Dram shop liability in Texas — obvious intoxication, and the training safe harbour

Texas allows a suit against a bar, restaurant or store that over-served someone who then caused injury. The statute is narrow on both sides: the standard of proof is demanding, and there is a safe harbour that can take the employer out of the case entirely.

The safe harbour is not in chapter 2 where the liability provision sits. It is in Alcoholic Beverage Code § 106.14, and finding it in the right place matters because the conditions are specific.

What the claim is

A licensed provider served alcohol to someone who was already visibly drunk, or to a minor, and that person then injured you or themselves.

Where the right comes from

Statute — Alcoholic Beverage Code chapter 2, which the Legislature made the exclusive basis for liability of a provider for serving alcohol.

What a plaintiff has to prove

Serving an adult — § 2.02(b)

1. It was apparent to the provider that the individual being sold, served or provided alcohol was "obviously intoxicated to the extent that he presented a clear danger to himself and others"; and
2. the intoxication was a proximate cause of the damages suffered.

Both halves are demanding. "Obviously intoxicated to the extent of presenting a clear danger" is more than merely intoxicated, and the standard is what was apparent to the provider — not what a blood alcohol test showed hours later.

Serving a minor — § 2.02(c)

The chapter provides separately for a provider who serves a person under 18, where the standard is different and does not depend on obvious intoxication.

The person who drank

Section 2.03 makes the chapter the exclusive remedy against a provider, and a first-party claim by the intoxicated person is subject to the proportionate responsibility rules — which, given that person's own share of the fault, is usually decisive.

The safe harbour — § 106.14

This is the provision that ends many of these cases.

Under § 106.14(a), the actions of an employee are not 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 program; and
3. the employer has not directly or indirectly encouraged the employee to violate the law.

All three. A bar with a training policy on paper that nobody attends does not qualify, and neither does one whose management pressed staff to keep pouring.

The employee who made the sale remains liable. The safe harbour protects the employer.

How long you have to file

Two years, under CPRC § 16.003(a), from the injury. A wrongful death claim runs two years from the death under CPRC § 16.003(b).

What has to happen before you file

Nothing.

What the claim pays

Actual damages for the injury — medical expenses limited to amounts paid or incurred, lost earning capacity, pain and mental anguish, and in a death case the wrongful death and survival damages.

Exemplary damages on clear and convincing proof of malice, capped by CPRC § 41.008. CPRC § 41.005 limits exemplary damages awarded because of another's criminal act, with an exception where the act was committed by the defendant's own employee.

No attorney's fees.

Proportionate responsibility applies. Under CPRC § 33.001, the jury apportions responsibility among the provider, the drinker and everyone else, and a claimant more than 50 percent responsible recovers nothing. In a first-party case brought by the intoxicated person, that allocation is usually the end of the claim.

Who can be sued

Licensed providers — bars, restaurants, clubs, stores — and their employees.

Not social hosts, generally. Texas does not impose dram shop liability on a private host who serves an adult guest. The exception in chapter 2 concerns providing alcohol to a minor under 18.

Common defenses

• The § 106.14 safe harbour, removing the employer.
• The patron was not "obviously intoxicated" to the point of presenting a clear danger — surveillance footage and receipts do most of the work here.
• No proximate cause between the service and the injury.
• Proportionate responsibility, especially in a first-party claim.
• Limitations.

What people get wrong

Serving a drunk person is not automatically liability. The statute requires that the intoxication was apparent and rose to obvious intoxication presenting a clear danger.

The safe harbour is not automatic either. Training alone does not do it. The employer must require it, the employee must have attended, and management must not have encouraged violations.

Social hosts are usually not liable. A dinner party host who over-serves an adult guest is outside the chapter.

The drinker's own claim is hard. Proportionate responsibility does most of the work against a first-party plaintiff.

Where it came from

Texas courts recognised a common-law claim against alcohol providers in the 1980s, and the Legislature responded in 1987 with chapter 2 — replacing the common-law claim with a statutory one, setting the obvious-intoxication standard, and making the chapter the exclusive basis of provider liability.

The safe harbour followed as part of the same regulatory bargain. The state wanted sellers trained, and § 106.14 gave employers a concrete reason to require training: a defense that removes them from the case when an employee makes a bad sale despite it.

Common questions

How long do I have to sue a bar in Texas?

Two years from the injury, or two years from the death in a wrongful death case.

What do I have to prove?

That it was apparent to the provider that the customer was "obviously intoxicated" to the point of presenting a clear danger, and that the intoxication was a proximate cause of your injuries.

What is the training defense?

Under § 106.14, an employee's actions are not attributed to the employer if the employer requires approved seller training, the employee attended it, and the employer did not encourage violations.

Can I sue a private party host?

Generally no. Texas dram shop liability applies to licensed providers, with a separate provision for providing alcohol to a minor.

Can the drunk driver sue the bar?

They can bring a claim, but proportionate responsibility usually defeats it — a claimant more than 50 percent responsible recovers nothing.

Can I recover attorney's fees?

No.

Where these rules live

• CPRC § 16.003 — Two-year limitations period
• CPRC § 33.001 — Proportionate responsibility
• CPRC § 41.005 — Harm resulting from a criminal act
• CPRC § 41.008 — Limitation on amount of recovery
• CPRC § 71.002 — Wrongful death
• CPRC § 71.021 — Survival of cause of action