It’s bad enough that when a drunk driver kills an innocent pedestrian or fellow driver, the criminal sentence is often relatively modest. The typical drunk driver, many of whom are unrepentant repeat offenders, carries the bare minimum of liability insurance or none at all. Thus, the family of the victim, whether grieving parents or a spouse left to raise a family alone, may have no effective recourse against the irresponsible perpetrator. Thus, whenever a plaintiff’s lawyer investigates a case of death or serious injury caused by a drunk driver, he the attorney will want to know where the driver was coming from in the hours and minutes before the accident, and where he purchased his liquor. If the driver became drunk in a bar or restaurant, and his intoxication should have been apparent to the tavern or restaurant employees who served him, there may be recourse against the establishment that served the driver.

The laws establishing liability against taverns and restauraunts that keep serving a clearly intoxicated patron who then drives away and hurts or kills someone, are known as “dram shop acts.” Most states have dram shop acts. In Massachusetts, the legislature repealed dram shop legislation creating liability for negligent food and liquor establishments, some years ago. The Supreme Judicial Court, however, ruled that there was a common law right for persons injured by a drunk driver to sue the establishment that negligently served the liquor to an already intoxicated person. The establishment employee/server or owner must have known, or be held reasonably to have known, that the patron was already intoxicated when they continued serving him. The Massachusetts Appeals Court has ruled that evidence of “loud and vulgar” behavior on the part of the patron who leaves drunk and causes a car crash, is sufficient evidence to advance the case to a jury.

There is a procedural trap in Massachusetts that any lawyer bringing a dram shop action must avoid. A statute enacted in 1985, requires any dram shop plaintiff to file, within 90 days of the Complaint, an affidavit showing that he has sufficient evidence of the establishment’s liability, to justify further judicial review. Plaintiff’s lawyer must conduct an investigation, and have one or more adequate affidavits ready to go, before filing the lawsuit against the restaurant or tavern.

Dram shop cases are not easy to win unless there is solid evidence, generally from witnesses, that the person who caused a serious motor vehicle accident was openly and obviously drunk, or at least behaving badly, when the establishment served him more alcohol. When juries make such findings, however, they often show their anger at the irresponsible establishment by awarding large verdicts to seriously injured plaintiffs. Every lawyer accepting a case of wrongful death or injury due to drunk driving, must thoroughly consider the possibility of a dram shop action.