If you are injured by a drunk driver, you usually have a good case for liability, but the question is, does the driver have enough insurance? Many drivers are uninsured or insured for only a very small amount, not enough for a bad injury. But there may be another case.

In Massachusetts, it is illegal for a business to sell or serve alcohol to an individual that is underage or visibly intoxicated. The law applies to any place that sells or serves alcohol, such as liquor stores, bars, restaurants, social clubs, and nightclubs. In some limited circumstances, even private individuals have been held liable for the negligence of a guest to whom they have served alcohol. Thus far, the courts have limited this so called “social host” liability to people who have served alcohol to minors.

The most common set of facts leading to liquor liability or a dram shop case as we call it are these: an individual goes to a bar, drinks too much alcohol and becomes visibly intoxicated; the bartender continues to serve the individual alcohol; the individual gets into his or her car, drives and hits a pedestrian or crashes into another car causing serious injuries or even death. The intoxicated individual is responsible for his or her actions and can and should be held liable, but the bar that served that individual may also be responsible if the bartender should not have served the individual alcohol. It is the responsibility of bartenders and other employees selling or serving alcohol to take measures to identify people in their establishment that appear to be intoxicated and not serve them. They have been trained to do this as part of getting their server license. Bartenders and other employees have a responsibility to observe slurred speech, rowdiness and other behaviors associated with intoxication, and if a patron appears to be intoxicated, to call a cab or a family member to transport the individual home safely. Bartenders and others serving liquor also are required to use care in the number of drinks that they serve to an individual. Even if an individual is not slurring his or her words, bartenders should guard against serving too many drinks in a short period of time.

Most bars, liquor stores, restaurants, etc. carry insurance to cover accidents caused by intoxicated patrons who leave their establishment, so there may be a means to recover against such a business if you or your loved one is seriously injured or killed by a drunk driver who was over served. These cases are not easy to prove, though, and you will need to hire a good attorney as soon as possible. Proof of these cases is often dependent upon eyewitnesses. Memories fade very quickly, and it may be difficult to find out who was in the bar at the time the drunk driver was served. Moreover, to proceed with these cases, the law requires that an affidavit or sworn statement be filed within 90 days of the filing of a lawsuit to prove to the court that there are “sufficient facts to raise a legitimate question of liability.” It is often difficult to establish enough facts in such a short period of time.