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An appeals court has overturned a $28.6 million judgment against a Tallahassee bar near FSU

small brick building that looks like a house with palm trees
Craig Moore
WFSU Public Media
Potbelly's at N. Macomb St. and W. College Ave.

Siding with a bar near Florida State University, a divided state appeals court Wednesday rejected a $28.6 million judgment in a case stemming from catastrophic injuries suffered in 2014 by an 18-year-old woman when she was hit by a pickup truck while crossing a street.

The woman, Jacquelyn Faircloth, was intoxicated after drinking alcohol at the Cantina 101 establishment in Tallahassee. The driver of the pickup, Devon Dwyer, then 20, had been drinking at Potbelly’s, a bar near the FSU campus.

Faircloth’s guardians filed a lawsuit against owners of both establishments, alleging that they illegally served alcohol to underage people and caused the accident, according to Wednesday’s ruling by a panel of the 1st District Court of Appeal.

A circuit judge issued a default judgment against Cantina 101 for failing to respond and later entered a $28.6 million judgment jointly and severally against the bars for Faircloth’s injuries, which means both could be legally responsible for paying all the damages. But in the appeal, the owners of Potbelly’s argued, in part, that the circuit judge had improperly rejected what is known as a “comparative fault” defense, which could lead to determining a share of fault.

The panel’s majority opinion said the case involved a question of negligence, which would allow for comparative fault. The opinion, written by Judge Thomas Winokur and joined by Judge Timothy Osterhaus, said that “because Potbelly’s is derivatively liable for Dwyer’s wrongdoing, the factfinder does not balance fault between a willful actor and a negligent one. Potbelly’s was entitled to have the jury compare its fault (derived from Dwyer) to Cantina 101’s (whose fault was derived from Faircloth), or if circumstances permitted, to Faircloth’s itself.”

But Judge Scott Makar dissented, writing that the allegations involved “intentional misconduct” by Potbelly’s and not negligence. Dwyer was an employee of Potbelly’s.

“The trial judge acted properly in denying Potbelly’s attempts to lessen its fault, and thereby liability, for its willful and unlawful provision of alcohol to its underage employee who became drunk and caused catastrophic harm,” Makar wrote. “The Legislature did not intend its comparative negligence statutes to treat negligent actions and intentional, criminal acts — such as Potbelly’s — in the same way; instead, it made clear that comparative negligence has no role when intentional conduct is alleged and proven.”

The majority opinion sent the case back to circuit court for a jury to consider Potbelly’s degree of fault.