Boston Accident Lawyer Blog

Massachusetts just got a lot more sane in the area of dealing with the legalities of liquor liability, particularly with the need for ready compensation to pay for injuries and damages that often follow negligent service of alcohol by a licensed bar or restaurant. These injuries and damages usually result from a Massachusetts motor vehicle accident, but can injuries stemming from a patron being over-served alcohol at a bar or restaurant can also occur without any vehicular accidents being involved. On May 28 2010, Governor Deval Patrick signed into law Chapter 116 of the Acts of 2010, which amends M.G.L. Chapter 138 Section 12, the relevant law in Massachusetts that governs issuance of liquor licenses to bars and restaurants.

It may come as a surprise to many readers, but previous to the enactment of this legislation, bars and restaurants were not required to carry liquor liability insurance in Massachusetts. Not in any amounts, at all. Shocking, isn’t it? Consider: If you own or operate a restaurant in Massachusetts, you are required to produce proof to the local (i.e., city or town) licensing authority of a number of different things before you can be issued a license to operate (known legally as a “victualler’s license.”) The facility needs to pass inspections by the local Board of Health, adhere to state labor laws, produce proof of workers’ compensation insurance, contribute to the state unemployment insurance system, and (almost always) carry a policy of General Liability insurance. But to be issued a liquor license, while you would have to you surmount several additional hurdles before being issued such a license, you would not have had to produce evidence of a policy of liquor liability insurance, at all.

Why is this so important? Because almost all General Commercial Liability insurance policies don’t provide liability coverage for legal damages and injuries that result from the negligent service of alcohol by bartenders and/or wait staff. So while you could swallow a piece of glass in a restaurant and the owner’s general liability policy would almost certainly pay for damages, and while you could suffer a slip and fall accident on site and there would also be coverage to pay for your damages, there wouldn’t be coverage if someone in that restaurant was negligently over-served alcohol, then left the facility and caused injury to you while intoxicated. The stark reality is that up until now, the majority (though not all) bars and restaurants in Massachusetts “went naked” when it came to liquor liability insurance. If someone was unlucky enough to be injured by (usually) a drunk driver who was negligently served alcohol at a bar or restaurant, they had to get simultaneously lucky enough that the OUI driver had been served at a facility that carried liquor liability insurance. If the bar or restaurant who negligently served the alcohol didn’t have a specific policy of liquor liability insurance, there was often no source of money to pay a liability judgment. In that case, collecting on a judgment rendered in a plaintiff’s favor, was often impossible. I’ve blogged about this in the past.

Thankfully, that has now changed. M.G.L. Chapter 138 Section 12 has now been amended to require any Massachusetts bar or restaurant owner seeking a liquor license, to first produce evidence of a valid policy of liquor liability insurance, in minimum amounts of $250,000/$500,000, before any such liquor license may be issued. The “$250/$500” provision refers to the legislative mandate that the policy provide minimum liquor liability coverage amounts of $250,000.00 for bodily injury or death for one person, and a total of $500,000.00 for bodily injury or death per incident, for more than one person within the same incident. The certificate of insurance evidencing this coverage must be in a form acceptable to the local licensing authority. Given the types of devastating injuries and long-lasting medical expenses that can result from drunk driving collisions, I have to say that these “250/500” limits are rather low. But it is a start toward improvement in this area of law, and it is certainly better than what existed previously.

So, while driving on the road in Massachusetts didn’t get instantly safer with the passage of this legislation, the odds that a victim of a drunk driver who was negligently over-served alcohol by a restaurant will have access to liability insurance to pay for his or her damages, just got a lot brighter. Governor Deval Patrick deserves credit for signing this bill into law, and the Massachusetts Academy of Trial Attorneys deserved credit for filing this legislation and securing its passage.

In my previous post on this topic, I discussed a recent case involving Massachusetts liquor liability, and what that kind of case consists of. Now I’ll explain why a bar or restaurant can be held liable if a patron who becomes intoxicated at that restaurant, later injures someone as a result of that intoxication.

Legal liability in a case like this arises from the negligence of restaurant management in failing to adequately hire, train, and monitor the skills and activities of its servers and/or wait staff who serve alcoholic beverages. If the restaurant management in this case had properly hired, monitored and supervised the waitress involved, they would have seen that this waitress was deliberately ignoring the restaurant’s legal duty to spot and prevent patrons from being served too much alcohol, and the resulting Massachusetts car accident and injuries suffered by the plaintiffs here, would not have occurred. The legal argument used by this plaintiff (and similar plainitffs,) is that the restaurant management: 1) Had a legal duty to prevent patrons from becoming overly-intoxicated at its establishment (accomplished through appropriate enforcement of the highly effective TIPS program); 2) That the restaurant management “knew or should have known” that if it did not hire adequate personnel and monitor its wait staff for compliance with this program, one or more patrons would become excessively intoxicated and very possibly cause injuries to third parties – in essence, that the accident was “foreseeable”; 3) That such an accident or injuries did occur, and that it occurred due to the intoxication of that customer; and 4) That the plaintiff(s) suffered damages as a result.

As to exactly how a skilled plaintiff’s attorney proves to a jury that negligence occurred, a variety of techniques can be used (depending, of course, on the expertise level of the attorney representing you.) In this case, the attorney for the plaintiffs was prepared to call an expert witness – a medical biochemist - to testify as to what the expected – and observable - signs and symptoms of intoxication would have been in this case, and the plaintiff was also prepared to call an expert consultant who was a certified TIPS trainer. That expert would have testified that this bar's policies and procedures in monitoring and enforcing the TIPS program were lax and inadequate. Further, as to evidence, the plaintiff’s attorneys fought very hard to find and secure the bar receipt for the customer who later engaged in drunk driving and caused this accident, which the restaurant did everything they could to hide. That receipt showed that the waitress involved, received a $100 tip for a $50 bar tab from the defendant driver. This was key to establishing the restaurant’s negligence in failing to monitor the skill level and TIPS enforcement pattern of this waitress. If a jury ever saw this receipt, and saw the financial ‘reward’ given to this waitress for over-serving this drunk driver, it would have been devastating to the defense and to the restaurant.

In the end, the defendant restaurant opted to avoid a trial (a smart move on their part,) and the case settled for $1.9 million. This case illustrates two key things to remember: 1) In Massachusetts, bars and restaurants can be held liable for injuries or death to third parties caused by its customers who become intoxicated at their establishments, and then drive drunk; 2) When choosing a Norfolk County Massachusetts personal injury lawyer, who you choose is critical. If your lawyer doesn’t have the experience and skill to know how to get results in these types of Massachusetts personal injury cases, you may well not get very good results. It takes, experience, expertise, and skill to bring defendants in personal injury cases, to pay adequate damages when they’re legally responsible for causing someone else’s injuries. We know how to get those results. Call us for a free consultation if you, a loved one, or someone you know has been injured due to someone else’s negligence.

A recent case settlement in the area of liquor liability, shows that despite improvement in recent years, there are still bars and restaurants that continue to negligently serve alcohol to intoxicated patrons, when they clearly shouldn’t be doing so.

This recent case involved serious injuries that two female drivers sustained in a Massachusetts car accident when the pickup truck they were traveling in on Interstate 95, was rammed from behind by a drunk driver. The vehicle in which the two plaintiffs were driving was caused to roll over several times before coming to rest on its side, and the occupants sustained serious injuries. The driver of the pickup, 29, suffered multiple rib fractures. The 32-year-old passenger suffered a severe open fracture of her right tibia and fibula, and required several surgeries for the surgical implantation of a metal rod. The offending driver was arrested at the scene, but refused a breathalyzer test, and therefore, no blood alcohol test was resultantly available to introduce as evidence that this driver was intoxcated at the time of the accident, at either the criminal, or civil trial which the plaintiffs instituted against the defendant for monetary damages. Notwithstanding, at deposition during the litigation of the civil case, (note: for obvious reasons, this defendant never would have admitted the following at his criminal trial, but in the civil trial, it was the bar that was the party really "on the hook" not him,) the defendant driver testified that he has consumed approximately 12 beers and four shots of liquor at the bar he was drinking at on the evening in question. That’s damaging evidence enough of negligence against the bar, but it gets worse: Evidence in the form of bar receipts – which the bar did its best to conceal from the plaintiffs’ attorney – showed that the waitress who served the defendant all these drinks, was given a $100 tip for doing so (in other words, for not “shutting off" the customer).

So where does this liability for personal injuires come from, what is it called, and why should the bar owners be held liable for the actions of an irresponsible and greedy waitress? All good questions. First, this type of civil liability – popularly known as liquor liability but known within the legal profession as “Dram Shop Liability” (the term comes from historical case law) – arises from the legal duty that a restaurant, bar or tavern owner owes to its patrons as well as to members of the general public, to train, supervise and monitor its bartenders and wait staff in the responsible practice of serving alcohol. That training, almost universally provided under an industry program known as TIPS (for Training for Intervention ProcedureS.) TIPS is a nationwide program used almost universally in the restaurant and bar industries, to educate and train servers and wait staff in the responsible service, sale, and consumption of alcohol. The whole point is designed to prevent negligence and resulting personal injuries that may follow from patrons becoming overly intoxicated.

The focus is designed to enable bar and wait staff to be able to quickly spot intoxication, and prevent excessive drinking, underage drinking and drunk driving by patrons of the establishment. Importantly, though, bar and restaurant owners are repeatedly warned that a one-time training session for wait staff – not followed up by continual monitoring by restaurant management in the skill or compliance level of its servers – will not be effective in minimizing the chance that a patron may be served too much alcohol. Continuous observation of the wait staff by restaurant management is critical to the program’s effectiveness. If servers aren’t continually watched and monitored by restaurant management for enforcement of the program’s goals, it simply won’t work. Seeking higher tips from “satisfied” customers, bartenders and wait staff are likely to “look the other way” – and that’s exactly what happened in this case. With a ‘wink and a nod," the waitress serving this intoxicated patron kept serving him (over 12 beers plus hard liquor) and in return received a $100.00 tip on $50.00 bill. That patron then went out, drove while intoxicated, and almost killed two innocent people. Given the high number of fatalties caused by drunk drivers, these two people are quite lucky they survived.

I’ll explain why the restaurant was legally liable for the injuries that resulted when this patron then drove drunk and injured the plaintiffs, in my next post.