Bayless v. TTS Trio Corp.
49 N.E.3d 217
Mass.2016Background
- Herman T. Bayless died in a single-car crash shortly after leaving Kaizen Sushi Bar; police and toxicology evidence showed heavy intoxication and excessive speed.
- Plaintiff (administrator) sued under G. L. c. 231, § 60J (dram-shop statute), alleging the restaurant negligently served an obviously intoxicated patron.
- Plaintiff filed a § 60J affidavit within an extended 90-day period; the affidavit was signed by plaintiff's counsel and stated it was based on information and belief drawn from witness statements, a police report, and a toxicology report.
- Defendants moved to strike the affidavit and for partial summary judgment, arguing (1) § 60J affidavits must be sworn and based on the affiant’s personal knowledge (and thus counsel’s affidavit was defective), and (2) the affidavit failed to raise a legitimate question of liability.
- The Superior Court denied defendants’ motion; the Appeals Court allowed interlocutory relief and the Supreme Judicial Court transferred the case to decide whether an affidavit under § 60J must be based on personal knowledge and whether the submitted affidavit was sufficient.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a § 60J affidavit must be based on the affiant’s personal knowledge | Bayless: § 60J does not require personal-knowledge affidavits; information-and-belief affidavits are acceptable when they identify reliable sources | TTS Trio: “Affidavit” implies sworn, personal-knowledge statement; Howland supports that meaning | Held: Not required. § 60J permits affidavits based on information and belief if they identify reasonably reliable sources and details. |
| Whether a § 60J affidavit must meet Mass. R. Civ. P. 56(e) summary-judgment affidavit standards | Bayless: § 60J is an early-stage screening tool and should not demand Rule 56(e) rigor before discovery | TTS Trio: § 60J references Rule 56; thus affidavit must satisfy Rule 56(e) (personal knowledge, admissible facts) | Held: § 60J standard differs from Rule 56(e). Rule 56(e) is not required at the § 60J stage. |
| Whether plaintiff’s counsel may sign the § 60J affidavit and need it be sworn under pains of perjury | Bayless: Counsel may sign under Rule 11 and may submit information-and-belief affidavits; swearing to such facts is inapposite | TTS Trio: Only a party/person with personal knowledge should sign; unsworn counsel affidavit risks frivolous claims | Held: Counsel may sign; Rule 11 applies. An information-and-belief affidavit need not be sworn under perjury when the form is appropriate and sources are identified. |
| Whether the affidavit set forth sufficient facts to raise a "legitimate question of liability" | Bayless: Affidavit included multiple witness statements, police report, and toxicology results describing slurred speech, boisterous conduct, and numerous drinks — sufficient circumstantial evidence of obvious intoxication | TTS Trio: Affidavit lacked admissible personal-knowledge testimony showing the decedent was obviously intoxicated when last served | Held: Sufficient. The affidavit provided identifiable, reasonably reliable sources and details to raise a legitimate question of liability at the early stage. |
Key Cases Cited
- American Int'l Ins. Co. v. Robert Seuffer GmbH & Co. KG, 468 Mass. 109 (2014) (standard of review for summary judgment is de novo)
- Croteau v. Swansea Lounge, Inc., 402 Mass. 419 (1988) (§ 60J timeliness and judge’s discretion to extend filing period)
- Howland v. Cape Cod Bank & Trust Co., 26 Mass. App. Ct. 948 (1988) (definition of “affidavit” as ordinarily implying sworn, personal-knowledge statement, but subject to exceptions)
- Lampron, 441 Mass. 265 (2004) (information-and-belief affidavits acceptable when based on specific, reliable sources)
- Rivera v. Club Caravan, Inc., 77 Mass. App. Ct. 17 (2010) (to prevail in dram-shop claim plaintiff must show outward signs of intoxication by last service; circumstantial evidence may suffice)
- Cimino v. Milford Keg, Inc., 385 Mass. 323 (1982) (elements of dram-shop negligence)
- Little v. Rosenthal, 376 Mass. 573 (1978) (medical-malpractice tribunal standard; distinguishing evaluation-of-evidence role in § 60B from § 60J)