The term “liquor liability” covers any situation where a server of alcoholic beverages is held legally responsible for monetary damages for causing injury or death to either the person served or to some third party injured by the person served.  

Liquor liability cases can be very difficult for defendants.  There is justifiable outrage at a bar that over-serves someone who is obviously drunk and then he or she causes a highway accident or assaults an innocent bystander.  And there is even less sympathy for a bar or liquor store that sells alcohol to minors who, while intoxicated, place themselves into dangerous situations.  These cases can also pose challenges to plaintiffs, especially where an adult plaintiff either injures herself while intoxicated or gets injured in a scuffle inside the bar after having words with another patron. 

Often there is a criminal investigation into alcohol related incidents for the crimes of furnishing alcohol to a minor, operating a motor vehicle under the influence of alcohol or assault and battery.  The outcome of a criminal investigation can have a significant impact on the strengths and weaknesses of a claim for damages in a civil claim for liquor liability damages.

Liquor liability in Massachusetts is a generally a common law cause of action, meaning that the legal standards for liability have been created by court case precedent rather than by statute.  (In contrast, the State of Rhode Island has enacted legislation that provides the exclusive remedy and requirements for liquor liability).  There are though several statutes to be aware of that affect the procedures for filing a liquor liability claim in Massachusetts.  And of course there are criminal statutes that inform the common law principles, such as the legal drinking age of 21 years and the OUI statute.

Massachusetts courts apply different legal standards to liquor liability cases depending on several factors such as: (a) who served the alcohol – a licensed establishment or a “social host”; (b) who was injured – the drinker or a third person; and (3) the age of the drinker – over or under 18 or 21 years.  Massachusetts judicial decisions have addressed most permutations of these factors, though there are still a few unsettled areas. 

A.        Liability of a Licensed Server.

Since 1968, Massachusetts law has recognized a cause of action against a licensed liquor server for providing alcohol to an intoxicated patron who then causes injury to a third person.  In that year, the Supreme Judicial Court announced a public policy rule that “[h]enceforth in this Commonwealth waste of human life due to drunken driving on the highways will not be left outside the scope of the foreseeable risk created by the sale of liquor to an already intoxicated individual.” 

Licensed liquor servers generally consist of bars, liquor stores and other alcohol serving establishments and businesses that operate pursuant to a liquor license issued by the state or town in which they operate.  They can also include temporary licenses that are issued for specific events where alcohol is served.

1.         Liability for harm to third-parties.  Where a patron causes injury to an innocent third party, for example while driving intoxicated after being over-served at a bar, the injured plaintiff must prove that:

a.         The patron was served alcohol by the licensed server;

b.         While intoxicated and under circumstances such that the server knew or reasonably should have known that the patron                was intoxicated;

c.         The patron then operated a motor vehicle while intoxicated;

d.         The operation was reasonably foreseeable by the licensed server;

e.         A person of ordinary prudence would not have served the patron; and,

f.          The patron’s driving caused an injury that was within the scope of the foreseeable risk.

2.         Liability for harm to patrons.  There can also be liability against the bar where the customer is the one who injured, either by injuring himself while intoxicated in or away from the bar or by being injured by another intoxicated patron inside or outside the bar.  These types of claims resemble ordinary negligence claims.  The rule is that a licensed establishment has a duty of reasonable care to prevent foreseeable harm or injury to its patrons, either on the premises or away from the premises, as a result of the acts of other patrons.  That duty can be breached by serving an intoxicated person more alcohol and putting them in a position to cause harm to themselves or to other patrons of the bar.

B.        Liability of a Social Host.

A “social host” is a server of alcohol that is not a licensed seller of alcohol.  Social hosts typically include those who provide alcohol to others at social events, fraternal organizations, wedding venues and private parties where alcohol is provided to guests.

A social host is liable to a person injured by an intoxicated guest’s negligent operation of a motor vehicle where a social host who knew or should have known that his guest was drunk, nevertheless gave him or permitted him to take an alcoholic drink and thereafter, because of his intoxication, the guest negligently operated a motor vehicle causing the third person injury.  In order for the social host to be liable, he or she must furnish, pay for or have control over the alcohol served.  Thus a social host cannot be liable for the acts of an intoxicated guest at a strictly BYOB event.

A social host can be liable to a plaintiff who is the victim of an assault and battery by a visibly intoxicated guest who was supplied alcohol by the host.

Social host liability can also attach to a person who buys drinks or alcohol for an obviously intoxicated person in a bar or a liquor store.

An employer-host is held to the same standard of care as a social host in the context of a company picnic.  As in other social host situation, the key to liability will be whether the employer furnished or controlled the alcohol.  If an employee brings his own beer to work, consumes it at work, becomes intoxicated and harms a third-person, the employer will not be deemed a social host for the purposes of liquor liability.

C.        Service by a Licensed Establishment to a Minor.

The sale of alcohol to a minor by a licensed establishment is considered a violation of a Massachusetts statute, G.L. c. 138, § 34.  The sale of alcohol to a minor alone constitutes very strong evidence of negligence in an action for damages brought by a person injured as a result of the minor’s actions while intoxicated, such as the operation of a motor vehicle.  

In minor service cases, it is not necessary to prove that the defendant establishment knew or should have known that the minor was intoxicated at the time of service.  Nor is it necessary that the alcohol be served directly “hand to hand” to the minor in order for the licensee to be liable.  A bar or liquor store is liable if it knew or reasonably should have known that it was furnishing alcohol to minors.

A common defense is that the licensed establishment reasonably relied on a fake driver’s license or identification card presented by the minor.  This defense is weak where the minor is either very young looking, where the fake ID is of poor quality, where the minor does not resemble the person in the fake ID or where the fake ID is from out-of-state or a foreign country and was not verified by the bouncer, bartender or server.

D.        Service by a Social Host to a Minor.

As mentioned above, a social host can be liable for serving alcohol to an intoxicated adult who then causes injury to a third-person.  But there is no social host liability where the intoxicated adult causes injury to himself.  This rule applies even to adults below the legal drinking age, that is to persons between the ages of 18 and 21, who injure themselves while driving while intoxicated, for instance.  Though it has not been specifically addressed by the courts yet, it appears that a social host would be liable under these circumstances if the drinking driver subsequently injured a third party.

Similarly, it has not yet been decided whether a social host is liable for serving alcohol to a minor, that is someone under the age of 18, who subsequently injures himself driving while intoxicated.  But the trend in the case law suggests that there would be social host liability in that situation as well.

E.        Liability for Injuries to the Intoxicated Person: Social Host.

A social host is not liable to an adult guest who becomes intoxicated and subsequently injures himself or herself.

F.         Liability for Injuries to the Intoxicated Person: Licensed Establishment.

G.L. c. 231, § 85T provides as follows:

“In any action for personal injuries, property damage or consequential damages caused by or arising out of the negligent serving of alcohol to an intoxicated person by a licensee properly licensed under chapter one hundred and thirty-eight or by a person or entity serving alcohol as an incident of its business but for which no license is required, no such intoxicated person who causes injury to himself or herself, may maintain an action against the said licensee or person or entity in the absence of willful, wanton or reckless conduct on the part of the licensee or such person or entity.”

Thus, to recover for self-inflicted injuries while intoxicated, an adult patron must prove that the bar acted more than negligently.  The plaintiff must prove at the very least that the bar recklessly disregarded the patron’s safety by furnishing additional alcohol.  These are often difficult cases to prove to a jury.

The “willful, wanton, or reckless” standard under section 85T applies only to actions for personal injury, not to wrongful death actions.  Therefore, in an action for wrongful death arising out of the serving of alcohol by a licensed establishment to an intoxicated patron who dies, only ordinary negligence need be proven in order to recover.

The statute does not preclude claims brought against a licensed establishment by minors (under 18 years) who drink and injure themselves.  It is an open question whether adults under the legal drinking age (between 18 and 21 years) can recover against licensed establishments if they drink and injure themselves.

G.        Proof of Intoxication at Time of Service of Alcohol.

In both dram shop and social host situations, proof is usually required that the defendant served alcohol at a time when the defendant knew or should have known that the drinker was intoxicated.  Proof of intoxication at the time a drink was served by the defendant may be made by direct observation, inferences or by the use of expert witnesses.

1.         By direct observation.  A description of the drinker as exhibiting “loud and vulgar” behavior constitutes sufficient evidence of intoxication.  So does a description of the drinker as “looking like he had a few” and “feeling pretty good.”  The best evidence of intoxication is direct observation at the time the alcohol is served.  The standard for direct observation does not require the drinker to be “falling down drunk.”

2.         By inference from consumption.  Evidence of intoxication can be gleaned by inference as to the number, type, size and strength of alcoholic drinks consumed.  Evidence that a patron consumed six or more mixed vodka cocktails permits an inference of intoxication.  As does evidence that a patron consumed a dozen beers and some shots of hard alcohol.  The more difficult inferences arise in the “two or three” beer situations where a drinker may not be intoxicated.

The typical defense to the intoxication by inference proof is that it fails to account for the drinker’s size, weight, diet, health, metabolism, tolerance for alcohol and what he or she has consumed in the last 24 hours.  These factors tend to complicate the analysis.

3.         By inference from later behavior and appearance.  It can be difficult to use evidence of someone’s behavior and appearance at some later time – after they left the bar – to show what their level of intoxication would have been at the bar when they were served their last drink.  This evidence can be speculative especially where a lot of time has elapsed and the drinker consumed more alcohol after leaving the bar or social event. 

4.         Expert extrapolation from breathalyzer or blood alcohol test.  Evidence of obvious intoxication at the time of last alcohol service can be derived from subsequently administered breathalyzer or blood alcohol tests under limited circumstances. 

Expert toxicological analysis is almost always needed.  The expert will perform a retrograde extrapolation analysis from a known blood alcohol level at an approximate time after the serving of the last drink.  The expert will factor in the drinker’s weight, food consumption and general tolerance for alcohol and determine to within a reasonable degree of scientific certainty that at the time of the last drink, the drinker would have shown manifest outward signs of intoxication.  In rendering such a conclusion, it is imperative for the toxicologist to rely on specific information concerning this particular drinker’s reaction to alcohol consumption, such as how many beers it usually takes to render him visibly intoxicated.  

This type of evidence is best used at trial in supplement to more direct evidence of manifest intoxication.  Alone, it can prove to be too slender of a reed upon which to rest the entire liability case.

H.        What To Do.

Whenever a family member has been injured or killed as a result of excessive alcohol service, there are a few things that must be done immediately to protect their legal rights.  Evidence must be preserved, witnesses identified, photographs taken and the right kind of legal counsel must be consulted.  Whether a liquor liability claim is ever asserted is a question for down the road.  For now, preliminary steps must first be taken in order to make an informed decision about the legal options.

1.         Consult the right kind of legal counsel.

Liquor liability cases can be very serious and very complex matters.  There are many pitfalls and traps for the unwary plaintiff’s attorney who is unskilled in this specific area of practice.  Liquor liability cases should only be entrusted to skilled trial attorneys who exclusively represent plaintiffs and who have a successful track record with such claims.  These are not cases for novices learning the ropes.  And this is not the arena for even an experienced jack-of-all-trades lawyer like a general practitioner.  You should only confer with an attorney who regularly handles high stakes liquor liability injury cases. 

2.         Preserve the evidence.

In any case, important evidence must be identified and preserved.  If important evidence is lost, tampered with or altered in any way after an accident, there will likely be some negative consequence when it comes time to prove the case at trial.  The preservation of evidence can be accomplished by placing the physical items in a safe, secure location until legal counsel can arrange for its storage.  Numerous photographs should be taken and also passed along to counsel. 

3.         Identify witnesses.

It is also important to document the names and contact information for any witnesses.  The witness list is not limited to those who actually saw or heard the injury occur.  It also includes anyone who observed liquor service prior to the incident and anyone who learned about the details after-the-fact like such as family members, co-workers, emergency medical technicians, nurses or doctors.  

Leave a Reply