Our Attorneys Can Help Those Injured in a Drunk Driving Accident in Austin
Austin is known as the home of the University of Texas and many artists, musicians and politicians. It is also renowned as a place to have a good time, but that can mean there’s an abnormally large amount of drunken drivers on the road and a fairly high rate of drunk driving accidents that occur. Texas has the dubious honor of having the most drunk driving accidents of any state in the country each year.
If you’re injured in a drunk driving accident, and you don’t have any previous legal experience, then coping with the legal issues involved can be quite challenging. This confusion is nothing new, as the discussion over who should be liable for the harm that comes from drunk driving dates back to English Common Law and the horse-drawn buggy.
Today, people without significant legal experience still struggle to grasp the laws in Texas that govern drunk driving accidents. Everyone agrees that the drunken driver should be liable for any injuries that his or her reckless driving causes. However, people often disagree about whether or not a bar, restaurant or other drinking establishment should be held accountable for harm done by drunk drivers who were negligently over-served by the bar under a subset of laws called dram shop laws.
Dram Shop Laws
These laws allow injured victims of drunk drivers or the families of peopled killed by drunken drivers to pursue compensation from the drinking establishments. In addition to the other motorists, passengers and pedestrians, but dram shop laws also offer protection to the drunk driver him or herself. But, dram shop laws do not apply to all circumstances in every case, so compensation cannot successfully be sought from every drinking establishment that served a drunk driver. So, how do you know if your case has the grounds for a legitimate dram shop claim? You contact us at 1-855-397-1234 (toll free).
Austin drunk driving accident lawyer Michael Grossman and his associates at Grossman Law Offices have spent the past 24 years resolving drunk driving accident cases, so we’ve mastered the process of securing compensation for injured victims, and we know how to protect your rights no matter how you were injured. First, we want to help you figure out from whom to pursue compensation and how by helping you better understand the ins and outs of dram shop laws.
If you’ve lost a loved one or been injured as a result of the reckless negligence of a drunk driver, we wish we could bring your loved one back or magically return you to the healthy condition you enjoyed before your accident. However, we can’t — nobody can. All we can do is help the responsible parties pay for the harm they have inflicted upon you and your family.
What is a Dram Shop Case?
Dram shop laws were created to force drinking establishments to responsibly serve alcohol to their clientele. Before learning the facts, people often incorrectly assume that dram shop laws are unfair, protesting that drunk drivers should be the only ones liable for their reckless and dangerous driving because adults should be responsible for their own actions. However, that opinion is shortsighted.
According to Texas law, a person is legally intoxicated when his or her blood alcohol content surpasses .08, and that number has been scientifically established at the point at which a person’s ability to reason and perform regular physical abilities becomes impaired. Due to their impaired decision-making, inebriated people cannot determine whether or not they can safely drive home. Thus, in order to improve public safety, the law requires drinking establishments to serve alcohol responsibly and stop selling alcohol to anyone who obviously has reached the legal limit.
The same principle holds for a bar or restaurant as for a dentist who performs surgery on a patient using anesthetic. If the patient cannot operate a car while still impaired by the effects of the anesthesia, then the dentist must make sure the patient receives a safe ride home. If the dentist allowed the patient to drive home while still woozy, then he or she is just as responsible for any accidents that occur as the patient him or herself – arguably more so. If drinking establishments permit patrons to drive home when legally drunk, then they’re just as negligent as the driver and should be accountable for any injuries they cause.
A High Price to Pay
In general, the public safety is in direct conflict with the drinking establishment. Drinking establishments and their servers are interested in selling as many drinks as possible. The bar or restaurant wants to drive up profits, and the bartenders and servers want to stuff the tip jar. Sadly, the price of doing business is extremely high to society, as more liquor sales means more drunken drivers on the road and a more dangerous driving atmosphere for innocent bystanders.
As a result of this conundrum, the Texas State Legislature has attempted to make the roads of the Lone Star State safer for all drivers by enacting dram shop laws that make alcohol-serving businesses responsible for the reckless driving of the patrons they negligently over-serve.
Although, it’s very important that you remember Texas dram shop laws were not to created to allow the drunk driver to evade accountability or to return our citizens to the days of prohibition. Texans can still drink as much as they want in their own homes, and any dram shop lawsuit should be accompanies by a separate claim against the drunk driver, provided her or she is solvent. However, it’s not just illegal to drive a car while intoxicated but even to be in public with a BAC of .08 or higher. Drinking establishments shouldn’t be serving someone who appears to have reached the legal limit; even when, that person has no intention of driving home.
Elements of a Dram Shop Case
In order for a dram shop case involving a personal injury or wrongful death lawsuit to be legitimate, like all other accident cases, it must meet the following four conditions:
- Duty – No matter what the interaction, all people owe each other the duty to take reasonable precautions to ensure each other’s safety. What that entails depends upon the interaction. When it comes to drunk driving, motorists have the duty of driving while sober, and drinking establishments must serve alcohol responsibly.
- Breach – The defendant ignored the required duty. If a motorist drives drunk or a bar irresponsibly over-serves a patron and allows him or her to drive drunk afterward, then they are both in breach.
- Causation – The breach of duty in whole or in part caused the accident and the injuries to the victim, also known as the plaintiff. Quite plainly, driver’s intoxication or the drinking establishment’s negligent service caused the accident.
- Damages – Financial losses resulted from the injuries suffered by the victim.
Resolutions for Injuries Suffered in Drunk Driving Accidents
People injured and the families of victims of fatal drunk driving accidents can both pursue compensation the same as someone who is injured or killed in some of other type of accident – no matter if the case is resolved through a dram shop lawsuit.
People who suffer injuries in drunk driving accidents have the right to seek compensation for:
- Medical bills, both past and future
- Damaged property
- Lost salary due to work missed during recovery
- Pain and suffering
- Reduced earning capacity as a result of lifelong disability caused by injuries suffered in the accident.
The Wrongful Death Act
Just like a wrongful death claim for a work-related accident or an 18-wheeler accident, the loved ones of someone wrongfully killed in a drunk driving accident may pursue compensation for both wrongful death damages and survival damages. Wrongful death damages may be sought by spouses, children, parents and in some cases siblings and are intended to compensate the families of wrongfully killed people for the losses they’ve incurred as a result of their loved one’s death. Compensation for wrongful death damages may include:
- Funeral bills
- The victim’s medical bills incurred before he or she died
- Loss of financial support the deceased formerly provided to the family
- Emotional and mental trauma
- Loss of the unique love and consortium only the deceased could provide
Spouse, Children, Parents Have Standing
Through survival damages, the closest living relative of the deceased can seek the damages for the lawsuit the victim would have been able to file had he or she only been injured in the accident. The right to seek survival damages passes down the line from spouse to children to parents and may include compensation for:
- Medical bills the victim may have paid before dying
- Damage to property
- Wages the victim would have lost during the time he or she would have spent in the hospital recovering
- Loss to earning potential in the future due to possible long-term injuries
- The victim’s pain and suffering during the accident
- The victim’s emotional and mental distress that would have been suffered during the recovery process.
Proximate and Foreseeable Cause
Texas law holds that drunk driving accidents are the result of a chain reaction of events and are not just caused by a momentary lapse of judgment or decision-making. The unfortunate series of events begins when a person goes out for the night in his or her car. Then, he or takes the first drink of the night, followed by more drinks until intoxication has set in. Next, this person gets back behind the wheel and tries to drive home, only to get into an accident.
The drinking establishment does not have to be physically involved in the accident in order to be a proximate cause of the wreck, just as is the case with various other types of accidents. For example, the driver of a pickup truck swerves into another lane, causing the driver of the car next to him to recklessly change lanes to avoid the collision only to collide with another car. The pickup truck wasn’t physically involved in the accident, but the driver of the pickup was the proximate cause of the accident and the injuries caused by it.
Direct & Circumstantial Evidence
In order for a bar or restaurant to be held responsible for negligently over-serving a patron, the plaintiff must be able to convince a jury that the drinking establishment’s servers should have spotted the obvious signs of intoxication in the patron. However, you’ll likely need the help of an Austin drunk driving accident lawyer to prove this because bars and restaurants know how to protect themselves. Texas law requires that bars and restaurants at least try to use one of two methods to distinguish when someone has surpassed the legal point of intoxication:
- Direct evidence – Blatant outward physical signs of drunkenness displayed by the patron, including: aggressive behavior, slurred speech, loud talking, staring at lights, falling down, inability to stay awake, or unbalanced standing or walking.
- Circumstantial evidence – Sadly, direct evidence is not always apparent, since habitual drinkers are often adept at hiding the obvious signs of intoxication. They can “handle their liquor,” so to speak. As a result, in order to identify drunken patrons, responsible bars and restaurants must come up with other means. Some achieve this goal by using different colored glasses to track the number of drinks a patron has consumed, while others stack up coasters for each drink. The commonly used point-of-sale ordering systems used by most eating and drinking establishments makes the tracking of consumption fairly easy. The bill at the end of the night will have an itemized list of the drinks purchased by each customer, and a server should have the TABC training to quickly calculate approximately how drunk that customer has become according to the amount of drinks that have been consumed in a given amount of time.
Cutting Off Service
Most of injuries and fatalities from drunk driving accidents don’t occur when the driver is just mildly intoxicated but when the driver is impaired by severe drunkenness. Drinking establishments can reduce drunk driving accidents before they happen by responsibly identifying drunk patrons, cutting off service and finding safe transportation home for the inebriated.
Not only must a plaintiff prove that the drinking establishment negligent service to the patron in fact caused the drunkenness that led to the accident, but also that the patron’s obvious inebriation made the accident foreseeable for the drinking establishment. Our experienced Austin drunk driving accident lawyers have spent the past two decades resolving dram shop cases, so we’ve perfected the ability to meet this standard. If a drunken customer drives while intoxicated, an accident is easily foreseeable due to the high rate of drunk driving accidents. However, if the drunk leaves a bar and then is shot and killed during a robbery, then that’s not a foreseeable conclusion for the bar. To help clarify, consider an old wrongful death case that stemmed from a man who snuck into a crowded subway with a large cache of fireworks stashed under this jacket.
Due to the crowds, the man was bumped on the edge of the platform and dropped the fireworks onto the electrified third rail, causing them to ignite. The explosion of the combine bag full of incendiaries knocked over a nearby pole, which fell on and killed a young girl. Suggesting that the subway company failed to ensure safety on the over-crowded platform, resulting in their daughter’s death, the parents sued, but they did not prevail. Granted, the platform was too crowded, but the danger of the concealed fireworks was not foreseeable. If the girl, on the contrast, had been knocked off the platform and fallen onto the third rail herself, then that would have been foreseeable and her loved one’s lawsuit may have been successful.
First Party Claims
Two types of dram shop cases exist: first party claims when intoxicated drivers injure themselves in wrecks and then pursue restitution from the drinking establishment that negligently over-served them and third party claims when innocent bystanders are injured by drunk drivers and then seek compensation from the bar or restaurant that negligently over-served the patron.
A successful first party claim relies on being able to convince the court that the drinking establishment was more responsible for the accident than the driver through a process called comparative liability. In Texas, you can only win a first party claim if the drinking establishment liability was more than 50 percent accountable for the accident. To understand this concept better, consider an auto accident that occurs when two drivers attempt to change into the same lane simultaneously. While both drivers are at fault at least partially, one likely has been more negligent than the other. Excluding the once in a lifetime occasion when both cars signaled and entered the lane at exactly the same time, one car signaled first and began to enter the lane first.
In many instances, one of the drivers may have failed to signal, making the case easy to resolve.
Comparative liability causes first party claims to become extremely challenging to for the plaintiff to prevail, so most attorneys to opt to avoid these cases altogether. Most lawyers who do take on these cases lack the ability to succeed with them. On the contrary, our crafty and experienced Austin drunk driving accident lawyers at Grossman Law Offices have succeeded repeatedly with first party dram shop claims, and we’ve developed the ability to convince a jury of a drinking establishment’s negligence, preventing our clients from shouldering the financial responsibility for their injuries by themselves.
Third Party Claims
A third party claim occurs when innocent bystanders are injured by the actions of drunk drivers and then seek compensation from both the driver and bar or restaurant that negligently served the driver. Again, the purpose of these laws is not to let the drunken driver off the hook. Rather, third party dram shop claims merely enable the plaintiff to hold liable parties accountable for their negligence.
It’s also a way of safeguarding your ability to secure compensation, protecting against the possibility that the drunk driver is insolvent and unable to pay. Our Austin drunk driving accident lawyers understand the vital importance of holding negligent drinking establishments accountable for their actions. We want you to understand that drunk drivers are incapable of making reasonable decisions for themselves, so sober bartenders and servers must do help them, protecting both the driver and the general public. That’s the most effective way of reducing the amount of drunk drivers and subsequently DWI-related accidents.
Obstacle: Exclusive Remedy vs. Various Options
The state of Texas holds bars and restaurants to a much looser standard than the general public in terms of personal injury and wrongful death litigation resulting from other types of accidents. The exclusive remedy available to an accident victim of a drunken patron who has been negligently over-served is a dram shop action. On the contrary, victims injured in other negligent accidents often have various options to seek compensation.
For instance, our firm was once hired to represent a man who severely damaged his hand and arm while working for a national steakhouse chain’s meat processing plant. The man was trained to use an inflexible hook to peel skin and fat off the steaks as they moved down a conveyor belt. However, the company’s training manual specifically instructed that a pliable plastic hook be used for this purpose because it bent with the workings of the apparatus as opposed to getting stuck. The metal hook’s rigid structure caused it to get stuck in the conveyor belt, and our client’s hand was skinned as if it was the piece of meat. Several remedies were available for seeking compensation – negligent hiring, training or supervision. Only one remedy is available against a negligent drinking establishment: a dram shop claim.
Obstacle: Punitive Damages
In other personal injury and wrongful death cases, the legal system attempts to cut down on gross negligence by calling for punitive damages against those who regularly exhibit wanton disregard for safety regulations. However, bars, restaurants, and other drinking establishment cannot be charged with gross negligence, so no punitive damages are permitted to punish them in dram shop cases.
Obstacle: Texas Safe Harbor Defense
When a dram shop claim has been filed against a drinking establishment, it usually pulls the cord on its golden parachute: the Safe Harbor Defense. In order to avoid liability, a bar or other drinking establishment must merely prove that it attempted to responsibly serve its patrons by the regulations established in the state of Texas. If it can prove that it has followed these guidelines, then you cannot win a dram shop lawsuit against the drinking establishment. The Safe Harbor Defense puts drinking establishments at an advantage over the plaintiff – a luxury enjoyed by virtually no other defendant in a personal injury or wrongful death case. All drinking establishments need to do to avoid liability is prove that they:
- Had internal rules mandating that all employees are certified by the Texas Alcoholic Beverage Commission (TABC).
- Actually make sure that all employees are TABC certified, trained, and have received instruction in how to spot obvious signs of intoxication in patrons and what to do in case they do.
- Some people still manage to become intoxicated no matter what safeguard bars and restaurants take to serve them. It’s always possible to accept drinks from other people or sneak flasks into the bar. Due to this fact, the bar must have a system to deal with this inevitability, such as the manager intervening to make sure the intoxicated customer receives a cab ride home and possibly food and coffee to sober him or her up.
Obstacle: Liquor Liability vs. Regular Insurance
Liquor liability insurance can be very expensive, so many bars choose to rely solely on premises liability insurance that protects against common injuries from accidents like slipping and falling or tripping down stairs. Most insurance companies will attempt to claim that their premises liability coverage does not cover dram shop claims. However, that’s true if you have an Austin drunk driving accident lawyer who knows how to frame the argument in the proper manner. At Grossman Law Offices, we’ve repeatedly prevailed in first party claims by successfully arguing that dram shop claims fall under bars’ general liability insurance policies. Therefore, we know how to help you, too.
How We Win Drunk Driving Cases
The most important thing you can do right now is find a lawyer as fast as possible. Evidence begins to fade immediately after an accident – especially on a busy roadway; thus, a thorough investigation must be conducted immediately in any personal injury or wrongful death case – dram shop cases included. Videos get erased, witnesses go home or forget what they saw, and the physical state of the accident scene quickly evolves.
After two decades conducting investigations into drunk driving accidents, our Austin drunk driving accident lawyers at Grossman Law Offices know how to find the essential evidence that you need to succeed with your dram shop case. Often times, an intensive search is necessary to prove that a drinking establishment irresponsibly served its patrons. We first go to the drinking establishment and question any staff, locating any other patrons and friends of the drunk driver who was present and can testify both what happened with the drunk driver and whether or not the servers at the bar were irresponsibly drinking on the job, or bungling their TABC responsibilities in some other fashion.
We also pull credit card receipts to discover the amount of alcohol that was purchased and likely consumed by the driver. We’ve also learned intoxicated drivers often drunk dial and give away obvious signs of drunkenness like slurred speech or admittance of intoxication, so we use phone records to question everyone the driver may have talked to that night. These days, it’s just as common for friends of the drunk driver to shoot cell phone video, documenting the drunken binge for future entertainment. To us, that’s potentially evidence. Any proof we find is locked down and cataloged, so it can later be used in court.
Grossman Law Offices was once hired to represent him in a first party claim, and we had to contest the bar’s assertion that our client was not exhibiting any outward signs of intoxication when he left the premises. We examined his credit card receipts and proved that he bought eight shots of liquor in two hours. However, the bar merely claimed that he had been buying drinks for other people and didn’t consume them all himself.
Our attorneys then pulled his cell phone records and redialed all of the people he had talked to that night. One of his friends hadn’t just talked with him on the phone but met him at the bar and shot cell phone video at 2 a.m. that demonstrated clearly showed he was blatantly drunk in the bar. The expert Austin drunk driving accident lawyers at Grossman Law Offices keep searching for evidence where other attorneys would have given up. Had our client not hired us immediately, then video likely would have been erased long before it was found.
Qualified, Credible Experts
Grossman Law Offices know expert testimony can be almost as important to the success of a dram shop claim as compelling evidence, so we employ the use of toxicologists, endocrinologists, safe alcohol sales consultants, and life care planners. We were once hired to handle a first party dram shop claim by the family of a man killed in a drunken motorcycle accident. When the man arrived at the hospital, however, his blood alcohol content was just .11, so the bar used the old Safe Harbor golden parachute and claimed that he was not noticeably intoxicated.
Our lawyers didn’t stop investigating and learned that paramedics gave the extensive blood transfusions on the way to the hospital. We consulted with an endocrinologist, who took into account the amount of blood he was given prior to his blood alcohol test and then determined that the man’s actual BAC was .19 at the time of the fatal wreck, making him noticeably drunk to anyone with whom he came into contact. Most lawyers would have dumped the case as soon as they found out his alleged BAC, but our Austin drunk driving accident lawyers kept on searching until we found the evidence we needed.
Proving the Value of Damages
In addition to proving that the drinking establishment ignored its duty to serve alcohol responsibly, our attorneys know to prove the equitable value of the harm that has been done to you – another critical component of any successful personal injury or wrongful death lawsuit. Sure, medical bills prove up some damages, but that’s only one small part of the overall picture. We also use medical experts to attest to future problems, complications and treatment, psychologists to examine the trauma caused by pain and suffering, and economists to prove the value of lost future earnings in cases involving lifelong disabilities, as well as, fatalities.
How Our Firm Can Help
The Austin drunk driving accident lawyers at Grossman Law Offices have spent the past two decades handling both first and third party dram shop claims, and our efforts have resulted in millions and millions of dollars in damages awarded to hundreds of our clients. If drunk driving and/or negligent serving by a drinking establishment has caused you to suffer injuries, or worse has caused the death of a loved one, we can lead you to the compensation to which you are entitled, even if you were the driver. We are here any time to discuss the specific details of your case, explain any legal concepts you struggling to grasp, and inform you about what we can do for you. Call us now for a free consultation at 1-855-397-1234 (toll free). You cannot afford to hesitate finding a competent lawyer, so call us now.