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The Florida Supreme Court will hear the case against a Tallahassee bar in an underage drinking crash

Potbelly's bar during the daytime with cars at the neighboring intersection
Craig Moore
WFSU Public Media

After an appeals court rejected a $28.6 million judgment, the Florida Supreme Court on Monday said it will take up a case involving catastrophic injuries suffered by an 18-year-old woman after two Tallahassee bars served underage drinkers.

Justices agreed to a request by the guardian for Jacquelyn Faircloth to take up a dispute that focuses on a judgment against Potbelly’s, a bar near the Florida State University campus.

Faircloth was injured when she was hit by a pickup truck in 2014 while crossing a street about 2 a.m., according to court records. The driver of the truck, 20-year-old Devon Dwyer, had been drinking at Potbelly’s, while Faircloth had been drinking at another establishment, Cantina 101.

Faircloth’s guardian filed a lawsuit against owners of both businesses, 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 — and potentially reducing Potbelly’s liability.

In a 2-1 decision, a panel of the 1st District Court of Appeal agreed, saying the case involved a question of negligence, which would allow for comparative fault.

The majority decision, written by Judge Thomas Winokur and joined by Judge Timothy Osterhaus, said that “because Potbelly’s is derivatively liable for Dwyer’s wrongdoing, the fact finder 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 Tallahassee-based appeals court urged the Supreme Court to take up the case, a move known as “certifying” a question to justices.

In a petition filed in July at the Supreme Court, attorneys for Faircloth’s guardian argued that the bars selling alcohol to the underage drinkers should be considered an “intentional tort,” rather than negligence.

“If, as petitioner (Faircloth’s guardian) contends, the substance of its claim is an intentional tort, the district court’s opinion conflicts with the Legislature’s determination that comparative fault principles do not apply to such claims,” the petition said. “Rather, the Legislature determined that defendants who engage in intentional misconduct must shoulder the entire cost of harms caused by that misconduct.”

But in an answer brief filed in August, attorneys for Potbelly’s urged the Supreme Court to turn down the case and said the appeals court had properly followed a legal precedent.

“The opinion correctly relied on this (Supreme) Court’s precedent to conclude that serving alcohol to patrons under the lawful drinking age is not an intentional tort that prohibits applying comparative fault principles,” the bar’s attorneys, including former Supreme Court Justice Raoul Cantero, wrote.

The case has drawn attention from Florida State University and the University of Florida, which submitted a notice in July that said they plan to file a brief in support of Faircloth’s guardian at the Supreme Court.

“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,” the universities, whose attorneys include former Supreme Court Justice Kenneth Bell, said in the notice.

“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 Supreme Court on Monday did not immediately schedule arguments.