Dezi Delgado and her friend, Grace Lee, carpooled to the Secret Patio on the evening of August 14, 2020 to meet friends for drinks. Dezi and Grace each consumed three shots, two beers, and two cocktails while at the Secret Patio.A bartender noted the group had visited several times prior, but on this occasion the group seemed louder and happier than on prior visits.Dezi's bar tab was $55 plus a $60 tip for a total of $115, and Grace's bar tab was $55 with a $30 tip for a total of $95. Dezi and Grace left the bar together around 12 a.m. Grace got in the driver's seat of her car, and Dezi sat in the passenger seat. Grace crashed her car while driving with Dezi shortly after leaving the bar. Grace was arrested at the scene and noted to have a 0.16 BAC. Dezi was rushed to the hospital with life-threatening injuries.

The bartender serving Dezi and Grace, Marshawn (Marsh) Strawberry, had worked at the Secret Patio for five years and had received the 2018 and 2019 annual bartender bonus for largest total tabs during the calendar year. To earn this award, 30% of sales must be specific food items. Mr. Strawberry enjoys educating patrons about craft cocktails and beers by giving them free samples. Mr. Strawberry attended commission-approved TABC training in Spring 2020 and had attended every spring since he began working at the Secret Patio.

QUESTIONS PRESENTED

1. Under the Texas Dram Shop statute, is the Secret Patio liable for Grace's impairment and Dezi's damages when Grace and Dezi had similar amounts to drink and various witnesses could have seen they were intoxicated while the bartender kept serving them?

2. Under the Texas Safe Harbor defense, did the Secret Patio encourage its employees to overserve Dezi and Grace when monetary incentives and awards for high bar tabs were a known part of the bar's business model?

Yes, because

No, because