Jackie Faircloth’s case will be heard by the Florida Supreme Court

TALLAHASSEE — After an appeals court threw out a $28.6 million judgment, the Florida Supreme Court said Monday it will hear a case involving the catastrophic injury of an 18-year-old woman after two Tallahassee bars served underage drinkers.

The justices agreed to a guardian’s request for Jacquelyn Faircloth to begin a lawsuit that focuses on a judgment against Potbelly’s, a bar near the Florida State University campus.

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

Faircloth’s guardian filed a lawsuit against the owners of both businesses, alleging that they illegally served alcohol to minors and caused the accident. A district judge entered a default judgment against Cantina 101 for failure to respond and later entered a $28.6 million judgment jointly and severally against the bars, which meant they could both be legally responsible for paying all damages.

Related: Jackie Faircloth continues to slowly recover from a hit and run

But on appeal, the owners of Potbelly’s argued, in part, that the circuit judge improperly rejected what’s known as “comparative error,” a defense that could lead to a determination of shared fault — and potentially reduce Potbelly’s liability.

In a 2-1 decision, a panel of the First District Court of Appeal agreed that the case involved an issue of negligence that would allow for comparative fault.

The majority decision, written by Justice Thomas Winokur and joined by Justice Timothy Osterhaus, said that “because Potbelly’s is vicariously liable for Dwyer’s wrongdoing, the fact finder does not balance the fault between an intentional actor and a negligent actor.” Potbelly’s was entitled to have the jury compare its error (inferred from Dwyer) to Cantina 101’s (whose error was inferred from Faircloth) or, as the circumstances permitted, to Faircloth itself.

But Judge Scott Makar disagreed, writing that the charges involved “willful misconduct” on Potbelly’s part and not negligence. Dwyer was an employee of Potbelly’s.

Related: Tallahassee hit-and-run driver jailed for injuring Tampa teen

“The judge acted correctly in denying Potbella’s attempts to mitigate its culpability, and therefore liability, for intentionally and unlawfully providing alcohol to its underage employee who became intoxicated and caused catastrophic damage,” Makar wrote. “The Legislature did not intend by its comparative negligence statutes to treat negligent acts and intentional torts—such as Potbelly’s—in the same manner; instead, he clarified that comparative negligence has no role when intentional conduct is alleged and proven.

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The Tallahassee-based appeals court urged the Supreme Court to hear the case, a move known as “certifying” the issue to the justices.

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

“If, as petitioner (guardian Faircloth) claims, the essence of his claim is an intentional tort, the district court’s opinion is inconsistent with the legislature’s finding that principles of comparative fault do not apply to such claims,” ​​the motion reads. “Rather, the Legislature has determined that defendants who commit willful misconduct must bear the entire cost of damages caused by that misconduct.”

But in a response filed in August, lawyers for Potbelly’s urged the Supreme Court to dismiss the case, saying the appeals court had properly followed legal precedent.

“The opinion correctly relied on (Supreme) Court precedent to conclude that serving alcohol to customers who are under the legal drinking age is not an intentional tort that bars the application of principles of comparative fault,” wrote the bar’s attorneys, including former Supreme Court Justice trial of Raoul Canter. .

The case drew the attention of Florida State University and the University of Florida, which filed notices in July that it planned to file a petition in support of Faircloth’s guardian ad litem at the Supreme Court.

“FSU and UF face many challenges in their responsibility to their large student population, which includes thousands of students who are not of legal drinking age,” the universities, whose attorneys include former Supreme Court Justice Kenneth Bell, said in a statement. “One of the most serious challenges facing universities, like all colleges and universities, is illegal, underage drinking, intoxication and alcohol abuse. FSU and UF have dedicated significant resources and engaged in a coordinated and significant effort to address the public health crisis on their campuses caused by underage drinking, intoxication and alcohol abuse.

The Supreme Court did not immediately schedule arguments on Monday.

Jim Saunders, News Service of Florida

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