Publix Supermarkets, Inc. v. Austin

• Decision Date: 30 June 1995
• Docket Number: No. 94-635,94-635
• Citation: 658 So.2d 1064
• Parties: 20 Fla. L. Weekly D1531 PUBLIX SUPERMARKETS, INC., Appellant/Cross-Appellee, v. Steven Scott AUSTIN, et al., Appellees, and Todd H. Wurtz, Appellee/Cross-Appellant.
• Court: Florida District Court of Appeals

Page 1064

658 So.2d 1064

20 Fla. L. Weekly D1531

PUBLIX SUPERMARKETS, INC., Appellant/Cross-Appellee, v. Steven Scott AUSTIN, et al., Appellees and Todd H. Wurtz, Appellee/Cross-Appellant.

No. 94-635.

District Court of Appeal of Florida Fifth District.

June 30, 1995.

Rehearing Denied Aug. 15, 1995.

Richard S. Womble and Richard B. Mangan, Jr. of Rissman, Weisberg, Barrett, Hurt, Donahue & McLain, P.A., Orlando, for appellant/cross-appellee.

Brian D. Hill of Hill and Ponton, P.A., Orlando, for appellee/cross-appellant Todd H. Wurtz.

Donald R. Henderson of Mateer, Harbert & Bates, P.A., Orlando, for appellee Orlando Regional Healthcare Systems, Inc.

Betsy E. Gallagher of Kubicki Draper, Miami, for appellee Steven Scott Austin.

COBB, Judge.

This appeal arises from a motorcycle/pickup truck collision which occurred in 1991. The injured motorcyclist, Todd Wurtz, filed a second amended complaint with three counts. Count I was directed at Steven Austin and Anthony Brewer, the driver and owner of the truck, respectively; Count II alleged that Publix willfully and unlawfully sold alcohol to Austin on the date of the collision in violation of sections 562.11 and 768.125, Florida Statutes, ¹ resulting in Wurtz's injuries; and Count III alleged that Publix was negligent in the training, instructing and supervising of its employees, said negligence leading to Wurtz's injuries.

The jury returned a verdict finding that there had been a willful and unlawful sale of alcohol by Publix to Austin, allocated fault between Austin (80%) and Publix (20%), and arrived at a total damage verdict of $293,701.87. Publix has appealed from the consequent judgment against it.

Publix first contends that the trial court committed reversible error in refusing to dismiss Wurtz's allegations of negligence against it, not only those in regard to Count III, but those commingled in the allegations of Count II. Publix asserts in its brief:

Florida law does not recognize a cause of action for negligent sale of alcohol ... the only cause of action available to Wurtz was a cause of action based on Florida Statute section 768.125 which required Wurtz to prove a willful and unlawful sale of alcohol to Austin, a minor, which resulted in Wurtz's injuries.

In regard to this point, Publix urges that the trial court allowed prejudicial testimony and extraneous jury instructions which were only relevant to the improper "negligence" action.

In support of this argument, Publix traces the evolution of Florida law in regard to liability for the sale of alcohol. Originally, Florida common law, as well as that of other states, provided that 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. This common law insulation was based on the principle that it was the consumption of the alcohol, rather than the prior sale, that directly and proximately resulted in the injury. See Ellis v. N.G.N. of Tampa, Inc., 586 So.2d 1042, 1044 (Fla.1991).

The common law view was modified in Florida in 1963 by the decision in Davis v. Shiappacossee, 155 So.2d 365 (Fla.1963), wherein the Florida Supreme Court held that violation of the statute prohibiting the sale of alcohol to minors (see section 562.11) could give rise to civil liability. As a judicial trend developed extending liability towards vendors of alcoholic beverages, the Florida Legislature intervened in 1980 and enacted section 562.51, now codified as section 768.125, effectively reviving the original common law rule absolving vendors from liability for sales. This 1980 statute, however, provided exceptions in regard to liability for sales to minors and to persons habitually addicted to alcohol. See Ellis, at 1046. Therefore, argues Publix, since 1980 no cause of action for negligence, as opposed to willfulness, has existed against a vendor of alcohol in Florida.

Wurtz contends here, as he did before the trial court, that a cause of action for negligence against the vendor continues to exist in Florida. He bases this contention on the following sentence which appears at page 1047 of the Ellis opinion:

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 third party. (emphasis added).

The above statement is dictum because Ellis did not concern the sale of alcohol to a minor. In the context of the entire opinion, and in light of the express provisions of the applicable statute, it is quite clear that the adjective "negligent" was inadvertently used in the quoted sentence. Its presence there, of course, renders the sentence nonsensical since the statutory limitation referred to earlier in the sentence expressly limits a vendor's liability, in regard to sale to a minor, to a "willful and unlawful" sale and not merely a negligent one.

Nevertheless, counsel for the plaintiff herein has seized on the erroneous Ellis dictum as a basis to claim that a negligence cause of action still exists in Florida under section 768.125. This misreading of Ellis resulted in the injection of error into the trial below, both in the admission of evidence and in jury instructions.

Based on the provisions of 768.125, we agree with Publix that Count III, which is merely a negligence claim, should have been dismissed by the trial court. On the other hand, Count II, although improperly commingling negligence allegations with its claim pursuant to section 768.125--and properly subject to a motion to strike surplusage therein--was not subject to dismissal with prejudice as urged by Publix. The prejudicial effects, however, of the trial court's failure to dismiss the negligence allegations would warrant a new trial.

Publix next contends that it was entitled to a summary judgment prior to trial on the issue of the "willfulness" of its sale to Austin. It contends that there was no evidence that the unidentified cashier had actual knowledge of Austin's age. The question, then, is whether there was any circumstantial evidence surrounding the sale which could give rise to an attribution of constructive knowledge on the part of Publix. The only such admissible evidence at the time of the summary judgment hearing, according to Publix, affirmatively indicated that Austin did not appear to be a minor--indeed, he had gone to considerable effort to appear older and had successfully purchased beer from several establishments. In fact, Austin testified in his deposition that he had purchased beer for several of his friends because of his more mature appearance. There was no other evidence in the record to indicate that it was a willful sale by the unknown cashier.

In response to this argument, Wurtz contends that the fact of the sale to a minor without a request for identification, coupled with the factual question of a minor's physical appearance at the time, created a jury issue, and cites to the cases of Gorman v. Albertson's, Inc., 519 So.2d 1119 (Fla. 2d DCA 1988) and Burns v. Three of a Kind, Inc., 439 So.2d 1004 (Fla. 5th DCA 1983) as a basis for denial of the summary judgment.

In Gorman, the Second DCA reversed the summary judgment entered below in favor of a bar that had served alcohol to a patron with a two year history of heavy alcohol abuse at the same bar. Gorman, which dealt with sale to an addicted person, affords little guidance in the instant case. In Burns, we reversed the summary judgment based primarily on the pleadings, and those pleadings specifically alleged actual knowledge of the defendant. Again, Burns is not relevant to the summary judgment issue posed herein.

Both Publix and Wurtz cite to our opinion in Willis v. Strickland, 436 So.2d 1011 (Fla. 5th DCA 1983), pet. for rev. denied by, ABC Liquors, Inc. v. Willis, 446 So.2d 99 (Fla.1984). In that case, it was alleged that the plaintiffs were injured as a result of an automobile accident caused by the intoxication of Kay Strickland, a minor to whom employees of ABC Liquors had "willfully and unlawfully" sold alcoholic beverages. As in the instant case, the vendor failed to check identification of the minor's age prior to sale.

The trial court, on the basis of affidavits and depositions, entered summary judgment for ABC. We reversed. In doing so, we acknowledged that a "willful" sale under section 768.125 requires knowledge that the recipient of the sale is not of lawful drinking age. We noted, however, that such inculpatory knowledge of a person's age could be proved by circumstantial, as well as...