The Week in Torts – Cases from the Week of August 12, 2016

FLORIDA LAW WEEKLY

VOLUME 41, NUMBER 32

CASES FROM THE WEEK OF AUGUST 12, 2016

NEW TRIAL IN CASE INVOLVING HABITUAL DRUNKARD UNDER SECTION 768.125–TRIAL COURT ERRED IN ALLOWING EVIDENCE AND INSTRUCTING THE JURY ON THE RESPONSIBLE VENDOR ACT.

Okeechobee Aerie 4137 v. Wilde, 41 Fla. L. Weekly D1783 (Fla. 4^th DCA August 3, 2016):

A known alcoholic left a bar heavily intoxicated, and ended up seriously injuring a man on a motorcycle. Plaintiffs brought suit pursuant to section 768.125 (Florida’s Dram Shop Act). The defendant never contested that the driver was a habitual drunkard pursuant to the statute.

However, pursuant to section 561.701-06, the Responsible Vendor Act, the plaintiffs suggested there were two causes of action they could present to the jury: the first under section 561.701, and the second under section 768.125.

However, the Fourth District noted that section 768.125 does not “create” a cause of action; rather it is a protective statute meant to eliminate a cause of action where one might otherwise exist, except in certain circumstances. 

Importantly, a determination that a drinking establishment knowingly served a habitual alcoholic is not a per se determination that the duty and breach elements of a negligence action have been met. The court advised that proactive active attempts by a drinking establishment to protect the public from a habitual drunkard whom it has knowingly served, may be sufficient to show that there has been no breach of a legal duty.

Thus, to be clear, the cause of action in the case was still negligence. Plaintiffs simply alleged that the negligence in the case was not limited by section 768.125.

The plaintiffs also asserted that there were actually two causes of action, the other being under section 561.706, the Responsible Vendor Act. That law, however, is a voluntary statute that imposes no duties on any vendor. Instead, the Act serves to protect a vendor from certain administrative penalties resulting from serving an underage person or from selling or allowing the sale of illegal drugs on its premises.

Thus, while it is true that a violation of a statute may be “evidence of a breach of a standard of care,” the rule does not apply to the Responsible Vendor Act because the Act cannot be violated per se. In other words, a vendor may choose to comply with the Act or not, and then it suffers the consequences because of its decision.

The plaintiffs asserted that the Responsible Vendor Act was not used to show a breach of a standard of care, but rather was used to show that the defendant was aware of the existence of the law. Even though the trial judge instructed the jury, statements made by the plaintiffs in both opening and closing, as well as the judge’s instructions to the jury before closing, diminished the apparent effectiveness of the limiting instruction given by the trial judge.

The admission of evidence related to the Responsible Vendor Act also led the trial judge to allow in evidence of a prior lawsuit against the bar for an accident caused by someone who had allegedly been drinking there. Plaintiffs asserted that the accident was introduced for the purpose of showing that the defendants were on notice of the Act. However, because notice was not relevant to the issue in the case, the court ruled the trial court erroneously admitted the evidence. Even if it were relevant, it was more prejudicial than probative.

The court then addressed several specific statements made during the closing argument by plaintiffs’ counsel. Plaintiffs’ counsel had argued there was no one other than the jury to act, that the Alcohol Beverage and Tobacco bureau would not act, that an overseen organization like the one in the case, would not act. 

The Fourth District found that was not an argument to increase damages, but rather a proper argument asking the jury to impose liability against the defendant. However, the statement that this case “will long be remembered or it will soon be forgotten” was an improper conscious of the community argument because it was combined with an “it’ll just keep happening” statement.

Finally, the court ruled that the trial judge properly excluded the drunk driver from the verdict form in this case against the bar. Section 768.81 does not require the apportionment of responsibility between a defendant whose liability is derivative and the directly liable negligent tortfeasor. 

In this type of case, there is negligence only when there is a subsequent wrongful act or omission by the person intoxicated, and thus the defendant’s liability was derivative. The court reversed for a new trial.

ATTORNEY’S FEES UPHELD FOR FORCING COMPLIANCE BECAUSE OF DISCOVERY VIOLATIONS.

Giller Group Ltd. v. Giller, 41 Fla. L. Weekly D1779 (Fla. 3^rd DCA August 3, 2016):

The Third District found no abuse of discretion in the trial court’s determination that the party failed to comply with discovery requests, or in its decision to award attorney’s fees incurred by the opposing party in an effort to obtain compliance. Such fees are allowable pursuant to rule 1.380(a)(4)(b).