Auto AccidentMassachusetts Appellate Court Issues Ruling Clarifying Affidavit Requirement in Dram Shop Act Cases Involving Drunk Drivers

June 22, 20190

Like many states, Massachusetts has a dram shop act that attaches liability to a business that overserves a customer with alcohol who then proceeds to cause a personal injury accident. The statute can create many interesting legal issues, but it is important for plaintiffs who were injured in crashes with drunk drivers to understand whether they have a claim against a bar, restaurant, or other business that served alcohol to the defendant before the personal injury accident took place. As seasoned Boston car accident lawyers, we are prepared to help you assess your claim and to determine whether you are entitled to compensation.

The Massachusetts Court of Appeal considered a case in which issues surrounding the liability involved with serving liquor to a guest were involved. The victim was killed in a one-car accident after leaving a restaurant owned by one of the defendants where he had been served alcoholic beverages. The plaintiff, the decedent’s estate, alleged that the restaurant was negligent and reckless in serving the decedent more drinks while he was showing signs of obvious intoxication and that this conduct was the direct and foreseeable cause of his death.

According to Massachusetts’ dram shop act, a plaintiff asserting a claim under the statute must provide within 90 days of filing the complaint an affidavit that lists enough facts to raise a legitimate question regarding the liability of the defendant.


In support of its claim, the plaintiff offered an affidavit that was based on information and belief obtained from witness statements, a police report, and the medical toxicology report prepared regarding the decedent. The defendant filed a motion to dismiss the case alleging that the plaintiff’s use of information and belief in lieu of personal knowledge and argued that the statute required the affidavit to contain facts based on the affiant’s personal knowledge, not indirect evidence that the affiant gained from other sources. The court denied the motion for summary judgment and the defendants filed an interlocutory appeal, which seeks a higher court’s review before there is a final determination in the case.

The appellate court reviewed the statutory language in Massachusetts’ dram shop act and concluded that the defendant’s interpretation was incorrect and that an affidavit does not have to contain personal knowledge in order to satisfy the statute. The court reached this conclusion by noting that the affidavit is intended for the early stages of the litigation and is required before the parties have a chance to engage in formal discovery to obtain more evidence. The entire purpose of the affidavit requirement is to weed out potentially frivolous claims brought under the dram shop act. Accordingly, the appellate court upheld the lower court’s denial of the defendant’s motion to dismiss.

If you were injured in a car accident involving a drunk driver, you may be entitled to compensation from the driver who injured you as well as any restaurant facility that overserved the driver. At the Law Office of Michael O. Smith, we have provided responsive and diligent legal counsel to injury victims throughout Massachusetts. As a result, we know just how traumatic this situation can be for you and your loved ones and how important it is for you to receive the compensation that you deserve as quickly as possible. We offer a free consultation so that you can learn more about our services and how we can assist you. Call us now at 617-263-0060 or contact us online to get started.

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