Florida First DCA Reverses $28.6 Million Judgment And Emphasizes That Alleged Violations Of The Florida "Dram Shop" Act Are Negligence Actions

• Published date: 01 March 2022
• Subject Matter: Litigation, Mediation & Arbitration, Trials & Appeals & Compensation, Professional Negligence
• Law Firm: Butler Weihmuller Katz Craig LLP
• Author: Mr Barry Burkett

The effects of alcohol-impaired driving as it concerns life and limb are well-documented. Indeed, more often than not, the policy limits for the responsible party's insurance policy are inadequate to compensate the injured party, and in some unfortunate circumstances their family, following these accidents. This is where Florida's "Dram Shop" statute, which is codified at section 768.125, Florida Statutes (2021), comes into play. This statute imposes civil liability against bars, restaurants, and other business establishments if they provide alcohol under certain circumstances to a patron who later causes an accident that harms someone else. Thus, both vendors and their insurance carriers should be aware of this statute to ensure that the necessary policies and procedures are in place to limit exposure to liability.

One of these circumstances is if a vendor willfully and unlawfully sells or furnishes alcoholic beverages to a minor and the minor injures another due to being in an intoxicated state (which is known as the "minor exception").¹ If the plaintiff carries his or her burden in proving a violation of section 768.125, a vendor is derivatively liable for all of the harm that its underage patron's actions or omissions cause to another. Violations of section 768.125 may also result in punitive damages. Accordingly, affirmative defenses, such as comparative fault and the alcohol defense,² if applicable, may be critical in limiting a vendor's exposure to an exceedingly large damages award or, in rare instances, avoiding liability altogether.

The utilization of the aforementioned defenses was the central issue in Mainstreet Entertainment Inc., d/b/a Potbelly's v. Guardianship of Jacquelyn Anne Faircloth, No. 1D19-4058, 2022 WL 390775 (Fla. 1st DCA Feb. 9, 2022). This case arose from an accident that occurred in November 2014 after a 20-year old, the tortfeasor, was served alcohol at one bar while an 18-year old, the injured party, was served alcohol at a different bar. The bar that served alcohol to the tortfeasor was precluded from using the comparative negligence and the alcohol defenses at trial. The jury returned a $28.6 million judgment against the bars. As a result, Potbelly's appealed the judgment to the First District Court of Appeal on the issue of whether a vendor can utilize the comparative fault and the alcohol defenses when a separate vendor is found to have also been in violation of section 768.125, and both are derivatively liable for their...