Supreme Judicial Court of Massachusetts, Worcester
HOWARD H. BAYLESS, administrator 
TTS TRIO CORPORATION  & others. 
Heard: January 11, 2016.
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.
Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ.
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. 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."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 based upon personal knowledge. For the reasons that follow, we conclude that an affidavit based on information and belief may be sufficient to satisfy the requirements of § 60J, and that in this case it was.
1. Background. We summarize the facts alleged in the § 60J affidavit submitted by the plaintiff.On April 14, 2011, Howard H. Bayless was killed in a one-car accident when he drove in an intoxicated state shortly after leaving Kaizen Sushi Bar and Grill (restaurant), which was owned and operated by the defendants. The accident occurred at approximately 9:04 P.M. on a clear and straight road. The decedent's estimated speed at the time of the accident was seventy-nine miles per hour in a thirty miles per hour zone.
The decedent was a frequent patron of the restaurant, and was observed on numerous occasions to drink strong alcoholic beverages to excess, causing him to become loud and boisterous and to exhibit impaired speech and coordination. On several occasions, friends and family of the decedent observed him leaving the restaurant in an obviously intoxicated condition, intending to drive home. The decedent was served regularly by an unnamed bartender, Jane Doe, who would often engage in lengthy conversations with the decedent. Jane Doe often would continue to serve the decedent alcoholic beverages when he was noticeably intoxicated. On one occasion, the decedent was at the restaurant with his two minor daughters when he became obviously intoxicated. One daughter began to cry, and when Jane Doe asked her why, she said that it was because her father was intoxicated. Despite the daughter's stated concern, Jane Doe continued to serve the decedent alcoholic beverages.
On the day of the accident, the decedent was at the restaurant from approximately 2 P.M. until 8:50 P.M. Other witnesses observed and spoke with him during that time. One witness who knew the decedent well saw him at the restaurant at approximately 4 P.M. until the witness left at 6 P.M. During this time, the witness observed the decedent drink several alcoholic beverages and saw Jane Doe serve him these beverages. At the time, the decedent was being loud and gregarious. One of the decedent's daughters telephoned him four times while he was at the restaurant to tell him to stop drinking and return home for a family barbecue. At 6:30 P.M., during one of her telephone calls, she noticed that his speech was slurred and he was very "loud and boisterous." Because she had seen her father intoxicated on prior occasions, she concluded that he was highly intoxicated. When she requested that he stop drinking and return home, he handed the cellular telephone to Jane Doe, who attempted to ease the daughter's concerns. The daughter reiterated that she would like her father to stop drinking and return home. At approximately 6 P.M. on that day, a former employee of the decedent had arrived at the restaurant to have dinner. After dinner, he sat with the decedent and ordered a drink. The decedent's demeanor was loud and he was stumbling over words. Jane Doe, with whom the witness was familiar, told the witness that she was concerned about the decedent because he had not eaten anything and was intoxicated. The witness saw Jane Doe offer the decedent food, but he refused to eat. Subsequently, the witness saw Jane Doe continue to serve the decedent alcoholic beverages, which he consumed. The witness left the restaurant at approximately 8:45 P.M. The police determined that the decedent purchased twelve drinks while he was at the restaurant. At approximately 9 P.M., the decedent telephoned his daughter and told her that he was on his way home. He said he was on Cedar Street. During this telephone call, the daughter noticed that the decedent's speech was slurred and she had difficulty understanding him. At approximately 9:04 P.M., the decedent lost control of his vehicle and crashed on Cedar Street, approximately two miles from home. He died at the scene as a result of multiple traumatic injuries.
The plaintiff filed a complaint under the Commonwealth's wrongful death statute, G. L. c. 229, § 2. He later filed an affidavit, pursuant to § 60J, after a Superior Court judge granted his motion to extend time to file the affidavit.The defendants moved to strike the plaintiff's affidavit and for partial summary judgment of the plaintiff's complaint, based on the insufficiency of the submitted affidavit. A second judge in the Superior Court denied the defendants' motion, concluding that a § 60J affidavit need not be based on personal knowledge and that an affidavit based on information and belief may be sufficient to satisfy § 60J. The defendants filed a petition for interlocutory relief, which a single justice of the Appeals Court allowed. We transferred the case to this court on our own motion.
2. Discussion. We review the outcome of a motion for summary judgment de novo "to determine whether all material facts have been established such that the moving party is entitled to judgment as a matter of law." American Int'l Ins. Co. v. Robert Seuffer GmbH & Co. KG, 468 Mass. 109, 113, cert, denied, 135 S.Ct. 871 (2014). At issue in this case is the procedural requirement under § 60J that the plaintiff must file, either with the complaint or within ninety days thereafter, an affidavit "setting forth sufficient facts to raise a legitimate question of liability appropriate for judicial inquiry." Submission of a timely affidavit is required, but in "appropriate circumstances" a judge has the discretion to extend the ninety-day period.Croteau v. Swansea Lounge, Inc., 402 Mass. 419, 421-422 (1988). The statute does not define the word "affidavit, " nor does it provide guidance as to what standard the affidavit must meet to be considered sufficient. The question is one of first ...