Unraveling Dram Shop Laws:
An Overview of the Texas and Oklahoma Legal Landscape:
Explore the evolution of dram shop litigation, tracing its historical origins to contemporary applications in Texas and Oklahoma. This concise summary provides insights into these states’ specific laws, shedding light on the responsibilities of alcohol-serving establishments. It’s important to note that while this overview offers valuable insights, it does not constitute legal advice nor establish an attorney-client relationship.
The Inception of Dram Shop Litigation:
The term “dram” is noted as first being used in the 1500’s and is a small liquid measurement, about 3/4 of a teaspoon or 1/8 of a fluid ounce. One can even convert drams into other units of measurement: (Dram to Teaspoon Conversion).
A “dram shop” referred to establishments like bars, pubs, taverns, or “inns” that dispenses alcohol in “drams.”
Nov. 15, 2023: Attorney Chris Sloan delves into the intricacies of dram shop litigation in our latest video on the RealDamages YouTube Channel. Gain insights into the evolution of this legal area and explore the specific regulations governing dram shop cases in Texas and Oklahoma. Don’t forget to show your support by liking, subscribing, or following our channel. Feel free to ask any questions – your engagement is always welcome! Kindly be aware that participation in social media interactions does not establish an attorney-client relationship. Refrain from sharing confidential information in public forums accessible to others. Your privacy and the security of sensitive details are of utmost importance.
- Delaware
- Kansas
- Maryland
- Nevada
- South Dakota
- Virginia
- Louisiana
Louisiana is of particular interest, as their legislature in 1986 enacted the following anti-dram shop legislation:
A. The legislature finds and declares that the consumption of intoxicating beverages, rather than the sale or serving or furnishing of such beverages, is the proximate cause of any injury, including death and property damage, inflicted by an intoxicated person upon himself or upon another person.
B. Notwithstanding any other law to the contrary, no person holding a permit under either Chapter 1 or Chapter 2 of Title 26 of the Louisiana Revised Statutes of 1950, nor any agent, servant, or employee of such a person, who sells or serves intoxicating beverages of either high or low alcoholic content to a person over the age for the lawful purchase thereof, shall be liable to such person or to any other person or to the estate, successors, or survivors of either for any injury suffered off the premises, including wrongful death and property damage, because of the intoxication of the person to whom the intoxicating beverages were sold or served.
C.
(1) Notwithstanding any other law to the contrary, no social host who serves or furnishes any intoxicating beverage of either high or low alcoholic content to a person over the age for the lawful purchase thereof shall be liable to such person or to any other person or to the estate, successors, or survivors of either for any injury suffered off the premises, including wrongful death and property damage, because of the intoxication of the person to whom the intoxicating beverages were served or furnished.
(2) No social host who owns, leases, or otherwise lawfully occupies premises on which, in his absence and without his consent, intoxicating beverages of either high or low alcoholic content are consumed by a person over the age for the lawful purchase thereof shall be liable to such person or to any other person or to the estate, successors, or survivors of either for any injury suffered off the premises, including wrongful death and property damage, because of the intoxication of the person who consumed the intoxicating beverages.
D. The insurer of the intoxicated person shall be primarily liable with respect to injuries suffered by third persons.
E. The limitation of liability provided by this Section shall not apply to any person who causes or contributes to the consumption of alcoholic beverages by force or by falsely representing that a beverage contains no alcohol.
(Emphasis Added)
Now that we’ve explored the broader context of how dram shop liability started, let’s narrow our focus to the specifics of how these laws are implemented in Texas and Oklahoma.
The Texas Dram Shop Act:
In 1987, Texas adopted its own dram shop act, which in its current version is codified in Tex. Alco. Bev. Code Sec. 5.01 Civil Liabilities for Serving Beverages – Texas Alcoholic Beverage Commission – Cause of Action § 2.02 states which specifies as follows:
(a) This chapter does not affect the right of any person to bring a common law cause of action against any individual whose consumption of an alcoholic beverage allegedly resulted in causing the person bringing the suit to suffer personal injury or property damage.
(b) Providing, selling, or serving an alcoholic beverage may be made the basis of a statutory cause of action under this chapter and may be made the basis of a revocation proceeding under Section 6.01(b) of this code upon proof that:
(1) 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
(2) the intoxication of the recipient of the alcoholic beverage was a proximate cause of the damages suffered.
(c) An adult 21 years of age or older is liable for damages proximately caused by the intoxication of a minor under the age of 18 if:
(1) the adult is not:
(A) the minor’s parent, guardian, or spouse; or
(B) an adult in whose custody the minor has been committed by a court; and
(2) the adult knowingly:
(A) served or provided to the minor any of the alcoholic beverages that contributed to the minor’s intoxication; or
(B) allowed the minor to be served or provided any of the alcoholic beverages that contributed to the minor’s intoxication on the premises owned or leased by the adult.
In summary, the Texas act does not limit common law causes of action against an “individual whose consumption of an alcoholic beverage allegedly resulted in causing” personal injury or property damage. The act provides an additional cause of action for such injured parties against those who provided, sold, or served an alcoholic beverage.
As we have reviewed, the Texas statute permits liability in specific situations upon those providing, selling, or serving alcoholic beverages. In most cases, employers are accountable for their employees’ actions under the “respondeat superior” doctrine, which translates to “let the master answer” or “the master must answer” in Latin.
However, Texas law takes an additional step to offer employers added safeguards in specific scenarios. Tex. ALCOHOLIC BEVERAGE CODE Sec. 106.14 Actions of Employee (Texas Statutes (2023 Edition) states as follows:
Sec. 106.14 Actions of Employee:
(a) For purposes of this chapter and any other provision of this code relating to the sales, service, dispensing, or delivery of alcoholic beverages to a person who is not a member of a private club on the club premises, a minor, or an intoxicated person or the consumption of alcoholic beverages by a person who is not a member of a private club on the club premises, a minor, or an intoxicated person, the actions of an employee shall not be 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 training program; and
(3) the employer has not directly or indirectly encouraged the employee to violate such law.
(b) The commission shall adopt rules or policies establishing the minimum requirements for approved seller training programs. Upon application, the commission shall approve seller training programs meeting such requirements that are sponsored either privately, by public community colleges, or by public or private institutions of higher education that offer a four-year undergraduate program and a degree or certificate in hotel or motel management, restaurant management, or travel or tourism management. The commission may charge an application fee to be set by the commission in such amount as is necessary to defray the expense of processing the application.
(c) The commission may approve under this section a seller training program sponsored by a licensee or permittee for the purpose of training its employees whether or not such employees are located at the same premises. This subsection shall only apply to licensees or permittees who employ at least 150 persons at any one time during the license or permit year who sell, serve, or prepare alcoholic beverages.
(d) The commission may approve under this section a seller training program conducted by a hotel management company or a hotel operating company for the employees of five or more hotels operated or managed by the company if:
(1) the seller training program is administered through the corporate offices of the company; and
(2) the hotels employ a total of at least 200 persons at one time during the license or permit year who sell, serve, or prepare alcoholic beverages.
(e) After notice and hearing, the commission may cancel or suspend the commission’s approval of a seller training program, the commission’s certification of a trainer to teach a seller training program, or the commission’s certification of a seller-server if the program, trainer, or seller-server violates this code or a commission rule. The commission may give a program, trainer, or seller-server the opportunity to pay a civil penalty rather than be subject to suspension under this subsection. Sections 11.62 through 11.67 apply to the program approval or certification as if the program approval or certification were a license or permit under this code.
The Texas Supreme Court has referred to Sec. 106.14(a) as a “safe harbor” provision for employers, characterizing it as follows:
This provision is a “carrot” that gives providers an incentive to ensure that their employees complete the training the Legislature has determined to be beneficial. The third prong of this provision, however, restricts its protection and reflects the Legislature’s concern that an employer might exploit this protection from liability by encouraging its employees to violate the law, increasing its profits while defeating the statute’s purpose.
20801, Inc. v. Parker, 249 S.W.3d 392 at 396. (Tex. 2008)
Many companies with employees who serve alcohol typically possess a solid understanding of these regulations due to permits which are required to serve alcohol. Additionally, insurance providers aiming to reduce their liability will typically require compliance with the “safe harbor” provision so that the companies they insure qualify for this immunity, which is a good thing.
However, in instances where these protective measures fall short, and a company is not following the “safe harbor” provisions of 106.14 – they should not be granted immunity for the actions of their employees. In those instances, it becomes essential to engage an attorney well-versed in these regulations. Through thorough discovery, such an attorney can identify inconsistencies that might potentially undermine an employer’s legal immunity.
We have covered the fundamental aspects of Texas’ dram shop act, including employer liabilities, significant constraints, and available defenses outlined in the statute. It’s important to note that the applicability of specific sections can vary depending on the individual circumstances and may require a review of relevant case law for each claim.
Oklahoma Dram Shop Litigation:
In Oklahoma things are a bit more complicated. In 1907, Oklahoma passed a dram shop act, which provided in part the following:
37 O.S. § 121 (1908).
Every wife, child, parent, guardian, employer, or other person who shall be injured in person or property, or means of support by any intoxicated person or in consequence of intoxication of any person, shall have a right of action for all damages actually sustained, in his or her own name against any person, individual or corporate, who shall, by selling, bartering, giving away, or otherwise furnishing intoxicating liquors, contrary to the provisions of this Act have caused the intoxication of such person.
In 1907, the dram shop act that was passed under 37 O.S.1951 § 121, went into effect in 1908. At the same time, Oklahoma in 1907 had just been admitted as the 46th state of the United States. The Oklahoma legislature, while passing the dram shop act, also banned liquor (12 years before federal prohibition via the 18th Amendment to the U.S. Constitution in 1919).
Prohibition at the federal level ended in 1933 with the ratification of the 21st Amendment to the U.S. Constitution. However, Oklahoma did not lift its state ban on liquor until 1959, while also passing the Alcohol Beverage Control Act. In doing so, the Oklahoma legislature also repealed 37 O.S. § 121. The dram shop act that was initially put into place at statehood was no longer recognized law in Oklahoma. Without a statutory dram shop act, the old common law rule that providers of alcohol could not be held responsible for the damages caused by intoxicated persons was the presumption. Without a statute, there was not statutory authority to bring such an action. While there was a provision within the Oklahoma Beverage Control Act that prohibited serving intoxicated persons, it did not provide a civil remedy against those providing alcohol for those who were injured.
The legal landscape remained unchanged for 27 years, up until 1986, when the Oklahoma Supreme Court issued its opinion in the case of Brigance v. Velvet Dove Restaurant, Inc., 725 P.2d 300, 1986 OK 41 (Okla. 1986). In its ruling, the Court concluded that the repeal of the dram shop act in 1959 was not a selective intentional decision by the Oklahoma legislature, as it coincided with the legalization of intoxicating liquor via a state referendum. The Court also ruled that legislative intent could not be inferred from the legislature’s lack of action following the repeal of § 121.
The Court observed that despite the repeal of the dram shop act in 1959, no prior cases had been presented to determine if a “liquor vendor for on the premises consumption may be held civilly liable for injuries due to the acts of a noticeably intoxicated patron upon common law principles of negligence.” The Court further highlighted that in Oklahoma, the elements of common law negligence are:
(1) the existence of a duty on part of defendant to protect plaintiff from injury;
(2) a violation of that duty; and
(3) injury proximately resulting therefrom.
Brigance, 725 P.2d at 302. Citing Sloan v. Owen, 579 P.2d 812, 814 (Okla.1977).
The Court noted that there was a shift among many states away from the traditional common law doctrine of non-liability as to commercial providers of alcohol, and reasoned that common law can change with the times and needs of society as follows:
We believe the application of the old common law rule of a tavern owner’s nonliability in today’s automotive society is unrealistic, inconsistent with modern tort theories and is a complete anachronism within today’s society.
The automobile is a constant reminder of a changed and changing America. It has made a tremendous impact on every segment of society, including the field of jurisprudence. In the “horse and buggy” days the common law may not have been significantly affected by the sale of liquor to an intoxicated person. The common law of nonliability was satisfactory. With today’s car of steel and speed it becomes a lethal weapon in the hands of a drunken imbiber. The frequency of accidents involving drunk drivers are commonplace. Its affliction of bodily injury to an unsuspecting public is also of common knowledge. Under such circumstances we are compelled to widen the scope of the common law.
Brigance, 725 P.2d at 304.
The Court in Brigance cited 37 O.S.Supp.1985 § 537, (the current version is codified in 37A O.S. § 6-101) of which the relevant subsections are as follows:
37 O.S.Supp.1985 § 537, (the current version is codified in 37A O.S. § 6-101):
The Court found that a duty derived from statute (37 O.S.Supp. 1985 § 537) and from common law was owed by commercial vendors “to exercise reasonable care in selling or furnishing liquor to persons who by previous intoxication may lack full capacity of self-control to operate a motor vehicle and who may subsequently injure a third party.” Brigance, 725 P.2d at 304. It should be noted that the Court’s opinion was only in reference to situations where alcohol was served for on-site consumption, such as at a restaurant, bar, or tavern.
The 1986 Oklahoma Supreme Court opinion in Brigance v. Velvet Dove Restaurant, Inc. only pertains to the commercial sale of alcohol for on-site consumption. Since this ruling, there hasn’t been legislative intervention in passage of a dram shop act.
Consequently, numerous subsequent cases have emerged, interpreting Oklahoma’s common law dram shop act.
–Ohio Cas. Ins. Co. v. Todd, 1991 OK 54, 813 P.2d 508 (1991) held that although 37 O.S.Supp. 1985 § 537 (A)(2) places a duty upon a tavern to not serve alcoholic beverages to an adult consumer who is noticeably intoxicated, under three elements of negligence per se: (1) the injury must have been caused by the violation, (2) the injury must be of a type intended to be prevented by the ordinance, and (3) the injured party must be one of the class intended to be protected by the statute. There is no cause of action extended to a consumer of alcohol as there is nothing to “indicate that the legislature intended to protect the intoxicated adult who, by his own actions, causes injury to himself.” Id. at 510. The Court reasoned that if “were to create a cause of action against the tavern owner, the inebriate could be rewarded for his own immoderation. Such was not the intent of Brigance, nor will we allow such a reward.” Id. at 511.
–Kellogg v. Ohler, 825 P.2d 1346 at 1348 (1992) question of social host liability was not addressed, as the defendant was not a social host.
–Tomlinson v. Love’s Country Stores, Inc., 1993 OK 83, 854 P.2d 910 (1993) involved three minors who entered a convenience store, bought alcohol, and then left the store together. Among them, the Plaintiff was a passenger in the vehicle. The driver, also a minor, was drunk, had a car collision, and the Plaintiff tragically passed away due to the injuries sustained. An action was initiated against the convenience store based on Oklahoma’s common law dram shop act. The Court held that 37 O.S.Supp. 1985 § 537 (A)(1) prohibited ”[k]nowingly sell, deliver, or furnish alcoholic beverages to any person under twenty-one (21) years of age,” a vendor breaches this duty regardless of whether or not the alcohol is provided for on or off premises consumption. The minor Plaintiff qualifies as a protected innocent third party contemplated in the passage of § 537. Additionally, the Court held that “[a] jury may conclude that even if [ had also been drinking, as a passenger in the motor vehicle, he was an innocent third party, subject to negligence defenses.” Id.at 916-917.
–Mansfield v. Circle K. Corp., 1994 OK 80, 877 P.2d 1130 (1994) on a certified questions the Oklahoma Supreme Court ruled that “a commercial vendor is prohibited by statute from selling beer to minors. A commercial vendor’s statutory duty not to sell beer to a minor is not limited to on-the-premises consumption. If the minor is injured after consuming beer purchased from the vendor, the minor may have a cause of action against the vendor.”
–McGee v. Alexander, 2001 OK 78, 37 P.3d 800 (2001) refused to extend dram shop liability upon a social host. The Court defined a social host as “one who receives guests, whether friends or associates, in a social or commercial setting, in which the host serves or directs the serving of alcohol to guests.” In reference to Kellogg v. Ohler,1992 OK 18, 825 P.2d 1346, citing Alioto v. Marnell, 402 Mass. 36, 520 N.E.2d 1284, 1285 (1988); Hostetler v. Ward, 41 Wash. App. 343, 704 P.2d 1193, 1198 (1985). The Court in McGee held that charging guests to defray costs of the event (citing Koehnen v. Dufuor, 590 N.W.2d 107 (Minn. 1999) host of party did not lose her status as social host because she took money from guests to defray liquor costs; and D’Amico v. Christie, 71 N.Y.2d 76 (N.Y. 1987)) does not change one’s status from a social host to a commercial vendor. “[T]he basis for that distinction is whether the provider sells or intends to make a profit from the sale of alcohol.” McGee. Moreover, negligence per se does not attached under Nor does negligence pe se attached to 37 O.S. 1991 § 247, prohibiting a “holder of a retail license or permit” from providing alcohol to an intoxicated person, where a social host did not hold such a license and which is required under § 247.
–Bittle v. Bahe, 2008 OK 10, 192 P.3d 810 (2008) the Oklahoma Supreme Court held that “[l]ike any other state-licensed commercial vendor operating a bar and serving alcoholic beverages for consumption on the premises, the Tribe is subject to the criminal and civil jurisdiction of the state courts and may be hailed into state court to answer allegations that it furnished alcoholic beverages to a noticeably intoxicated customer.”
–MeGee v. El Patio, 2023 OK 14, 524 P.3d 1283 (2023) involved allegations by the plaintiff that the defendant:
intentionally and negligently over-served MeGee resulting in his death.1 It is alleged that Welch and other El Patio employees served MeGee twelve beers and five shots of tequila over the course of seven hours and then allowed him to drive. The petition further alleges that several servers bet MeGee $200.00 that he would not meet them at a bar in Oklahoma City later that night. Welch and the servers knew MeGee was leaving El Patio to drive to Oklahoma City to collect on the bet. MeGee reached speeds of 97 mph on his way and collided with the rear end of a tractor-trailer on I-40 near El Reno, Oklahoma. He was ejected from the vehicle and pronounced dead at the scene.
Oklahoma Supreme Court reaffirmed Ohio Cas. Ins. Co., holding that a commercial vendor is not liable to a voluntary intoxicated adult patron. Additionally, “[t]here may be a duty not to bet an intoxicated person to drive, but that duty is owed to innocent third parties, not the voluntarily intoxicated adult.”
Oklahoma Uniform Jury Instructions – Chapter 10, Section 10.14 – DRAM SHOP- DUTY OF CARE which is for use in cases involving the sale of alcohol to minors under 21 years of age.
In Conclusion:
Exploring the intricate details of dram shop laws in Texas and Oklahoma highlights their complexity. While this information serves as a valuable resource, it is essential to emphasize that it does not constitute legal advice. Decisions regarding potential legal causes of action can only be properly addressed via a personalized consultation with a licensed attorney. Seeking professional guidance ensures a comprehensive understanding of the legal landscape, safeguarding your interests effectively.
Despite our diligent efforts to ensure the precision of the summarized materials as of the specified date, it’s important to note that these statutes and cases remain susceptible to potential revision, amendment, and varying interpretations by courts. If you have been injured due to the actions of an intoxicated driver, please reach out to our office today at (832) 702-2424.