Comparative Fault Applies to Florida’s Dram Shop Law

By: Nicole Deese Newlon, Esq.

In Tallahassee, Florida, in November 2014, a woman was struck by a speeding pickup truck when she crossed the street on foot.  Both the driver of the truck and the woman were intoxicated at the time.  The woman suffered catastrophic and permanent injuries.  The guardianship for the injured woman later sued two bars in Tallahassee Florida seeking money damages, including the bar where she was drinking and the bar where the pickup driver was drinking.  The complaint alleged that these bars served alcoholic beverages to the woman and the pickup driver, that both were underage drinkers who became intoxicated, and their intoxication caused the accident.
 
The statute pursuant to which the guardianship sued was section 768.125, Florida Statutes.  That statute provides:
 
768.125 Liability for injury or damage resulting from intoxication.—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.
 
In short, the statute makes clear that a bar is not liable for injury or damage if it sells or serves a patron alcoholic beverage(s) if the person they are serving is (in the State of Florida) 21-years of age.  If, however, the bar “willfully and unlawfully” serves or sells alcohol to someone who is not 21-years of age, or if the person they are serving is habitually addicted to alcohol and the bar knowingly serves them, then the bar may become liable. 
 
One of the bars responded and argued the comparative fault defense.  The defendants argued that the woman’s own fault for the accident should reduce their liability.  The trial court rejected the defense.  Specifically, the trial court determined that section 768.125 requires “willful” misconduct, and it is therefore not a negligence action, but instead, an intentional tort.   At least one of the bars stipulated at the trial of the matter that it had willfully served the pickup driver with the alcoholic beverages, but it argued that the pickup driver was not intoxicated and if the driver was, he did not cause the collision with the woman.  The bar maintained that the accident was otherwise unavoidable when the woman walked in front of the driver.
 
The trial court entered a judgment in favor of the woman and against the bars jointly and severally for $28.6 million.  On appeal, the First District determined that the trial court should have allowed the bar to assert an affirmative defense of comparative fault.  The First District held that as it relates to that defense and the facts of this case, the one bar could assert a comparative negligence defense between itself and the other bar, but not between each bar and their respective patrons. 
 
The Florida Supreme Court reviewed the case and issued its opinion on March 7, 2024.  Therein, the Court agreed that section 768.125 permits a negligence action, which would therefore authorize the assertion of a comparative fault defense.  As it relates to section 768.125, the willfulness requirement means that the plaintiff must prove that the bar knew the patron was underage.  According to the Court, that is a different type of intent than the intent required to make the matter one of an intentional tort instead of a negligence action. 
 
The guardianship did not allege that the bar intended to harm the woman, or even someone in her position, or that the bar knew such harm was substantially certain to occur.  The willfulness of the bar related only to its knowledge that the patron it served was underage.