Some of the most regularly occurring and senseless tragedies in our society occur when alcohol and driving are combined. In the press, these tragedies often play out with calls for justice against the drunk drivers, and stories of repeat offenders who have been given lenient sentences. Literally every day, the criminal courts struggle with what to do with drunk drivers who have endangered others.

Handing down justice to drunk drivers who have caused injuries or death in the form of prison sentences, community service, and counseling is the only tool the criminal courts have to address what drunk driving victims have suffered. The civil courts, however, offer a different societal approach to the problem of drinking and driving, focusing on compensating victims, to the extent that is ever possible, for what they have lost at the hands of a drunk driver.

Unlike the criminal courts, the civil courts allow the victims to seek compensation not just from the drunk driver, but from bars or taverns that have negligently served alcohol to the drunk driver. Previous blogs have outlined the basic of liquor liability, or so-called “dram shop” liability, in Massachusetts.

But why should civil courts allow a victim to seek compensation from anyone other than the drunk driver? Aren’t they the real culprit? Why is it the bar’s fault? These are logical questions, and the answers find their roots in public policy, social norms, and the rule of law.

To look at why the law allows bars to share in the blame, and share in compensating victims, one must first review the law regulating the sale of liquor in general. Liquor licenses, and the sale of alcohol under those licenses, is strictly governed by statute, Massachusetts Laws Chapter 138. This statute, and the courts interpreting it, have stressed the public safety issues that arise with the sale of alcohol, and the need for strict regulation of the industry. In order to sell alcohol legally, you must (a) have a license, and (b) conduct the sale of alcohol in accordance with Chapter 138, and the regulations promulgated and enforced by the ABCC.

Under those regulations, the sale of alcohol at a licensed premises to a minor or a visibly intoxicated person is a violation of criminal statute, an unlawful act. M.G.L. c. 138, §69. Violation of this criminal statute is evidence of negligence and will support a verdict against the licensee for damage caused by that negligence. Cf. Gottlin v. Herzig, 40 Mass. App. Ct. 163, 167 (1996). 

Under Chapter 138 and the ABCC regulation204 CMR 2.05(2), licensees are responsible for any unlawful sale of alcohol, whether they are present at the time of the sale or not: “No licensee for the sale of alcoholic beverages shall permit any disorder, disturbance or illegality of any kind to take place in or on the licensed premises. The licensee shall be responsible therefor, whether present or not.”

Thus, the law views and treats liquor licensees as sellers of a societally accepted, but potentially dangerous, commodity. Under the eyes of the law, if a licensee engages in selling that commodity for a profit, it must act responsibly and do its part to minimize the risks that its product undeniably creates.

It is important to note that the law does not make the bar responsible for every drunk driver that leaves its establishment and causes injury or death. What it does do is require a bar to train its employees to (a) identify minors and refuse to serve them; and (b) to identify and refuse to serve those customers who are visibly intoxicated. It is only when a bar fails to follow these fairly minimal requirements that it can be held liable for the damage done by its failure to adhere to these simple rules.

In the end, there can be no dispute that drunk drivers play a central and inexcusable role in the tragedies that we read or hear about so regularly. But what the law recognizes is that the people profiting from the sale of liquor are in the best position to play a central role in preventing the worst of these tragedies.

When licensees, who have sought and gained the limited privilege of making money from alcohol, fail in their most basic risk-reducing responsibilities, the civil courts do what the criminal courts cannot: make them, as well as the drunk driver, pay for the damage that results.

The lawyers at SUGARMAN have pursued some of the most notable and complex liquor liability cases in Massachusetts for decades. If you have a question about a liquor liability or alcohol-related accident case, please fill out a Contact Form, call us at (617)-542-1000 or email and a partner at our office will respond promptly.