Dram Shop Evidence – Serving Size
Dram Shop Evidence – Signs of Obvious Intoxication
Dram Shop Evidence – Changes In Behavior
Dram Shop Evidence – Eye Witness Testimony
Dram Shop Evidence – Arresting Office Testimony
Dram Shop Evidence – Toxicologist Testimony
Dram Shop Evidence – Proximity
Serving Sizes of Alcohol and Rate of Consumption
Is the Bar Promoting the Over-Service of Alcohol With Novelty-Sized or Oversized Drinks?
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A typical serving of alcohol is 12 oz. of beer; 5 oz. of wine; or 1.5 oz. of hard liquor. However many bars will have novelty oversized glasses and this can lead to over serving and over consumption. Bars that over-serve either in frequency of servings or in the size of their glasses are encouraging the over service of alcohol. This can lead to a reasonably foreseeable consequence of the over served and now intoxicated person getting into a vehicle and causing a drunken accident to a third party.
Custom Drink Sizes
Fiestas, parties, and special occasions are all times when a bar maybe having a novelty promotion and could over serve by having larger than normal glasses. There are good warning signs wait staff can use to judge whether someone has been over served. The best way to judge whether someone is intoxicated and to prevent them from being over served is to pay attention to the customer and how they behaved when they first enter the bar. By taking notice of their mannerisms the server can create a baseline to judge the customer and then compare that to any changes in behavior after the customer starts ordering drinks. It is good practice for the server to monitor the customer’s behavior during the course of the drinking and to watch for warning signs. Warning signs such as slurred speech, difficulty walking, and changes in behavior.
Standard Drinking Sizes Recommended
In situations like fraternity parties there won’t be any serving staff or anyone trained to watch for the subtle signs of over consumption and yet that won’t stop the varied drink sizes that will encourage over serving. At least in a typical restaurants or bar you are more likely to find the standard serving sizes. The recommended serving sizes are: beer = 12 ounces, wine = 5 ounces, distilled spirit = 1.5 ounces. But at a college party you’re more likely to find everything from larger than normal plastic cups to beer bongs and keg stands. These novelty items encourage the rapid consumption of alcohol is a short span of time in order to induce a more powerful alcoholic “buzz”.
Alcohol should be served safely and responsibly. The standard drink sizes are designed to do provide an adequate amount of alcohol in a reasonable amount. When bars, restaurants, fraternities, and other establishments deviate from the normal sizes for servings of alcohol by use of novelty glass sizes or other unorthodox methods of drinking this encourages extreme intoxication by consuming larger than normal amounts of alcohol in a shorter than normal time period. By negligently varying the rate of consumption these establishments become liable under dram shop laws. The reason for this is that by negligently varying the serving sizes of alcohol they are enabling severely intoxicated persons to leave their establishments and become a danger to other innocent parties on the roadway.
If you or someone you love has been over served and injured to the negligence of a bar, pub, restaurant, or other drinking establishment, contact Our Law Offices. When drinking establishments choose to over serve and ignore the recommended serving sizes of alcohol it can lead to serious injury or death to the person who was served and to other innocent third parties. Don’t assume if you were the one who was over served that you are entirely to blame. Under the law, you may have a judicial recourse. In order to know your legal options under the law, contact our attorneys at Our Law Offices.
Physical Clues of Obvious Intoxication
Texas Bartenders Must be Able to Recognize Obvious Intoxication in Order to Comply With Dram Shop Laws
To the casual observer, a bartender’s job might not seem that difficult. He or she has to learn different drink combinations and put up with the occasional belligerent customer, but all in all the job just doesn’t look that hard.
But the reality is that a bartender’s job is very tough. Not only do bartenders have to please their customers, they have to balance that with making sure they obey the law and not serve their patrons past the point of intoxication. If a customer is allowed to leave the premises while drunk, gets behind the wheel of his or her car, and then injures or kills someone, the bartender and establishment where the person became intoxicated will face a substantial amount of liability due to Texas’ dram shop laws.
An important part of the hospitality industry is making sure that customers are safe. Sometimes that means a bartender or waitperson will have the unpleasant task of cutting someone off who has become overly inebriated. There are many servers who find this task extremely difficult, because they don’t want to get into an argument with someone who has had too much, or in other more nefarious times, they do not want to stop the growing tab. Sometimes, the person being cut off can be extremely intimidating, other times they can be downright hostile. Some servers and bartenders may even try to avoid this situation because they fear the possible repercussions from the bar owner.
But in order to make sure the general public is kept as safe as possible, sometimes there are hard choices that simply have to be made. If a bartender or server is truly responsible, he or she will fight through the anxiety that comes with cutting off a drunken customer and do what has to be done. Someone’s life could be on the line.
At Our Law Offices, our attorneys have represented victims of drunk driving accidents for the last two decades. We have seen, in far too many instances, what can happen when a bartender or server shirks his or her responsibility to ensure the safety of the general public. If you have been injured or lost a loved one due to a drunk driving accident, please call Our Law Offices (toll free) for a confidential and free consultation. We can help you see that justice is done against a bar, restaurant or other alcohol-serving establishment that contributes to an accident by serving a person to the point of intoxication.
The Signs of Intoxication
In order to be able to legally serve alcohol in Texas, an establishment must obtain a Texas Alcoholic Beverage Commission license. In order to keep that license, the bartenders and servers working for that establishment must undergo extensive training in how to spot an intoxicated customer.
People are, of course, affected differently by alcohol. Certain amounts of alcohol will affect one person more than another person. These differing factors also have an effect on the signs of intoxication that a person will exhibit.
There are several obvious signs of intoxication, however, that a bartender or server should be able to readily spot. Failure to do so can lead to a devastating accident that can result in severe injuries or fatalities. And when this happens, again, the server and the alcohol-serving establishment can face substantial liability.
If, for example, a person is exhibiting poor coordination or motor control after consuming alcohol, that person cannot be left alone, and definitely cannot be allowed to operate a motor vehicle. A sure sign that someone has become intoxicated is when he or she sways or stumbles, or is having such a problem with depth perception that he or she drops things repeatedly or has a hard time picking them up.
Other signs of probable intoxication include:
A customer spilling a drink by missing his or her mouth with a glass.
Deliberate or slow movements.
Standing with his or her feet wide apart in order to maintain balance.
Leaning against a structure for support.
Fumbling with a wallet or with money.
Again, these are just some of the more obvious signs of intoxication for which servers or bartenders must constantly be on the lookout. If this was not done, and you were hurt in an accident involving an intoxicated driver as a result, then you must call an attorney immediately in order to have the best chance possible at obtaining compensation. Please call Our Law Offices (toll free) to learn more.
Dram Shop Evidence: Changes in Behavior
The Bar’s Legal Obligation to Recognizing Signs of Obvious Intoxication, Including Changes in Behavior
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You don’t necessarily need a degree in human behavior to spot the most obvious physical signs of intoxication from a customer in an alcohol-serving establishment. In all cases though, several key behavioral patterns should be detectable by a trained bar staff, in order to stop the over service of alcohol.
While visible indicators of intoxication are easy to see, such as impairment of motor functions, an inability to judge depth (constantly dropping items and being unable to pick them up), etc., there are many other more subtle signs that can be very easy for the layperson to miss. However, a server or bartender must be able to spot these subtleties in order to make sure an intoxicated customer is not continued service and then allowed to drive.
As with obvious signs of intoxication, these more subtle signs can indicate someone is dangerously inebriated and will be a danger to himself, herself, or others. Failure to see these signs can lead to an accident that causes devastating injuries and fatalities, leaving the alcohol-serving establishment and its employees exposed to crippling liability. If you have been the victim of such an accident, it is imperative that you enlist the assistance of an experienced attorney as quickly as you can so that you will have the best possible chance of obtaining compensation.
At Our Law Offices, our dram shop attorneys have represented clients in these kinds of cases for the last two decades. We have the knowledge and experience you will need to be able to recover financially so you can get on with the task of recovery from the accident that has resulted in such a drastic upheaval in your life. If you would like to speak with one of our lawyers, call us (toll free) for a confidential and free consultation.
Changes in Behavior Due to Intoxication
Even if some signs of intoxication are more subtle than others, this does not give a bartender or server the built-in excuse of, “he didn’t look drunk to me” as any sort of defense. Servers and bartenders cannot use this because they undergo extensive Texas Alcoholic Beverage Commission training on spotting the signs of inebriation – both obvious and subtle. This training is mandatory if a bar, restaurant or other alcohol-serving establishment is to keep its TABC license.
If a bartender or server waits for the more telltale signs before refusing further service, then it is already too late. Studies show that a customer’s blood alcohol concentration does not reach its highest level until 15-30 minutes after the person has stopped drinking. The time to cut a person off from service is before that person is showing the signs of obvious intoxication.
These subtle signs are more a function of behavior changes rather than physical impairment. Knowledge is obviously key to being able to make accurate observations. Servers must be aware that the larger a person is, the less that person will likely be affected per each ounce of alcohol consumed. Men, in general, are affected by alcohol less than women, and liquor causes blood alcohol concentration levels to rise higher, and at a faster rate, then wine or beer.
Most people feel less inhibited after drinking alcohol; usually, people talk at an increasingly louder volume, become friendlier and are also very relaxed. However, they can also experience sudden mood swings and become visibly emotional. If a person who is normally reserved all of a sudden begins speaking loudly, a typically quiet person decides to buy a round for the house, or a typically social person becomes quiet, these are all signs of probable intoxication.
The higher a person’s blood alcohol level rises, the less rational and reasonable they typically become. People may start consuming alcohol at a faster rate, increase their intake by ordering doubles, or become very “generous” and start ordering drinks for complete strangers. If a person smokes, he or she may light the wrong end or light one while another one is still burning in an ashtray. Eyes become unfocused and glassy, with dilated pupils. Speech becomes slightly slurred or noticeably deliberate. People who become inebriated also commonly utter irrational statements, or exhibit obnoxious or otherwise anti-social behavior.
Many others, as you already know, can “hold their liquor” better than others. But just because they are able to do so does not mean they are not intoxicated. One significant tip-off is a heavy smell of alcohol on a person’s breath, while another is redness on the extremities.
Also, the more the typical person imbibes, the more inappropriate his or her behavior may become. Signs include overly flirtatious behavior, off-color jokes or vulgar language, or calling for a drinking game of some sort. On the opposite end of the spectrum, however, some intoxicated customers become more sullen, not wanting to communicate other than ordering a drink, or offering no response to questions or a slow response. Others will either show no reaction to spilling a drink on themselves, or they will be slow in reacting.
While these signs would be easy for most patrons in a noisy and crowded bar to overlook, a server has to be on the lookout for them. Again, failure to do so can result in a catastrophic accident that can lead to a debilitating injury or death. Servers and bartenders have a responsibility by law to help protect the general public from drunken patrons – if they do not meet this responsibility, they must be forced to face the consequences. If you have been injured in a drunk driving accident or lost a loved one, you will need a skilled and aggressive lawyer who will make all of those whose negligence led to your suffering be forced to face justice. Please call Our Law Offices (toll free) if you would like to find out how our attorneys can help you obtain compensation for the suffering you have been forced to endure.
Dram Shop Evidence: Eye Witness Testimony
How Eye Witness Testimony Can Affect Your Dram Shop Accident Case
If you’re pursuing compensation from a negligent drinking establishment under Texas dram shop laws after being injured or having a loved one killed in an accident by drunken driver, then you’re going to need to be able to prove the bar or restaurant ignored its duties to serve the patron responsibly. Drinking establishments are forbidden to sell alcohol to people who are past the point of intoxication, are compelled to keep an eye out for customers who have become too intoxicated, and then stop service when they do. Those who ignore these duties can be held liable for people who are injured or killed in accidents with drunken drivers they over-serve under an area of Texas statutes known as dram shop laws. To actually prove your case after being injured or losing a loved one in an accident with a drunken driver, however, you will need to be able to prove your right to compensation.
At Our Law Offices, we’ve been helping Texans hurt by drunken drivers for more than two decades, and we want you to understand what it takes to prove a dram shop claim.
Eye Witness Accounts are Critical
To be able to successfully seek compensation from a bar or restaurant that negligently over-served an intoxicated driver who did you harm, you’re going to be able to prove that the drinking establishment served enough alcohol to the driver to have gotten him or her drunk and that the drunken driver was displaying enough outward signs of obvious intoxication that a reasonable server should have been able to detect he or she was drunk. These signs of drunkenness can include slurred speech, loss of coordination, dramatic mood swings, and loss of control of bodily functions, just to name a few.
While the first stipulation can often be proven by consulting credit or debit card records for the driver or sales receipts from the drinking establishment, the second requirement will need some form or first-person corroboration, which means you’re going to need and or want witnesses. Common witnesses who can be called upon to testify in dram shop cases include:
Companions of the Drunken Driver – While some hardcore alcoholics drink by themselves, most people like to drink socially. As a result, when drunken drivers are over-served by bars or restaurants, there are often friends with them who can attest to just how intoxicated the drunken driver appeared to be before he or she left the drinking establishment. An experienced lawyer can find these people by consulting phone records and social network pages. When most people go out drinking with friends, they make plans, and that means calling, texting, or using Facebook beforehand. Our attorneys can track these people down and get an honest account of just how intoxicated their friend appeared to be.
Other Bar Patrons – Many bars and restaurants have regular customers. While a friend of the drunken driver may appeared to be biased, the testimony of another patron carries far more cache in court, for he or she has no reason to side with the victim of the accident or the drunken driver over the bar. In many cases, our attorneys have found that drunken drivers were more than just a little obviously intoxicated before they left the bar, and many of their behavior is so unorthodox that it leaves an impression with the other patrons in the establishment. In addition, regular bar patrons may be able to help establish that the drinking establishment or serve makes a habit of violating TABC regulations by regularly continuing to serve patrons who are blatantly intoxicated.
Witnesses to the Accident – Often times innocent bystanders observe the intoxicated behavior either before or after the accident. Nowadays, virtually everyone has a cell phone, and when motorists see someone driving drunk, they often call in the behavior to 911. If the apparently drunken driver then gets into a wreck, these people can reinforce the notion that the driver was obviously intoxicated. After all, their drunken driving was noticeable, or no call would have been made. In other instances, witnesses may be at the scene after the accident and observe the driver either stinking of alcohol or acting in ways that only an intoxicated person would. These eye witnesses could include police officers who responded to the accident and arrested the drunken driver.
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In order to find the eye witnesses that you will need to prove a drinking establishment over-served the driver who injured you or killed your loved one, you’re going to need to act quickly to find an experienced and competent attorney to conduct your investigation. Particularly when it comes to finding patrons of the bar, an attorney needs to act fast. Moreover, when it comes to people who drink, your lawyer needs to act quickly to get their statements on record before they begin to forget what happened. Alcohol consumption affects memory loss.
With over two decades of experience, the dram shop lawyers at Our Law Offices can help you find the eye witnesses you need to prove your personal injury or wrongful death claim against a bar or restaurant. If you’d like to find out how we can help, call us any time for a free consultation (toll free).
Dram Shop Evidence
The Importance of Police Officer Testimony in a Texas Dram Shop Lawsuit
In any civil lawsuit resulting from a drunk driving accident, the testimony of the arresting officer can be extremely important.
Whenever you’ve been hurt or someone else has been killed in a car wreck with a drunken driver, you can seek remedy from the drinking establishment where the driver become intoxicated provided it violated the guidelines set up for dispensing alcohol in the state of Texas by the Texas Alcoholic Beverage Commission. This is called a dram shop claim. You can even pursue a dram shop claim against a drinking establishment after being assaulted by an intoxicated patron, but proving a case like this is extremely challenging and can usually only be accomplished if the drunken customer has a history of starting fights in that particular bar. When filing a dram shop lawsuit after a drunken driving accident, though, it doesn’t replace a personal injury or wrongful death lawsuit filed against the driver, but will usually be filed in conjunction with action against the driver.
Dram shop lawsuits play an important role in reducing the amount of drunken driving accidents in Texas by giving drinking establishments significant monetary incentive for serving alcohol responsibly. Moreover, dram shop lawsuits enable the drunken driving victim to have a better chance of securing the compensation he or she needs to remedy the damage done by the accident, for not all drunken drivers will be able to afford the damages on their own.
In Texas, bars and restaurants are expected to keep an eye on patrons as they serve them. When someone becomes obviously intoxicated, the drinking establishment is supposed to cut off service and take action to make sure the patron will not be driving. Thus, proving the drinking establishment failed in this respect is an essential part of every dram shop lawsuit. To be successful, you must be able to convince the court that the bartenders or wait staff of the bar or restaurant should have been able to detect the driver’s drunkenness before he or she got behind the wheel.
Proving the Drunken Driver Appeared Intoxicated
Proving that a drunken driver who caused an accident was actually intoxicated isn’t that challenging. When a vehicular accident results in injury or death and alcohol is suspected to have played a role, the state of Texas calls for all of the drivers involved to be subjected to mandatory blood tests with or without the driver’s consent. However, after being injured by a drunken driver, it’s not enough just to prove that the driver was intoxicated. You’re going to have to prove that he or she was so intoxicated that a reasonable person should have noticed that he or she was drunk. For this purpose, the testimony of the arresting officer plays an integral role.
How the Officer’s Testimony Can Help
Consumption of alcohol has a negative effect on both physical behavior and appearance, as well as, mental ability. When someone is intoxicated, his or her physical appearance may be altered by blood-shoot eyes, dilated pupils, and the smell of alcohol on the breath or in severe cases seeping out of the body in sweat. His or her behavior may be affected by erratic driving, slurred speech, and the inability to balance properly when walking or standing. Thus, the testimony of the officer who made the arrest can help demonstrate how the servers in the drinking establishment should have been able to detect outward signs of intoxication in the patron before continuing to serve him or her and then letting him or her drive home.
For example, a police officer responds to a call reporting a collision at an intersection. When he arrives at the scene, he discovers one of the drivers is still in his car severely injured, while the other exhibits no outward signs of injury but is hunched over on the sidewalk, vomiting. Paramedics arrive to tend to the injured man, so the officer questions the other driver. When the officer approaches this man, the police officer is struck by the strong stench of alcohol rising from the mess at his feet. In response to the presence of the officer, the man rights himself, revealing bloodshot eyes as the light from the streetlamp above hits his face. Although the man denies being intoxicated when asked, he slurs his words as he answers the officer’s questions, and he sways back and forth while standing, like he’s a small tree blowing gently in the breeze. The driver claims to be coming from a movie, but he’s wearing a wristband from a local club. When asked to perform roadside sobriety tests, the suspected intoxicated driver performs very poorly, so the officer decides to have his Blood Alcohol Concentration (BAC) tested, revealing the man to be well over the legal limit of .08 BAC.
In this instance, many of the indicators of intoxication that the officer observed should have been noticeable to the servers of the club where he had been drinking – slurring words, bloodshot eyes, inability to balance, and the stench of alcohol on his breath. Moreover, in this particular example, the presence of the wristband, color-coded by day, demonstrates that the driver was in the particular club.
While some habitual alcoholics can conceal the effect intoxication has on them, virtually everyone will show some outward sign of intoxication. A police officer who can testify to observing these signs can be just as helpful in establishing a claim after a bar fight as an accident. If you were attacked by a drunken patron who has a history of physically abusing others in a certain drinking establishment, then you may have just as valid of a drunken driving claim, as if he or she hit you with a Ford instead of a fist.
In most cases, you will need the assistance of an experienced dram shop attorney in order to be able to make the most of the arresting officer’s eye-witness account of the driver’s obvious intoxication. First, and most importantly, you need someone who knows that the police officer must be added to the list of expert witnesses in order to be able to testify about the intoxicated driver at all. This sounds like a simple step, but you don’t want to know how many cases are ruined because the police officer can only testify to the facts of the arrest and not his or her observations about the suspect.
Second, only an experienced lawyer knows all the questions to ask the arresting officer that could help prove the obvious intoxication of the driver. You don’t want to leave any stones unturned in the investigation or make the mistake of turning to an attorney who specializes in some other facet of law and doesn’t know what questions to ask.
At Our Law Offices, we’ve spent more than two decades litigating dram shop cases, and we’ve questioned and deposed law enforcement from the Police Department, the Department of Public Safety, and all over the state of Texas. We know how to draw out the arresting officer’s testimony that can help you prove the driver who injured you or killed your loved one was noticeably intoxicated – if the facts of the case merit that conclusion. Call us now for a free consultation (toll free) to learn more about how we can help or just to ask any questions you may have about the testimony of law enforcement in your case.
Dram Shop Evidence: Toxicologist Testimony
How the Expert Testimony of a Toxicologist Can Help You in a Texas Dram Shop Accident Lawsuit
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When you’ve been injured or someone in your family has been killed in a drunken driving accident, you may be able to seek damages from the drinking establishment who enabled the driver to become intoxicated, as well as, the driver himself. This can be critical to your ability to recover remedies commensurate with the suffering that has been inflicted upon you, for many drunken drivers lack the assets to cover the damage they cause. Pursuing compensation from the negligent drinking establishment permits you to go after someone with sufficient solvency to cover the harm that has actually been done to you.
However, you’re going to need to be able to demonstrate that the driver was in fact drunk at the time of the accident to have a cause of action against either the driver or the drinking establishment who over-served him or her. In fact, when filing a dram shop claim, it’s not enough just to prove that the driver was intoxicated when he or she caused the accident. Rather, you must be able to convince jurors that the driver’s level of intoxication was so obvious that a reasonable server within the bar should have noticed it and stopped selling him or her alcoholic drinks. In Texas, bars and restaurants’ servers are required to observe when patrons have become noticeably drunk and can be held responsible for not taking action to protect the patron and the public when someone has become obviously intoxicated and continues to imbibe.
At Our Law Offices, our attorneys have been helping Texans litigate dram shop cases for more than 22 years, so we know how important the testimony of a toxicologist can be both for demonstrating the drunkenness of the driver when he or she caused an accident and when he or she left the drinking establishment. We want you to understand why this is.
Why You Need a Toxicologist
When a drunken driver causes injury or death to another person in an accident, Texas state law requires mandatory blood testing to be done on all of the drivers involved in order to assess their level of intoxication. This blood testing, though, usually isn’t administered for at least an hour – and sometimes longer – after the accident has taken place. Due to the time elapsed, the driver’s Blood Alcohol Concentration (BAC) when it is tested is not going to be what it was when he or she got into the accident or what it was when he or she left the drinking establishment. As a result, drunken drivers can sometimes argue that they were legally intoxicated when the blood was taken two hours after the accident but not when the accident occurred. Whereas, the drinking establishment can debate its negligence by suggesting the driver’s BAC indicates he or she only became noticeably intoxicated after leaving the bar.
Responding to these arguments is where the testimony of a toxicologist comes into play. Toxicologists study the effect of chemicals on animals. In legal circles, toxicologists are most often used to testify regarding the effects of alcohol and drugs on humans. At Our Law Offices, we bring in toxicologists as consultants to examine the findings of blood or breath tests conducted on alleged drunken drivers. In some cases, a driver’s level of intoxication won’t be readily apparent based upon the BAC test results. These experts can help pinpoint what a failed test actually means and how intoxicated the driver actually was at the time the accident occurred and in some cases when he or she left the drinking establishment.
For example, a driver drinks a large amount of alcohol at a bar – enough to make him obviously drunk, but he doesn’t go directly home after leaving the bar, instead taking a woman to her apartment first. On the way home from the woman’s house three hours after leaving the bar, he gets into a wreck and injures another driver. When the police take his BAC, it’s .10 percent, which is over the legal limit of .08 percent. On the other hand, .10 percent BAC is low enough that the drinking establishment could argue that the man wasn’t obviously intoxicated when left the bar. Our attorneys would bring in a forensic toxicologist to examine the BAC test results. From the woman’s testimony and that of the drunken driver, along with the time the man closed out and paid his tab at the bar, we know approximately what time the man left the bar. Factoring in this information with the man’s physical characteristics (body size, speed of metabolism), the toxicologist could estimate the actual BAC level of the man when he left the bar, calling into question the drinking establishment’s claim that he was not obviously drunk.
Or in another situation, a driver falsely claims he had a few shots right before getting into a car and causing an accident, when in fact he had been drinking for quite some time. While the BAC test taken later showed that he was intoxicated, the driver claims he wasn’t really drunk when the accident occurred and only became so after digesting the liquor while waiting for the blood test. A toxicologist can again take into account the driver’s weight and metabolism and then estimate whether or not this information is accurate or the driver could have been intoxicated when the accident occurred.
Of note, a toxicologist needs to have more than his or her opinion to be effective. First and foremost, the toxicologist must be schooled in toxicology, and the accompanying fields of chemistry and biology. While a bachelor’s degree permits anyone to claim that he or she is an expert in court, graduate and doctoral degrees are far more compelling to a jury.
However, just understanding toxicology isn’t sufficient to be an effective forensic toxicologist in a courtroom. No, the toxicologist must be able to convince the jury that he or she is correct in his or her assessments, and this requires both the heir of authority and strong speaking skills. The heir of authority can be gained with the proper credentials and consulting history, but the ability to communicate depends upon the personality of the toxicologist. You need someone who is an effective speaker and not just a scientist with no interpersonal skills.
Just using Google or the phone book, you can find a toxicologist, but you won’t have any idea of how this person can actually perform in court. At Our Law Offices, we’ve been consulting with toxicologists for more than two decades, and we’ve found some we can depend upon to be both accurate and able to sway jurors into believing their determinations. To discover more about how forensic toxicology can affect dram shop cases or to learn how we can help you get the assistance of a trustworthy toxicologist, call us now (toll free).
How Proximity Plays Into Dram Shop Liability
The Negligent Bar or Drinking Establishment Will Attempt to Use Proximity (Time and Distance) to Skirt Liability
When arguing dram shop liability, that is, the liability of a bar for over-serving a recipient 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 that the recipient was (a.) drinking at the defendant’s bar, (b.) that the defendant over-served the recipient to such an extent that the recipient presented a clear and present danger to both himself and others, and (c.) that the recipient’s intoxication was, indeed, the proximate cause of the plaintiff’s injuries.
As your attorneys work to establish the liability of the defendant bar, one of the significant factors is “proximity.” There are arguments made in relation to both temporal (time) proximity as well as geographical proximity (distance). Proximity can be a factor which either helps establish the liability of the defendant, or it can be a factor that the defendant uses against you.
Using a Proximity-Based Argument to Your Advantage
As we stated above, the plaintiff has the burden of establishing several key elements in order to have a successful dram shop case. There are numerous “canned” defenses that bars will use to defeat a dram shop claim. Often times, 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 typically like to use.
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. Because, after all, how do we know the recipient did not drink elsewhere 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. In such an event, 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 in both time and distance that the accident happens in relation to the genesis of the alcohol consumption, the easier it will be for the plaintiff to show that the defendant is liable for the subsequent injuries.
How Proximity Can Hurt Your 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 factor” argument can be a very difficult one to overcome, so you will need an experienced attorney who can defeat that 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 bar. The man lives more than three hours from the bar. Somehow he makes it nearly all the way home before he hits another vehicle with his car and severely injures the driver. While the bar 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; in the vast majority of drunk-driving 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 that you never even thought of in order to help his or her client escape responsibility for its negligence.
There is no tried and true formula to counter a defendant’s proximity argument; the farther away an accident takes place from the establishment that over-served the drunk driver, the harder it will be to win your case. Again, in order to overcome this argument you will need to have the help of a 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 example, we would search for witnesses who observed the intoxicated driver driving recklessly at points between the bar and the accident scene. 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.
At Our Law Offices, we have litigated dram shop cases for the last two decades. 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. If you would like to speak with one of our attorneys to learn more in regard to how we may be able to help, please call Our Law Offices (toll free).