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The foundation of liquor liability law in Massachusetts was first established in Cimino v. Milford Keg, Inc., 385 Mass. 323 (1982). In Cimino, the Supreme Judicial Court articulated the elements for a cause of action for civil liquor liability involving a motor vehicle accident. The plaintiff bears the burden of establishing the following by a preponderance of the evidence:

(1) the tortfeasor was a patron/social guest on the premises; (2) was served intoxicating liquors;

(3) defendant served the patron while the patron was 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; and

(8) such operation caused the plaintiff’s death or injury and was within the scope of the foreseeable risk.

Id. at 334 n.9. Accordingly, “a tavern keeper does not owe a duty to refuse to serve liquor to an intoxicated person unless the tavern keeper knew or reasonably should have known that the patron was intoxicated.” Id. at 327-28.

In Kirby v. Le Disco, Inc., the Appeals Court held that absent evidence of some outward manifestation of intoxication when a patron is served his last alcoholic beverage, the trier of fact is not permitted to infer that the tavern was on notice that it was serving alcohol to an intoxicated person. 34 Mass. App. Ct. 630, 632-33 (1993). The plaintiffs offered no evidence of the physical condition of the tortfeasor while the tortfeasor was at the

defendant’s establishment. Id. at 632. There was no evidence that he had been loud,

boisterous, aggressive, vulgar or troublesome while at the defendant’s bar. Id. Nonetheless, the plaintiffs argued that a jury should be allowed to infer from the amount of alcohol the

tortfeasor consumed (approximately eight beers) that he had “outwardly manifested symptoms of intoxication which an experienced bartender would have recognized.” Id. at 631. The court maintained, however, that the plaintiffs must introduce some evidence that the defendant was on notice that the tortfeasor was intoxicated when served alcoholic beverages. Id. at 632.

In a recent Massachusetts Appeals Court case, the Court determined it was a question for the jury whether a bar was on notice that it was serving an intoxicated person based solely upon the fact that the patron consumed fourteen drinks over a two hour period. Rivera v. Club Caravan, 77 Mass. App. Ct. 17, 21 (2010).

Evidence of a person’s intoxication at the scene of the accident can be used only when there is some other evidence of excessive consumption or negligent service.

Vickowski v. Polish Am. Citizens Club of the Town of Deerfield, Inc., 422 Mass. 606, 610 (1996).

When evidence of excessive consumption by a patron of the establishment serving alcohol is lacking, as a matter of common sense and experience, the inference that the patron would have displaced obvious outward signs of intoxication while continuing to receive service from the establishment, as required for the establishment to be liable for harm caused by the patron, may not be drawn.

45 AM. JUR. 2DIntoxicating Liquors § 53 (1999); see also Vickowski, 422 Mass. at 610.

Although the Supreme Judicial Court agreed that other forms of circumstantial

evidence might create a jury question of whether a licensee had served alcoholic beverages to a patron displaying obvious signs or intoxication, the Court has been reluctant to “accept evidence of subsequent, obvious intoxication as a surrogate for evidence of a patron’s demeanor at the relevant time.” Id. at 612. In McGuiggan v. New England Tel. & Tel. Co.,

the Court held that an affidavit that may have proven a guest’s obvious intoxication before he left the host’s premises was not sufficient to support liability on the part of the host. 398 Mass. 152, 162 (1986). The Supreme Judicial Court further expounded that in the absence of other evidence of obvious intoxication, expert testimony based on the results of a

breathalyzer analysis, “has no bearing on what the [alleged tortfeasor’s] apparent condition was at the time he took his last drink.” Id. at 162; see also Vickowski, 422 Mass. at 612.

C. TOLLING PROVISIONS

The statute of limitations does not commence for a minor until the minor reaches the age of majority, which is eighteen. The statute of limitations is three years thereafter. MASS. GEN. LAWS ch. 260, § 7 (2014). The same provision applies for individuals who are

incapacitated by reason of mental illness when a right to bring an action first accrues. Id. The action may be commenced within three years of removal of the disability. Id.

D. SUBSTANTIVE LAW

1. Minors

Massachusetts prohibits the sale of alcohol to persons under twenty-one years of age. MASS. GEN. LAWS ch. 138, § 34 (2014). A violation of this statute is punishable as a

criminal offense but does not, in and of itself, give rise to a tort cause of action to recover damages. Nonetheless, a breach of this statute constitutes evidence of negligence, even if the person is not automatically intoxicated at the time of the transaction. A server of alcohol owes a duty of care to refrain from making alcohol available to minors. Tobin v. Norwood Country Club, 422 Mass. 126, 132-33 (1996). Service is not limited to the hand-to-hand selling or serving of alcohol. Rather, the duty can also be breached when an establishment

knew or reasonably should have known that it was furnishing alcohol in circumstances where there was a likelihood that the liquor would ultimately be consumed by minors. Id. at 135.

Additionally, Massachusetts case law holds that when the duty that is breached is the duty owed to a minor not to serve him or her alcohol, an action for personal injuries is not caused by or does not arise out of the negligent serving of alcohol to an intoxicated person, but is caused by and arises out of the negligent serving of alcohol to a minor. Indeed, this negligence may cause personal injury even if the amount of alcohol consumed does not make the minor an intoxicated person, provided it is sufficient to constitute a substantial

contributing cause of his or her injury.

2. Imbibers

An intoxicated plaintiff may recover against a licensed vendor for personal injuries, property damage or consequential damages only if that vendor acted in a willful, wanton or reckless manner in serving the patron alcohol. MASS. GEN. LAWS ch. 231, § 85T (2014); Manning v. Nobile, 411 Mass. 382, 386-87 (1991). The Supreme Judicial Court defined “willful, wanton or reckless” as:

Intentional conduct by way of either a commission or omission where there is a duty to act, which conduct involves a high degree of likelihood that

substantial harm will result to another. Two characteristics of willful, wanton or reckless conduct distinguish it from negligence. First, the defendant must knowingly or intentionally disregard an unreasonable risk. Second, the risk viewed prospectively must entail a high degree of probability that substantial harm would result to the plaintiff.

Id. at 387-88.

3. Assault and Battery Involving Drunken Patrons

Generally, a third person’s act in committing an intentional tort, such as assault or battery, constitutes a superseding cause of harm relieving of liability an actor who created the

situation that presented the third person with an opportunity to commit a tort or crime. Gidwani v. Wasserman, 373 Mass. 162, 166 (1977). “However, liability will be imposed where the actor realized, or should have realized the likelihood that such a situation might be created, and that a third person might avail himself to the opportunity to commit a crime. Id. The specific kind of harm imposed does not need to be foreseeable as long as it was

foreseeable that violence toward others would occur. Carey v. New Yorker of Worcester, Inc., 355 Mass. 450, 454 (1969).

Two major groups of cases exist where criminal or tortious behavior is held to be sufficiently foreseeable as to warrant imposing liability on entities serving alcohol. The first group is where a drunken patron inflicts injuries on others by negligent driving upon leaving a bar. Westerback v. Harold F. LeClair Co., 50 Mass. App. Ct. 144, 146 (2000) (citing Cimino v. Milford Keg, Inc., 385 Mass. 323, 328-34 (1982)). The second group is where injuries result “from the acts of drunken patrons on the premises, whether the drunk inflicts the injuries . . . or is himself the injured party.” Id. (citing Wood v. Ray-Al Café, 349 Mass. 766, 766 (1965) (finding liability on part of defendant where patron was obviously

intoxicated, continued to be served, imposed himself on other patrons, was not ejected from premises, and ultimately assaulted plaintiff patron)).

E. SPECIAL DEFENSES

Since Massachusetts dram shop actions are grounded in common law and not an enumerated statute like other states, ordinary defenses to tort claims generally apply. However, one special liquor liability defense is recognized. In a negligence action for the distribution, sale, or serving of alcoholic beverages to a minor or an intoxicated person, which must be commenced in the superior court, the plaintiff must file with his complaint, or

within 90 days thereafter, “an affidavit setting forth sufficient facts to raise a legitimate question of liability appropriate for judicial inquiry.” MASS. GEN. LAWS ch. 231, § 60J (2014). If the plaintiff does not timely file the affidavit, the defendant may make a motion for summary judgment grounded on that failure. Id.

F. PRE-JUDGMENT INTEREST

Twelve percent per annum from the date of commencement of the action. MASS. GEN. LAWS ch. 231, § 6B (2014).

G. SETTLEMENT PRACTICES

Massachusetts does not have any statutes regulating the enforcement of settlements. By custom and practice, however, once a case is reported settled to the court, the court will enter either a thirty or sixty day nisi order, depending on the case. Under Massachusetts law, a settlement agreement is enforceable as a contract. During the nisi period, the parties need to file a stipulation dismissing the case or an agreement for judgment. When a case is reported as settled and made subject to an order for judgment of dismissal nisi, if no stipulation of dismissal or agreement for judgment is filed with the court during this nisi period, the court will dismiss the case on its own terms. The paying insurer has a reasonable amount of time to issue the settlement proceeds. The circumstances of each individual case dictate the length of the nisi period, which is usually held to be a reasonable time period in an uncomplicated case.

© 2015 Behman Hambelton LLP.