Massachusetts law provides in General Laws Chapter 138, Section 69 that “No alcoholic beverage shall be sold or delivered on any premises licensed under this chapter to any intoxicated person.”
This means that it violation of the liquor control laws to sell alcohol to a person who is already drunk. While that seems like common sense, and shouldn’t be that big a deal at first look, these 19 words have major implications in terms of a victim’s ability to recover from a drunk driving car crash in Boston.
This statute is what is known as a “dram shop law.” As our Boston drunk driving accident lawyers have explained in previous Drunk Driving Injury blog posts, a dram is an old European term for a small drink of liquor similar to what we think of as a shot of liquor. When workers at factories would get breaks in the 1800s, they could go to the “dram line” and get a small drink of alcohol known as a dram before going back to work. This was a time when they did not have a problem with people drinking and then using heavy machinery.
This term has stuck with to the point that there is now a dram shop liability law on the books in Massachusetts as discussed above.
Dram Shop Liability in Boston Accident Cases
A drunk driving car accident involves a situation where a person drank to the point of intoxication, got behind the wheel of his or her car, and caused a serious or fatal car accident. While it is always possible the defendant was drinking at home and supplied him or herself with the alcohol that caused intoxication, many cases involve someone who is out drinking at a bar.
If that bar serves a person who is already intoxicated, they are in violation of the statute and that can also be the basis of liability in a dram shop case. This means that plaintiff can make a claim with the drunk driver’s insurance company, but also with the owner of the bar who served the drunk driver after he or she was already intoxicated.
While you may be wondering why you would want to sue the bar, it is because there is often a great deal of injury caused by a Boston drunk driving accident case, and the damages may far exceed the insurance limits on the policy purchased by the drunk driver. This means that your experienced Boston drunk driving accident attorney will likely be looking for other sources of money so that you have a better chance to obtain a full and appropriate financial recovery. The bar owner likely has a commercial general liability policy that would cover more of the damages.
The Beginning of Massachusetts Dram Shop Liability
The dram shop claim was first recognized in by Massachusetts Supreme Judicial Court in a case entitled Adamian v. Three Sons, Inc., 353 Mass. 498, 501 (1968). In this case, a bar sold alcohol to customers and the bar was known for its large parking lot so it would be convenient for those driving to the establishment to drink.
The court found that this was a violation of G.L. c. 138, Section 69 (discussed above), as the bar owners knew or should have known they were serving intoxicated persons. The court also held the bar could be held be found liable for any foreseeable injuries caused by the drunk driver because they knew or should have known that the intoxicated person they served would be driving away from the bar when they were too intoxicated to safely drive a motor vehicle.
The question was whether it was foreseeable that serving a drunk person at a bar with a huge parking lot would foreseeably lead to a third party being injured or killed by the drunk driver. The court found it was foreseeable and chose to extend liability to the dram shop.
While this was the first case, it was not until 1982 that the SJC heard a similar case in Cimino v. Milford Keg Inc., and decided to create a series of elements that must be established to prove a dram shop liability case in Massachusetts. A law is typically created by the legislature, as it was here, but a test may be created judicially when it is in the interest of justice to do so and the state lawmakers have not spoken on this point on the past in terms of the statute. The court may look to the legislative history to get the drafters intent.
In Cimino, a tavern keeper was sued as a result of a traveler’s death. The court found that the bar knew or should have known they were serving an intoxicated person and that the victim’s death was the direct and proximate result of the tavern keeper’s negligence involving the sale of alcohol to an already intoxicated person.
The jury concluded that bar staff had served defendant no less than six White Russians (an alcoholic beverage made from vodka, Kahlua, and cream) and knew or should have known the customer was already intoxicated and would be driving home from the bar.
While defendant was headed home in his car, he drifted over the center line and then up onto the sidewalk. He hit a pedestrian, and then a telephone pole before driving away. He was later arrested and pleaded guilty to various crimes including operating under the influence of alcohol.
In this case, through a footnote, the court created a test of the elements of a dram shop case and they are as follows:
- Patron must be a patron of the premises;
- Who is served liquors;
- While he is intoxicated;
- Under the circumstances the defendant knew or should have known patron was intoxicated;
- That he would operate a motor vehicle when intoxicated;
- This operation was reasonably foreseeable
- A person acting reasonable and prudent would not have served the patron
- Such operation of a motor vehicle while intoxicated caused the plaintiff’s injury or death in a foreseeable manner.
Following this case, the state lawmakers reorganized the dram shop act in G. L. c. 231, Section 60J. In this section, the statute provided a statutory method of relief in dram shop cases, but there was a time limit on an affidavit of fact. When a complaint is filed alleging dram shop negligence, there must be an affidavit filed within 90 days of the filing of that complaint that establishes a basis for liability against the bar or club. This doesn’t mean they must prove the case, but there must be a proffer, where if looked at in the light most favorable to the plaintiff, there is a legitimate question as to liability.
This can be a rather unforgiving requirement and the defendant can move for summary judgment under Rule 56 of the Rules of Civil Procedure, if the affidavit is not filed timely. For this reason alone, you want to make sure your drunk driving accident attorney in Boston has experienced with dram shop lawsuits.
One thing to keep in mind, as discussed in another posting on this blog, when a person is arrested for drunk driving, or in a drunk driving car accident, the last bar at which this person was served alcohol is recorded on a list. This may be helpful in proving where the drunk driver became intoxicated since the bar staff are not as likely to remember every patron.
If you or someone you love has been injured a Boston drunk driving accident, call for a free and confidential appointment at (617) 777-7777.
Adamian v. Three Sons, Inc., 353 Mass. 498, 501 (1968)
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Former NFL Quarterback Vince Young Given Probation for Drunk Driving, Feb. 7, 2017, Boston Drunk Driving Accident Lawyer Blog