Okeechobee Aerie 4137, Fraternal Order of Eagles, Inc. v. Wilde
| Decision Date | 03 August 2016 |
| Docket Number | Nos. 4D14–2770,4D14–2771.,s. 4D14–2770 |
| Citation | 199 So.3d 333 |
| Parties | OKEECHOBEE AERIE 4137, FRATERNAL ORDER OF EAGLES, INC., and Aix Specialty Insurance Company, Appellants, v. Rodney WILDE and Charlotte Wilde, Appellees. |
| Court | Florida District Court of Appeals |
Joan Carlos Wizel of Lydecker Diaz, Miami, for appellant Okeechobee Aerie 4137, Fraternal Order of Eagles, Inc.
Raoul G. Cantero, David P. Draigh, and Lawrence G. Horsburgh of White & Case LLP, Miami, for appellant AIX Specialty Insurance Co.
Neil P. Anthony of Steinger, Iscoe & Greene, and Bard D. Rockenbach of Burlington & Rockenbach, P.A., for appellees.
Warren Husband of Metz, Husband & Daughton, P.A., Tallahassee, for Amicus Curiae The Florida Restaurant & Lodging Association, Inc.
Robin M. Orosz and Thomas W. Carey of Carey, Leisure & Neal, Clearwater, for Amicus Curiae Mothers Against Drunk Driving.
, J.
This case arises from the very serious injuries suffered by Appellee Rodney Wilde when his motorcycle was in an accident with a vehicle driven by Leroy Felt. At the time of the accident, Felt was pulling out of the premises of Appellant Okeechobee Aerie 4137, Fraternal Order of Eagles, Inc. (“the Eagles”). Felt was heavily inebriated, at least partially as a result of drinks purchased from the Eagles. Rodney and his wife, Charlotte (“the Appellees”), sued the Eagles for damages, alleging they were negligent and in violation of section 768.125, Florida Statutes
, for serving alcohol to “a person habitually addicted to the use of any or all alcoholic beverages.” After a lengthy trial, a jury found in favor of the Appellees and awarded them approximately $11 million in damages.
The Eagles, joined by their insurance company as a co-defendant, appeal, raising five issues (though not challenging the jury's determination that Felt was known to be “a person habitually addicted to the use of any or all alcoholic beverages,” per section 768.125
). Appellants contend: (1) the trial court's instructions on, and allowance of evidence regarding, the Responsible Vendor Act was reversible error; (2) the trial court abused its discretion in allowing the Appellees to introduce evidence of a prior lawsuit against the Eagles brought by a different party; (3) the trial court abused its discretion in not granting a new trial based on allegedly improper comments during the Appellees' closing arguments; (4) the trial court reversibly erred in not including Leroy Felt on the verdict form; and (5) the trial court abused its discretion in denying remittitur with respect to the damages awarded. The Appellees raise a single issue on cross-appeal, arguing that the trial court abused its discretion in admitting evidence of the Eagles' charitable work. For the reasons given below, we reverse the judgment of the trial court and remand for a new trial.1
As noted above, Leroy Felt was a patron of the Eagles' bar on the date of the accident. After he left the premises, he was involved in an accident with Appellee Rodney Wilde's motorcycle, resulting in serious and permanent injuries to Mr. Wilde. Felt's blood alcohol content was determined to be 0.26 at the time of the accident, well over the legal limit. There was testimony at the ensuing trial indicating that the servers at the Eagles' bar knew Felt to be an alcoholic.
The most dispositive issue raised by the Eagles is whether the trial court erred in allowing evidence of, and instructing the jury on, the Responsible Vendor Act, sections 561.701
–06, Florida Statutes (“the RVA”). “A trial court's ruling on the admissibility of evidence is reviewed for abuse of discretion, limited by the rules of evidence.” Seymour v. State, 187 So.3d 356, 358 (Fla. 4th DCA 2016). Discussion of this issue, however, first requires clarification of the exact cause of action brought by the Appellees. That issue is one of statutory interpretation, which we review de novo. Brown v. City of Vero Beach, 64 So.3d 172, 174 (Fla. 4th DCA 2011).
The Eagles suggest that the only cause of action here is under section 768.125, Florida Statutes
. The Appellees argue that there were two causes of action presented to the jury, the first under section 768.125 and the second under general negligence. Neither party is correct. Section 768.125 says, in relevant part:
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 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 ... person.
§ 768.125, Fla. Stat
. From its clear language, 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. This interpretation was made clear by the Florida Supreme Court in Ellis v. N.G.N. of Tampa, Inc., 586 So.2d 1042 (Fla.1991). There, the court described its prior case law “expressly reject[ing] the claim that section 768.125 created a cause of action,” while simultaneously recognizing 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.” Id. at 1046–47. That cause of action, when the habitual-alcoholic exception to the statute applies, “is ordinary negligence.” Id. at 1049.
Cevallos v. Rideout, 107 So.3d 348 (Fla.2012). A determination that a drinking establishment knowingly served a habitual alcoholic is not a per se determination that the duty and breach elements of negligence have been met. Ellis, 586 So.2d at 1049. Although we decline to specifically address situations that may arise in future cases, proactive attempts by a drinking establishment to protect the public from a habitual alcoholic whom it has knowingly served may be sufficient to show that there has been no breach of a legal duty.
The Eagles are thus incorrect in their assertion that the only cause of action here was under section 768.125
and that evidence of negligence was irrelevant. The cause of action was negligence; however, it simply was negligence that was alleged to not be limited by section 768.125. Similarly, the Appellees are incorrect in asserting in their answer brief that there were two causes of action. The presence on the verdict form of two questions does not indicate that there are two causes of action being brought; it indicates that there is a single cause of action, negligence, with a threshold question, section 768.125 non-compliance.
Here, the jury found, and the Eagles concede for the purposes of appeal, that the Appellees proved the threshold question. The issue before us is therefore whether evidence of and the instructions on the RVA were appropriate in the negligence action brought by the Appellees (which was unencumbered by the protections of section 768.125
). We hold that it was not.
The RVA is a voluntary statute that imposes no duties on any vendor. Instead, the RVA 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. § 561.706, Fla. Stat
. A vendor may choose to comply with the RVA's qualification provisions or to not comply, and suffer no harm whatsoever because of that decision. The fact that the RVA creates no legal obligation leads to the conclusion that it is impossible to “violate” or “not comply” with the RVA. A vendor can choose not to participate in the program, but any word that would suggest a requirement to participate (as “violate” and “comply” both do) is simply inapplicable.
Therefore, although it is true that “the violation of a statute may be evidence of ... a breach of a standard of care [in a negligence action],” Estate of Johnson ex rel. Johnson v. Badger Acquisition of Tampa LLC, 983 So.2d 1175, 1182 (Fla. 2d DCA 2008)
, this rule does not apply to the RVA because the RVA cannot be violated. A decision by an organization not to avail itself of certain optional protections is not proper evidence that it has breached some standard of care.
The Appellees argue that the RVA was not used to show a breach of a standard of care, but rather was used instead only to show that the Eagles were aware of the existence of the law. Leaving to the side the issue of whether such notice would even be relevant, we are unpersuaded that this is what the RVA was actually introduced for. Admittedly, the trial court did give a limiting instruction to the jury early in the trial when it said that the evidence of the RVA was “intended to establish that the Eagles club had knowledge of this law.” But statements by the Appellees in both opening and closing arguments, as well as the judge's instructions to the jury before closing, diminish the apparent effectiveness of that limiting instruction.
First, in their opening argument, Appellees' counsel told the jury that the RVA “gives us guidance on what responsible service is ... and ... what responsible vendors do.” Counsel then said that “[t]his act shows us the reasonable standards of care in the bar business, and they tell us what reasonable careful people do, and that goes back to the negligence definition.” In closing, Appellees' counsel argued that “[r]esponsible bars use reasonable care; irresponsible bars do not,” and that “[t]his bar was not responsible,”...
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