Learning from Personal Injury Lawyers

There is a group of professionals whose job it is to prove that alcohol-serving establishments have violated the law. No, it isn't our local Board of Selectmen. It is personal injury lawyers who specialize in representing people who have been injured by DUI drivers.

I did some Google research and found information posted by several Massachusetts personal-injury law firms. These firms make it their business to sue local bars and restaurants who have not followed the law and therefore are potentially liable for the actions of their inebriated patrons who drive and cause damage to others.

While the information below isn't "admissible," I think it is great background material on this subject. Who better than personal-injury lawyers to explain to potential clients what actions by bars and restaurants would result in a successful lawsuit against them?

Again, my hope is that the Acton Board of Selectmen will take it upon themselves to learn more about this issue before continuing to make faulty decisions based on misinformation, supposition, and wishful thinking. If they simply used the same standards as personal-injury lawyers to show negligence in overserving, they would be making much better decisions in findings of "overservice" by our local bars and restaurants.

And let me repeat my challenge to the BoS, that they reconsider their prosecution and continued punishment of the Makaha. They should permanently rescind their liquor-license revocation and issue an apology and compensation for the harm they have caused this long-standing business. As we have shown over several articles (links below), the Makaha followed all the TIPS service rules and did not deserve a license revocation based on overservice.

If you get to the end of this article (sorry, it is pretty long), the sixth and last example concerns a lawsuit over a bar patron who had five alcoholic beverages over several hours. In my view, that is an excellent example for the Acton BoS to self-reflect on their recent decisions on the Makaha and Po's Barbecue. The surprise ending to that story is an example of the type of research the police or the BoS should be doing to prove overservice.

(Please note that I did not edit the text from the various legal websites, so typos remain.)

RESEARCH FROM THE PERSONAL-INJURY EXPERTS

(1) LAW OFFICES OF GERALD J. NOONAN

If you were injured in a drunk driving accident while an occupant of a motor vehicle or as a pedestrian, and it can be determined that the drunk driver that caused the accident was over-served by a bartender or restaurant, and then allowed to drive home, you may be able to old the restaurant or bar liable for the accident and your injuries....

Massachusetts General Law Chapter 138 section 69 prohibits a commercial business from over-serving a patron alcohol or serving alcohol to a patron that is already intoxicated. Bartenders, waitresses and serves have a responsibility to observe a patron for any visible signs of intoxication before first serving alcohol. A bartender has to be on the lookout for signs of intoxication like slurred or think tongued speech, a heavy odor of alcohol, unbalanced walking or glassy eyes when a new patron enters the bar. If the patron exhibits visible signs of intoxication then a bartender must not serve the patron. In situations where the patron has been at the bar awhile it is the bartender’s responsibility to keep track of the patron’s alcohol intake as well as monitor the patron for visible signs of intoxication....

(http://www.noonanlawma.com/massachusetts-law/liquor-liability-laws-in-ma...)

(2) JONATHAN D. SWEET ESQ.

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....

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....

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....

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.

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....

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....

(http://www.attorneysweet.com/massachusetts-liquor-liability-law/)

(3) ATTY WILLIAM D. KICKHAM

Liability for Massachusetts personal injuries that are caused by a person being over-served alcohol can stem from two separate types of situations and therefore be based on two separate legal theories. Those two types of liability are known as: 1) Dram Shop Liability, and 2) Social Host Liability. The first, Dram Shop liability, is concerned with the liability and legal duties of restaurants, bars, and commercial establishments serving alcohol when patrons and customers are over-served alcohol, and then cause injury to third parties or to themselves. That is the subject of this Page....

The term “Dram Shop” originates from old English law, where a “dram shop” was a tavern where alcohol and other “spirits” were sold in small units known as a “dram.” This body of law today determines the liability of commercial business that operate under liquor licenses, such as bars, restaurants, nightclubs, country clubs, taverns, liquor stores and similar commercial establishments that serve or sell alcohol. More specifically, though, dram shop laws determine liability of those businesses when alcohol is served to intoxicated persons and minors who then later cause or injury or death to third-parties (meaning, innocent victims who had no involvement in serving alcohol to the intoxicated person.)...

What Are the Specific Legal Responsibilities of a Business That Is Governed By Dram Shop Laws?

Massachusetts General Laws Ch.138 § 69 governs this area of law, and forbids alcoholic beverages from being sold or delivered to an intoxicated person on the premises that are covered by the relevant liquor license. The law provides that bartenders, wait staff, managers and owners all have a responsibility to carefully monitor the behavior of all persons who are served alcohol on the premises, for signs of intoxication. This includes taking measures to observe common symptoms of intoxication such as slurred speech, slowed or delayed reaction time, aggression and other common behaviors known to result from alcohol intoxication. Owners of businesses serving alcohol are widely advised, under commonly accepted alcohol industry best practices, to provide appropriate training for all bartenders and wait staff serving alcohol in how to monitor suspicious behavior, and appropriately deal with (meaning “shut off”) any patrons who appear to be intoxicated.

That training is almost always provided through an alcohol industry program called TIPS (for Training for Intervention Procedures.) TIPS is a nationwide program used in the restaurant, bar and hospitality industries, to train servers and wait staff in the responsible sale, service and consumption of alcoholic beverages. The point of the program is designed to prevent negligence in serving alcohol, of the type that can result in serious personal injuries to innocent persons. Establishments that participate in the TIPS program often get a break in their alcohol liability insurance premiums....

(http://www.attorneywdkickham.com/liquor-liability-dram-shop-liability.html)

(4) SUGARMAN AND SUGARMAN, P.C.

As most people know, Massachusetts law prohibits businesses from serving alcohol to people under the age of 21. However, some people may not be as familiar with the law which prohibits establishments from serving any person who is noticeably intoxicated. As undergraduate and graduate students flood back into Massachusetts' cities and towns this month, many of them will undoubtedly be heading to bars, restaurants, pubs and clubs to socialize before classes get underway. So what liability rests with these businesses in serving, and over-serving, alcohol to the public?

Serving Alcohol to an Intoxicated Person

Massachusetts General Laws prohibit establishments holding a Massachusetts liquor license from serving alcohol to anyone who is intoxicated. Mass. Gen. L. c. 138, s. 69.
http://www.malegislature.gov/Laws/GeneralLaws/PartI/TitleXX/Chapter138

Liquor licensees have a duty to observe behaviors and to stop serving alcohol to someone who is noticeably intoxicated - for example, someone with red eyes, loud or slurry speech or rowdy behavior. If a bar continues to serve alcohol to that person, it may face civil liability for death or injury to another person caused by the actions of the over-served customer. Although usually occurring in the context of drunk driving accidents, this holds true in other scenarios as well, such as bar fights. As a general principle, bars and restaurants cannot face civil liability if the intoxicated person hurts or kills himself....

A key element in successfully proving a liquor liability case is eyewitness testimony from customers and bar employees. Because these individuals can be very difficult to identify and locate, early, experienced legal representation is essential. If you are injured by a drunk driver or otherwise injured by an intoxicated person, you may be entitled to compensation not only from the intoxicated individual but also from the establishment which provided the alcohol....

(http://www.bostoninjurylawyer-blog.com/2012/09/liquor-liability-in-massa...)

(5) ALTMAN AND ALTMAN, LLP

In Massachusetts, dram shop liability can apply to any place that serves alcoholic beverages. This includes: bars, nightclubs, restaurants, social clubs, liquor stores, and even individuals serving alcohol to their guests at a private party. These proprietors and social hosts are required to refrain from serving or selling alcohol to persons who are already visibly intoxicated. They may be subject to civil liability if they do serve or sell to a visibly intoxicated person and that person subsequently causes a car accident or otherwise injures or kills another person or himself. The most common set of facts leading to dram shop liability is: a visibly drunk person is over-served, that person later engages in drunk driving, and he injures or kills another person or himself. Although this is the most typical example, it is important to remember that dram shop liability is not limited to these facts. It may be imposed where the drunken person gets into a fight in or outside of the bar, acts recklessly and hurts another person, or causes harm to himself, another, or property in any way....

Filing a Dram Shop/Liquor Liability Lawsuit in Massachusetts

Dram shop liability claims are not easy, and you will need a good lawyer on your side. To prove a dram shop liability claim in MA, one must establish that the server knew or should have known that the person he or she served was drunk. This is not necessarily proven by blood tests or breathalyzer results alone. Prompt witness statements and depositions are crucial to dram shop claims. It will also be important to look into the adequacy of bartender and wait staff training procedures.

In determining which laws to use when litigating a Dram Shop case, there are a number of considerations. First, Massachusetts Law states that no person who is intoxicated should be served alcohol. This seems to be an offense in itself, which leads most litigants to look further to negligence law. Dram Shop cases generally must meet the same elements as negligence, which are duty, a breach of that duty, injury or damage cause to the plaintiff, and causation. In recent years, however, the court has modified this approach. Through common law, the courts have adopted a series of elements that must be met in order to successfully pursue a Dram Shop case, more specifically a case that has to do with vehicular injuries. First, the plaintiff must show that the driver was a customer of the bar that is the defendant in the case. Second, the plaintiff must show that the driver was served alcoholic beverages, and third the plaintiff must show that those beverages were served to the drive while the drive was already intoxicated. Fourth, the plaintiff must show that the server knew or should have known that the driver was intoxicated. Fifth, the plaintiff must show that the driver operated a motor vehicle while intoxicated. Sixth, the plaintiff must show that the operation was reasonably foreseeable by the bar, meaning the bar should have known that the driver would get behind the wheel of a car. Finally, the plaintiff must show that the driver caused an injury that was within the scope of the risk. Each of these elements, though specifically adapted to motor vehicle injuries, can be extended to nearly any other type of injury....

(http://www.altmanllp.com/liquor-liability-dram-shop-cases.html)

(6) BREAKSTONE, WHITE & GLUCK

CAR ACCIDENT -- RESTAURANT SERVES DRUNK DRIVER

Details of the Case

The 20 year old male plaintiff was a passenger in a car which was struck head on by a drunk driver. The collision was so violent that both cars were barely recognizable. Plaintiff suffered severe personal injuries in the form of facial and skull fractures and underwent surgery for placement of plates and screws. As a result of exceptional work by the surgical team, the plaintiff recovered well from his personal injuries....

(To read about this case, please follow the link to the law firm's website....)

(http://www.bwglaw.com/car-accident-restaurant-serves-drunk-driver-severe...)

Believe it or not, the saga continues: http://www.actonforum.com/blogs/allenn/board-selectmen-escalate-makaha-h...

RECENT ACTON FORUM ARTICLES ON THE MAKAHA

BOS Bullies Makaha Restaurant, wrongly terminates liquor license: http://www.actonforum.com/blogs/allenn/bos-bullies-makaha-restaurant-wro...

Makaha launches petition drive: http://www.actonforum.com/blogs/allenn/makaha-launches-petition-drive-re...

Acton Selectmen should hold hearings on Verizon, Dunkin Donuts, pizza places, etc.: http://www.actonforum.com/blogs/allenn/acton-selectmen-should-hold-heari...

BoS Used Bad Data to Convict Makaha of Overserving: http://www.actonforum.com/blogs/allenn/bos-uses-bad-data-convict-makaha-...

Lessons from the Makaha: http://www.actonforum.com/blogs/allenn/lessons-makaha

Subscribe to the Acton Forum and get our newsletters emailed to you -- FREE! Click on http://www.actonforum.com/subscribe-actonforum-newsletter