G.L. c. 138, § 69; Cimino v. Milford Keg, Inc., 385 Mass. 323 (1982); McGuiggan v. New England Telephone & Telegraph Co., 398 Mass. 152 (1986); G.L. c. 231, § 60J
Dram shop and social host liability in Massachusetts — serving someone already intoxicated
A claim in Massachusetts trial courts · Last verified August 26, 2026
Massachusetts holds the person who supplied the alcohol answerable, in defined circumstances, to whoever the drinker then hurt.
Two doctrines do that work. Dram shop liability reaches licensed establishments, and rests on a one-sentence statute: G.L. c. 138, § 69 — "No alcoholic beverage shall be sold or delivered on any premises licensed under this chapter to an intoxicated person."
Social host liability reaches private hosts, and it is far narrower — narrow in a specific way that most people get wrong.
What the claim is
Someone was served alcohol when they should not have been, and then injured you or killed a member of your family.
Dram shop — the licensed establishment
Where the right comes from
Section 69 is a licensing prohibition rather than a damages statute. The civil claim is negligence, with § 69 supplying the standard of conduct, and it was established in Cimino v. Milford Keg, Inc., 385 Mass. 323 (1982).
What a plaintiff has to prove
- The defendant was a licensee under c. 138;
- It served alcohol to a person who was already intoxicated — the case law standard is a person who was visibly or apparently intoxicated, which is what makes the service negligent;
- The service was negligent, judged by what a reasonable licensee would have observed;
- Causation — the intoxication caused the injury; and
- Damages.
Visible intoxication is the element. Massachusetts does not impose liability merely because the patron was later shown to have been over the legal limit. What matters is what the server could observe: slurred speech, unsteadiness, glassy eyes, loud or belligerent behaviour, the number and pace of drinks served.
That is why the evidence in these cases is so specific, and why it disappears so fast.
The evidence, and why speed matters
Surveillance video, which most establishments overwrite within days or weeks.
Point-of-sale records showing what was served, when, and to which tab — the timeline of the evening, in a document.
Server and bartender identity, and their training records under the state's alcohol server training programmes.
Other patrons, whose recollection fades and whose names nobody wrote down.
The toxicology and the accident reconstruction, which establish the level and work backwards to what was observable at the bar.
A letter demanding preservation of video and point-of-sale data should go out within days. It is the single most consequential step in a dram shop case.
Social host — the narrower doctrine
The rule
McGuiggan v. New England Telephone & Telegraph Co., 398 Mass. 152 (1986), recognised social host liability and defined its limit.
A social host may be liable to a person injured by an intoxicated guest's negligent driving where the host served alcohol, or made it available, to a guest the host knew or reasonably should have known was intoxicated.
The limit that decides the cases
The host must have controlled the supply of the alcohol.
A host who serves drinks, or who provides a keg or an open bar, may be liable. A host who allows guests to drink alcohol the guests brought themselves is not — the duty attaches to furnishing the liquor, not to permitting its consumption on the premises.
That distinction disposes of most social host claims, and it is why the question in every one of them is: whose alcohol was it?
Minors
The analysis is stricter where the guest is under 21. Furnishing alcohol to a minor is itself unlawful under c. 138 § 34, and a host who supplies alcohol to underage guests faces both criminal exposure and a stronger negligence case.
The § 60J affidavit requirement
G.L. c. 231, § 60J imposes a procedural gate on these claims that has no analogue in ordinary negligence practice.
In an action against a licensee for injury caused by a person to whom alcohol was sold or delivered, the plaintiff must file an affidavit setting out the facts supporting the claim, within the period the section specifies — and the claim is subject to dismissal if the affidavit is not filed.
The requirement is aimed at ensuring these claims rest on identified facts rather than on the bare fact that the defendant drank somewhere before the crash. It should be calendared at the outset.
How long you have to file
Three years under G.L. c. 260, § 2A, from the injury.
Three years for a wrongful death claim under c. 229 § 2 — and where the death was caused by conduct that was wanton or reckless, the $5,000 punitive floor in that section applies.
The § 60J affidavit deadline is much shorter and is the one that catches people.
Evidence preservation is shorter still, and is not a legal deadline at all.
What has to happen before you file
The § 60J affidavit, for a claim against a licensee.
A preservation letter, immediately.
Presentment under G.L. c. 258 § 4 where the defendant is a public entity — a municipal function or a state-operated venue.
What the claim pays
Personal injury damages — medical expenses, lost earnings and earning capacity, pain and suffering, disfigurement and impairment.
Wrongful death damages under c. 229 § 2, including the punitive minimum for wanton or reckless conduct.
Loss of consortium, to a spouse and in some circumstances a child or parent.
Twelve percent prejudgment interest from the date of filing.
Reduced by comparative negligence under G.L. c. 231, § 85 — and barred past 50 percent.
No attorney's fees.
Who can be sued
The licensee — the bar, restaurant, club, function hall or package store.
The corporate owner and, in some circumstances, its principals.
The server, personally, though the establishment is the practical defendant.
A social host, within the McGuiggan limits.
The intoxicated driver, who is the primary tortfeasor — and often the one with the least insurance, which is why the dram shop claim exists.
Common defenses
- The patron was not visibly intoxicated when served — the central defence, and it is fought on the video and the timeline.
- No causation — the drinking elsewhere, before or after, caused the intoxication.
- The host did not supply the alcohol, which defeats a social host claim.
- No § 60J affidavit.
- Comparative negligence, including by the injured plaintiff.
- The drinker's own claim is limited. A patron suing over injuries from their own intoxication faces a substantially harder case than a third party injured by them.
- Limitations.
What people get wrong
Serving someone who later turns out to have been over the limit is not the test. Visible intoxication at the time of service is.
A social host is liable for the alcohol they supplied, not for letting guests drink what they brought. That single distinction decides most of these cases.
The evidence disappears in weeks. Video is overwritten, receipts are archived, staff move on. The preservation letter is the case.
Section 60J is a real gate. An affidavit is required against a licensee, and missing it is fatal.
Underage guests change the analysis, because furnishing alcohol to a minor is independently unlawful.
The driver's insurance is usually not enough, which is the practical reason these claims are brought against the establishment at all.
Where it came from
The common law rule was that furnishing alcohol was never the proximate cause of what a drinker later did — the drinker's own voluntary act broke the chain. That rule was tidy and it produced results nobody could defend once cars became common: a bar could serve a patron who was plainly drunk all evening and bear no responsibility for the family they killed on the way home.
Massachusetts changed it judicially rather than by statute. Cimino held in 1982 that a licensee serving a visibly intoxicated patron was negligent, and that the resulting harm was foreseeable — the statutory prohibition in § 69 supplying the standard the licensee had failed to meet. The licence is the justification: a business permitted by the Commonwealth to sell alcohol accepts the obligation to sell it responsibly.
McGuiggan extended the principle to social hosts four years later and then confined it, and the confinement is the more important half. A private host is not a licensed business, has no training, no point-of-sale records and no professional judgment to exercise, and imposing a duty to monitor every guest's consumption would have made ordinary hospitality legally hazardous. So the duty attaches to furnishing the alcohol — the act the host controls.
Section 60J came later, as the procedural counterweight. Dram shop claims are attractive because the establishment is insured and the driver usually is not, and the affidavit requirement exists to ensure a claim rests on facts about the service rather than on the defendant's solvency.
Common questions
Can I sue a bar that served the driver who hit me?
Yes, if the bar served the driver when they were visibly intoxicated and that intoxication caused the crash.
What does "visibly intoxicated" mean?
Signs a server could observe — slurred speech, unsteadiness, glassy eyes, belligerence, or the number and pace of drinks served. A later blood alcohol reading alone is not the test.
Can I sue a private party host?
Only if the host supplied the alcohol to a guest they knew or should have known was intoxicated. A host who allowed guests to drink alcohol the guests brought is not liable.
What if the guest was under 21?
The analysis is stricter. Furnishing alcohol to a minor is independently unlawful and strengthens the claim.
How long do I have to sue?
Three years — but the § 60J affidavit requirement against a licensee comes much sooner, and the evidence needs preserving within days.
Can I recover attorney's fees?
No. These are negligence claims and Massachusetts shifts no fees on them.