Texas Dram Shop Law - How the Proximity Defense Works

In a Texas dram shop case, negligent bars will often attempt to use a Proximity Defense in an attempt to escape liability for accidents caused when their unlawful service of alcohol results in injuries or fatalities. Before getting too far into how this defense works, it is important to understand the elements of a Texas dram shop case.

When arguing dram shop liability, that is, the liability of a bar for over-serving a patron who then causes harm to himself or others, a plaintiff will have many obstacles that must be overcome. Most of these will be in regard to proving the following:

• The last place the defendant drank was the plaintiff's bar.
• The defendant over-served the recipient while the recipient was obviously intoxicated.
• The recipient's intoxication was the proximate cause of the plaintiff's injuries

A Proximity Defense involves attorneys for the defendant arguing that intoxication was not the proximate cause of the accident, and therefore the dram shop claim is invalid. Proximity refers to the relationship of how close two things are, both physically and in time. A proximate cause is therefore the one event in time and space, without which an injury would not have occurred. In dram shop cases, the proximate cause must be intoxication due to unlawful over-service of alcohol. Therefore, a Proximity Defense is meant to dispute that the harmful or fatal accident was actually caused by intoxication resulting from a licensed vendor's over-service of alcohol.

In this article, one of Dallas' most experienced dram shop attorneys, Michael Grossman, discusses the role of proximity defenses in dram shop cases, and how the right legal strategy can defeat them.

Questions Answered on This Page:

• Can a bar still be held responsible for a dram shop case if the accident happened far away?
• How does proximity of the accident to the bar impact a Texas dram shop case?
• How can an experienced dram shop attorney help with your lawsuit?

Using a Proximity-Based Argument to Your Advantage

As we stated above, the plaintiff has the burden of establishing several elements in order to have a successful Texas dram shop case. There are numerous "canned" defenses that bars will use to defeat a dram shop claim. Oftentimes, the proximity of the injurious or fatal accident to the bar can help the plaintiff proactively overcome many of these arguments.

For example, our firm litigated a case where an intoxicated patron of a restaurant pulled out of the restaurant's parking lot and struck another vehicle, killing the driver of that vehicle. In that particular case, the proximity of the accident scene to the restaurant - the source of the alcohol - was such that the defendants were not able to use several of the arguments that they otherwise might have.

For instance:

• They could not argue that the recipient had time to consume alcohol elsewhere. This is a common argument that bars will use, the logic of which follows this basic format, "Yes, the recipient drank at our bar, yes we violated the alcohol service rules established by the TABC, and yes, we were negligent in doing so. However, since a significant amount of time passed between our act of negligence and the accident, we do not feel that we were the proximate cause of the accident. After all, how do we know the recipient did not drink somewhere else after leaving our establishment?"
• They could not argue that the recipient was not yet showing signs of obvious intoxication. In some instances, a bar may over-serve a patron, but the patron leaves the bar before the intoxication "sets in," so to speak. Since blood alcohol content (BAC) typically peaks 30-40 minutes after alcohol was last consumed, the patron may be half an hour down the road before their intoxication is apparent. Under those circumstances, the bar may argue that they are not liable because they never had an opportunity to observe the recipient's intoxication. But when the accident happens practically on the bar or restaurant's doorstep, the only logical conclusion is that the intoxication set in on the bar's premises and should have been observed.

In short, the closer the accident and the initial consumption of alcohol were (in both time and distance), the easier it will be for the plaintiff to show that the defendant is liable for the subsequent injuries or deaths.

How the Proximity Defense Can Hurt Your Dram Shop Case

One of the arguments the alcohol-serving establishment - the defendant in your dram shop personal injury or wrongful death case - will try to make is that the customer who was over-served, and who caused the drunk-driving accident, was so far from the establishment at the time of that accident that you cannot pin his or her intoxication on that establishment.

This Proximity Defense can be a very difficult one to overcome, so you will need an experienced attorney to successfully defeat the argument and convince the court that the defendant should be held liable for the role it played in the accident that led to your suffering.

For example, say a man becomes intoxicated in a Houston bar. The man lives in San Antonio, which is more than three hours west of Houston. Somehow he makes it nearly all the way home before he hits another vehicle with his car and severely injures its driver. While the bar in Houston was the one that over-served the man, it will argue it did not contribute to his accident because he was more than 150 miles away when the accident took place. The establishment would argue that the man could have easily stopped someplace else along his route to consume alcohol. He could have stopped at a convenience store or another bar, and those establishments should be held liable instead.

This is obviously an extreme example, as, in the vast majority of dram shop cases, the accident takes place very close to the establishment that over-served the intoxicated driver. However, it is used to illustrate the point that a skilled defense lawyer will try and use arguments you probably never would have considered to help his or her client escape responsibility for their negligence.

Based upon the example, it would be reasonable to infer that at times, the Proximity Defense largely rest on speculation. Like a magician's trick, it takes a bit of truth (that an accident occurred far away or long after a patron left a bar or restaurant) and then allows a juror to fill in the blanks with their imagination: the plaintiff could have stopped here, or must have had another drink there. While the Proximity Defense can threaten to undermine, or cast doubt on, a plaintiff's case, it is also encountered in almost every dram shop case where it is the least bit plausible. This means that an experienced dram shop attorney is well acquainted with the defense and will prepare the case with an eye towards rebutting it.

How an Experienced Dram Shop Attorney Can Help

There is no tried and true formula for countering a defendant's proximity argument, and the farther away an accident takes place from the establishment that over-served the drunk driver, the more difficult it will be to win the case. Again, in order to overcome this argument you will need to have the help of a Texas dram shop lawyer who not only has experience in this type of case, but also a track record of success. What an experienced dram shop lawyer will do is investigate and research all of the important elements in your case. A proactive approach is necessary when dealing with a defendant's proximity-based argument.

For instance, if the defendant argues the way we illustrated in the above San Antonio example, we would search for witnesses who observed the intoxicated driver driving recklessly at points between Houston and San Antonio. Additionally, we could have the ECM (Engine Control Module) of the intoxicated driver's car examined, which, in some cases, can prove that the car was running for an extended amount of time, thereby showing that the intoxicated driver did not stop elsewhere to consume alcohol.

Another source of evidence that can be used to refute Proximity Defenses are cell phones. It may be unsettling to think about, but people generally use their cell phones more when they drink, even when they are driving while intoxicated. In many instances, it is possible to construct an accurate timeline by combining records of the texts, calls, and social media posts made by an intoxicated driver after they have left a bar or restaurant.

In many dram shop cases, a blood sample was taken from the drunk driver in order to determine their level of intoxication. Since alcohol metabolizes at a constant rate, it is possible to determine, based upon the amount of alcohol consumed at the bar, the time that elapsed between the last drink, and the drunk driver's BAC at the time their blood was taken, the likelihood that they consumed alcohol after leaving the bar.

For example, if we suppose that a 180 lb. man was served 8 drinks at a bar in one hour, after that hour the driver's BAC would be a .185. We know this because after 8 drinks, a 180 lb. man would have a .20 BAC, but we then have to subtract .015 for every hour that passes after the first drink. Suppose the driver left the bar, obviously intoxicated since he was over 2 time the legal limit for intoxication. Now he drives from Houston to San Antonio, as in the previous example. He causes an accident 2 hours later, almost all the way to San Antonio.

Another hour passes before authorities draw the man's blood. Based upon that scenario, we would expect the drunk driver's BAC to be .14 (minus .015 for each hour since the last drink, in this case 3 hours), or almost twice the legal limit. If the driver's BAC turns out to be a .14, it would indicate that he did not consume alcohol after leaving the bar. If it was significantly higher than that, then it means the driver most likely drank somewhere else after leaving the bar.

Of course, if the BAC at the time of the accident is closer to what would be expected if the driver did not consume more alcohol on the trip, it tends to blow up the Proximity Defense. Essentially, it doesn't matter how far away the driver is from the bar, because the driver was as intoxicated as would be expected if the bar was the last place where he had a drink. To bolster this reasoning, an attorney can call a medical expert, who can explain the effects of alcohol and how it metabolizes to a jury, in plain English.

If Proximity Defenses work like magician's tricks, allow the audience (in this case the jury) to fill in blank hours with speculation on what may have happened, a thorough independent investigation that fills in the timeline of an accident, is more like a behind-the-scenes documentary, exposing how a trick works. Presenting the results of that investigation returns the jury's focus to the facts of the case and the negligent behavior of the alcohol vendor, allowing them to be held properly accountable. That is why investigative skill is just as crucial to successful dram shop attorneys as their skill in litigation.

Grossman Law Offices Knows How to Beat The Proximity Defense

At Grossman Law Offices, we have litigated dram shop cases for the last 25 years. We have the skill and investigatory acumen required to make sure you have the evidence you will need to convince the court of the liability of the alcohol-serving establishment. In that time, Grossman Law Offices has helped literally hundreds of injured Texans recover compensation for injuries and deaths that have resulted because of a bar's unlawful alcohol service.

If you would like to speak with one of our attorneys to learn more about how we may be able to help, please call Grossman Law Offices at (855) 326-0000 (toll free). We answer the phone any hour, day or night.

Other articles about Texas dram shop cases that may be helpful:

• How Does a Temporal Proximity Defense Work?
• The Types of Evidence Needed to Win a Dram Shop Case
• How Insurance Works in Texas Dram Shop Cases