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SJC-11958

HOWARD H. BAYLESS, administrator,1 vs.    TTS TRIO CORPORATION2 &
                            others.3



        Worcester.     January 11, 2016. - April 28, 2016.

 Present:   Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, &
                            Hines, JJ.


Alcoholic Liquors, Sale to intoxicated person. Negligence,
     Serving alcoholic liquors to guest. Practice, Civil,
     Affidavit.



     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.

    1
        Of the estate of Herman T. Bayless, Sr.
    2
        Doing business as Kaizen Restaurant.
    3
        Thuc Tang, Son Vo, and Chau Ho.
                                                                     2


     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.


     SPINA, J.    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.4    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."5    Pursuant to


     4
       We acknowledge the amicus brief submitted by the
Massachusetts Academy of Trial Attorneys in support of the
plaintiff.
     5
         General Laws c. 231, § 60J, provides in pertinent part:

          "Every action for negligence in the distribution, sale
     or serving of alcoholic beverages to a minor or to an
     intoxicated person shall be commenced in the superior court
     department and shall proceed according to the Massachusetts
     Rules of Civil Procedure unless otherwise provided for by
     this section.

          "The plaintiff shall file, together with his
     complaint, or at such later time not to exceed ninety days
     thereafter, an affidavit setting forth sufficient facts to
     raise a legitimate question of liability appropriate for
     judicial inquiry.

          "Any party may make a motion for summary judgment
     pursuant to Rule 56 of the Massachusetts Rules of Civil
     Procedure[, 365 Mass. 824 (1974)]. Any such motion shall
     be heard and decided promptly after issue is joined as to
     any party, unless the court enlarges the time for
     discovery. Said enlarged time for discovery shall not
     exceed ninety days, except on further order of the court."
                                                                    3


§ 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.
                                                                    4


     1.   Background.   We summarize the facts alleged in the

§ 60J affidavit submitted by the plaintiff.6   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.7   Jane Doe often would

continue to serve the decedent alcoholic beverages when he was

noticeably intoxicated.    On one occasion, the decedent was at


     6
       The defendants sought to strike the entire affidavit as
insufficient and therefore did not present any facts or evidence
in support of their motion for partial summary judgment.
     7
       Friends and family did not know the bartender's full name
but she was familiar to them.
                                                                    5


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
                                                                   6


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
                                                                    7


granted his motion to extend time to file the affidavit.8   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


     8
       The defendants filed a motion to vacate the judge's order
extending the time to file an affidavit. The motion was denied.
                                                                    8


"appropriate circumstances" a judge has the discretion to extend

the ninety-day period.9   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 impression.   The defendants argue that

an appropriate § 60J affidavit must be a sworn statement based

on personal knowledge because that is the plain and unambiguous

meaning of the term "affidavit," and therefore, the plaintiff's

affidavit is insufficient.

     "When a statute does not define its words we give them

their usual and accepted meanings, as long as these meanings are

consistent with the statutory purpose. . . .   We derive the

words' usual and accepted meanings from sources presumably known

to the statute's enactors, such as their use in other legal

contexts and dictionary definitions" (citation omitted).

Commonwealth v. Zone Book, Inc., 372 Mass. 366, 369 (1977).

Generally, affidavits must be made on the affiant's personal

knowledge.   However, this does not mean that an affidavit based


     9
       The defendants raise the timeliness of the plaintiff's
affidavit in their statement of issues presented on appeal.
However, they do not advance any argument as to this issue. It
is deemed waived. See Mass. R. A. P. 16 (a) (4), as amended,
367 Mass. 921 (1975); Commonwealth v. Horton, 434 Mass. 823, 836
n.15 (2001). In any event, the issue is without merit. A trial
judge has discretion to extend the ninety-day period. Croteau
v. Swansea Lounge, Inc., 402 Mass. 419, 421-422 (1988).
                                                                     9


upon the information and belief of the affiant is never accepted

by courts.   There are various instances where an affidavit based

upon information and belief is accepted.    See, e.g.,

Commonwealth v. Long, 454 Mass. 542, 551 n.10 (2009)

(application for wiretapping may be based on personal knowledge

or information and belief); Knott v. Racicot, 442 Mass. 314,

324-325 (2004) (affidavit submitted with motion for relief from

judgment based on information and belief); Commonwealth v.

Lampron, 441 Mass. 265, 270-271 (2004) (notwithstanding

requirement of Mass. R. Crim. P. 13 [a] [2][, as appearing in

442 Mass. 516 (2004),] that affidavits be on personal knowledge

of affiant, affidavit in support of motion seeking documentary

evidence may be on information and belief provided it is based

on specific and reliable known sources); Sher v. Desmond, 70

Mass. App. Ct. 270, 281 (2007) (affidavit submitted with

grandparent visitation complaint based on information and

belief).    Although § 60J does not provide guidance regarding the

form and substantive requirements for the affidavit, it

incorporates the Massachusetts Rules of Civil Procedure.    Rule

11 (e) of the Massachusetts Rules of Civil Procedure, as

amended, 456 Mass. 1401 (2010), provides some guidance for

instances such as this, when a statute requires an affidavit to

be filed.    The rule states that when an affidavit is permitted

or required to be filed it may be made "by the party, or by a
                                                                   10


person having knowledge of the facts for and on behalf of such

party."    One commentator has observed that rule 11 (e) permits

affidavits based on something other than personal knowledge,

particularly where a statute requires an affidavit without

specifying that it be based on the personal knowledge of the

affiant.    See J.W. Smith & H.B. Zobel, Rules Practice § 23.1.3

(2d ed. 2006).   We recognize that in some instances affidavits

may be based on sources other than personal knowledge.

     The defendants argue that the plain meaning of the term

"affidavit" was established in Howland v. Cape Cod Bank & Trust

Co., 26 Mass. App. Ct. 948, 949 (1988), and should be applied

here.   Howland was a case that involved a will contest and an

affidavit submitted pursuant Rule 16 of the Supplemental Rules

of the Probate Court, as amended (1987).    Id.   The court

observed that the term "affidavit" is "a word which implies a

statement under oath by a person having direct knowledge of the

facts which he verifies, except as otherwise clearly stated in

the affidavit itself."    Id.   The defendants contend that this

definition requires that the affidavit be based on personal

knowledge and should be applied to § 60J affidavits.     To support

their argument, the defendants cite two Superior Court decisions

that adopted Howland's definition.    We are not persuaded.

Howland does not mandate an affidavit to be based on personal

knowledge in every circumstance.    Howland contemplates that
                                                                   11


affidavits will be based on direct knowledge "except as

otherwise clearly stated in the affidavit itself."   Id.     By

simply stating in the affidavit that it is based on information

and belief, the affidavit would be sufficient under the

definition articulated in Howland.   In addition, the two

Superior Court cases that the defendants rely on do not

interpret Howland's definition of "affidavit" as requiring

affidavits submitted pursuant to § 60J to be based on personal

knowledge.   We have reviewed the two cases; they actually

concluded that § 60J does not require an affidavit to be based

on personal knowledge.

     The defendants next argue that because of the specific

reference to Mass. R. Civ. P. 56, 365 Mass. 824 (1974), in the

third paragraph of § 60J, the plaintiff's affidavit must comport

with the requirements of rule 56 (e).10   The defendants' argument

would require the affidavit to be based on personal knowledge

and set forth facts that would be admissible in evidence.      This

argument has no merit.




     10
       Rule 56 (e) of the Massachusetts Rules of Civil
Procedure, 365 Mass. 824 (1974), requires that affidavits "shall
be made on personal knowledge, shall set forth such facts as
would be admissible in evidence, and shall show affirmatively
that the affiant is competent to testify to the matters stated
therein. Sworn or certified copies of all papers or parts
thereof referred to in an affidavit shall be attached thereto or
served therewith."
                                                                    12


     The standard articulated in § 60J is different from the

standard a party must meet to succeed in a motion for summary

judgment.    Section 60J requires an affidavit to contain

"sufficient facts to raise a legitimate question of liability

appropriate for judicial inquiry," whereas rule 56 (e) requires

an affidavit to contain "specific facts showing that there is a

genuine issue for trial."    Moreover, the affidavit required

under § 60J is intended for use at the initial stages of

litigation and precedes formal discovery, whereas an affidavit

in support of a motion for summary judgment typically follows

formal discovery.    It would be impractical to require a party to

submit an affidavit conforming with rule 56 (e) requirements at

the outset of the litigation when there has not been any formal

discovery.    The purpose of § 60J is to help eliminate frivolous

claims at the early stage of litigation.    If a rule 56 (e)

standard is required at the outset, many viable claims may be

stymied because the requisite information needed to proceed will

require discovery, and personal knowledge may be elusive without

discovery due to the nature of the cause of action.11   In


     11
       If the affidavit under § 60J must be based upon personal
knowledge, this would hinder plaintiffs who were so intoxicated
when they were at the establishment that they do not remember
what happened or, as here, the estate of a decedent who
allegedly died while driving under the influence of alcohol.
This also would hinder plaintiffs who were injured as a result
of a patron being overserved at an establishment because,
presumably, the plaintiff would not have personal knowledge of
                                                                  13


addition, the statute specifically provides an opportunity for

the defendants to file a motion for summary judgment.     The

logical and plain reading of the statute suggests that the

affidavit required by § 60J need not meet the summary judgment

standard at the outset of litigation because the defendants have

a subsequent opportunity to file a motion for summary judgment.

This case is similar to Sher, 70 Mass. App. Ct. at 278, where

the Appeals Court concluded that the affidavit required when

filing a complaint for grandparent visitation does not have to

meet a summary judgment standard because it is required at the

initial stages of the action and is "filed prior to the

initiation of any formal postcomplaint discovery."    The court

noted that the summary judgment procedure "remains otherwise

available to a parent."   Id.   We conclude that a § 60J affidavit

need not comply with rule 56 (e) requirements.12   The § 60J



what happened at the establishment prior to his or her injuries.
Both of these situations are plausible under § 60J.
     12
       The defendants also take issue with the fact that the
plaintiff's counsel signed the § 60J affidavit, where the
plaintiff is the administrator of the decedent's estate. If the
statute were interpreted to mean that only the plaintiff could
be the affiant, many valid claims would not be viable because of
the reasons already articulated in this opinion. See
Courtemanche v. Beijing Restaurant, Inc., 490 F. Supp. 2d 107,
110 (D. Mass. 2007). The defendants further argue that if the
plaintiff's counsel is allowed to sign the affidavit, any dram
shop negligence complaint will proceed to trial unless there is
evidence of counsel's intentional "design to defraud or to seek
an unconscionable advantage." Van Christo Advertising, Inc. v.
M/A-COM/LCS, 426 Mass. 410, 416 (1998). This argument has no
                                                                  14


affidavit must, however, provide identifiable sources of

information that are reasonably reliable, and set forth details

of that information.   See Lampron, 441 Mass. at 270-271.

    The defendants also argue that the affidavit did not set

forth sufficient facts to raise a legitimate question of

liability.   We first address the standard of review.   We already

have decided that the affidavit need not meet a rule 56 (e)

standard at this stage in the litigation.   However, the standard

of review applicable to a § 60J affidavit is higher than the

standard of review applicable to a motion to dismiss under Mass.

R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974), which is concerned




merit. The legal analysis is the same for § 60J despite the
fact it is the plaintiff's counsel who is signing the affidavit.
The affidavit still would be evaluated for whether the plaintiff
has put forth sufficient facts to raise a legitimate question of
liability. Because it was the plaintiff's attorney who signed
the affidavit, Mass. R. Civ. P. 11 (a), as amended, 456 Mass.
1401 (2010), would apply, stating, "[t]he signature of an
attorney to a pleading constitutes a certificate by him that he
has read the pleading; that to the best of his knowledge,
information, and belief there is a good ground to support it;
and that it is not interposed for delay." We conclude that
plaintiff's counsel conducted a diligent investigation and is an
appropriate individual to sign an affidavit under § 60J.

     The defendants also argue that the affidavit is not sworn
to or signed under the pains and penalties of perjury. We agree
with the Superior Court judge that because an affidavit
submitted upon information and belief is sufficient to satisfy
§ 60J, to require an affiant to swear to these facts would be
inapposite.
                                                                  15


with the sufficiency of the pleadings.13    In contrast, the

purpose of the procedural requirements in § 60J is to "promote

the availability of liability insurance by establishing

mechanisms whereby the incidence of frivolous claims might be

reduced."   Croteau, 402 Mass. at 422.    The purpose of § 60J

would not be served if the standard of review was the same as

that applicable to a motion to dismiss.     Courtemanche v. Beijing

Restaurant, Inc., 490 F. Supp. 2d 107, 111 (D. Mass. 2007)

("Given the specific intent of the legislature, this Court

understands the affidavit requirement to necessitate more than

what is sufficient to survive a motion to dismiss").    Section

60J requires a showing that the complaint raises a legitimate

question of liability.   As previously discussed, the § 60J

affidavit must provide identifiable sources of information that

are reasonably reliable, details of that information, and an

assurance that the complaint is not frivolous.

     The defendants next contend that the standard of review

should be similar to that applicable to procedural requirements

     13
       "In reviewing the sufficiency of a complaint under [Mass.
R. Civ. P.] 12 (b) (6), 365 Mass. 754 (1974), '[w]e take as true
"the allegations of the complaint, as well as such inferences as
may be drawn therefrom in the plaintiff's favor . . . ."
Golchin v. Liberty Mut. Ins. Co., 460 Mass. 222, 223 (2011),
S.C., 466 Mass. 156 (2013), quoting Marram v. Kobrick Offshore
Fund, Ltd., 442 Mass. 43, 45 (2004). "What is required at the
pleading stage are factual 'allegations plausibly suggesting
(not merely consistent with)' an entitlement to relief . . . ."
Golchin, supra, quoting Iannacchino v. Ford Motor Co., 451 Mass.
623, 636 (2008).
                                                                    16


for medical malpractice claims.    G. L. c. 231, § 60B.   The

purpose of § 60B is to discourage frivolous claims and to

"ensure the continued availability of medical malpractice

insurances at a reasonable cost," Vasa v. Compass Med., P.C.,

456 Mass. 175, 178 (2010), quoting Paro v. Longwood Hosp., 373

Mass. 645, 647 (1977), which is somewhat similar to the purpose

of § 60J.    See Croteau, 402 Mass. at 421-422 ("designed to

promote the availability of liability insurance by establishing

mechanisms whereby the incidence of frivolous claims might be

reduced").   Section 60B requires every malpractice action to be

heard by a tribunal where the plaintiff will make an "offer of

proof" and the tribunal decides "if the evidence presented if

properly substantiated is sufficient to raise a legitimate

question of liability appropriate for judicial inquiry."       In

both §§ 60B and 60J, the plaintiff must provide facts that raise

a legitimate question of liability.    The defendants argue that

in Little v. Rosenthal, 376 Mass. 573, 578 (1978), this court

decided that the phrase "legitimate question of liability" in

§ 60B created a heightened pleading standard that is analogous

to a judge deciding a defendant's motion for a directed verdict.

Because § 60J has the same language, the defendants argue, the

heightened pleading standard should be adhered to when judges

are evaluating affidavits under § 60J.    We disagree.
                                                                     17


    Although there are similarities in the two statutes, there

is one major difference that is fatal to the defendants'

argument.    In Little, this court held that the standard used by

the medical malpractice tribunal is akin to that of a judge

deciding a motion for directed verdict because of the tribunal's

role of evaluating evidence, not because of the "legitimate

question of liability" language.     Id. at 578.   Section 60B

requires the tribunal to evaluate evidence submitted by the

plaintiff.   Id.   The statute permits the tribunal to "summon or

subpoena any such records or individuals to substantiate or

clarify any evidence which has been presented before it."        G. L.

c. 231, § 60B.     In contrast, § 60J merely requires the plaintiff

to file an affidavit that includes sufficient facts to raise a

"legitimate question of liability appropriate for judicial

inquiry."    There is no language in § 60J indicating that the

judge's role in this context includes an evaluation of evidence.

Because § 60J does not require plaintiffs to present evidence as

does § 60B, we decline to adhere to the same standard applied by

tribunals in evaluating medical malpractice causes of action.

    We now decide whether the facts set out in the plaintiff's

affidavit sets forth sufficient facts to raise a legitimate

question of liability.     The defendants' liability is grounded on

the common law of negligence.     Cimino v. Milford Keg, Inc., 385
                                                                   18


Mass. 323, 327 (1982).   To demonstrate the defendants'

liability, the plaintiff must prove that the decedent was

    "(1) a patron of premises (2) who is served intoxicating
    liquors (3) while he is intoxicated (4) and under
    circumstances from which the defendant knew or reasonably
    should have known that he was intoxicated when served (5)
    operates a motor vehicle while intoxicated (6) such
    operation was reasonably foreseeable by the defendant (7)
    and a person of ordinary prudence would have refrained from
    serving liquor to that patron in the same or similar
    circumstances (8) and such operation causes the plaintiff's
    death or injury within the scope of the foreseeable risk."

Id. at 331 n.9.   The defendants argue that the plaintiff has not

put forth sufficient facts to establish that the decedent was

obviously intoxicated at the time he was last served.      "To

prevail in a dram shop case, a plaintiff must prove by a

preponderance of the evidence that the patron in question was

exhibiting outward signs of intoxication by the time he was

served his last alcoholic drink."    Rivera v. Club Caravan, Inc.,

77 Mass. App. Ct. 17, 20 (2010).    The plaintiff can prove this

through circumstantial evidence.    Id. at 20-21.

    The § 60J affidavit here alleges that multiple witnesses,

including the decedent's daughter, heard or observed the

decedent being loud and boisterous and exhibiting slurred speech

on the night of his death.   It sets forth witness statements

that describe the decedent's behavior at the restaurant at

various times from approximately 4 P.M. to 8:45 P.M.      One

witness joined the decedent for two rounds of drinks and was
                                                                   19


told by Jane Doe, with whom he was familiar, that she was

concerned that the decedent was intoxicated and had not eaten

anything.   The witness then observed Jane Doe offer the decedent

food but the decedent declined her offer.   The witness

subsequently observed Jane Doe serving the decedent more drinks,

despite her previous expressed concern for his state of

inebriation.   The witness described the decedent as being loud

and slurring his speech.   The witness left the restaurant at

approximately 8:45 P.M., about fifteen minutes before the

decedent telephoned his daughter.   The decedent's daughter spoke

to her father at approximately 9 P.M., four minutes before he

lost control of his vehicle.   Her father told her that he had

left the restaurant and was heading home.   Her father's speech

was slurred, making it difficult for her to understand him.      The

witness statements that chronicled the decedent's night up until

approximately four minutes before his fatal crash, along with

the information from the police report and medical toxicology

report, set out sufficient facts to raise a legitimate question

of liability at this stage in the litigation.   A finder of fact

could infer from the daughter's observations that the decedent's

speech was slurred and hard to understand upon leaving the

restaurant four minutes before his fatal crash, and that he most

likely was exhibiting behavior that would put Jane Doe on notice

that he was intoxicated.   At the very least, the witness
                                                                  20


statements and the information from the police report and

medical toxicology report set out sufficient facts to raise a

legitimate question of liability at this stage in the

litigation.   The plaintiff does not need to win his case at this

point in the action.   He need only present sufficient facts to

raise a legitimate question of liability by providing

identifiable sources of information on which the complaint is

based, details of that information, and facts indicating that

the information is reasonably reliable.   He has done so.    He

also has shown that the claim is not frivolous, one of the

objectives of § 60J.

    Conclusion.    For the foregoing reasons, we conclude that

the plaintiff's affidavit based upon information and belief is

sufficient to satisfy the procedural requirement under G. L.

c. 231, § 60J, and the plaintiff has sufficiently raised a

legitimate question of liability.   The order denying the

defendant's motion to strike the plaintiff's G. L. c. 231,

§ 60J, affidavit and for partial summary judgment is affirmed.

                                    So ordered.
