Bemis, Roach and Reed Legal

What are my rights if I was hit by a drunk driver?

Not only do the general considerations that apply to every automobile, motorcycle, truck, and pedestrian claim apply to those injured by a drunk driver, additional considerations as well.  The two primary considerations involve the obligation to punish the drunk driver, through both criminal and civil sanctions, and the determination of the responsibility of the provider of the alcohol. 

While there are a variety of criminal sanctions available to punish the drunk driver, the majority of these sanctions are left up to the government; the victim does not have much input into the sanction.  The law in Texas allows a victim to sue a drunk driver for punitive or exemplary damages.  Not only do these damages punish the drunk driver, they provide additional compensation to the victim.  Unlike the criminal system, it is the victim who has control over the amount sought in punitive damages.  The only limitations to the victim's recovery are the caps which are placed on such recoveries by Texas law and the ultimate decision of the judge or jury if the case proceeds to trial.

The provider of alcohol can also be found liable for the conduct of the drunk driver if the facts fall within the parameters of liability set forth in the Texas Dram Shop Act.  The Texas Dram Shop Act requires a plaintiff to prove that, when the alcohol was provided, the recipient "was obviously intoxicated to the extent that he presented a clear danger to himself and others," and the recipient's intoxication was a proximate cause of the damages suffered. Tex. Alco. Bev.Code 2.02(b). If the plaintiff can meet this burden, the Act nevertheless affords providers a relatively simple safe-harbor. Tex. Alco. Bev.Code   106.14(a) shields a provider from liability for its employee's actions if the provider establishes that it required the employee to attend a training course approved by the Texas Alcoholic Beverage Commission, the employee actually attended the course, and the provider did not encourage the employee to violate the Alcoholic Beverage Code.  It is with this later issue that many alcohol providers stumble. You should also be aware of the fact that obtaining liability on the provider of alcohol was recently made even more difficult as a result of the decision of the Texas Supreme Court in F.F.P. Operating Partners v. Duenez. In the Duenez decision, the court held that the jury must apportion responsibility between the drunk driver and the alcohol provider.  Prior to this ruling, the alcohol provider who violated the strict provisions of the Dram Shop Act was jointly and severally liable for the actions of the drunk driver.  While Dram Shop cases have become more difficult, even under the current state of the law Bemis, Roach & Reed has successfully navigated this mine field to obtain significant recoveries for our clients.

For more information on these issues click on this link to Bemis, Roach and Reed's web site.