automatically liable for a drunk driver’s actions when it was not clear whether their alcohol contributed to the accident. Instead, proportion of liability should be based on how much their alcohol contributed to the impairment that caused the accident.
Keep in mind that the Texas Dram Shop Act was already weak. Many of its requirements were hard to prove. And it had a “safe harbor” provision that enabled bars and other private businesses to avoid liability — even if their employees had overserved drunk drivers — if they meet the following fairly easy requirements:
1. the employer required the employees to attend an approved “seller training program,”
2. the employees actually attended the program; and
3. the employer did not directly or indirectly encourage employees to violate the act.
At least the burden used to be on the alcohol provider to prove these three prongs. However that changed the next year when in 2008 in 20801, Inc. v. Parker the Supreme Court flipped the requirement on its head and forced the injured party to prove the third requirement. This is obviously difficult, if not impossible, to show in the typical case.
And this is not just a Texas phenomenon. A recent report published by the American Journal of Preventative Medicine showed that between 1989 through 2011 — at a time when deaths and serious injuries from drunk driving cases were skyrocketing — most states actually weakened their dram shop laws.
Excessive alcohol consumption causes a shocking 80,000 deaths each year in our country. That’s about four times the number of people who can sit inside the American Airlines Center in Dallas. And if this isn’t sobering enough, 54 percent of people admitted driving after binge drinking at a restaurant or bar.
How can this happen? An internet search showed this headline from a newspaper article in 2005, just before the legislature and Supreme Court watered down the liquor statute:
Alcohol industry throws money around in Austin Lobbying focuses on protecting interests, liberalizing laws
AUSTIN – At the Texas Capitol, booze means big money.
Beer, wine and liquor manufacturers, distributors and retailers will pay lobbyists up to $4 million to sway legislators in 2005, according to state report totals compiled by The Associated Press.
The State Legislature and Supreme Court should reconsider its decisions that have liberally interpreted the Dram Shop Act to protect alcohol providers and servers. These business should be held responsible for injuries and deaths they cause innocent motorists and pedestrians. Our politicians and judges should protect motorists before another disaster reminds us just how weak this law is.