Auto AccidentMassachusetts Appellate Court Clarifies Affidavit Requirement in Dram Shop Liability Wrongful Death Claim

July 16, 20180

Massachusetts has a dram shop liability statute which allows an individual harmed in an accident involving a drunk driver to seek damages from any establishment who over-served the patron. This statute raises many complex legal issues. As seasoned Boston car accident lawyers, our firm has addressed many legal claims involving drunk driving accidents.

In a recent case, a Massachusetts court considered whether an affidavit submitted pursuant to the dram shop statute needs to be a sworn statement that is based on personal knowledge. The case arose from an accident in which the decedent was killed in a one-vehicle accident. The decedent had been drinking at a bar owned by the defendants. The reports prepared following the accident indicated that the defendant was driving on a clear and straight road at roughly 9 pm and that he was driving approximately 79 miles-per-hour in a 30 mile-per-hour zone.

Witnesses interviewed regarding the crash stated that the decedent was at the restaurant from about 2 pm until 9 pm. Some of these witnesses indicated that the decedent consumed several alcoholic beverages and began acting loud and gregarious. Receipts at the restaurant showed that the decedent purchased 12 drinks. Other evidence suggested that the decedent was frequently served by an unnamed bartender who would engage in conversation with the decedent and who continued to serve him even when he was clearly intoxicated.

The plaintiff’s daughters brought a wrongful death action against the restaurant based on Massachusetts’ dram shop liability statute. To prevail, the plaintiff must prove that the individual in question was showing outward signs of intoxication by the time he or she was served the last alcoholic beverage. According to this statute, the plaintiff must submit an affidavit that sets forth sufficient facts to raise a legitimate question of liability appropriate for judicial inquiry within 90 days of filing a complaint.

The plaintiffs alleged that before the decedent’s fatal crash, the restaurant willfully, wantonly, and recklessly served the decedent alcoholic beverages beyond the point of intoxication and that this conduct was the cause of his death. In their affidavit, the plaintiffs stated that it was based on information gathered from witnesses, the police report, and a medical toxicology report. The defendants challenged the sufficiency of the affidavit, stating that it must be based on personal knowledge.

The reviewing court first reviewed the statutory history of the dram shop act and concluded that the affidavit does not need to be based on personal knowledge. Turning to the sufficiency of the content of the affidavit, the appellate court concluded that the plaintiffs provided sufficient information to raise a legitimate question of liability. Furthermore, the court noted that the affidavit does not need to prove the plaintiff’s case, but rather only present sufficient facts to raise a legitimate question of liability by noting identifiable sources of evidence.

If you recently lost a loved one or suffered an injury as the result of a drunk driving accident, we know just how devastating and stressful this experience can be. Our seasoned team of car accident attorneys is prepared to help you assess your claim and determine whether you are entitled to compensation. To schedule your free consultation, call us at 617-263-0060 or contact us online.

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