Recently, the Supreme Judicial Court weighed whether or not an affidavit submitted by an administrator of an estate had to be based on personal knowledge. In Bayless vs. T.T.S. Trio Corp., (474 Mass. 215), the estate filed suit for a man who died after a solo car accident, which occurred after he left a restaurant bar he often frequented. The estate sought to hold the restaurant liable under the Commonwealth’s Dram Shop Act, G. L. c. 231, § 60J, which holds establishments responsible if they continue to serve alcohol to patrons when they knew or should have known the patron was intoxicated. As part of any civil action, the Act requires an affidavit to be filed within 90 days of filing the complaint. The defendant restaurant appealed the decision of the trial court, which allowed an affidavit submitted by the administrator as part of the initial pleadings. The Massachusetts Supreme Judicial Court decided to hear the case under an interlocutory petition for relief.
The affidavit described the deceased’s behavior throughout his patronage of the restaurant and the evening he died. The statement was made based on information gathered from several witnesses who had witnessed his excessive drinking, which often caused him to have impaired movement and speech. Witnesses also described conversations between the deceased person and an unnamed female bartender, who would continue to serve the decedent alcoholic drinks after he was clearly intoxicated.
On the evening of his death, the decedent was witnessed drinking at 4 P.M., when he proceeded to become drunk once again. He spoke to his daughter several times, who asked him to come home to a family barbecue. The daughter also spoke to the bartender mentioned above, who tried to assure her he was fine. This same bartender later told a different patron that she was concerned about the decedent because he hadn’t eaten anything. The bartender, as was her custom, continued to serve him alcohol, and he bought and drank 12 drinks while he was at the restaurant. The daughter, during her last call to him at 9 P.M., noticed his speech was slurred. Soon afterward, he died in a vehicle crash from multiple traumatic wounds.
The defendant restaurant claimed that the affidavit relating all these statements was inadequate because it was not made using the administrator’s personal knowledge. The Supreme Judicial Court greatly disagreed, pointing out that affidavits follow the Civil Rules of Procedure, which only require the initial affidavit to raise a legitimate question of liability appropriate for judicial inquiry. This portion of the litigation comes before parties have the opportunity to exchange discovery, or evidence. The court said that is different from a separate but similar rule, which requires affidavits to contain specific facts showing there is a genuine issue for trial. The court, while it disagreed that the estate needed to file an affidavit based on personal knowledge, reviewed the contents of the affidavit to see if it followed the second standard. Based on the witness statements described above, the court felt this more than met the threshold to continue the case, and it allowed the estate to pursue its claims against the restaurant.
The Massachusetts personal injury and wrongful death attorneys at Karsner & Meehan understand that the path to holding an at-fault party liable can be complicated and challenging. Our attorneys will aggressively push back against all arguments the at-fault party or parties may make. For a free, confidential consultation, call our office at 508.822.6600.
More Blog Posts:
Appeals Court of Massachusetts Case Reveals The Difficulty People Face When Contesting a Will, Massachusetts Injury Lawyers Blog, March 3, 2016
Rear-end Collision Appellate Case Helps Illustrate Burden of Proof Considerations in Massachusetts Personal Injury Cases, Massachusetts Injury Lawyers Blog, February 3, 2016