Published April 2015
By Ted Babbitt
Florida Statute 768.125 precludes an action against a vendor who sells alcoholic beverages to a person of lawful drinking age who then causes an accident resulting in injuries. The same statute permits such an action if there is evidence that the vendor of alcoholic beverages willfully sells or furnishes such alcoholic beverages to a minor.
In Case v. Newman, 40 Fla. L. Weekly D31 (1st DCA, Fla. Dec. 17, 2014), the issue was what evidence is necessary to allow a jury to consider willfulness on the part of the vendor and to further allow punitive damages to be pled?
The evidence in that case on which the plaintiff relied were photographs of the driver taken during the school year of the sale and of the accident. Several witnesses admitted those photographs fairly and accurately depicted the driver’s appearance around the time of the accident as did a “booking” photograph taken a few months after the accident.
The trial judge granted a summary judgment and denied plaintiff’s motion to add a claim of punitive damages. The trial judge relied upon Tuttle v Miami Dolphins, Ltd., 551 So. 2d 477 (Fla. 3d DCA 1988). In that case, a 17 year old became intoxicated by purchasing beer at a football game from vendors who did not ask for proof of age. He then became involved in an accident in which he was injured and brought suit against the vendors. The Third District agreed with the trial judge who had granted a directed verdict stating
“At trial, . . . Guy failed to present evidence about
his physical appearance at the time of the incident,
six years earlier. It was therefore impossible for
the jury to determine whether he looked younger
than the statutory age so that the sale to a
minor was, under the circumstances, ‘willful.’”
Tuttle at 481.
In Case, supra, the First District found in contrast to Tuttle, supra, that the evidence of the photographs and the supporting evidence describing the appearance of the minor not only should have allowed the plaintiff to avoid summary judgment but was sufficient evidence to provide “a reasonable basis for recovery” of punitive damages and allow that issue to go to the jury.
At D32, the Case court held:
In contradistinction to Tuttle, the jury in the
present case can determine – based on
photographs of Andrews taken some months
before the accident and approximately three
months after the accident – whether he looked
younger than the statutory age on the day of
the accident, so that the alleged sale of
alcohol to a minor was “willful.” That there
was no proffer of a photograph taken the
very day of the alleged sale and accident did
not make summary judgment appropriate.
Even the language of Tuttle inferred that had evidence similar to Case been presented, the directed verdict would hot have been issued.
The jury was called upon to conclude solely
from Tuttle’s appearance at age 23-1/2 that
he had appeared younger than 19 when he
bought the beer from the vendor six years
earlier. . . . Of course, a picture depicting
Guy Tuttle near the time of the accident might
very well have overcome the deficiency. None
was presented. Tuttle at 483, n. 5.
This case describes the evidence necessary both to bring a personal injury action as a result of the sale of alcohol to a minor and to claim punitive damages.