SIGNIFICANT LIQUOR LIABILITY DEFENSES IN FLORIDA
Florida is among few states with stringent liquor liability statutes. To better understand the prevailing state law, it is helpful to first consider the history of this area of law in Florida. Under common law, a bar had no liability for any problems arising from the sale of alcoholic beverages, as it was the consumption of the alcoholic beverages, and not its sale, which was considered the cause of any improper conduct and resulting damages. By the early 1960’s, the law began to shift and in Davis v. Shiappacossee, 145 So.2d 758, 760 (Fla. 2d DCA 1962), the sale of alcohol to a minor was determined to be negligence per se as to the vendor. This trend continued and in Prevatt v. McClennan, 201 So.2d 780 (Fla. 2d DCA 1967), the court first recognized the distinction between the sale and consumption, leading to a recognition that in many instances, the proximate cause of the resulting damages was the sale when made to individuals who lacked the ability to make a responsible decision when drinking alcoholic beverages.
As a result of the foregoing, in 1980, Florida enacted its first liquor liability statute, which has since been codified into Section 768.125, Florida Statutes. This law provides that:
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.
Critically, this law begins with the premise that a bar is not liable for injury or damage caused by the intoxication of a person. As respects the sale to underage individuals, the specific use of the terms “willfully and unlawfully” indicate that there is an established legal duty to not provide alcoholic beverages to minors. By contrast, the “habitual drunkard” standard involves establishing that the server had knowledge that the individual was someone who “cannot resist getting drunk anytime the temptation is offered” and intoxication is “frequent, excessive and the dominant passion.” Todd v. Todd, 56 So.2d 441, 442 (Fla. 1951.) Similarly, the statute does not prohibit the furnishing of alcohol to an intoxicated person, provided that as the intoxicated person is not a known habitual drunkard. Landstar Florida, Inc. v. Cooper, 408 So. 2d 758 (Fla. 4th DCA 1982).
It should be noted, however, that a lawsuit cannot be based upon solely upon a violation of this statute as the “clear language of Section 768.125 does not create a cause of action … but is a protective statute that would eliminate a cause of action where one might otherwise exist, except in certain circumstances.” Ellis v. N.G.N of Tampa, Inc (Fla. 4th DCA 2016.) Accordingly, the proper cause of action would be ordinary negligence and therefore a a Plaintiff is barred from recovering any damages if he or she was found to be:
(a)under the influence of any alcoholic beverage or drug to the extent that his or her normal faculties were impaired or had a blood or breath alcohol level of at least 0.08; and
(b) as a result of the influence of alcohol or drugs was determined to have been more than 50% at fault for his or her injuries.
See Section 768.36(2), Florida Statutes; Shehada v. Tavss, 965 F.Supp.2d 1358, 1377 (S.D. Fla. 2013). This statute is a considerable departure from the standard pure comparative negligence rule which would allow recovery regardless of the degree to which a Plaintiff is found to have been at fault. We have successfully asserted this particular defense in circumstances where an intoxicated Plaintiff was independently negligent for, among other grounds, riding in a vehicle with a driver known to also be intoxicated. As a result, this statute provides another measure of potential risk avoidance for insurance companies regarding liquor liability claims.
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