Barnes v. B.K. Credit Service, Inc.

• Decision Date: 18 December 1984
• Docket Number: No. AY-364,AY-364
• Citation: 461 So.2d 217
• Parties: Julia L. BARNES, as Personal Representative of the Estate of Linda Nell Shaw, Appellant, v. B.K. CREDIT SERVICE, INC., a corporation, and Katherine J. Lyon, d/b/a Electric Cowboy, Appellees.
• Court: Florida District Court of Appeals

Page 217

461 So.2d 217

Julia L. BARNES, as Personal Representative of the Estate of Linda Nell Shaw, Appellant, v. B.K. CREDIT SERVICE, INC., a corporation, and Katherine J. Lyon, d/b/a Electric Cowboy, Appellees.

No. AY-364.

District Court of Appeal of Florida First District.

Dec. 18, 1984.

Rehearing Denied Jan. 23, 1985.

Albert Millar, of Albert Millar, P.A., Jacksonville, for appellant.

Michael M. Naughton, Jacksonville, for appellees.

WIGGINTON, Judge.

This cause is before us from the trial court's final judgment granting the defendants' motion for judgment on the pleadings and dismissing plaintiff's complaint. In making its ruling, the court expressly relied on the provisions of section 768.125, Florida Statutes (1981), and rejected plaintiff's contention that the statute is unconstitutional. We affirm.

Plaintiff (appellant), as representative of her daughter's estate, brought an action for wrongful death against defendants (appellees) as owners and operators of a bar, alleging that their negligence in serving alcohol to her obviously intoxicated daughter was the proximate cause of her daughter's death. The facts as alleged in plaintiff's complaint paint a tragic scenario. Her daughter left the bar in the early morning after several hours of drinking. Upon departing, her senses were so inundated with alcohol that she lost consciousness behind the wheel of her automobile, swerved from the road and collided with a tree. At the age of twenty, Linda Nell Shaw had become an all-too-familiar statistic.

Plaintiff's complaint was premised on the allegation that defendants had owed a duty to her daughter to refuse to serve her alcoholic beverages once they became aware that her daughter's faculties had become so impaired as to render her incapable of making a rational decision to discontinue ordering alcoholic beverages, and of safely driving a motor vehicle. Further, plaintiff alleged that since defendants had continued to serve her daughter, they breached that duty, which breach directly and proximately caused her daughter's death. Plaintiff sought compensatory and punitive damages.

Defendants moved for entry of a judgment on the pleadings, arguing that Florida does not have a "dram shop" act imposing a duty on tavern owners to assure that patrons do not overimbibe, and in the absence of such an act, that Florida does not recognize the instant cause of action, citing to Reed v. Black Caesar's Forge Gourmet Restaurant, Inc., 165 So.2d 787 (Fla. 3d DCA 1964), cert. denied, 172 So.2d 597 (Fla.1965). Defendants further cited to section 768.125, noting that that section allows a cause of action for injuries only where alcoholic beverages had been willfully provided to a minor. Plaintiff argued in return that section 768.125 is unconstitutional insofar as it purports to place a different duty or standard of care on tavern owners in their sale of alcoholic beverages to minors as compared to adults. The trial court rejected that notion. On appeal, plaintiff argues that section 768.125 is unreasonable, arbitrary, and capricious, and in violation of the equal protection and due process clauses of the Florida and United States Constitutions. We disagree.

We are acutely aware "of the terrible toll taken, both in personal injuries and property damage, by drivers who mix alcohol and gasoline," Ontiveros v. Borak, 136 Ariz. 500, 667 P.2d 200, 205 (1983), and grieve for those families, and for plaintiff, who have lost loved ones to the carnage caused by drunken drivers. But the law in Florida echoes the common law and has been one of non-liability where tavern owners are concerned.

At common law, no cause of action existed against one furnishing alcoholic beverages in favor of those injured by the intoxication of the person so furnished, the reason generally given for this rule being that the voluntary drinking of the alcohol, not the furnishing of it, was the proximate cause of the injury. Annot., 97 A.L.R.3d 528 (1980); 45 Am.Jur.2d Intoxicating Liquor § 553 (1969). Although several jurisdictions have abrogated the common law rule of non-liability either judicially or through civil damage legislation, see e.g., Nazareno v. Urie, 638 P.2d 671, 674 n. 3 (Alaska 1981), Florida has adhered to the rule as it relates to the sale of intoxicating liquor to adults. See Reed v. Black Caesar's Forge Gourmet Restaurant, Inc.; but cf. Davis v. Shiappacossee, 155 So.2d 365 (Fla.1963) (sale of intoxicating beverage to minor in violation of statute making it a crime to sell intoxicants to minors constitutes negligence per se).

In 1980, our legislature enacted section 768.125 which provides:

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.

Plaintiff argues that the classificatory scheme created by the legislature in section 768.125 denies her equal protection of the laws, as unreasonably discriminating between adult and minor imbibers of intoxicants. In response, defendants contend that section 562.11, which makes it unlawful to furnish alcoholic beverages to a minor, is actually the statute that sets forth the classificatory scheme, and that section 768.125 essentially restates the common law rule of non-liability already recognized in Florida. We disagree with defendants, for section 768.125 clearly draws a distinction between minor and adult consumers. Consequently, we must determine whether the statute's general rule of immunity, and the classifications drawn therefrom, rationally advance a legitimate legislative interest or goal. Sasso v. Ram Property Management, 431 So.2d 204 (Fla. 1st DCA 1983), approved, 452 So.2d 932 (Fla.1984).

However, before reviewing the exercise of legislative power, we must recall that it is not our prerogative "to explore the wisdom or advisability of the enactment." Adams v. Sutton, 212 So.2d 1 (Fla.1968). As Justice Terrell observed forty years ago, "Courts are never permitted to strike down an act of the Legislature because it fails to square with their individual social or economic theories or what they deem to be sound public policy." Ball v. Branch, 154 Fla. 57, 16 So.2d 524, 525 (1944). Further, it must ever be kept in mind that the legislature possesses broad discretion in determining what measures are necessary for the public's protection, and we may not substitute our judgment for that of the legislature "insofar as the wisdom or policy of the act is concerned." Hamilton v. State, 366 So.2d 8, 10 (Fla.1979). Therefore, plaintiff has the burden of proving that section 768.125 is essentially arbitrary and without a rational basis. Id. We find that plaintiff failed to do so.

As noted earlier, Florida has traditionally adhered to the common law rule of non-liability. Again, the logic behind the rule is that the proximate cause of the injury was the intoxicated patron's voluntary act of rendering himself or herself incapable of driving a vehicle. The tavern owner's act of furnishing the alcohol was considered...