Can a Texas Bar Be Liable When Overserving Leads to a Sexual Assault?

What does the Texas Dram Shop Act require you to prove?

The statute is Chapter 2 of the Alcoholic Beverage Code. Section 2.02(b) allows a claim against a commercial provider on proof of two things: that “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 that “the intoxication of the recipient of the alcoholic beverage was a proximate cause of the damages suffered.”

Both parts are about facts. The first is judged from the server’s point of view at the moment of service, so what staff saw or should have seen matters more than a blood alcohol number taken later. The question is what the server could see, not how many drinks were poured. Slurred speech, stumbling, aggression toward other patrons, being cut off and then served again, or video showing visible impairment is the kind of proof that carries this element.

Does the bar have to have served the attacker, or does it count if the bar overserved you?

Either can be a claim. If the bar overserved the man who assaulted you, the claim is that his intoxication, which the bar could see, was a cause of the assault. If the bar overserved you and you were assaulted while incapacitated, the Texas Supreme Court has held that a person served in violation of Chapter 2 who is injured as a result may sue the provider, in a case where the patron injured himself.

In the second situation, expect the bar to argue that your intoxication was your responsibility and to ask the jury to assign you a percentage of fault under Chapter 33. A percentage above 50 would bar recovery; a smaller percentage reduces it. How a jury treats a survivor who was incapacitated when she was attacked is a case-by-case question. See how Texas splits fault between a business and an attacker.

Why do bars argue that a sexual assault “breaks the chain,” and how do survivors answer?

Texas follows the rule that another person’s intentional crime is generally a superseding cause that cuts off a negligent party’s liability unless the crime was a foreseeable result of the negligence. The Texas Supreme Court applied that rule to a store that sold beer to underage gang members who later assaulted and murdered two girls some distance away, holding the crime was different in kind from the harm the sale rule guards against and that nothing at the time of the sale indicated it would follow. A Houston court of appeals reached a similar result under the Dram Shop Act where an intoxicated patron murdered a man after a traffic altercation.

No published Texas appellate decision has yet decided a Dram Shop Act claim arising from a sexual assault, so these cases are argued from the statute and from analogous decisions. The answer is proximity and visibility. A Beaumont court of appeals, in a case decided under the older common law duty rather than the current statute, affirmed a jury verdict for a woman sexually assaulted in a restaurant restroom by a patron who testified he arrived intoxicated, was served several more drinks, and that his intoxication triggered the assault; the court held that whether a crime breaks the chain “is a function of foreseeability” and refused to decide it against the survivor as a matter of law. That case predates the Supreme Court’s Pena decision and the Boggs case, and the defense will say it is distinguishable. The lesson holds either way: a claim is strongest when the assault happened on or next to the premises, soon after service, and staff could see the patron’s aggression or incapacity before the drinks you complain of were poured.

What is the seller-training “safe harbor,” and when does a bar lose it?

Section 106.14 says an employee’s overservice “shall not be attributable to the employer” if the employer requires employees to attend a commission-approved seller training program, the employee who served actually attended, and the employer “has not directly or indirectly encouraged the employee to violate such law.” The Texas Supreme Court has allocated the burdens: the bar must prove the first two; you must prove encouragement; and encouragement can be shown by evidence the bar was at least negligent.

Drink specials that reward volume, sales or tip structures that punish cutting people off, understaffing that makes watching the room impossible, no policy on refusing service, managers themselves serving an obviously intoxicated patron, and a history of TABC violations are the kinds of facts that can show encouragement. The safe harbor is the bar’s defense; you still have to prove the two elements above.

Is a negligent-security claim against the bar different from a dram shop claim?

Yes, and the difference matters. Section 2.03 makes Chapter 2 “the exclusive cause of action for providing an alcoholic beverage to a person 18 years of age or older,” and the Texas Supreme Court has held that it bars ordinary negligence claims that rest on the service of alcohol. Courts have also held premises claims barred by Chapter 2 where the claim rested on the service of alcohol.

A negligent-security claim has its best chance of surviving when it stands on security facts: no one watching a lot or restroom with a history of assaults, a visibly incapacitated patron led out by a stranger with no one intervening, a specific complaint about a specific man ignored. Those duties, where the risk was foreseeable, exist whether or not the bar poured a single drink, and they are pleaded separately. See sexually assaulted at a business.

How does comparative fault work when the attacker is on the verdict form?

The Texas Supreme Court has twice held that Chapter 33 applies to dram shop claims, so the jury apportions responsibility among the bar, the intoxicated patron and anyone else responsible, and the bar pays its share rather than everything the patron did. The attacker will usually be on the question and may absorb a large percentage. The bar can be held for the whole recoverable amount if its own percentage exceeds 50; otherwise it pays its share.

Primary sources

• Tex. Alco. Bev. Code Chapter 2 (Secs. 2.01, 2.02, 2.03)
• Tex. Alco. Bev. Code Sec. 106.14
• F.F.P. Operating Partners, L.P. v. Duenez, 237 S.W.3d 680 (Tex. 2007)
• Smith v. Sewell, 858 S.W.2d 350 (Tex. 1993)
• 20801, Inc. v. Parker, 249 S.W.3d 392 (Tex. 2008)
• Phan Son Van v. Pena, 990 S.W.2d 751 (Tex. 1999)
• S & A Beverage Co. of Beaumont, No. 2 v. DeRouen, 753 S.W.2d 507 (Tex. App. Beaumont 1988, writ denied)
• Boggs v. Bottomless Pit Cooking Team, 25 S.W.3d 818 (Tex. App. Houston [14th Dist.] 2000, no pet.)
• Southland Corp. v. Lewis, 940 S.W.2d 83 (Tex. 1997) (per curiam)

Every statute and case linked above was read at its primary source. Texas statutes change every legislative session and case law is constantly changing.

This page is general information about Texas law. It is not legal advice about your situation, and reading it does not create an attorney-client relationship.