Faircloth v. Main Street Entertainment, Inc.
Supreme Court of Florida, 3/7/24
No. SC2022-0910, 2024 WL 972238
Chief Justice Muniz
Topics: Comparative Negligence, Dram Shop, Negligence Per Se
Quick Take: Florida’s “dram shop” act, which bars liability against shops that serve alcohol unless they “willfully and unlawfully” serve either a minor or a habitual drunkard, allows negligence and negligence per se cases, not just intentional torts. Negligence cases are subject to comparative negligence division of liability, while intentional torts cases are not. A trial court erred in barring a dram shop (bar) from receiving a jury instruction on comparative negligence because of its erroneous view that the case was an intentional tort case. At a new trial, the defendant can receive an instruction on comparative negligence.
Full Take: This is a major case applying the comparative fault statute and the dram shop statute.
The sad facts involve a pedestrian and a driver. They were both underage and they were both served alcohol by two different Tallahassee bars. The driver was served by Potbellies, a well-known Florida State University college bar, where he was employed. The bar had good cause to know he was under 21. After leaving the bar, his car struck the pedestrian, who was walking in the street. She was catastrophically and permanently injured. Her appointed guardian sued both bars in the case.
The complaint alleged that both bars willfully and unlawfully served the minors and that Dwyer's intoxication (the driver) impaired his driving, while Plaintiff Faircloth's intoxication led her to step into the street in front of Dwyer's oncoming truck.
Potbelly's responded with a comparative fault defense, arguing that any fault attributable to Faircloth should reduce the bar's liability and should be payable by Cantina 101, the bar that served Plaintiff Faircloth.
The trial court ruled that because the dram shop statute required the “willful and unlawful” serving of alcohol to a minor, that language meant that any claim against a dram shop is an intentional tort. Florida’s dram shop statute, section 768.125, Fla. Stat. was applied. The statute limits states:
A person who sells or furnishes alcoholic beverages to a person of lawful drinking age shall not thereby become liable for injury or damage caused by or resulting from the intoxication of such person, except that a person who willfully and unlawfully sells or furnishes alcoholic beverages to a person who is not of lawful drinking age or who knowingly serves a person habitually addicted to the use of any or all alcoholic beverages may become liable for injury or damage caused by or resulting from the intoxication of such minor or person.
Florida’s comparative statute only applies to negligence actions, and it allows defendants to reduce their liability by the comparative negligence of other parties who are at fault for the same injury. But that statute does not apply to intentional torts. There, because the evil of an intentional tort is greater, a defendant is 100% liable.
Because the trial court thought that the “willful and unlawful” language of the dram shop statute meant that it was an intentional tort case, the judge denied a requested instruction on comparative negligence.
The judge also denied an instruction on the “alcohol defense” of section 768.32(2), Fla. Stat., which bars a plaintiff from recovery if they were drunk and more than 50% liable for their own harm. The trial judge thought that the statute applied comparative negligence principles, so it could not apply to what the judge viewed as an intentional tort.
Potbelly's stipulated at trial that it had “willfully and unlawfully” served alcoholic beverages to Dwyer. The bar's defense focused on the causation element of the guardianship's claim. Potbelly's argued that Dwyer was not intoxicated at the time of the accident—and that, even if he was, his intoxication did not cause the collision. Potbelly's maintained that the accident was unavoidable once Faircloth darted in front of Dwyer's oncoming truck.
The jury awarded a $28 million verdict against Potbelly’s, and Potbelly’s appealed.
The First District found that the cause of action was negligence, not an intentional tort, so the judge erred in denying an instruction on comparative negligence. Potbelly’s was entitled to have the jury apportion blame between itself and the driver on one hand and the bar that served the pedestrian (Cantina 101) on the other hand.
The court also held that the trial court should have instructed the jury on the alcohol defense because the alcohol defense applies to “any civil action,” which includes negligence and even intentional tort cases. The court made it clear, however, that if the jury found that Plaintiff was more than 50% at fault for her injuries, she would not be denied relief. Under the derivative liability of the dram shop statute, any comparative negligence or shifting of liability under the alcohol defense would just shift to Cantina 101, the bar who had served her alcohol, as long as the intoxication caused the pedestrian’s comparative negligence.
The DCA reversed and remanded for new trial, but it certified a question of great public importance:
WHETHER THE COMPARATIVE FAULT STATUTE, SECTION 768.81, FLORIDA STATUTES, APPLIES TO TORT ACTIONS INVOLVING THE DRAM-SHOP EXCEPTION CONTAINED IN SECTION 768.125, FLORIDA STATUTES, AGAINST A VENDOR WHO WILLFULLY AND UNLAWFULLY SOLD ALCOHOL TO AN UNDERAGE PATRON, RESULTING IN THE PATRON’S INTOXICATION AND RELATED INJURY?
Notably, Judge Makar wrote an 18-page opinion (nearly double the length of Judge Winokur’s) arguing that the trial court was correct in finding that the tort was an intentional tort, not an ordinary negligence case, and that comparative negligence could not be raised as a defense, because the statute required that the plaintiff proved that serving the underage patrons was “willful.” Judge Makar would have disallowed an alcohol defense, finding the statute disallowing comparative negligence for an intentional tort to be considered by a jury was applicable.
The Supreme Court of Florida took jurisdiction, and it has now provided its opinion. It largely affirms.
Writing for the majority, Chief Justice Muniz notes that section 768.811, the comparative fault statute, applies to a “negligence action,” but not an intentional tort. Section 768.125, the dram shop statute, permits liability when a person “willfully and unlawfully” provides alcohol to an underage patron and intoxication and injury ensue. So issue is whether the action permitted by section 768.125 is a “negligence action” even though the statute requires willful misconduct.
Without approving all the district court's reasoning, the Supreme Court agreed that the answer to the certified question was “yes,” the case is a negligence case, not an intentional tort case.
The court analyzed the long evolution from the common law rule (which placed 100% of fault on drinkers of alcohol rather than the bars who served them) to the modern day. In the 1960s, courts nationwide and Florida’s courts started poking holes in the common law rule. The first cases to do so were grounded in negligence per se, meaning that because it was unlawful to serve minors, a tort could arise from the violation of such statutes. Negligence per se cases are not intentional torts, they are just a subset of negligence cases where the duty arises from violation of a statute, ordinance, or rule. A plaintiff must show not only that the dram shop violated the statute but also that the drinker was 1) of a class the statute was intended to protect; 2) that he suffered injury of the type the statute was designed to prevent; and 3) that violation of the statute was the proximate cause of the injury. Section 562.11, Fla. Stat., is the statute that makes it a misdemeanor to provide alcoholic beverages to underage persons. And Florida cases up to 1980 required that a plaintiff show that the dram shop knew or had reason to believe that the patron was a minor when served.
In 1980, Florida adopted the dram shop statute, which effectively codified the original common law rule absolving vendors from liability for sales, subject to the two “exceptions” specified in the statute. The “unlawfully” requirement brought nothing new—the negligence per se-based cases already required proof that the alcohol provider had violated the law.
The term “willfully,” as used in section 768.125, simply means that the alcohol provider knew or should have known that the recipient was under age 21. But willfully serving a minor does not mean that someone willfully brings about the injury or knows that an injury is substantially certain to occur. (NOTE: In other words, while someone serving a minor might know it’s wrong and entails risk, they likely think that nothing bad will probably happen. The intentional tortfeasor, on the other hand, is consciously trying to injure and knows injury is substantially certain to occur).
The dram shop statute “limits liability to a subset of the actors who could have been found liable under the preexisting negligence per se doctrine.” A plaintiff must show that the defendant knew or should have known that the purchaser of alcohol was underage.
The complaint did not allege that Potbelly’s knew injury was substantially certain to occur. It’s a negligence per se case. The bar stipulated to creating “an unreasonable risk of harm,” but that’s still just negligence, not an intentional tort.
The court expressly declined to approve or disapprove the First DCA’s opinion on derivative liability that specified that Potbelly’s was 100% responsible for all of the driver’s liability and that Cantina 101 was 100% responsible for the pedestrian’s comparative fault. That issue was outside the certified question, and while the court could have exercised jurisdiction over that issue, it declined to do so.
JUSTICE LABARGA DISSENTED. Like Judge Makar, he thinks that the “willful” standard makes dram shop actions intentional torts, and he mocked “the Herculean task of transforming a statute that expressly requires a willful act into a negligence action.” He added that the egregious facts of this case (where the driver bought about 18 beers over four hours and then sped down the road, going about 55 in a 35 mph zone) make it especially unsuited for the majority's holding.
This is not a case where a store clerk failed to check a customer's identification and unwittingly sold alcohol to an underage person. Here, Potbelly's repeatedly, time and again over a period of hours, furnished beer and liquor to a person who was actually employed by Potbelly's and known to be underage. That simply cannot be considered negligent misconduct. It was intentional, and Potbelly's should not be allowed to benefit from the comparative fault statute to lessen its liability. For these reasons, I respectfully dissent.