Ellis v. N.G.N. of Tampa, Inc.

Citation586 So.2d 1042
Decision Date19 September 1991
Docket NumberNo. 76267,76267
Parties16 Fla. L. Weekly S619 Mary Evelyn ELLIS, etc., Petitioner, v. N.G.N. OF TAMPA, INC., et al., Respondents.
CourtUnited States State Supreme Court of Florida

Stevan T. Northcutt of Levine, Hirsch, Segall & Northcutt, P.A., and Thomas S. Martino of Martino, Price & Weldon, P.A., Tampa, for petitioner.

Scott W. Dutton of Santos & Dutton, P.A., Tampa, for respondents.

Marguerite H. Davis of Katz, Kutter, Haigler, Alderman, Davis, Marks & Rutledge, P.A., Tallahassee, amicus curiae, for Florida Defense Lawyers' Ass'n.

Nancy Little Hoffmann, Fort Lauderdale, amicus curiae, for Academy of Florida Trial Lawyers.

George M. Thomas of the Law Offices of George M. Thomas, P.A., Fort Lauderdale, amicus curiae, for Mothers Against Drunk Driving Florida.

OVERTON, Justice.

This cause is before the Court on petition to review Ellis v. N.G.N. of Tampa, Inc., 561 So.2d 1209 (Fla. 2d DCA 1990), in which the Second District Court of Appeal held that no claim could be brought against an alcoholic beverage vendor for the alleged negligent sale of alcohol to a habitual drunkard, where there was no showing of a criminal violation. We find conflict with Sabo v. Shamrock Communications, Inc., 566 So.2d 267 (Fla. 5th DCA 1990), and Pritchard v. Jax Liquors, Inc., 499 So.2d 926 (Fla. 1st DCA 1986), review denied, 511 So.2d 298 (Fla.1987). We have jurisdiction under article V, section 3(b)(3), of the Florida Constitution and quash the decision of the district court. We find that a cause of action exists under these circumstances for a vendor's sale of alcoholic beverages to a person habitually addicted to alcohol.

This case concerns the liability of a vendor of alcoholic beverages for sales to a habitual drunkard. It commenced when Mary Evelyn Ellis filed a complaint alleging that her son, Gilbert Ellis, an alleged habitual drunkard, consumed approximately twenty alcoholic drinks served to him at a bar owned by the respondent N.G.N. of Tampa, Inc. (N.G.N.), and operated by the respondent Norbert G. Nissen. The complaint alleged that, after consuming the drinks, an intoxicated Gilbert Ellis drove his car in a manner that caused it to overturn and crash; that he sustained severe injuries, including permanent brain damage; that he has since been declared incompetent, and his mother, the complainant and petitioner, Mary Evelyn Ellis, is his legal guardian. The complaint against N.G.N. and Nissen seeks compensatory and punitive damages on the grounds that N.G.N. and Nissen served Gilbert Ellis "knowing that [he] was a person addicted to the use of any or all alcoholic beverages." The complaint also alleged that the provisions of section 768.125, Florida Statutes (1987), authorized this cause of action.

N.G.N. and Nissen moved to dismiss the complaint on the grounds that: (1) section 768.125 does not provide a first-party cause of action for a one-car accident involving an injured adult drinker/driver; and (2) even if there was a cause of action, the complaint did not allege that the bar had received written notice from the habitual drunkard's family as required by section 562.50, Florida Statutes (1987). The trial court granted the motion to dismiss, finding under the first grounds that there is no cause of action against a vendor of intoxicants under section 768.125.

The district court of appeal, while agreeing that the cause of action must be dismissed, made that determination on different grounds. The district court explained that a class of persons to be protected under section 768.125 includes the habitual drunkard himself, as well as those he consequently injures. However, the court concluded that the complaint was properly dismissed because prior written notice of Ellis's alcohol addiction had not been provided, as required by section 562.50. In reaching this conclusion, the district court of appeal determined that sections 562.50 and 768.125 must be read in pari materia because they deal with the same subject matter, i.e., the unlawful dispensing of alcohol and the consequences thereof, and because the legislative history of section 768.125 reflects that the legislature intended that the two statutes be read together. The district court also concluded that the written notice requirement under section 562.50 is a prerequisite to recovery.


To resolve this issue, it is first necessary to review the legal history of the duty placed on a vendor of alcoholic beverages. Prior to 1959, the common law established that a commercial vendor of alcoholic beverages could not be liable for the negligent sale of those beverages when either the purchaser or third persons were injured as a result of their consumption. This common law principle was based on the conclusion that the proximate cause of the injury was the consumption of the intoxicating beverage by the person, rather than the sale of intoxicating beverages to the person and, consequently, there could be no valid claim against a vendor for damages. 1

A change in this common law principle first occurred in 1959 when the Supreme Court of New Jersey, in Rappaport v. Nichols, 31 N.J. 188, 156 A.2d 1 (1959), modified this consumption-sale distinction in the common law and, in the words of one commentator, "took upon itself to fill a judicially-perceived vacuum of restraint on commercial vendors of alcoholic beverages." Gerry M. Rinden, Judicial Prohibition? Erosion of the Common Law Rule of Non-liability for Those Who Dispense Alcohol. 34 Drake L.Rev. 937, 938 (1984-85).

In Rappaport, a tavern owner sold alcoholic beverages to a minor under circumstances in which the vendor knew the purchaser to be a minor. After consuming the alcohol, the minor became intoxicated and killed a third party while driving an automobile. In holding the vendor liable to the deceased's estate, the Supreme Court of New Jersey held:

[W]e are convinced that recognition of the plaintiff's claim will afford a fairer measure of justice to innocent third parties whose injuries are brought about by the unlawful and negligent sale of alcoholic beverages to minors and intoxicated persons, will strengthen and give greater force to the enlightened statutory and regulatory precautions against such sales and their frightening consequences, and will not place any unjustifiable burdens upon defendants who can always discharge their civil responsibilities by the exercise of due care.

156 A.2d at 10. Similarly, the Seventh Circuit Court of Appeals, in Waynick v. Chicago's Last Department Store, 269 F.2d 322 (7th Cir.1959), cert. denied, 362 U.S. 903, 80 S.Ct. 611, 4 L.Ed.2d 554 (1960), also eliminated the consumption-sale distinction by placing a duty on vendors of alcoholic beverages where the situation was not controlled by legislation. In Waynick, a driver's intoxication in Illinois and subsequent accident in Michigan resulted in injury to the complaining third party. Because the Illinois dram shop act was not applicable in Michigan and the Michigan dram shop act was not applicable in Illinois, the federal court fashioned the following duty of care for alcoholic beverage vendors, stating:

[I]n applying the common law to the situation presented in this case, we must consider the law of tort liability, even though the chain of events, which started when the defendant tavern keepers unlawfully sold intoxicating liquor to two drunken men, crossed state boundary lines and culminated in the tragic collision in Michigan. We hold that, under the facts appearing in the complaint, the tavern keepers are liable in tort for damages and injuries sustained by plaintiffs as a proximate result of the unlawful acts of the former.

269 F.2d at 326.

It should also be recognized that, after the repeal of prohibition, many jurisdictions enacted laws prohibiting the sale of intoxicants to minors and habitual drunkards. This state prohibited the sale of intoxicants to minors in 1935. Ch. 16774, Laws of Fla. (1935). In 1963, four years after Rappaport and Waynick, this Court addressed the issue of vendor responsibility and liability in Davis v. Shiappacossee, 155 So.2d 365 (Fla.1963). The facts in Davis indicate that, after purchasing a case of beer and a half pint of whiskey, several minors went to a drive-in theater and then drove to a park. During this period of time, they drank the whiskey and several cans of the beer. Six hours after the purchase of the alcohol, the minor driver, while driving at fifty-five miles an hour, lost control of the car, struck an oak tree, and was killed. An action was then brought by the parents against the vendor. The trial court dismissed the action and the district court of appeal affirmed, holding the consumption of alcohol as the principal cause of the injury and that "the automobile accident and the death of the driver were not reasonably expected or probable results of the sale of the beverages." Davis v. Shiappacossee, 145 So.2d 758, 760 (Fla. 2d DCA 1962), quashed, 155 So.2d 365 (Fla.1963). In our Davis decision, this Court, under those circumstances, rejected this conclusion while observing that, "generally, in the absence of statute, a seller of liquor is not responsible for injury to the person who drinks it." 155 So.2d at 367. The Court stated:

[T]hey were seated in a dangerous instrumentality when the transaction occurred; in a dangerous instrumentality they departed under the drivership of a 16-year old. It seems to us that these cogent circumstances could and should convert the word "possible" in the rule to "probable"; that the very atmosphere surrounding the sale should make foreseeable to any person, such as Farmer, with the intelligence to represent the respondent and treat with his customers, that trouble for someone was in the offing.

Id. (emphasis added). The Court in Davis concluded that such a sale of alcoholic beverages was a violation of a previously enacted statute prohibiting the sale to minors and, consequently, it was negligence per se. Our...

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