Does Dram Shop Act Apply To Josh Brent, Ex-Cowboy?

Yesterday the grand jury in Dallas added a second charge of manslaughter to the case against Josh Brent, 25, who got drunk, crashed his Mercedes, and killed his teammate Jerry Brown, Jr. in December. Brent faces 20 years in the state pen if he is convicted.

The trial has been postponed several times, most recently until November. It will be a media circus, assuming Brent doesn’t plea to a lesser offense before then, which I expect. The District Attorney’s office has listed eight Cowboys as witnesses, many of whom were in the night club with Brent also guzzling.

Guess not all of our heroes grew up to be cowboys.

Brent also faces a civil lawsuit for the wrongful death of Mr. Brown. Can any other parties, specifically the nightclub, also be found liable for damages?

The Dram Shop Act, set out in Section 2.02 of the Texas Alcoholic Beverage Code, prohibits the sale of alcohol to an already intoxicated customer. (A dram shop is an an old English term for a restaurant or bar that sold “drams,” one eight of an ounce of whiskey.)

Texas has regulated — or at least tried to regulate — these establishments since 1895 when it passed its first dram shop act. But it was not until a landmark case was decided by the Texas Supreme Court in 1987 that dram shop liability greatly increased.

In the case of El Chico v. Poole, the Court held, for the first time, that there was a legal duty on providers of alcohol not to serve those persons “it knows or should know are intoxicated.” This significantly decreased the proximate causation requirement and made these lawsuits easier to win.

The Legislature shortly after that decision amended the Dram Shop Act by making it the exclusive remedy for dram shop claims. However it increased the plaintiff’s burden on proving liability by requiring evidence of “obvious intoxication” and proof that the drunk was a “clear danger.” The Act also tied causation to the drunk’s intoxication, again restricting the plaintiff’s right to recover damages.

However a few years later, a lawsuit was appealed to the Supreme Court that changed the legal landscape again in 2004.

The Duenez family had filed a negligence case the store owner after one of its clerks sold a large quanity of beer to a man named Ruiz, who was already drunk. Not surprisingly, he proceeded to cause a crash and seriously injured five people in the Duenez family.

A jury in South Texas awarded the family $35 million and held that the store owner was 100% responsible for the motor vehicle accident; Ruiz, the driver, was absolved of negligence. The court of appeals affirmed the verdict.

The Supreme Court held in a 5-4 decision that under Chapter 33 of the Texas Civil Practices and Remedies Code, a licensed alcohol seller must be found liable for the percentage of liability a jury assigns as for the percentage of responsibility that the jury assigns to the drunk driver.

After the store owner had filed its motion for rehearing, three justices who had sided with the plaintiffs left the court, a fortuitous turn of events for the store owners. And guess what, the new panel issued a 7-2 decision in 2006. It held that the dram shop should only have been jointly and severally responsible if it was more than 50 percent liable.

At Berenson Injury Lawyers, we know personal injury law, including theTexas Dram Shop law, and we are here to help you. If you have been injured by a drunk driver in an automobile or truck collision here in the Dallas Fort Worth area, please call us. We’ll fight to get you the money you deserve!

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