By Jim Saunders, The News Service of Florida
TALLAHASSEE — Florida State University and the University of Florida plan to file arguments at the state Supreme Court in support of a woman who suffered catastrophic injuries when she was hit by a pickup truck in an incident that involved underage drinking.
Attorneys for the universities submitted a notice Tuesday that is a first step toward filing a brief supporting Jacquelyn Faircloth, who was 18 when she was hit by the truck in 2014 while crossing a Tallahassee street. Faircloth had been drinking, as had the 20-year-old driver of the truck, who had been at Potbelly’s, a bar near the Florida State campus.
“FSU and UF face many challenges in their responsibilities to their large student populations, which include thousands of students who are not of lawful drinking age,” Tuesday’s notice said. “One of the most serious challenges facing the universities, like all colleges and universities, is unlawful, underage drinking, intoxication and alcohol abuse. FSU and UF have each devoted substantial resources and engaged in concerted and significant efforts to address the public health crisis on their campuses posed by unlawful, underage drinking, intoxication and alcohol abuse.”
The guardian for Faircloth took the case to the Supreme Court last week after a panel of the 1st District Court of Appeal overturned a $28.6 million judgment against the owners of Potbelly’s and another establishment, Cantina 101. Faircloth drank alcohol at Cantina 101, while pickup driver Devon Dwyer had been at Potbelly’s, according to court documents.
Faircloth’s guardian filed the lawsuit against owners of both establishments, 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 an appeal, the owners of Potbelly’s argued, in part, that the circuit judge had improperly rejected what is known as a “comparative fault” defense, which could lead to determining a share of fault. A majority of the appeals-court panel agreed, saying the case involved a question of negligence, which would allow for comparative fault.
The opinion, written by Judge Thomas Winokur and joined by Judge Timothy Osterhaus, said 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.”
But Judge Scott Makar dissented, writing that the allegations involved “intentional misconduct” by Potbelly’s and not negligence. Dwyer was an employee of Potbelly’s.
“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,” Makar wrote.
The appeals-court decision directed the case back to circuit court for a jury to consider Potbelly’s degree of fault. But Faircloth’s guardian wants the Supreme Court to take up the issue.
Attorneys for FSU and UF, including former Supreme Court Justice Kenneth Bell, did not provide detailed arguments in Tuesday’s filing. But they wrote that applying comparative-fault laws “against a vendor who willfully and unlawfully sold alcohol to an underage patron, resulting in the patron’s intoxication and related injury, would undermine the universities’ considerable efforts to address a significant public health threat.”
FSU, UF Weigh In on Tallahassee Bar Accident Case added by Staff on
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How can Faircloth’s Guardian file lawsuits against owners of both establishments when she was only drinking at one of them? If Faircloth’s Guardian can do that then, why not file against ALL of the Bars in town as I am sure that their have been some Underagers that have participated in a few of the Tennessee Street Craw and the Mid-Town Craw as well as the Tallahassee Trolley Bash.
@Edward Lyle: I am pretty sure that FSU and UF are not sticking their noses into this but rather they were pulled in by the Lawyers of the Plaintiffs for not doing a better job of Babysitting their “Kids” (as if that’s their job) it happens all the time. They are trying to also Blame the Colleges because they are the ones with the Deepest Pockets, it is no different than Blaming the Gun Manufacturers for all the Murders taking place.
@Pat,
I’ve long railed against the ambulance chaser industry. It was merely a necessary evil before Florida allowed them to advertise publicly. Now they’re a menace.
When M&M was in an earlier stage of growing into the monster they are today, I would literally shout at my radio when their ad would brag on the billions that they had gotten for their clients. At the standard 40%, their 400 lawyer team was averaging more than $1,000,000 in revenue per lawyer per billion recovered — all on the backs of our insurance premiums.
This. Has. To. Stop!
If underage drinkers are not smart enough to bring a designated non-drinking driver/guardian with them when they go out for a night of fun they have a real brain problem.
My three daughters that attended FSU never drove drunk, got raped or pregnant or hit by a car for wandering into traffic. I’m certain they experienced many hangovers during their college years.
Wake-up students and learn to be responsible for your actions or nasty things may happen to you in many facets of your life, not just your college years.
Even though you have right of way, look before you cross in front of a vehicle. Legally the truck/car should yield right of way, look before you walk.
This story illustrates why everything cost more…attorneys make their living filling lawsuits against businesses. The business’s legal team tells them to settle because it is cheaper. Dewey’s, Cheatum and Howell get the Lion’s share of the settlement and the consumer gets a good F’n.
Our Country is going to $h1t. The lack of personal accountability and slip and fall attorneys are the root cause.
BTW. I saw a city bus yesterday wrapped in a slip and fall attorneys advertisement. Compared to her commercial, I think they air brushed her pix to make her thinner than she really is.
The young lady was not in college here she was in high school and thriving. She came to Tallahassee to visit her brother who was attending FSU.
I hope technology advances in so that somehow there is a foolproof way to know that someone is below the drinking age of 18, and when there is a child in a car – alone – somehow some sensor needs to go off in a certain tone that alerts forgetful parents, citizens near the vehicle, and law enforcement to rescue that child immediately.
If someone 18 wants to drink there are ways that they will skirt the obstacles; we need to find out ways to stay one step ahead.
@Edward,
The 18 year old drinking age may be well intended, but I fail to see how it’s Constitutional.
18 year olds can drive, own firearms, join our Armed Forces, hold political office, vote (and shape the politics of this country), etc. But somehow that beer is forbidden to them?
My take on most all of this is that voting is the baseline. If you’re (allegedly) old enough and mature enough to shape politics in this country, age based restrictions need to align with whatever age that might be.
Indeed a tragic situation to be sure… but neither FSU nor UF have any business sticking their noses into this at all. Whether associated with a college student or not, underaged drinking has been going on since an age limit was first instituted.
All one has to do is walk a few blocks through the housing sections leading to Doak Campbell on football Saturday, and you’ll witness countless drinking parties going on all over the place. I may be going out on a limb here, but my guess is they don’t card at the door to those parties. (sarcasm off)
I tend to agree with “A Skeptic” on this. These are not “kids”, they are young adults who were apparently smart enough to get into college, but not smart enough to follow the law. Again, a tragic situation to be sure, but these young adults (and perhaps their enabling friends) bear a high degree of responsibility for their actions… and the tragic results thereof.
A close friend and quite accomplished of mine once characterized his college experience as “the most expensive party he ever attended”
The two “kids” knew that they were underage and deliberately engaged in this illegal behavior.
They have to bear some responsibility for the outcome, too, other than just their injuries.
One more reason to consider options other than large state universities for your children.
It’s a tragic story, very sad. I hope all her lifetime needs will be met.
“a vendor who willfully and unlawfully sold alcohol to an underage patron, resulting in the patron’s intoxication ” ……………… 18 Year Old Female at a Bar ………. To quote Penny on Big Bang….. “Since I got these I have never paid for a Drink”. So I would bet the Bar Tender never saw her, it was others buying the drinks.
““FSU and UF face many challenges in their responsibilities to their large student populations, which include thousands of students who are not of lawful drinking age,””
If you are going to make Colleges be responsible for what Students do off Campus then, shouldn’t you put their Parents and their Friends on that list as well for not stopping them from Drinking? Before I get bashed, let me say I know that the Parents and Friends can’t do that but, neither can the College.
Because of this, Colleges should make a rule that if you are under age and caught by any means Drinking, you are expelled from School, kicked off Campus and no Refunds.