The Austin Court of Appeals has upheld a trial court order granting summary judgment to an Austin-area sports bar in a dram shop case.
Jane Stuart Wilson, and George Zahar, Jr., as Administrator of the Estate of Samuel Zahar, Deceased v. Shooters Billiards & Sports Bar, LLC (October 8, 2025) arose from a fatal automobile accident in which an intoxicated driver struck another vehicle, killing a passenger in the vehicle. The driver’s blood alcohol content was .245. The deceased family filed suit against the driver, Flores Mexican Restaurant, Shooters, and others. Shooters moved for summary judgment, invoking the safe-harbor provision of the Dram Shop Act. The trial court granted the motion. Plaintiffs appealed.
In an opinion by Chief Justice Byrne, the court of appeals affirmed. The safe-harbor defense provides that an employee’s actions in over-serving a patron isn’t attributable to the employer if the employer requires employees to attend certain training classes, the employee in question attended those classes, and the provider did not directly or indirectly encourage the employee to violate the law. § 106.14(a), Alcoholic Beverages Code. Here the parties didn’t dispute that Shooters required the classes and that the employee attended them. Once Shooters established those elements, the burden shifted to Plaintiffs to provide that Shooters “directly or indirectly encouraged the employee to violate” the law. “The Texas Supreme Court,” the court noted, “observed that if courts interpret ‘encouraged’ in the safe-harbor statute too broadly, a provider will not receive the legislatively conferred protection and incentive to send their employees to training.” 20801, Inc. v. Parker, 249 S.W.3d 392, 397 (Tex. 2008). But if they interpret it too narrowly, “a provider will have few incentives to deny service to persons who are obviously intoxicated.” Id. at 397-98.
To thread this needle, SCOTX adopted a minimum standard of negligence. In the absence of direct evidence, a plaintiff could show that a provider encouraged employees to over-serve by overserving obviously intoxicated persons “and thus modeling inappropriate behavior,” by failing to punish over-service, or by “setting an excessively high minimum sales quota without regard to the number of patrons.” Id. at 398. Plaintiffs alleged that Defendant knowingly ordered or rewarded over-service based on the use of a Shooters’ employee’s discount for eight drinks, in violation of Shooters’ two-drink policy and policy prohibiting discount drinks after 11 p.m. Additionally, Plaintiffs alleged that another Shooters employee provided six drinks for four people. Unfortunately for Plaintiffs, Shooters didn’t know about any of this, so it could not have “knowingly” ordered or rewarded over-service “after it was apparent to Shooters that they were obviously intoxicated.”
As to indirect encouragement, Plaintiffs alleged that Shooters “engaged in behavior that a reasonable provider should have known would constitute encouragement” because over-service wasn’t punished. Here Plaintiffs’ evidence consisted of a group-chat message in which a Shooters manager told staff not to drink on duty, a list of Shooters TABC issues and notices, and deposition testimony that a Shooters server who previously flirted with a customer and convinced him to buy drinks two weeks before the accident wasn’t fired. None of this impressed the court nor raised any fact issue of “indirect encouragement.” Plaintiffs thus failed to meet their burden under the statute. The court thus affirmed the trial court order granting Defendant summary judgment.
