In Massachusetts, as well as other states, a business that sells or serves alcoholic beverages may be held liable for damages if the establishment sells or serves alcohol to a minor or to an intoxicated person and that person injures another person or him or herself. This type of claim is known as “dram shop liability.” The term “dram shop” originates from old English law, where a “dram shop” was a tavern where alcohol and other “spirits” were sold in small units called a “dram.” Today a “dram shop” refers to any commercial business that operates under a liquor license such as bars, restaurants, nightclubs, country clubs, taverns and liquor stores.

Prohibition of Sale of Alcohol to Intoxicated Persons

By statute (M.G.L. c. 138, s. 69), Massachusetts law prohibits the sale or delivery of alcoholic beverages to a minor and/or to an intoxicated person on premises that are covered by the relevant liquor license. The law provides that bartenders, wait staff, managers and owners have a responsibility to determine that all persons who are served alcohol on the premises are 21 or over and further to monitor the behavior of all persons served alcohol for signs of intoxication, such as slurred speech, slowed or delayed reaction time, and aggression. Because the standard for “dram shop” liability includes whether the business employee knew or should have known that the person wrongfully served was a minor or intoxicated person at the time the person was served his or her last drink, commonly accepted industry practice also requires all servers to be properly trained to prevent negligence in the service of alcohol.

Liability for Injuries Caused by Intoxicated Drivers

In the great majority of “dram shop” cases liability results from the service or sale of alcohol to an intoxicated person or minor who then drives a vehicle under the influence of alcohol and causes a car accident.  Liability can also result where the intoxicated person gets into a fight in or outside the bar, or commits other acts that injure another. In a civil action, both the intoxicated person and the establishment can be liable for the injuries that result. “Dram shops” usually carry insurance to cover their liability in those instances and the injured person can recover compensation from the “dram shop’s” insurer, as well as from any insurance available to the intoxicated person, such as bodily injury coverage under a motor vehicle policy.

 Affidavit Regarding Intoxication

In Massachusetts “dram shop” liability is governed by a specific statute (M.G.L. c. 231, s. 60 J) that requires an affidavit to be filed within 90 days of the commencement of an action “setting forth sufficient facts to raise a legitimate question of liability appropriate for judicial inquiry.” Because incidents that are the basis of “dram shop” litigation generally occur sometime after the intoxicated person leaves the business, blood tests or breathalyzer results may not be sufficient to prove the person was showing visible signs of intoxication when last served. Therefore, prompt witness statements, police reports and discovery of the adequacy of staff training and server depositions are crucial to a “dram shop” claim.

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Category: Personal Injury