Case involving Tallahassee bars heads to Florida Supreme Court

Beautiful photo Supreme Court of Florida USA shot at twilight

After an appeals court overturned a judgment against two Tallahassee bars found liable for a woman’s life-altering injuries, the woman’s guardian is taking the case to the Florida Supreme Court.

Jacquelyn Faircloth’s guardian took the first step in having the case heard by the state’s highest court by filing a notice last week.

Faircloth was 18 years old in 2014 when she was struck by a pickup truck driven by 20-year-old Devon Dwyer, who had been drinking at the bar Potbelly’s near the Florida State University campus. Faircloth was intoxicated after drinking at the bar 101 Cantina and Dwyer worked for Potbelly’s.

Faircloth’s guardian sued the bars, arguing they served alcohol to underage people and were responsible for the accident. After issuing a default judgment against 101 Cantina for its failure to respond, a circuit court judge issued a $28.6 million judgment jointly and severally against the bars.

The owners of Potbelly’s appealed the decision, arguing the circuit court judge rejected a “comparative fault defense” to find the share of fault.

In February, an appeals court panel was divided in its decision, but the majority opinion stated negligence should have been questioned in the case.

Judge Thomas Winokur wrote in the majority opinion 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.”

Judge Scott Makar disagreed negligence was involved, invoking “intentional misconduct” in his dissent due to the fact that Dwyer was Potbelly’s employee at the time.

Makar argued the trial judge was correct in “denying Potbelly’s attempts to lessen its fault, and thereby liability, for its willful provision of alcohol to its underage employee who became drunk and caused catastrophic harm.”

“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.”

Detailed arguments were not provided in the guardian’s notice.