Far too much liquor was served, but too little justice
Just 18, Jacquelyn Anne Faircloth was struck crossing a street by a 20-year-old drunken driver who had been served 18 beers and six bourbons at Potbelly’s, a Tallahassee bar one block from the Florida State University campus.
Potbelly’s knew the driver was under 21 because he worked there.
Ten years later, Faircloth remains in assisted living, unable to walk or talk. Disabled for life, she is nourished through tubes.
The speeding driver, who said he hadn’t drunk all the booze himself, went to prison for fleeing the scene and is on probation now.
Faircloth can never rebuild her life, and has yet to be paid a dime in damages.
Writing about this case two years ago, the South Florida Sun Sentinel said that “once again, the law has made a fool of justice.”
At that time, Florida’s First District Court of Appeal had performed legal somersaults to reduce the $28.6 million that a jury said Potbelly’s owed to Faircloth’s guardianship. The Florida Supreme Court has now confirmed that glaring miscarriage of justice by upholding it, 6-1.
Dissenting with dignity
In another of his solitary dissents, Justice Jorge Labarga, the court’s lonely humanist, accused the majority of discarding “clear and unambiguous statutory language, well-settled case law and logic.”
They accomplished “the Herculean task of transforming a statute that expressly requires a willful act into a negligence action,” Labarga wrote.
Florida’s dram shop law generally lets bars off the hook for what drunken patrons do, but not if the drinkers are minors. In that event, the bar is liable if it willfully served them.
But Potbelly’s attorneys said Florida’s comparative negligence law should apply, which would assign shares of the blame and costs to Faircloth herself and to another bar that had served her drinks.
Faircloth’s lawyers argued — and Labarga agreed — that comparative negligence is a defense only when the underlying act isn’t willful. If serving 24 drinks to a 20-year-old isn’t willful, nothing is.
Where common sense goes to die
The Florida Court, however, is where common sense goes to die.
That’s especially true in cases such as this, which attracted a friend-of-the-court brief favoring Potbelly’s from the Florida Defense Lawyers Association. Their clients are typically insurance companies and other corporations that have much to win or lose from the court’s precedents.
Chief Justice Carlos Muñiz, who wrote the majority opinion, did not disappoint them.
He rationalized that it did not make the offense willful even if Potbelly’s knew it was serving alcohol to an underage employee.
Yes, “Potbelly’s admitted to knowingly creating an unreasonable risk of harm,” he wrote. But it did not intend for Faircloth to be hurt.
“That is negligence, not an intentional tort,” he concluded.
Nonsense — and it pulls the sharpest teeth from a law meant to discourage bars from serving kids.
When the Legislature meets next, it needs to restore some legal sanity here. Serving alcohol to someone you know is under age is worse than negligence. It is deliberate.
Underage drinking is such a serious problem that both FSU and the University of Florida filed briefs supporting Faircloth.
The First District had certified it to the high court for one question: Whether Potbelly’s could limit its responsibility by invoking the comparative negligence law.
The Supreme Court decision sends the case back down for another trial to apportion fault.
The bar that served drinks to Faircloth, 101 Cantina, put up no defense, closed long ago, and is presumed judgment-proof. Nonetheless, if Potbelly’s lawyers can persuade a jury to assign any degree of fault to 101 Cantina, or to Faircloth, that’s less money for Potbelly’s to pay and less for Faircloth’s lifelong care.
It also means she’ll wait even longer, perhaps years longer, for any of it.
Asked to comment, Don Hinkle, one of Faircloth’s lawyers, wrote that “we are disappointed that Potbelly’s ‘willful’ sale of alcohol” to an underage drinker “was deemed to be mere negligence.”
Hinkle added: “We look forward to another trial to apportion fault, and this time we will have the opportunity to introduce evidence of how Potbelly’s deliberate sale of alcohol to minors has ruined countless lives.”
The history of Potbelly’s
Potbelly’s figured in a 2012 rape allegation against former Florida State quarterback Jameis Winston. Both he and his alleged victim had been drinking there; both were under 21. Winston was never charged, but FSU paid the young woman $950,000 to settle a Title IX lawsuit.
Five of the six Supreme Court justices who ruled for Potbelly’s are appointees of Gov. Ron DeSantis. The sixth, Charles Canady, is the court’s longest-serving conservative member.
Labarga’s dissenting opinion cited the dissent two years ago of Judge Scott Makar at the First District.
Like Labarga, Makar was the only judge at his court who routinely bucked the majority.
He’s no longer there. A law DeSantis signed two years ago to create an unnecessary Sixth District Court of Appeal also moved Makar, a Jacksonville resident, to a realigned Fifth District Court of Appeal, further cementing the triumph of rightwing law in Tallahassee.
The Orlando Sentinel Editorial Board includes Editor-in-Chief Julie Anderson, Opinion Editor Krys Fluker and Viewpoints Editor Jay Reddick. The Sun Sentinel Editorial Board consists of Editorial Page Editor Steve Bousquet, Deputy Editorial Page Editor Dan Sweeney, editorial writer Martin Dyckman and Anderson. Send letters to insight@orlandosentinel.com.