The Texas Supreme Court issued a ruling on March 28, 2008 which helps bars avoid liability. In the case of 20801, Inc. v. Parker, 249 S.W.3d 392 (Tex. 2008), the Supreme Court reduced the elements a bar must prove when an injury is caused by a person to whom it serves too many drinks.
Under a statute passed by the Legislature, a bar is liable if it “over serves” an intoxicated person which leads to injury or death. But, the Legislature also created a “safe harbor” defense that gives the bar complete protection in most cases. To qualify for the defense, the bar must provide its waiters with an approved safety course, they must take the course, and the bar must not directly or indirectly encourage its staff to over serve.
For virtually every other defense in law, the defendant-here, the bar-bears the burden to prove its defense by a preponderance of the evidence. But in 20801, Inc., the Supreme Court reversed the burden of proof for one of the elements of the safe harbor defense. Now, the Supreme Court has eliminated the bar’s burden to show that it did not encourage its staff to over serve patrons. The Supreme Court further added to the burden of the plaintiff-the injured person or family of the deceased-to prove that the bar’s management encouraged over serving of the intoxicated person. In other words, by switching the burden of proof for that element of the safe harbor defense from the defendant to the plaintiff, the Supreme Court has made it easier for the bar to avoid liability, and has made it harder for victims to obtain justice under the statute. Finally, the defendant “is not required to demonstrate enforcement on the occasion” in question, meaning that the bar is not required to show that it enforced a policy of complying with the law on the night of the tragedy.