Proving Dramshop Lawsuits against Bars Just Got Easier
Florida Statute 768.125 provides the basis for suing a bar or person who knowingly sells or furnishes alcoholic beverages to a person who is not of lawful drinking age or is habitually addicted to the use of such beverages. But how does one prove a person is habitually addicted?
There are multiple cases that have attempted to define the standard necessary to do this. In the case of Ellis v. N.G.N. of Tampa, Inc., 586 So.2d 1042 (Fla. 1991) the Florida Supreme Court held that to establish such a cause of action, a plaintiff must present evidence that the vendor had knowledge that the individual the vendor served was a habitual drunkard. However, this element could properly be established by circumstantial evidence.
Thereafter, multiple cases developed the theory that the amount of alcohol consumed at a sitting could be considered by a jury as being proof of being a habitual drunkard. In other words, if a bar patron routinely goes to a bar and drinks 5 or 10 drinks at a sitting, that could be circumstantial evidence that the bartender or bar knew that the person was habitually addicted. There is a plethora of studies demonstrating that binge drinking at this level is a common characteristic of an alcoholic or someone who is habitually drunk.
Many bars try to avoid liability through summary judgment. A recent example demonstrates how that process would occur. In the recent Florida 5th District Court of Appeal opinion of Evans v. McCabe, 415 Inc., the 5th DCA reversed a summary judgment granted to a bar in a wrongful death case.
The crucial evidence in opposition to the motion for summary judgment were the affidavits of the decedent’s girlfriend and family members attesting to his regular attendance at the bar and his excessive and habitual use of alcoholic beverages. An expert witness was also hired who opined that, based upon his review of the evidence, the bar had knowledge that the decedent was a habitual drunkard at the time it last served him alcoholic beverages. Shortly after leaving the bar, the decedent crashed his car into a tree and died.
Summary judgment was reversed because there were genuine issues of material fact as to whether the decedent was a habitual drunkard, but more importantly, whether the bar knew of this condition based upon his historic drinking.
There is also a side note that because there was a motion for sanctions for destruction of evidence (destruction or loss of a surveillance video that would have provided evidence of decedent’s condition while he was being served prior to his death) summary judgment was also improper. This short comment at the end of the opinion is very useful when faced with motions for summary judgment where there is an argument or issue that there has been a loss of evidence. Citing to the pendency of a motion for sanctions for loss of evidence must certainly delay such a motion from being heard. It could also be argued that the motion should be denied because it is up to a jury to determine what the video might or would have shown.
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