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The University of Florida joins FSU to weigh in on a lawsuit involving a Tallahassee bar near campus

Shrubbery sits in front of a red-brick building.
Craig Moore
WFSU Public Media
Potbelly's bar in Tallahassee

Florida State University and the University of Florida plan to file arguments at the state Supreme Court in support of a woman who suffered catastrophic injuries when she was hit by a pickup truck in an incident that involved underage drinking.

Attorneys for the universities submitted a notice Tuesday that is a first step toward filing a brief supporting Jacquelyn Faircloth, who was 18 when she was hit by the truck in 2014 while crossing a Tallahassee street. Faircloth had been drinking, as had the 20-year-old driver of the truck, who had been at Potbelly’s, a bar near the Florida State campus.

“FSU and UF face many challenges in their responsibilities to their large student populations, which include thousands of students who are not of lawful drinking age,” Tuesday’s notice said. “One of the most serious challenges facing the universities, like all colleges and universities, is unlawful, underage drinking, intoxication and alcohol abuse. FSU and UF have each devoted substantial resources and engaged in concerted and significant efforts to address the public health crisis on their campuses posed by unlawful, underage drinking, intoxication and alcohol abuse.”

The guardian for Faircloth took the case to the Supreme Court last week after a panel of the 1st District Court of Appeal overturned a $28.6 million judgment against the owners of Potbelly’s and another establishment, Cantina 101. Faircloth drank alcohol at Cantina 101, while pickup driver Devon Dwyer had been at Potbelly’s, according to court documents.

Faircloth’s guardian filed the lawsuit against owners of both establishments, alleging that they illegally served alcohol to underage people and caused the accident. 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, which meant both could be legally responsible for paying all the damages.

But in an 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. A majority of the appeals court panel agreed, saying 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 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,” Makar wrote.

The appeals-court decision directed the case back to circuit court for a jury to consider Potbelly’s degree of fault. But Faircloth’s guardian wants the Supreme Court to take up the issue.

Attorneys for FSU and UF, including former Supreme Court Justice Kenneth Bell, did not provide detailed arguments in Tuesday’s filing. But they wrote that applying comparative-fault laws “against a vendor who willfully and unlawfully sold alcohol to an underage patron, resulting in the patron’s intoxication and related injury, would undermine the universities’ considerable efforts to address a significant public health threat.”