Main Street Entertainment, Inc. v. Faircloth
| Decision Date | 09 February 2022 |
| Docket Number | 1D19-4058 |
| Citation | 342 So.3d 232 |
| Parties | MAIN STREET ENTERTAINMENT, INC., d/b/a Potbelly's, Appellant, v. Guardianship of Jacquelyn Anne FAIRCLOTH, Appellee. |
| Court | Florida District Court of Appeals |
Raoul G. Cantero and David P. Draigh of White & Case LLP, Miami; Angela C. Flowers of Kubicki Draper P.A., Ocala, for Appellant.
Donald Hinkle of Hinkle & Foran, Tallahassee; Mark Avera of Avera & Smith, LLP, Gainesville; David J. Sales and Daniel R. Hoffman of David J. Sales, P.A., Sarasota, for Appellee.
Kenneth B. Bell of Gunster, Yoakley & Stewart, P.A., Tallahassee; William J. Schifino and John A. Schifino of Gunster, Yoakley & Stewart, P.A., Tampa, for Amici Curiae Florida State University Board of Trustees and University of Florida Board of Trustees, in support of Appellee.
This case involves apportionment of liability following a tragic incident where a driver struck a pedestrian. The driver had been served alcohol at a bar, in spite of the fact that he was underage. The pedestrian had also been served alcohol at a different bar, in spite of the fact that she too was underage. The pedestrian sued both bars involved to recover her damages. Because one of the defendants in this suit should have been allowed to assert a comparative fault defense as well as the so-called "alcohol defense" to this suit, we reverse the judgment entered below.
The Guardianship of Jacquelyn Anne Faircloth ("Guardianship") brought action against Main Street Entertainment, Inc., d/b/a Potbelly's ("Potbelly's") and various entities that owned and operated Cantina 101, for each bar willfully and unlawfully serving alcohol to the two underage persons, causing intoxication, which resulted in injury. Evidence showed that Faircloth, an 18-year-old pedestrian, was catastrophically injured when a pickup truck driven by 20-year-old Devon Dwyer struck her at 55 miles per hour in a 30-mile-per-hour zone while she was crossing the street around 2:00 a.m. Both Faircloth and Dwyer were intoxicated; Faircloth had been drinking at Cantina 101, and Dwyer had been drinking at Potbelly's, where he was an employee and received a 50-percent discount.
The trial court entered a default judgment against Cantina 101 for failing to respond, reserving the amount of damages for trial. After the jury found that Dwyer was intoxicated and his intoxication contributed to Faircloth's injuries, the trial court entered a final judgment for approximately $28.6 million jointly and severally against Potbelly's and Cantina 101 for the injuries Faircloth sustained.
Potbelly's appealed, arguing that it should have been allowed to assert a comparative fault defense under section 768.81, Florida Statutes, and an "alcohol defense" under section 768.36(2), Florida Statutes. We agree, and address each defense below.1
The comparative fault statute provides that in a negligence action, contributory fault chargeable to the claimant diminishes proportionately the amount awarded as damages for an injury attributable to the claimant's contributory fault. § 768.81(2), Fla. Stat. The court must enter judgment against each party liable on the basis of such party's percentage of fault. § 768.81(3), Fla. Stat. A negligence action is broadly defined:
"Negligence action" means, without limitation, a civil action for damages based upon a theory of negligence, strict liability, products liability, professional malpractice whether couched in terms of contract or tort, or breach of warranty and like theories.
§ 768.81(1)(c), Fla. Stat. The statute specifically notes that "[t]he substance of an action, not conclusory terms used by a party, determines whether an action is a negligence action." Id. However, the statute does not apply to "any action based upon an intentional tort." § 768.81(4), Fla. Stat. The Guardianship moved for partial summary judgment, claiming that its complaint against Potbelly's alleged an intentional tort and as such, Potbelly's could not reduce its liability under the comparative fault statute. The trial court agreed, reasoning that an action based on a bar "willfully and unlawfully" selling alcohol to an underage patron is an intentional tort so that the jury could not apportion fault.
Section 768.125 is known as the dram shop statute and provides as follows:
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.
§ 768.125, Fla. Stat.
While the statute primarily excludes liability, it contains two exceptions, the first of which is relevant here. A history of the dram shop act is useful to explain why the "dram-shop exception" does not create an intentional tort. Prior to 1963, a seller of alcohol was generally not liable to one injured by reason of intoxication of the buyer. See Davis v. Shiappacossee , 145 So. 2d 758, 760 (Fla. 2d DCA 1962), quashed , 155 So. 2d 365 (Fla. 1963). But in 1963, the Florida Supreme Court modified the common law rule barring vendor liability and 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." Luque v. Ale House Mgmt., Inc. , 962 So. 2d 1062, 1064 (Fla. 5th DCA 2007) (citing Shiappacossee, 155 So. 2d at 365 ). "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 as section 768.125, effectively reviving the original common law rule absolving vendors from liability for sales." Publix Supermarkets v. Austin, 658 So. 2d 1064, 1066 (Fla. 5th DCA 1995). While section 768.125 revived the common-law dram-shop rule, it recognized the exception set forth in Davis , noting that one who sells alcohol to an underage person "may become liable" for damage caused by the intoxication of the underage person.
The question arose whether the dram-shop exception created a new cause of action, or simply acknowledged an existing one. In Migliore v. Crown Liquors of Broward, Inc. , 448 So. 2d 978, 979 (Fla. 1984), the supreme court acknowledged that violations of section 562.11, Florida Statutes —the statute criminalizing the sale of alcohol to minors—constitute negligence per se and gives rise to a cause of action in negligence. Migliore held that section 768.125, Florida Statutes, is a limitation on vendor liability and does not create a cause of action. Id . at 980. The Florida Supreme Court reaffirmed that section 768.125 does not create a cause of action and operates as "a limitation on the already existing liability of vendors of intoxicating beverages" in Armstrong v. Munford, Inc. , 451 So. 2d 480, 481 (Fla. 1984). Following the statute's enactment, selling or furnishing alcohol to a minor must be done willfully for the vendor to be liable, but the vendor is liable in negligence, not an intentional tort. Id. ; see also Ellis v. N.G.N. of Tampa, Inc. , 586 So. 2d 1042, 1048 (Fla. 1991) (). In short, the Florida Supreme Court has clearly held that an action for liability on the ground that the defendant has sold alcoholic beverages to an underage person alleges negligence. Because the dram shop statute does not create a cause of action, it does not transform the existing action into an intentional tort. The fact that a seller of alcohol is not liable unless the seller "willfully and unlawfully" provides alcohol to an underage person does not alter this conclusion.
This conclusion is supported by the fact that liability under the dram-shop exception is derivative.2 In this regard, we agree with the analysis of the Fourth District in determining that a dram-shop exception action is derivative:
Examining section 768.125, Florida Statutes, we see that the legislature explicitly intended to protect providers from liability except in cases where the provider serves an underage person or a known habitual alcoholic and "the intoxication of such ... person" "cause[s] or result[s]" in "injury or damage." § 768.125, Fla. Stat. The negligence of a provider results in liability only when there is a "subsequent wrongful act or omission" by the person who is intoxicated. Liability in this case was therefore derivative.
Okeechobee Aerie 4137, Fraternal Ord. of Eagles, Inc. v. Wilde , 199 So. 3d 333, 341–42 (Fla. 4th DCA 2016). In cases of derivative liability "(1) there is no cause of action unless the directly liable tortfeasor commits a tort and (2) the derivatively liable party is liable for all of the harm that such a tortfeasor has caused." Grobman v. Posey , 863 So. 2d 1230, 1236 (Fla. 4th DCA 2003). In short, the cause of action against Potbelly's would not exist without Dwyer's negligent conduct. While Potbelly's may be liable for the harm to Faircloth caused by Dwyer, this harm was the result of Dwyer's negligence.
We add that a derivatively liable party "is liable for all of the harm that [the directly liable actor] has caused." Beck Auto Sales , 249 So. 3d at 769 (citing Peltz v. Tr. Hosp. Int'l, LLC , 242 So. 3d 518, 520 n.6 (Fla. 3d DCA 2018) ). Thus, while the court erred in failing to permit Potbelly's to reduce its liability by proving comparative fault, " section 768.81 does not require the apportionment of responsibility between a defendant whose liability is...
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