The Safe Harbor Defense
Section 2 of the Alcoholic Beverage Code, also known as the Dram Shop Law, states that restaurants, bars, hotels, and other similar vendors are liable for the negligent acts of their intoxicated patrons. These acts typically include car crashes and assaults.
In response to a suit for damages, these employers often invoke the somewhat mislabeled “safe harbor defense” found in Section 106.14. What does the defendant employer need to prove to avoid liability, and how can the plaintiff effectively respond to this defense?
Alcohol Training Program
It is not enough to simply offer a class in which an instructor tells people not to serve drunk patrons. To establish the safe harbor defense, an employer must:
- Require that all employees attend a class;
- Document attendance, Ensure recertification as necessary; and
- Discipline employees that do not attend the class.
The law defines “employers” as “vice-principals;” shift managers and other bosses do not count. In most cases, the employer must establish each element by clear and convincing evidence.
Direct or Indirect Encouragement
Even if the employer proves that the negligent worker attended a class, the plaintiff can offer evidence that the boss either overtly or subtly directed workers to serve intoxicated or underage patrons.Direct encouragement occurs when a manager either orders an employee to serve an ineligible patron or threatens to punish the worker for not serving the patron. Often, a manager may say something like “it’s okay this one time,” “it’s okay because he is a regular customer,” or “why did you cut her off?”
Indirect encouragement is nearly always proved by circumstantial evidence. At the core, indirect encouragement means that the owner or manager does not care about the no-service policy and puts profits ahead of safety. Courts have given the following examples as evidence of indirect encouragement:
- Setting a high sales quota;
- Modeling inappropriate behavior by serving ineligible patrons; and
- Not punishing over-service.
In effect, a negligent failure to adhere to the policy is just as bad as having no policy at all. The more incidents that a plaintiff can prove, the more likely the court is to reject the defense.
Third party liability is likely applicable in many alcohol-related crashes. For a free consultation with an experienced New Braunfels personal injury attorney, contact our office.