Court Did Not Abuse Discretion in Striking the Pleadings in Dram Shop Case Resulting from Car Accident, According to Texas Court of Appeals

serving alcohol

Many states, including Texas, have so-called “Dram Shop Act” laws that can be used to hold a business (or sometimes even a private host) liable for serving alcoholic beverages to someone who is obviously intoxicated.

Texas’ version of this law is codified at Texas Alcoholic Beverage Code § 2.02. Under this statute, a person seeking to recover compensation on a Dram Shop claim must prove that the person to whom the alcoholic beverages were served was “obviously intoxicated to the extent that he presented a clear danger to himself and others.” The claimant must also prove that the intoxication of the person who was over-served was the proximate cause of the damages he or she suffered.

Typically, the plaintiff in an east Texas car accident case filed under the Dram Shop Act is a person who is a victim of a drunk driving accident. A recent case presented an exception to this general rule.

Facts of the Case

In a recent case considered by the Texas Court of Appeals, the plaintiff was a man who was indicted for intoxication assault after he allegedly struck a vehicle while drunk in 2012, causing serious bodily injuries to the occupants. Two years after the accident, the plaintiff sued the defendant restaurant, alleging that he had been over-served when it was apparent that he was a danger to himself and others and that, as a result, he was unable to avoid the collision in which he and the occupants of the other vehicle were hurt.

The plaintiff asserted his Fifth Amendment privilege not to answer certain discovery requests propounded by the defendants on the ground that doing so could require him to incriminate himself. In 2016, the trial court struck the plaintiff’s pleadings and rendered a take-nothing judgment against him. He appealed.

Decision of the Appellate Court

The appeals court affirmed the trial court’s decision. In a civil lawsuit, a party has a right to request that his or her opponent disclose certain information. The party from whom this information is sought must reply in a timely fashion. While a party to a civil lawsuit can invoke his or her Fifth Amendment privilege against self-incrimination, a plaintiff who is seeking affirmative relief should not be permitted to use this privilege offensively by maintaining a case and, at the same time, claiming the privilege to prevent his opponent from obtaining information needed to prepare a defense.

Hence, since the plaintiff used his privilege offensively and refused to comply with discovery, the trial court had the authority to impose sanctions. While remedial steps are to be taken if this can alleviate the problem, the trial court did not abuse its discretion in striking the plaintiff’s pleadings. While abatement was a possible remedial measure, this would not have cured the prejudice that the defendant had already suffered in being unable to identify fact witnesses for more than a year. As it was, the case could have sat “in limbo” indefinitely, not only through the defendant’s criminal trial but even during an appeal if he was convicted.

Been Hurt in an East Texas Car Accident?

Experienced east Texas car accident attorney Earl Drott has 30 years of experience handling car accident lawsuits. Call us at (903) 531-9300 to request a free case evaluation of your car crash, truck collision, or motorcycle wreck case.

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Texas Court Affirms a “Take-Nothing” Judgment in Negligence Case