Guess its OK to serve an underage drinker these days

FLORIDA LAW WEEKLY

VOLUME 49, NUMBER 10

CASES FROM THE WEEK OF MARCH 8, 2024

THE SUPREME COURT POTENTIALLY UPENDS THE EXCEPTIONS TO THE DRAM SHOP ACT — RULES THAT THE COMPARATIVE FAULT OF THE UNDERAGE DRINKER MAY BE CONSIDERED IN AN ACTION AGAINST THE DEFENDANT BAR BECAUSE SECTION 768.125 IS A NEGLIGENCE ACTION.

Faircloth v. Main Street Entertainment, 49 Fla. L. Weekly S47 (Fla. Mar. 7, 2024):

An 18-year-old was hit by a speeding pickup truck as she crossed the street on foot. Both the driver of the truck and the victim were intoxicated at the time of the collision. The victim suffered catastrophic and permanent injuries.

The plaintiff’s guardianship sued two Tallahassee bars seeking money damages and asserting that the bars had acted “willfully and unlawfully” in serving alcoholic beverages to both the driver and the victim. The complaint alleged that each of the underage drinkers became intoxicated and their intoxication caused the accident.

One of the bars raised a comparative fault defense, arguing that any fault attributable to the victim should reduce the bar’s liability. However, the trial court decided that since section 768.125 requires willful misconduct, the plaintiff’s lawsuit was not a “negligence” action for purposes of comparative fault, and ruled that the lawsuit was based on an intentional tort.

The defendant bar stipulated that it had willfully and unlawfully served alcoholic beverages to the driver. The bar’s defense focused on the causation element of the plaintiff’s claim. The bar argued that the defendant driver was not intoxicated at the time of the accident, and even if he were, his intoxication did not cause the collision. The bar maintained that the accident was unavoidable once the victim darted in front of the driver’s oncoming truck.

The jury rejected the bar’s arguments and found the bar liable. The trial court entered final judgment for the plaintiff for $28.6 million.

The first district reversed the judgment, finding that the trial court should have allowed the bar to assert a comparative fault defense. After reviewing the background of section 768.125, and supreme court precedent, the district court concluded that the statute has required that the selling or furnishing of alcohol to a minor must be done willfully for the vendor to be liable, but the vendor is liable in negligence, not intentional tort.

The supreme court tracked the evolution of the statute. It used to be that a commercial vendor of alcoholic beverages could not be liable for the sale of those beverages when either the purchaser or a third person was injured because of consumption. The legislature enacted section 768.125, effectively codifying the original common law rule absolving vendors from liability for sales subject to two exceptions specified in the statute, which amounted to negligence per se.

Section 768.125 did not modify the common law by limiting liability to situations where the sale to an underage patron is done both willfully and unlawfully. The “unlawful” requirement brought nothing new, as the negligence per se based cases already required proof that the alcohol provider had violated section 562.11. The term willfully as used in section 768.125, simply meant that the alcohol provider knew that the recipient was under 21.

The relationship between the defendant’s conduct and the plaintiff’s injury does not amount to an intentional tort. An intentional tort is one where the actor exhibits a deliberate intent to injure or engages in conduct which is substantially certain to result in injury or death.

Section 768.125’s willfulness requirement means that the plaintiff must prove that the defendant knew the purchaser was underage. To that extent, the defendant’s misconduct is intentional, but it is different than the type of intent that takes the conduct out of the negligence realm and puts into the intentional tort realm.

Viewed against the common law baseline, the willfulness requirement in section 768.125 does not change the basic relationship between the defendant seller’s conduct and the plaintiff’s injury. Instead, the statute merely limits liability to a subset of actors who could be found liable under the pre-existing negligence per se doctrine.

The plaintiff did not allege that the bar intended harm to someone in the young woman’s position or that the bar knew such harm was substantially certain to occur.

Thus, the court concluded that section 768.125 is a negligence action and that defendants may use section 768.81 to compare the fault of the plaintiff victim. Justice Labarga wrote a vigorous dissent.

The court specifically ruled that it was not approving or disapproving the district court’s derivative liability analysis and its conclusion that liability cannot be apportioned between a selling bar and the underage drinker who becomes intoxicated and injures himself or others. It said it was simply ruling that the comparative fault statute may apply because section 768.125 is a negligence action and not on intentional tort action. Time will tell just how much damage this decision will do to the protective nature of the statute.

THE TRIAL COURT DID NOT ERR IN DETERMINING THAT INSURER’S REFUSAL TO ACCEPT PROPOSALS FOR SETTLEMENT COULD NOT FORM THE BASIS OF A BAD FAITH CLAIM — AND INSURER HAS NO DUTY TO ENTER A CONSENT JUDGMENT IN EXCESS OF ITS LIMITS — TRIAL COURT DID ERR BY ENTERING FINAL JUDGMENT IN FAVOR OF INSURER TO THE EXTENT THE PLAINTIFF’S CLAIMS DID RAISE OTHER THEORIES OF BAD FAITH.

Marcuson v. State Farm 49 Fla. L. Weekly D458 (Fla. 2nd DCA Feb. 28, 2024):

The trial court entered final summary judgment concluding that the insurance company was under no legal duty to its insured to accept any or all the three proposals for settlement made by the plaintiff. State Farm had a policy which provided $300,000 in coverage. The plaintiff issued two settlement offers to State Farm, requiring it to tender its policy limits authorizing State Farm’s insureds to enter into a consent judgment in the amount of 1.9 million and to further authorize the insureds to assign their rights against their insurance agent to the plaintiff.

These settlement offers formed the basis of the bad faith complaint against State Farm.

The thrust of the bad faith case turned on whether State Farm’s refusal to accept the proposals for settlement requiring a consent judgment were in bad faith. The court made clear that there is no duty for an insurer to enter a consent judgment in excess of its policy limits.

However, the appellate court’s affirmance of the trial judge’ ruling was limited to that theory, and the plaintiff was allowed to continue to pursue the other theories of bad faith.

NO ERROR IN GRANTING MOTION FOR NEW TRIAL BASED ON STATEMENT DEFENSE COUNSEL MADE DURING CLOSING, WHICH WAS FALSE, HIGHLY PREJUDICIAL, AND INFLAMMATORY.

Neighborhood Restaurant Partners v. Wolff 49 Fla L. Weekly D498 (Fla. 5^th DCA Mar. 1, 2024):

During closing, defense counsel made a clearly improper statement (the appellate court did not say what that was) that the trial court determined (1) was not true, (2) violated the court’s prior order, (3) was highly prejudicial, (4) was highly inflammatory, (5) was not curable by the curative instruction given by the court, and (6) deprived the plaintiff from having a fair trial.

While the court did not reveal the statement, it was bad enough for it to refer the attorney to the Florida Bar.

TRIAL COURT ERRED BY ALLOWING A PARALEGAL WORKING FOR THE INSURED’S ATTORNEY TO TESTIFY ABOUT AN EMAIL SENT TO THE INSURER’S DESK ADJUSTER WITH PROOF OF LOSS–THAT INFORMATION HAD NOT BEEN LISTED ON THE WITNESS AND EXHIBIT LISTS AND BINGER DOES NOT ALLOW TRIAL BY AMBUSH.

Heritage Property and Casualty v. Killmeyer 49 Fla. L. Weekly D482 (Fla. 4^th DCA Feb. 28, 2024):

The trial court allowed the introduction of evidence and testimony at trial, even though it had not been previously disclosed. To avoid a trial by ambush and promote the spirit of Florida rules of civil procedure regarding discovery, a pretrial order directing the parties to list its witnesses should be followed. In assessing whether an undisclosed witness should be permitted to testify at trial, the focus is on the potential prejudice to the objecting party.

In assessing the discretion given to the trial court about admitting or denying the testimony, the trial court must consider the objecting party’s ability to cure the prejudice, as well as the calling party’s possible intentional or bad faith noncompliance with the pretrial order.

The insurer argued that it was unfairly prejudiced by the testimony because the insurer had not seen the paralegal’s email or known that the paralegal was going to be called to testify and had no ability to cure the prejudice. The insurer contends that the paralegal’s testimony was a powerful corroboration that a sworn proof of loss had been sent on the claim.

The ability of the objecting party to cure is evaluated at the time of the surprise testimony. The Court relied a case where the party had no opportunity to obtain information or expert opinion to rebut the testimony of the witness and cure the prejudice. “Presented with new evidence and testimony mid trial, the insurer had no ability to cure.”

The surprise caused the fourth district to reverse for a new trial.