Massachusetts Appellate Court Upholds Plaintiff’s Use of Attorney Affidavit in Dram Shop Fatality Case

12429334035_91cb638105_bMassachusetts is one of many states that have enacted a statute allowing accident victims to hold businesses liable for over-serving a patron who leaves the establishment and causes an accident. These statutes are frequently referred to as dram shop acts and provide a basis for recovery for personal injury as well as wrongful death.

One of the most hotly disputed issues in a lawsuit involving a dram shop statute cause of action is whether the patron at the bar was obviously intoxicated at the time the business served the person who caused the accident more alcohol. To proceed in this type of lawsuit, the plaintiff must submit an affidavit providing sufficient facts to raise a legitimate question regarding the establishment’s liability. If the plaintiff cannot raise sufficient facts, the restaurant will be entitled to summary judgment, and the dram shop claim against it will be dismissed.

In the recent case of Bayless v. TTS Trio Corp., the plaintiff was the personal representative of the estate of a person who was killed in an auto accident after driving home from a restaurant. The decedent was proven to be a regular patron at the establishment. Evidence offered by the plaintiff showed that the patron had become intoxicated at the establishment on multiple occasions and that he frequently became loud and boisterous. On the night of the accident, the decedent left the establishment, lost control of the vehicle he was driving, and died in the ensuing accident.

The plaintiff offered an affidavit from the attorney handling his lawsuit to comply with the requirements set forth in Mass. Gen. Laws ch. 229, Section 2. In the affidavit, the attorney stated that based on the police report prepared after the accident and the toxicology report performed on the decedent shortly after his death, the bartender at the establishment had served the decedent with alcoholic beverages past the point of intoxication. The defendant objected to the attorney’s affidavit on the basis that the facts contained therein were not based on the attorney’s personal knowledge of whether or not the establishment overserved the decedent, but they were instead based on secondhand knowledge.

The trial court rejected the defendant’s argument and denied its motion for summary judgment. On an interlocutory appeal, the appellate court upheld the lower court’s ruling, concluding that the affidavit from the attorney satisfied the statute’s requirements. According to the appellate court, the facts in the affidavit do not have to be based on personal knowledge. It is sufficient for the facts to be based on information and belief.

If you or someone you love has been injured in a car accident, you may be entitled to compensation. At the Law Offices of John S. Moffa, our drunk driving accident attorneys have assisted many victims with bringing a claim against the persons and businesses responsible for their injuries. Proudly serving clients throughout Massachusetts, we offer a free consultation to discuss your situation and to help you determine the legal options that may be available to you and your family. Call us now at 1-800-446-4485 or contact us online to set up your appointment.

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