On April 28, 2016, the Supreme Judicial Court addressed the standard of review for the affidavit that a plaintiff must file along with the complaint in a “dram shop” lawsuit in compliance with G.L. c. 231, § 60J. In Bayless v. TTS Trio Corp, (Appeal No. SJC-11958, April 28, 2016), the SJC reiterated the statutory requirement that such an affidavit must provide “a showing that the complaint raises a legitimate question of liability.” While the SJC concluded that a plaintiff’s affidavit need not be based on personal knowledge, as would be required at the summary judgment stage, it must still identify reliable facts that satisfy the elements of a dram shop claim.
The Elements of a Dram Shop Claim
Claims based on the negligent over service of alcohol, or “dram shop” claims, were first recognized by the SJC in Adamian v. Three Sons, Inc., 353 Mass. 498, 501 (1968). In Adamian, the SJC held that “the sale by a bartender to an intoxicated drinker may be found to be the proximate cause of an injury to a third person caused by the drinker's driving of an automobile.” Id., at 500. Later, in Cimino v. Milford Keg, Inc., 385 Mass. 323, 334 n. 9 (1982), the SJC articulated the specific elements of a dram shop claim, requiring a plaintiff to prove the following: “(1) a patron of premises (2) who is served intoxicating liquors (3) while he is intoxicated (4) and under circumstances from which the defendant knew or reasonably should have known that he was intoxicated when served (5) operates a motor vehicle while intoxicated (6) such operation was reasonably foreseeable by the defendant (7) and a person of ordinary prudence would have refrained from serving liquor to that patron in the same or similar circumstances (8) and such operation causes the plaintiff's death or injury within the scope of the foreseeable risk.”
Following Cimino, in 1985, the Massachusetts Legislature enacted the “Dram Shop Act”, G.L. c. 231, § 60J (as reorganized in 1987), in part to establish certain safeguards against frivolous litigation and to promote the availability of liability insurance for establishments that served alcohol. See Croteau v. Swansea Lounge, Inc., 402 Mass. 419, 422 (1988). The Dram Shop Act requires that a plaintiff file any claim for the negligent service of intoxicating beverages to a minor or intoxicated person in the Superior Court. Further, within ninety (90) days of filing a dram shop complaint, the plaintiff must also submit an affidavit “setting forth sufficient facts to raise a legitimate question of liability appropriate for judicial inquiry.” G.L. c. 231, § 60J. The failure to file an affidavit within 90 days, without an extension, will result in the dismissal of the complaint.
Even if the affidavit is timely filed, a defendant in a dram shop lawsuit can attack the substantive contents of a plaintiff’s affidavit and argue that they do not meet the minimum statutory requirements. Until the ruling in Bayless, the trial courts addressing these motions were without appellate guidance in assessing the adequacy of the affidavit. Bayless appears to the first attempt by the Massachusetts appellate courts to offer such guidance.
The SJC’s Guidance in Bayless
In Bayless, the decedent, Herman Bayless, left a restaurant, allegedly while intoxicated, and died in a one-car accident. He had been at this restaurant for approximately 7 hours, leaving at 8:50 p.m. While inside the restaurant, Mr. Bayless’s daughter spoke to him by cell phone on four separate occasions. According to the daughter, he was “loud and boisterous” and she concluded that he was highly intoxicated based on her prior experiences seeing her father in this same condition. An acquaintance of Mr. Bayless’s visited the restaurant between 6:00 p.m. and 8:45 p.m. and had a conversation with the bartender, who acknowledged that Mr. Bayless was intoxicated but continued to serve Mr. Bayless alcoholic beverages. The police would later determine that during the 7 hour period at the restaurant, Mr. Bayless purchased 12 drinks.
Counsel for the administrator of the decedent’s estate filed an affidavit in which he swore that sufficient facts for reasonable inquiry existed, based on his own interviews with witnesses, review of police and investigative reports, and inspection of the restaurant. The trial court found that the affidavit complied with the statutory requirements, denying the defendants’ motions to strike and motion for partial summary judgment. The defendants argued that plaintiff’s counsel lacked the proper direct knowledge to file the affidavit and that the affidavit failed to meet the standards set by M.R.C.P. 56(e), which relates to motions for summary judgment. The defendants appealed the denial of their motion.
On appeal, the SJC upheld the denial of summary judgment, holding that the affidavit itself need not follow the strict requirements of Rule 56(e). Instead, the affidavit need only “provide identifiable sources of information that are reasonably reliable, details of that information, and an assurance that the complaint is not frivolous.” In other words, the affiant need not have direct knowledge of the incident, but must identify sufficient reliable facts, even if hearsay, that would make the claim appropriate for judicial inquiry. The SJC further noted that a dram shop affidavit is “intended for use at the initial stages of litigation and precedes formal discovery, whereas a motion for summary judgment typically follows formal discovery."
The SJC then considered the standard of review for whether the affidavit has raised sufficient facts to be compliant with the Dram Shop Act, concluding that the affidavit must show “that the complaint raises a legitimate question of liability.” The SJC rejected the comparison between the dram shop affidavit and the mandatory “Offer of Proof” required for medical malpractice tribunals pursuant to G.L. c. 231, § 60B, holding that a tribunal’s role is to evaluate the evidence, with the power to subpoena records or summon witnesses to substantiate or clarify any evidence. In the dram shop affidavit, there is no evaluation; a plaintiff is merely stating that sufficient facts exist that warrant judicial inquiry. The affidavit does not need to win the case, but the best practice would be to identify reliable facts, attach certified reports or transcripts where appropriate, and provide some evidence to support each of the Cimino elements.
Practical Impact of Bayless
The Bayless decision will not likely alter the dram shop litigation landscape dramatically. According to the SJC, the dram shop affidavit is a relatively modest initial hurdle, which can easily be cleared in all but the most frivolous claims. The mandatory affidavit must identify “reliable” facts, not prove the plaintiff’s case, and it can be based on hearsay or other evidence that might ultimately be inadmissible at trial. The trial court’s standard of review is less stringent than for an affidavit required for a medical malpractice claim or a motion for summary judgment. Yet, the affidavit remains a statutory prerequisite that a plaintiff cannot take lightly. A plaintiff must be diligent to include whatever evidence she can in support of each of the Cimino elements, and do so in a timely fashion.
Defendants in dram shop claims should continue to review the initial affidavits carefully to determine if there can be any challenge to the “reliability” of the information presented. A motion for summary judgment, if appropriate, should still include a discussion about how the information does not support the elements of the claim, is unreliable, or will be inadmissible at trial. The argument should be that the claim is frivolous and that the information contained within the affidavit has not established that any further judicial injury is warranted.
If you have any questions about the new guidelines for the mandatory Dram Shop affidavit, we welcome you to contact us.