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Florida First DCA rules in Dram Shop Act exception case that defendant bar owner which allegedly served alcohol to underage at-fault driver was entitled to comparative negligence instruction comparing its fault to codefendant bar which allegedly served alcohol to underage plaintiff

On February 9, 2022, in Main Street Entertainment, Inc., v. Faircloth, No. 1D19-4058, the Florida First DCA reversed a $28.6 million final judgment for the plaintiff against a bar owner in a Fla. Stat. § 768.125 Dram Shop exception case, finding that the bar owner should have been allowed to assert a comparative negligence defense under Fla. Stat. § 768.81 and an “alcohol defense” under § 768.36(2). The trial court had denied the defendant a comparative negligence instruction on the theory that the bar’s sale of alcohol to an underage minor, the driver of the vehicle that struck the plaintiff, was an intentional tort exempt from the comparative negligence statute. The trial court relied on Wal-Mart Stores, Inc. v. McDonald, 676 So. 2d 12 (Fla. 1st DCA 1996), approved sub nom. Merrill Crossings Assocs. v. McDonald, 705 So. 2d 560 (Fla. 1997) and Publix Supermarkets v. Austin, 658 So. 2d 1064, (Fla. 5th DCA 1995), cases standing for the proposition that comparative fault cannot be used to balance the wrongdoing of an intentional actor and a negligent one in a dram-shop exception lawsuit. However, the First DCA concluded that for purposes of the comparative fault statute, the dram-shop exception is not an intentional tort, and that the bar owner should have been allowed to have the jury compare its fault against a codefendant, the bar which allegedly served alcohol to the minor plaintiff prior to the accident, even though the comparative negligence defense could not be asserted against the minor plaintiff himself because the bar that served alcohol to the at-fault driver was derivatively liable for the at-fault driver’s actions. The First DCA additionally concluded that the bar should have been allowed to assert an “alcohol defense” under § 768.36(2), again because of their conclusion that the dram-shop exception liability is not an intentional tort, but noted that this defense may ultimately be unavailing to the bar if the trial court concludes that there was insufficient evidence from which a jury could have concluded that the plaintiff’s intoxication was caused by something other than being served alcohol at the codefendant bar. In the latter case, the First DCA opined that the alcohol defense instruction would be precluded because the defense only applies if the plaintiff is “more than 50 percent at fault for his or her own harm,” which would not be the case if the harm was caused by the sale of alcohol to the plaintiff by the codefendant bar as opposed to the plaintiff’s independent negligence.