A Dallas Man is Suing Cedar Springs' Concrete Cowboy After a Drunk Guy Punched Him in the Face

concretecowboywhiskey.jpg
Via.
Just in case you were confused about what the Concrete Cowboy is selling.
The fight against drunk driving in Texas underwent a sea change in 1987. That's when the Texas Supreme Court ruled that El Chico was liable for overserving a customer who subsequently caused a fatal car crash and when the legislature codified the decision in the Dram Shop Act, which allowed establishments to be sued for continuing to serve drinks to drunk patrons.

Since then, Texas juries have awarded some eye-popping verdicts in dram shop cases, almost all involving drunk driving accidents. Just recently, a family won a $10.5 million judgment against Spearmint Rhino after a woman was crushed by a monster truck leaving the strip club.

But the law doesn't actually mention drunk driving. It's broader than that, applying in any case in which someone suffers "personal injury or property damage" at the hands of a drunk, which is exactly what Kristian Marca says happened to him three months ago at the Concrete Cowboy, a bar on Cedar Springs.

See also
Jury Awards $10.5 Mil to Family of Woman Crushed by Monster Truck at Spearmint Rhino

There's a rather terse police report from the incident. Marca spoke with police at about 10 a.m. on March 29 and told officers that nine hours before, another man at the bar, a stranger, "hit him in the face with a closed fist and possibly another object." The attack was totally unprovoked.

Marca says in a lawsuit filed last week that he wound up in the hospital with a broken nose and head, neck, and spinal cord injuries. He still doesn't know who his attacker was -- he's listed in court papers only as "John Doe" -- but he does know that the man was extremely, face-punchingly drunk. For that, he blames the Concrete Cowboy.

Marca argues that John Doe was "obviously intoxicated" on that night and presented "a clear danger to himself and others." Despite this, the bar continued to serve him drinks. Had they cut him off, the suit argues, Marca's nose might have survived the night intact.

As it is, Marca wants the bar to cover his medical bills, plus provide something extra for the mental anguish and physical pain and suffering he says the night caused.


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21 comments
FCDallasDude
FCDallasDude

The more we allow blame to fall not on the individual, but everyone else, the more this happens.

dallasrob
dallasrob

The dude who killed that girl at the rhino is not in jail. He moved but I know where that d bag lives. It sounds like this dude got his ass kicked and is acting like a little puss puss. Take your beating, dude, it was probably deserved for being an idiot.

doofUSA
doofUSA

Concrete Cowboy is a cancer to uptown and this city

grossmanlawoffices
grossmanlawoffices

This is actually VERY simple. Bars have no inherent right to sell alcohol. In order to be granted a license to serve they must agree to abide by all of the rules set forth in the Texas Alcoholic Beverage Code. Or to put it another way, they assume responsibilities that they otherwise would not have in exchange for the ability to make money. If you give your friend crappy legal advice you won't get in any trouble. If I give one of my clients crappy legal advice, I can be sued for it, which makes perfect sense. Liability for certain acts go hand-in-hand with obtaining a license and the license holder accepts this in exchange for the ability to make a living doing the thing that the license grants them permission to do. Outrage expressed over a dram shop lawsuit is the equivalent to getting mad when you're ticketed for letting your registration expire. If you want to drive or sell alcohol, you have certain standards that you must maintain. Go figure. 

When it comes to alcohol safety, the rules in the TABC are very clear: Do not, under any circumstances, sell alcohol to a patron who is already drunk (I'm paraphrasing, of course). That's it. 

Certainly, there are different kinds of wrongful acts that a bar can commit. They can commit administrative violations (which means that the TABC can fine them or take away their license), they can commit criminal acts which result in arrest, and they can commit a statutory violation that results in the creation of a civil cause of action (read: an injured party can sue them). Here's the kicker: There is only ONE thing that a bar can do to get sued, and that is selling alcohol to an obviously intoxicated adult recipient. 

In other words, there are many ways that they can screw up and be fined by the TABC and there are many ways that they can screw up and get into criminal trouble. Again though, there is only one act they can commit that precipitates a lawsuit against them, and that, as previously stated, is the act of serving an obviously intoxicated person.

Before everyone chimes in with all of the "OMG, the justice system has gone horribly wrong" nonsense, let's put that in perspective. In order for a lawsuit to prevail, the plaintiff must prove that the bar served alcohol to someone that they knew or should have known was drunk. Our firm has litigated many of these dram shop cases and let me tell you, you can't win unless you can show that the patron was incredibly drunk; drunk enough that the bar knew they were dangerous. 

There's two important points to take away from that: 

1) You are incredibly limited in your ability to sue a bar. As such, bars actually enjoy a great deal of protection by the Dram Shop Act. The El Chico case that was mentioned in the article established that a bar can be sued for negligence (which is sort of a nebulous concept to some degree) related to over-service. The legislature said, "Nope," and instead codified the Dram Shop Act (which superseded the El Chico decision) to specifically define what a bar can and cannot be sued for, and said Act is incredibly reasonable.

2) A dram shop claim is only winnable when the bar really goes out of their way to break the rules they agreed to abide by when they were issued their license. Furthermore, all of the other laws related to lawsuits apply here too. If the plaintiff can't show that the bar broke the rules and served an already intoxicated patron and that the continued service of alcohol was the proximate cause of the injuries sustained, then he won't win his case. So if it turns out that the assailant in this case was only served a couple of beers and he just happens to be a scumbag of his own accord, then the bar will be fine. But if it turns out that the bar pumped the assailant full of booze and he attacked the plaintiff in a drunken stupor, then the bar should have something to worry about. Not to mention, the jury can still put fault on the intoxicated patron and even on the plaintiff himself. So if it turns out that the plaintiff provoked the assailant, then a jury would put less fault on the bar. It's all a matter of degree. If the bar profoundly screwed up then they will likely be found liable. If they marginally screwed up then a jury is not going to nail them to the wall.

Taken as a whole, if bars do the bare minimum and follow the rules pursuant to their licensure, then they need not worry about lawsuits. In my experience, there are rarely shades of gray in these cases. We've never had a dram shop case where a bar tender may or may not have over-served a patron a little bit of alcohol. Instead, we routinely litigate cases where patrons-turned-drunken-drivers are served three and four times the legal limit. It is routine in our dram shop case docket to have surveillance footage that shows patrons that are intoxicated to such an extent that they are falling down drunk. 

So before you shift into righteous indignation mode and decry the court system, ask yourself a question. Do I really think that the Texas legislature accidentally left the Dram Shop Act language open-ended by mistake or is it more likely that, guess what, people can be injured in alcohol-related incidents that don't involve cars? Then ask yourself, do I really think that juries which consist of my fellow citizens are so stupid that they can be tricked into making a bar pay for the acts of one of the bar's customers if the bar did nothing wrong? Come on. If the bar broke the rules and the plaintiff can prove it then they will pay for their infraction. If they didn't then they will be fine. 

The only reason this article is lent any credence is because it plays off of the collective lack of familiarity that people have with the justice system and our state's laws. The citizens of Texas elected officials who passed a law to allow this exact type of lawsuit to happen. The bar allegedly broke the law and then got sued accordingly, as was explained to them when they obtained their license in the first place. Yeah, that's so unfair. 


NOWiGETit
NOWiGETit

I've witnessed bouncers aggressively attack patrons at CC.  I can only imagine that if they're willing to turn a blind eye to that, then they're willing to turn a blind eye to parton misbehavior, as well.  Normally I'd be irritated by the sue happy, but CC is a nuisance.  Get'em off the block.

adgray
adgray

just another sue crazy person... who is to say the guy was not drinking at other places and showed up, how come he doesn't know what the person looks like but knows he was extremely drunk... I my opinion it would be a different situation if the victim called the police that night while still at CC.  I think he woke up the next morning and his ego was hurt and then wanted to take action.  

m5patelgroup
m5patelgroup

@grossmanlawoffices This ENTIRE statement by Grossman Law Firm is copied and pasted from another law firms website that posted this in their blog.  Buyer beware of deceptive unoriginal copy/paste statements by a law firm trying to garner business.

CCsuuucks
CCsuuucks

@NOWiGETit I saw the SAME thing.  Bouncers and "management" jumped a guy behind my apartment complex.  8 guys on one Sunday Funday guy that was just stumbling back to his place of residence.  Literally held this poor guy down while the others punched and kicked him.  The DPD and EMTs could tell something was a little off, but didn't care to take my statement after I told them I had witnessed the whole thing and had been one of the 911 callers. 

AllKnowingTVguy
AllKnowingTVguy

@adgray If had been out drinking before and CC let him in...then that's their liability. If he tried to enter clearly drunk, they shouldn't had let him in. If they let him in sober and became drunk, then they served him to that point. Make sense?

NOWiGETit
NOWiGETit

@CCsuuucks @NOWiGETit I saw a similar situation.  CC employees in clearly labeled CC and bouncer/staff shirts were holding a guy down and kicking and hitting him repetitively.  Any one bad blow could have resulted in his head and the cement meeting each other in a way that could have caused serious consequences.  Once cops arrived on the scene, they seemed uninterested and actually irritated that I had hung around as a witness against the bar.  A detective called me back for a statement a week later and point blank told me that these things happen all the time with drunk people and he would now have to do more paperwork for a case that wasn't  going anywhere since I stuck around as a witness.


It should be noted, the victim in question that night didn't even appear that drunk or belligerent, although I must admit I don't know why he was kicked out of the bar to begin with.

adgray
adgray

@AllKnowingTVguy @adgray that makes some sense however sometimes when drinking it sneaks up on people.  a lot of times people can drink a lot act fine then once the alcohol gets into the blood stream it makes them much more intoxicated than when they initially appeared... it happens a lot more than what people think.   For example someone could blow a lower then a hour later blow much higher.  

I still think if it was that big of injury then it should have been reported at the time of the act and also spoke with the staff to help find the person who did it.  The person waiting till the next day to report this type of act is just reaching for a pay day.  Or this victim should have went straight to the hospital instead of going home  and waiting until the next day.  

grossmanlawoffices
grossmanlawoffices

@adgray @grossmanlawoffices 

I hear you and those are all good points. Looking at it from my greedy lawyer perspective (sarcasm) I too abhor questionable cases, if for no other reason than it draws the legal industry in a negative light and it means that the next time I get in front of a jury, I have to fight that much harder to convince them that I don't have "one of those cases." 

I suppose the difference between you and I is that my default position regarding vague information is to assume that the article doesn't tell the full story toward different implications. It is certainly possible that the plaintiff is not being honest or whatnot, but I a) trust that the system will weed out crumby cases and b) I have a hard time imagining that a plaintiffs lawyer would be willing to litigate a case like this unless the damages were significant and the liability seemed pretty straightforward. 

I mean, sure, it's certainly possible that this lawyer doesn't know what he's doing (sorry, I didn't bother to check and see who it is) but I, as a business owner, cannot justify wrapping up many hours of attorney time and significant expenses unless there is a good chance to think that I'll be able to prevail, especially in a dram shop case. I'm pretty good at dram shop litigation, but each one of these cases is an uphill battle. So barring the possibility that the plaintiff's lawyer is out of his depth, my default position is to assume that there's more to the case than the article lets on. 

Lastly, businesses and business-friendly people tend to speak of liability as if it's a concept that no lawer can relate to first hand. We stick our necks out just the same way and we experience the same external pressures that all small business face: competition, rising costs, changing regulations, and lawsuits too. There is no attorney in the history of practicing law who has not had at least one client who felt that the attorney is the reason their not-so-good case didn't prevail. I have always been lucky enough to figure out when my client sold me a bill of goods before the case made it very far, but I have many friends in the legal profession who didn't find out their client was lying, crazy, etc. until they were on the courthouse steps. 

All things considered, an attorney, just like any business owner, can have their good name put to the test with a false accusation. However, no matter how much it would benefit me or my profession to ban or limit such claims, I would never in good conscience support such a proposal. At the end of the day, we as business owners have to be honest with ourselves about where we fit into the big picture. Of course it would be great to have some unilateral shield against bogus claims that waste our time and money, but is my time or money worth more than someone's right to seek justice? Hell no, and that has nothing to do with me being a lawyer and everything to do with me being a responsible member of society. 


adgray
adgray

@grossmanlawoffices  i don't disagree with you about having a system, I happen to know the owners of CC and they have a great system.  This is not their first Rodeo.  

However there is a lot of open questions about this case in which I don't think the victim/accuser has much of a case.  

1.  He has no proof of who hit him

2. No proof that the guy who hit him was drunk

3. Who is to say the victim was not drunk which is why he waited to fill a report with the police or go to the Hospital

5.. "Almost broken nose" does not account for much Pain and Suffering, IMO

I never said that venues should not be responsible, but most of the time when these type of cases go to court the person who committed the crime is more responsible than the venue.  Going back to bartenders monitoring patrons at all times is very hard.  Patrons are/can be very tricky when intoxicated.  They could be paying cash so they don't have a tab, they could have multiple people wait/serve them, they could have a waitress that cuts them off then the Patron disappears going to a pack bar.  Also in cases such as a minor injury such as this most Personal Injury Attys will laugh at this case, I know I have a partner who is one.  Would it be worth their time?   I personally would be embarrassed to file a claim such as this.  However if a death or major injury has occurred in a venue or on the road, I do believe venues should be investigated  to see what was served and how much liability should be placed on the venue.  Now personal injury attys focus on venues because they have insurance and that is the easiest way to either settle or make the most money.  Making a established tax paying business insurance go up or come directly out of pocket.  Small cases like this is what makes it difficult on small business and people who do it are just looking for a handout.  

I have been on the receiving side of a law suit such as this twice and we have won both cases.  Which just cost my small business more money either paying my attorney or increased premiums.  

Anyway this article does not provide a lot of information except for the fact the person doesn't know who did it, so how does he know he was drunk and that he waited 9 to 10 hrs before filing a claim or going to the hospital.  

grossmanlawoffices
grossmanlawoffices

@adgray @RTGolden1 @AllKnowingTVguy 

So you work in the alcohol industry and you don't understand that you are indeed responsible, by law, for all of those patrons in your bar? I'm sorry our state's laws are so inconvenient for you but a bartender is absolutely responsible for monitoring his customers' fitness to consume additional alcohol. 

Having a lot of patrons does not excuse you from following the rules. Think of it this way. If a small gun range (like the one on Mockingbird that burned down) allowed 150 people into their facility at the same time and in the chaos a kid picks up a gun off of the counter and then shoots someone in the crowd, do you really think it's a reasonable argument for the gun store to say, "Well, we knew it was dangerous to leave one of our guns on the counter but we were just too busy to follow the rules." Come on. 

You make it sound like you're required to do more than you really are. Have a system to track who is sold what beverages (like a tab, for instance). Failing that, before each person is given additional alcohol, simply pay attention and determine if they seem sober enough to continue to drink. Don't act like you can't tell when someone has had too much. It's called obvious intoxication for a reason.

I genuinely hope that you never get into legal trouble and I hope that you serve all of your patrons responsibly, but it sure seems like you're playing with fire by announcing to the world on a public site that you don't feel you can reasonably follow the rules. 

grossmanlawoffices
grossmanlawoffices

@RTGolden1 @adgray @AllKnowingTVguy 

Your hatred is misplaced; that's not how it works. Dram shop laws allow you to sue the bar for their contribution to an injury but you in no way are NOT suing the intoxicated patron as well. Even if a plaintiff fails to designate the intoxicated patron in a lawsuit, the defendant has the right to ask the court to bring them into the mix. Now, as it relates to intoxication, once a patron reaches a certain point, they are so out of control that their portion of fault is relatively low compared to the bar, but in the overwhelming majority of these cases the jury puts the lion's share of the fault on the intoxicated patron and then a lesser portion on the bar.

adgray
adgray

@RTGolden1 @adgray @AllKnowingTVguy i think the guy from Rhino the only reason he was put in jail is because he had other things pending against him.. I would think if he had a clean record and nothing pending he might have got less time or no time.   

I agree your bartender is not your babysitter, he/she cannot babysit hundreds of people at the bar.  who is to say he was not being waited on then went to the bar it is almost impossible to monitor especially when a place is busy.  I also think you made a good point about him waiting until his BAC came down... I work in this industry and have seen it many times where people act a fool then wants to sue.  

I have also been on the receiving end of being sued, just cost me money and the accuser lost his case..  He sued us after a DPD (off duty) we hired to work an event put him down after the accuser tried to fight the cop.  Which is why I don't have any respect for people who get sue happy.  If you want to make a case do it at the time of the action or go to hospital at the time of the action.  Waiting only hurts your case

RTGolden1
RTGolden1 topcommenter

@adgray @AllKnowingTVguy Makes you wonder how drunk Marca was at the time of the alleged altercation.  maybe the 9 hr wait was to let his own BAC come down.

Either way, I hate these laws that let the individual off the hook.  Your bartender is not your babysitter.  If you can't drink responsibly, don't drink or face the consequences of your actions.  I believe the Spearmint Rhino guy did get jail time, but it shouldn't be the bar's responsibility to take care of the residual fallout from some drunk jackass' actions.

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