Plaintiff must show evidence that a provider of alcoholic beverages ordered or rewarded over-service, or circumstantial evidence that the provider engaged in behavior which a reasonable provider under the same or similar circumstances should have known would constitute encouragement.

Primera Enterprises, Inc. v. Autrey, 349 S.W.3d 167

Plaintiff must show evidence that a provider of alcoholic beverages ordered or rewarded over-service, or circumstantial evidence that the provider engaged in behavior which a reasonable provider under the same or similar circumstances should have known would constitute encouragement. Primera Enterprises, Inc. v. Autrey, 349 S.W.3d 167. In Primera, the defendant establishment, JB’s Lounge (“JB’s”), used the “safe harbor” affirmative defense, proving the first two elements of the statute, that is, that they required their employees to take the approved training course, and that the employees did take the training course. See Tex. Alco. Bev. Code § 106.14. The burden then shifted to the plaintiff to show that JB’s had “directly or indirectly encouraged” over-service. Id. at 170. The record, however, was silent on this issue. Id. at 170. The court held that the evidence was not legally sufficient to support the trial court’s finding that the bar did not prove its “safe harbor” affirmative defense as a matter of law. Id. at 167. The plaintiff must show direct or circumstantial evidence to rebut the “safe harbor” affirmative defense, else the affirmative defense will be credited as a matter of law. 

Case illustration for 20801, Inc. v. Parker, 249 S.W.3d 392 (Tex. 2008). (similar to the one above).