Attorney’s Affidavit Based on Information and Belief is Sufficient for Massachusetts Dram Shop Action – Bayless v. TTS Trio Corp.

Many states, including Massachusetts, have statutes in place under which a business that sells alcoholic beverages to a person who is obviously intoxicated can be held liable for the resulting damages, including both personal injury and wrongful death. These statutes are often referred to as “dram shop” acts (so named because spirits were once sold by a measurement known as a “dram”).

Of course, disagreements often arise as to whether the person who was sold the alcoholic beverages was, in fact, “obviously intoxicated” when he or she was served more alcohol. In order for a Massachusetts dram shop action to move forward, the plaintiff must file an affidavit setting forth “sufficient facts to raise a legitimate question of liability.” Otherwise, the case will, most likely, be dismissed on summary judgment.

Facts of the Case

In Bayless v. TTS Trio Corp., the plaintiff was the administrator of the estate of a man who died in a one-car accident while driving home from a restaurant that served alcohol. The deceased was a frequent patron of the restaurant and was observed drinking alcoholic beverages, to excess, there on multiple occasions. On the evening of the accident, he was at the restaurant for nearly seven hours, during which witnesses observed him drinking alcohol to the point that he became rather loud and gregarious. He lost control of his car on the way home that night and died at the scene of the accident.

The administrator filed a wrongful death lawsuit pursuant to Mass. Gen. Laws ch. 229, § 2, alleging a cause of action under the dram shop act. In an attempt to comply with Mass. Gen. Laws ch. 231, § 60J, the plaintiff submitted an affidavit from his attorney to the effect that, based on information gathered from various sources (including witness statements, a police report, and a medical toxicology report), the defendant’s bartender had continued to serve alcohol to the deceased when he was obviously intoxicated. The defendant argued that the attorney’s affidavit did not satisfy § 60J because it was not based on the attorney’s personal knowledge. The trial court denied the defendant’s motions to strike the plaintiff’s affidavit and for summary judgment. The defendant sought interlocutory relief.

The Massachusetts Court of Appeals’ Ruling

The court affirmed the trial court judge’s denial of the defendant’s motion to strike the affidavit of the plaintiff’s attorney, holding that the affidavit was sufficient to satisfy the procedural requirement of § 60J, even though it was based on information and belief rather than personal knowledge. According to the court, the affidavit was sufficient to raise a legitimate question of liability, enabling the plaintiff’s case to move forward rather than be dismissed on the defendant’s motion for summary judgment.

Contact a Massachusetts Wrongful Death Attorney

If you have recently lost a loved one and believe that he or she died as a result of the negligence or reckless conduct of a person, business, or governmental entity, you should discuss your concerns with an attorney. To talk to an experienced Massachusetts wrongful death lawyer, call the Law Offices of John C. Manoog, III, at 888-262-6664 and ask for a free consultation. We have offices in both Hyannis and Plymouth, and we serve clients throughout the Cape Cod area.

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