The Week In Torts – Cases from February 18, 2022
Serving a minor alcohol is not intentional?
FLORIDA LAW WEEKLY
VOLUME 47, NUMBER 7
CASES FROM THE WEEK FEBRUARY 18, 2022
FIRST DISTRICT FINDS THAT A BAR’S “WILLFUL AND UNLAWFUL” SERVICE OF ALCOHOL TO A MINOR IS SOMEHOW NOT AN INTENTIONAL TORT– COMPARATIVE FAULT OF THE MINOR INTOXICANT CAN BE SUBJECT TO COMPARATIVE FAULT IN DRAM SHOP CASE
Main Street Entertainment, Inc. v. Guardianship of Faircloth, 47 Fla. L. Weekly D384 (Fla. 1st DCA Feb. 9, 2022):
An 18-year old, who had been served alcohol at a bar in Tallahassee, was struck and catastrophically injured by a 20-year old, who was also illegally served alcohol by his employer bar, that offered him a 50% discount on drinks, and then served him freely that night.
The jury found that the young man who struck the plaintiff while she was crossing the street, was intoxicated, that his intoxication contributed to the plaintiff’s injuries, the trial court entered final judgment for approximately $28.6 million against the two bars that had “willfully and unlawfully” served the two minors alcohol.
§768.125, Fla. Stat. (the Dram Shop Statute) is a strict liability statute which only imposes liability for alcohol service, if (a) the person who gets served is not of lawful drinking age, or (b) if the alcohol is served to one who is known to be a habitual drunkard.
The trial court did not allow the defendants to put the name of the minor intoxicant on the verdict form. That court had ruled that because the “willful or unlawful” selling or furnishing of alcoholic beverages constituted intentional conduct, such conduct could not be compared with the negligent conduct of either of the two minors under the law.
The First District – in the face of a vigorous dissent – distinguished Merrill Crossing v. McDonald, which the trial court had used to refute the apportionment of fault among all of the defendants. The majority opined instead that the bar which had served the defendant minor driver, was “derivatively liable” for his wrongdoing. Thus, the bar was entitled to have the jury compare its fault derived from the driver, with the driver and the other bar (whose fault was derived from the pedestrian) or if the circumstances permitted, with the 18-year old plaintiff herself.
The First District viewed this dram shop case as a “negligence action” (which is a new take on this strict liability statute) which then means that comparative fault applies. The First District also found that because the comparative fault statute predated the alcohol defense statute (§768.36), and because the alcohol defense is not limited to “negligence actions” as comparative fault is as it applies to “any civil action,” even the alcohol defense could have applied.
However, because the alcohol defense applies when the plaintiff is more than 50% at fault for his or her own harm, to the extent that the result of the minor’s own intoxication caused by the defendant bar serving her alcohol, she could not be at fault for such harm, since defendants were derivatively liable. The court left open the possibility that the defense could be used in the event that there was evidence of the 18-year old’s intoxication from another source.
Judge Makar’s dissent passionately demonstrated that the act of “willful and unlawful” serving of alcohol to an intoxicating minor constitutes an intentional tort that could not be subject to comparative fault under either §768.81(4) or §768.36(2).
ERROR TO DISMISS COMPLAINT FOR LACK OF PERSONAL JURISDICTION BASED ON CONCLUSION THAT DEFENDANT DID NOT WAIVE PERSONAL JURISDICTION DEFENSE– DEFENSE COUNSEL’S NOTICE OF APPEARANCE WAS NOT A PLEADING, AND THE FIRST “PLEADING,” A LETTER TO THE COURT WHICH CONSTITUTED AN “ANSWER,” DID NOT RAISE THE ISSUE OF PERSONAL JURISDICTION
Coast Pump & Supply, Co v. Mathis, 47 Fla. L. Weekly D395 (Fla. 2nd DCA Feb. 11, 2022):
A Florida corporation sued two defendants for breach of contract. One of the defendants sent a letter to the court admitting to conducting business with the plaintiff, and claiming that his debt was paid in full.
The day before the letter was filed with the court, defense counsel filed a limited notice of appearance on behalf of both defendants and then filed a motion for lack of jurisdiction.
A notice of appearance is not a pleading. The rule states that if a defendant wishing to contest personal jurisdiction must do so in the first step taken in the case, whether by motion or in a responsive pleading or that issue is waived and the defendant has submitted to the court’s jurisdiction. (Fla. R. Civ. P. 1.100).
In this case, the defendant’s letter constituted an answer to the complaint and was thus the first pleading filed in the action meaning that jurisdiction was proper.