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Does Dram Shop Mean Anything to You? It should.

by Daniel Stark Injury Lawyers | April 25th, 2016

DRAM SHOP

 By: G. Jerrell Wise

Taking over 10,000 lives per year and costing an estimated $37 billion annually, alcohol-impaired motor vehicle crashes are taking their toll on America.  In Texas, over 1,000 people annually are killed in motor vehicle traffic crashes where a driver was under the influence of alcohol. This number accounts for approximately 30% of all traffic deaths on Texas roads.

Drunk driving is often a symptom of a larger problem: alcohol misuse and abuse. It is not just general misuse or abuse that is to blame though;  the problem is more specific than this.  More DUI-alcohol crashes have been reported in the hour between 2:00am and 2:59am than any other hour of the day.  More of these crashes also occurred on Saturday than any other day of the week. Our local bars are killing us.

DUI Time of Day

There is obviously a strong correlation between when people go out to bars and drunk driving crashes, with the strongest correlation being after the bars close at 2 a.m. on Saturday night.  It is no surprise to those who frequent bars/clubs that people drink alcoholic beverages and become intoxicated at these establishments.  It is also no surprise that when the bars close at 2 a.m., many of those same people who are still intoxicated climb into their vehicles and drive home.  The wonder is that we as a society have not done more to stop this carnage.

One step that Texas has made to stem the flow of intoxicated individuals driving home from bars is to establish the Texas Alcoholic Beverage Commission (TABC), which regulates bars and other establishments that serve alcohol.  In addition, Texas law recognizes a cause of action against bars for serving alcohol to people who are intoxicated and cause injury to others.  This is called a Dram Shop cause of action.

Traditionally, a dram shop is a shop that serves spirits by the dram, or by the glass (a dram is a single pour of whisky).  Today, a dram shop refers to a bar, tavern, or restaurant where alcohol is served as opposed to a liquor or grocery store where alcoholic beverages are sold but not consumed on the property.

drinking and driving

Dram shop laws differ by state, but in Texas, dram shop liability requires the following elements:

  1. At the time the provision occurred it was apparent to the provider that the individual being sold, served, or provided with an alcoholic beverage was obviously intoxicated to the extent that he presented a clear danger to himself/herself and others;
  2. The intoxication of the recipient of the alcoholic beverage was a proximate cause of the damages suffered.

However, in an effort to encourage bars to follow the regulations set forth by the TABC, Texas enacted a “safe harbor” defense for bars/restaurants.  The safe harbor defense is also called the “trained server” defense.  It states that if an employer requires all of its servers to be TABC certified (take the class and pass the test), and the server actually was certified, the bar/restaurant is not liable for the acts of its employee.  However, the trained server defense does not work if the employer directly or indirectly encouraged the employee to violate the law.  Indirect encouragement has been proven by showing evidence that the bar has a permissive culture of rule-breaking. Think about it this way – is there that one bar that you know always makes really strong drinks? Or that bar that you and your friends go to to take shots with the bar tender? These are perfect examples of indirect encouragement.

11-simple-rules-for-buying-your-bartender-a-shot

I have investigated and handled many dram shop cases, and have never let the trained server defense hinder my cases.  I have always been able to uncover the dirt on a bar to show that they indirectly (if not directly) encourage the breaking of TABC regulations.

The difficult thing about dram shop cases is that they depend on whether or not the over-served individual was obviously intoxicated at the time he was last served/sold/or provided an alcoholic beverage.  The problem is that witnesses are few and far between who will testify concerning this information. One problem is that the defendant driver will say he/she thought he/she was fine (after all, their judgment was impaired at the time!).  The bartender won’t admit he/she did something wrong, so don’t expect them to testify that the customer who later injured your loved one was already drunk when he/she poured that last drink.  And if the victim in the case is still alive and able to testify, they most likely weren’t at the bar to know what happened.  Obvious intoxication at the time of service is almost impossible to prove except for the fact that intoxication is a scientific phenomenon.

In a recent case, I was able to gather critical evidence such as the results from a blood draw conducted by the investigating police department.  The blood results showed the defendant driver was 0.24 BAC (blood alcohol concentration) nearly two hours after the crash.  I obtained an itemized receipt from the bar that served him on that night, and it showed he was last served an 18oz beer just one hour before the crash.  The defendant driver stated in his deposition that he left the bar and drove straight to where the crash occurred, just 1.3 miles and only a few minutes from the bar.  All of this evidence was analyzed by a forensic toxicologist, who later gave testimony evidence that in her expert opinion, the defendant driver would have been showing obvious signs of intoxication at the time he was last served by the bar – if only the bartender would have been paying attention to notice the behavior.

Know your limits charts

Bars are held to a higher standard than that of a social host at a private party, and this makes sense when you think about it.  If I had a few close friends over to my house and set a bottle of whiskey on the table, I would not be held to the same standard (or even close!) to that of a bar.  For starters, I’m not licensed by the TABC to serve alcohol, but more importantly, I don’t PROFIT from others drinking alcohol at my house.  Bars make money – and a LOT of it – when customers leave their homes, drive their cars across town, and drink alcohol at their establishments.  Without the Dram Shop laws, there would be no check against bar owners who could otherwise serve their customers with no limit.

 

 

Sources Used for the Blog: www.nhtsa.gov/Impaired and Texas Motor Vehicle Traffic Crash Highlights Calendar Year 2014

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What Is Pain and Suffering?

by Cary Graham | February 9th, 2016

You’ve probably heard the words “pain and suffering” related to personal injury cases, but may not know exactly what it is. Pain and suffering is a category that much of the non-tangible damage resulting from an accident falls. For instance, a broken bone would not be included in the pain and suffering category, but the discomfort, inconvenience, and frustration that broken bone caused could be.

Think of it as cause and effect. You were in a serious car accident and significantly injured your leg. That’s the cause. The effect is you can’t get out of bed in the morning without sharp pain coursing up and down your injured leg. You can’t get in and out of the car without someone’s assistance. You can’t play with your son, daughter, or grandchildren. You can’t work. You can’t get from A to B without a wheelchair.

Many who support tort reform believe that pain and suffering shouldn’t be considered in a personal injury case. They believe awarding damages for something subjective, such as pain caused by injuries, leads to inflated verdicts. They’ve clearly never suffered a serious injury or had to watch a loved one go through a painful recovery. At Daniel Stark, we believe it’s important that accident victim’s suffering be considered in a personal injury case because within that category lies the true impact of the accident, and that’s why we seek the maximum amount possible in every personal injury case we handle.

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What to Expect at Trial

by Cary Graham | January 12th, 2016

Most personal injury lawsuits are settled outside of court, eliminating the need for a trial. However, if the insurance company refuses to play fair, we can take them to court to ensure the best result for our clients. In that instance, it’s important for you to know what to expect.

Here is the 5-step process for most Texas civil personal injury trials:

  1. Jury Selection: The judge and attorneys question potential jurors to identify any biases that make them unfit to hear the case. Both attorneys may dismiss a certain number of jurors for any reason.
  2. Opening Statements: Attorneys for both sides have the opportunity to give an opening statement. Most often this statement summarizes the case each side will present to the court throughout the course of the trial
  3. Witness Testimony and Cross-Examination: This is the main part of the trial. Both sides will call witnesses, present evidence, and cross-examine opposing witnesses to help prove their case.
  4. Closing Arguments: Similar to the opening statement, the closing argument is an opportunity for both sides to sum up the case they have presented during the trial. This is each attorney’s last chance to make an impact on the jury.
  5. Jury Deliberation and Verdict: The judge instructs the jury on their duty and the legal standards that must be upheld in carrying out that duty. The jury then deliberates until a verdict is determined.
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Social Media Can Kill Your Case

by Cary Graham | January 5th, 2016

When you’re involved in a personal injury lawsuit, the insurance company won’t pull any punches. Remember, their job is to pay you as little as possible for your injuries. To do that, they may try to prove your injuries are less significant than they actually are—and the way they do that might surprise you.

Consider this scenario. You were injured in a car accident on I-35 and have spent the last couple months recovering. You attend physical therapy sessions twice a week and check in with your doctor frequently. You’ve come a long way down an extremely painful road and are starting to feel a little bit better. To celebrate, you go out with friends and post pictures to Facebook afterward. Innocent enough, right?

Wrong.

The insurance company has teams of investigators trolling your social media feeds, looking for evidence they can use against you in court. They might use that picture of you smiling with friends to prove that you’re not really injured and therefore are entitled to nothing. It sounds ridiculous considering all you’ve been through, but unfortunately, it works.

Luckily, there’s an easy way to beat them at their own game: don’t post to social media. If they have nothing on social media to troll, there’s nothing they can use against you in court. This can be a tough pill to swallow, especially if you are active on social media. However, a short break from social media may help strengthen your case.

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Two Texas Oil Field Injuries in Refinery Explosion

by Keith Adkins | December 8th, 2015

The oil and natural gas industries play an integral role in Texas’ economy, providing a large portion of our nation’s fossil fuels and creating jobs for thousands of residents. Extracting these resources can have a dark side: the number of workers who are killed or suffer Texas oil field injuries each year.

The Texas Department of Insurance reports that in 2014 alone, there were a total of 34 incidents in the state where extraction workers were killed as the result of on the job accidents. This was a 21 percent increase from the total number of fatalities that were reported in the industry during 2013.

To bring into perspective just how common Texas oil field injuries are, two workers required medical treatment after an explosion at a refinery in Reeves County earlier this week. Reports from Sun News state the blast was preceded by an inspection from the Occupational Safety and Health Administration that resulted in five violations that stemmed from the handling of volatile chemicals at the site.

Despite previous safety violations, officials say they are still looking into what caused the explosion to occur.

At Daniel Stark Injury Lawyers, we understand the serious impact an on-the-job injury can have on a worker. That’s why our Texas personal injury lawyers would like to wish those who were injured in this latest explosion a swift recovery from the injuries they suffered.

 

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Texas Construction Accident Attorneys Examine the Importance of Scaffolding Safety

by Keith Adkins | November 3rd, 2015

The Texas construction accident attorneys at Daniel Stark Injury Lawyers point out that accidents involving falls and scaffolding are a leading cause of construction accidents today.

Data from the Occupational Safety and Health Administration (OSHA) shows an estimated 40 percent of all fatalities in the construction industry during 2014 were the result of a fall. Many of these accidents involved falls from scaffolding and violations of safety standards regarding the general requirements of scaffolding and construction were the third leading cause of OSHA fines last year.

A scaffolding collapse in Houston, Texas, that injured six workers serves as an example of just how common these accidents are. According to an article from NBC News, the incident occurred just after 11 a.m. on Friday, Oct. 16, at a building located near the intersection of Crawford and Congress. A spokesman for the Houston Fire Department stated OSHA is continuing to investigate what may have caused the collapse.

It’s crucial that construction workers be aware of their rights regarding treatment, care, and compensation in the event of an accident. The Texas personal injury lawyers at Daniel Stark Injury Lawyers explain you can learn more about the options available to injured workers by visiting our website.

 

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Solutions Recommended by the NHTSA as the 2015 Takata Airbag Recall Expands

by Keith Adkins | October 27th, 2015

Several months ago, Japanese airbag manufacturer Takata Corporation announced it was recalling millions of vehicles due to defects in its safety devices. The car product liability lawyers at Daniel Stark Injury Lawyers explain that in response to the recall, the National Highway Traffic Safety Administration recently held a meeting to discuss how the problem would be solved.

Recently, it was announced that there isn’t enough manpower to repair the estimated 24 million vehicles that need airbags to be replaced. One innovative method officials are considering is allowing non-dealer certified repair shops to help install the necessary replacement airbags.

The meeting came just a day after The New York Times released an article stating that the 2015 Takata airbag recall may soon be expanded. Investigators have shown that side airbags in certain vehicles can also rupture when activated. Researchers believe the chemical propellant used in the faulty airbags may be to blame.

Protecting the health and safety of all motorists is a passion that each member of Daniel Stark Injury Lawyers shares. That’s why our Texas personal injury lawyers are hopeful the actions taken to correct the problems with Takata airbags will help prevent injuries.

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Settlement Reached in West Fertilizer Plant Explosion Lawsuit

by Keith Adkins | October 20th, 2015

On April 17, 2013, an explosion at a fertilizer plant in the city of West, Texas, left 15 people dead and roughly 150 more with burn injuries and other wounds. Many of those victims and their families filed lawsuits in the wake of the event, and a settlement was recently reached in one of the cases.

KBTX News reports 280 potential jurors were dismissed from duty at the McLennan County Courthouse earlier this month after it was announced the parties on both sides of the dispute had reached an agreement. The decision will have no impact on the hundreds of other cases filed in connection with the incident.

A petition submitted on behalf of an estimated 200 victims of the West fertilizer plant explosion provides documents from the U.S. Chemical Safety Board showing the blast could’ve been prevented. Officials say the chemicals that ignited were stored in a wooden building with no fire suppression system in place. This means the plant’s owners failed to implement action and policies that could have prevented the blast and subsequent fire.

Officials have said the finding shows more safety policies need to be implemented to prevent future incidents.

At Daniel Stark Injury Lawyers, our legal team knows the struggles many of those affected by the West fertilizer plant explosion. That’s why our College Station personal injury lawyers are hopeful this settlement helps bring closure to the victims involved. We also hope similar settlements can be reached with others harmed as a result of the blast.

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State Creates “3 Strikes” Rule for Texas Nursing Home Abuse

by Keith Adkins | March 31st, 2015

Nursing home abuse has become a serious problem in many long-term care facilities in the United States, including Texas. The National Center on Elder Abuse estimates that as many as one-third of the elderly will become victims of nursing home abuse in the next year.

These numbers have prompted state legislators in the Lone Star State to reassess punishments for negligent nursing homes. The new bill creates a “3 Strikes” policy for nursing home and long-term care abuse and neglect.

The bill would allow the state to revoke the license of any nursing home that receives three citations involving abuse or neglect within a two-year time period. It would also provide provisions for the state to hire a non-profit to hear disputes involving appeals to expedite the processing of the claim.

According to an article from KBT News, the bill passed through the state senate unanimously earlier this week and will now be considered by the house of representatives before moving forward.

At Daniel Stark Injury Lawyers, our staff is aware of the devastating results that abuse or neglect in a nursing home can have on families. That’s why our team of College Station personal injury lawyers applauds the state for taking steps toward tougher regulations.

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Oil Field Injuries Lead Workplace Fatalities in Texas

by Keith Adkins | February 24th, 2015

The extrication of crude oil and the manufacturing of petroleum products is a lynchpin for the Texas economy, accounting for almost 35 percent of U.S. oil production and bringing in hundreds of millions of dollars in revenue. However, work conditions are not always considered safe in Texas’s oil fields.

Texas oil field injuries are one of the leading causes of death in the mining and drilling industry today. Data from the Bureau of Labor Statistics shows that roughly 40 percent of the 663 fatalities that were recorded nationwide in the drilling industry between 2007-12 were the result of Texas oil field injuries.

These numbers leave many citizens wondering why this line of work is so dangerous and many believe the answer is because of a lack of regulation. An article from Insurance Journal claims the laws that govern onshore drilling are much more relaxed than those for off shore drilling. That’s why the Occupational Safety and Health Administration is considering reform of the policies governing onshore drilling.

At Daniel Stark Injury Lawyers, we know how dangerous oil fields are for many hardworking Texans. That’s why our College Station personal injury lawyers would like to urge you to keep safety in mind at all times on the job.

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