Arguments continue in bar accident lawsuit involving FSU student

By Jim Saunders
News Service of Florida

 Florida Supreme Court justices appeared skeptical of arguments aimed at overturning an appeals-court decision in a case involving catastrophic injuries suffered by an 18-year-old woman after two Tallahassee bars served underage drinkers.

The guardian for Jacquelyn Faircloth went to the Supreme Court last year after the 1st District Court of Appeal rejected a $28.6 million judgment, siding with operators of 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 the appeal, the owners of Potbelly’s argued 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.

A panel of the 1st District Court of Appeal agreed, saying last Thursday case involved a question of negligence, which would allow for comparative fault.

David Sales, an attorney for Faircloth’s guardian, argued last Thursday that the case involved an “intentional tort,” rather than negligence. If it is determined to be an intentional tort, Potbelly’s could face the judgment without the benefit of comparative fault.

Sales said the Legislature has long established in law that minors should not drink alcohol or be intoxicated.

“That’s why there’s a consequence for the bar that acts willfully and unlawfully,” Sales said.

But justices repeatedly questioned Sales, in part about how to distinguish between negligence and an intentional tort. Chief Justice Carlos Muniz, for example, said there is no indication the bar wanted the accident to happen.

Justice Charles Canady questioned whether the intentional-tort argument could apply to any act of negligence when something, like selling alcohol to minors, is done illegally.

“It just seems like what you are arguing would be so broad,” Canady said to Sales, later adding that the court can’t interpret the law based on “egregious facts of a specific case.”

Raoul Cantero, an attorney for the bar owners, urged justices to find the case involved negligence. While that could lead to apportioning fault, Cantero said it’s “not designed to absolve.”

Cantero, a former Supreme Court justice, drew a comparison to a motorist who knowingly runs a red light and gets in an accident. He said such a motorist would be negligent but would not commit an intentional tort — a comparison that drew a response from Sales.

“This wasn’t running a red light,” Sales said.

The Supreme Court typically takes months before it issues rulings.

The case has drawn attention from Florida State University and the University of Florida, with former FSU President John Thrasher attending last Thursday’s arguments.

The universities filed a friend-of-the-court brief in January supporting the arguments of Faircloth’s guardian. The brief said the universities have an interest in deterring underage drinking and that Potbelly’s is liable for Faircloth’s injuries resulting from Dwyer’s intoxication. Dwyer also was an employee of Potbelly’s.

“The fact that the highly intoxicated Dwyer left Potbelly’s in his truck and negligently injured Faircloth does not alter Potbelly’s liability,” the universities’ brief said. “On its premises, Potbelly’s ‘willfully’ furnished its minor employee a very large amount of alcohol. That made Potbelly’s tort intentional. Having intoxicated Dwyer, Potbelly’s is directly liable for the injury or damage caused by or resulting from that intoxication.”