Bayless v. TTS Trio Corporation, et al. (Lawyers Weekly No. 10-058-16)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-11958 HOWARD H. BAYLESS, administrator,[1] vs. TTS TRIO CORPORATION[2] & others.[3] Worcester. January 11, 2016. – April 28, 2016. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Alcoholic Liquors, Sale to intoxicated person. Negligence, Serving alcoholic liquors to guest. Practice, Civil, Affidavit. Civil action commenced in the Superior Court Department on April 14, 2014. Motions to strike an affidavit and for partial summary judgment were heard by Richard T. Tucker, J. Leave to prosecute an interlocutory appeal was allowed in the Appeals Court by Peter J. Agnes, Jr., J. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Scott T. Ober (Margarita I. Warren with him) for the defendants. Ernest E. Wessell for the plaintiff. Annette Gonthier Kiely, Thomas R. Murphy, Erin K. Thurston, & Lisa DeBrosse Johnson, for Massachusetts Academy of Trial Attorneys, amicus curiae, submitted a brief. SPINA, J. In this case, we are asked to determine whether an affidavit submitted pursuant to G. L. c. 231, § 60J (commonly referred to as the dram shop act), must be a sworn statement based upon personal knowledge.[4] Section 60J prescribes the procedural requirements applicable to “[e]very action for negligence in the distribution, sale or serving of alcoholic beverages to a minor or to an intoxicated person.”[5] Pursuant to § 60J, within ninety days of filing his or her complaint, a plaintiff must file an affidavit “setting forth sufficient facts to raise a legitimate question of liability appropriate for judicial inquiry.” Herman T. Bayless, the plaintiff’s decedent, was killed in a one-car accident after leaving a restaurant owned by the defendants where he had consumed alcoholic beverages. The plaintiff alleged that prior to his decedent’s fatal motor vehicle accident, the defendants exhibited negligent, wilful, wanton, and reckless conduct by selling and serving alcoholic beverages to the decedent while he was obviously intoxicated, and that such conduct was the proximate cause of the decedent’s death. The plaintiff submitted an affidavit pursuant to § 60J (§ 60J affidavit) that was signed by the plaintiff’s counsel. The affidavit stated that it was based on information and belief gathered from witness statements, a police report, and a medical toxicology report. The defendants argue that an affidavit submitted pursuant to § 60J must be […]