Luque v. Ale House Management, Inc.

• Decision Date: 24 August 2007
• Docket Number: No. 5D06-2918.,5D06-2918.
• Citation: 962 So.2d 1062
• Parties: Marcelo LUQUE and Aracelly Luque, Appellant, v. ALE HOUSE MANAGEMENT, INC., etc., Appellee.
• Court: Florida District Court of Appeals

962 So.2d 1062

Marcelo LUQUE and Aracelly Luque, Appellant, v. ALE HOUSE MANAGEMENT, INC., etc., Appellee.

No. 5D06-2918.

District Court of Appeal of Florida, Fifth District.

August 24, 2007.

Carlos R. Diez-Arguelles, of Martinez, Manglardi, Diez-Arguelles & Tejedor, Orlando, for Appellant.

Lamar D. Oxford, of Dean, Ringers, Morgan & Lawton, P.A., Orlando, for Appellee.

GRIFFIN, J.

Marcelo Luque ["Luque"] and Aracelly Luque ["Mrs. Luque"] appeal the trial court's order granting summary final judgment in favor of Ale House Management Inc., etc. ["Ale House"] and its order denying Luques' Motion for Rehearing.

Ale House operates the Orlando Ale House, where Luque was a regular customer. On January 31, 2003, Luque went to the Orlando Ale House after work. While there, he was served and drank several beers. Around 11 p.m., Luque left. On his way home, a car suddenly came out of a subdivision and cut in front of him. Luque swerved to avoid it. An accident resulted and Luque was severely injured.¹ Luque was taken to the hospital, and routine tests showed that he had a blood alcohol content of 0.135.

That same year, the Luques filed suit against Universal Underwriters, GEICO, and others relating to the injuries he suffered in the accident. As part of the discovery in that suit, the Luques were deposed in March of 2004. Later, on December 12, 2005, the Luques filed this separate action against Ale House. The Luques' suit against Ale House claims that Ale House breached its duty to Luque under section 768.125, Florida Statutes, when it knowingly sold him a substantial amount of alcohol on January 31, 2003.

On April 11, 2006, Ale House filed a motion for summary judgment. In its written motion, Ale House asserted that the sole cause of Luque's accident was the unforeseeable negligence of another driver; that section 768.36, Florida Statutes relieved it of any liability; and that the Luques were attempting to perpetrate a fraud on the court. It reiterated these points at the hearing. Additionally, Defendant argued at the hearing that section 768.125 was enacted for the protection of the public, not the drunkard, and, thus, the drunkard could not bring an action under the statute.

After a hearing on the motion, the trial court entered the summary judgment based on the conclusion that section 768.125 did not create a cause of action. The Luques filed a motion for rehearing of the trial court's summary judgment order. They argued both the Florida Supreme Court and this Court recognize that a cause of action exists based on the facts of this case. Additionally, they objected to the trial court's decision to rest its holding on a ground not argued by the Ale House. The trial court denied the Luques' motion for rehearing.

The first count of the Luques' complaint against Ale House was titled "VIOLATION OF FLORIDA STATUTE § 768.125 BY [DEFENDANT]." In support of this count, the Luques alleged that Ale House's owners, managers, and employees knew that Luque was habitually addicted to the use of alcohol. They asserted that, by knowingly serving Luque a substantial amount of alcohol on January 31, 2003, Ale House breached its duty under section 768.125, Florida Statutes to not sell or furnish alcohol to persons known to be habitually addicted to that substance.

Ale House did not argue, either in its written motion or at the hearing below, that section 768.125 failed to provide any cause of action against those serving alcohol. Nonetheless, in granting Ale House's motion for summary judgment, the trial court reasoned that "the sole basis alleged for [Ale House's] liability in this case is section 768.125. As section 768.125 does not provide a cause of action, Mr. Luque's claim against [Ale House] fails. Because Mr. Luque's claim fails, so too does his wife's claim for loss of consortium."

Originally, under Florida common law, "a commercial vendor of alcoholic beverages was not liable to either the purchaser or to third persons injured as a result of the consumption of those beverages." Publix Supermarkets v. Austin, 658 So.2d 1064, 1066 (Fla. 5th DCA 1995). The Florida Supreme Court modified this rule by its decision in Davis v. Shiappacossee, 155 So.2d 365 (Fla.1963). Davis held that "violation of the statute prohibiting the sale of alcohol to minors (see section 562.11) could give rise to civil liability" through a negligence per se theory. Publix Supermarkets, 658 So.2d at 1066; see also Ellis v. N.G.N. of Tampa, Inc., 586 So.2d 1042, 1045 (Fla.1991). "As a judicial trend developed extending liability towards vendors of alcoholic beverages, the Florida Legislature intervened in 1980 and enacted section 562.51," which is now codified in section 768.125. Publix Supermarkets, 658 So.2d at 1066. The statute limited the expanded liability of those who provide alcohol. Id. at 1046-1047.

Section 768.125, Florida Statutes (2003), 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.

Thus, section 768.125 "effectively codified the original common law rule absolving vendors from liability for sales but provided exceptions for sales to those who were not of a lawful drinking age or to a person habitually addicted to alcoholic beverage use." Ellis, 586 So.2d at 1046.

In Ellis, Florida's supreme court outlined the legal developments in liability just discussed, and then went on to discuss what causes of action remained against the seller of alcohol under section 768.125. The Ellis court said:

In summary, the above case law has established that, although limited by the provisions of section 768.125, there is a cause of action against a vendor for the negligent sale of alcoholic beverages to a minor that results in the injury to or death of the minor or a third party. While we have not expressly addressed a case involving a habitual drunkard, we find that the same law applies because: (1) it is an express exception to the statute limiting a vendor's liability, and (2) it is also a sale of alcohol to a class of persons who lack the ability to make a responsible decision in the consumption of alcohol.

Id. at 1047 (emphasis added).

The problem with the trial court's reasoning is that it ignores the fact that section 768.125 presupposes the existence of a cause of action against sellers of alcohol. In "limiting" or modifying the underlying...