Ellis v. NGN of Tampa, Inc.

561 So. 2d 1209, 1990 WL 48621
CourtDistrict Court of Appeal of Florida
DecidedApril 18, 1990
Docket89-01045
StatusPublished
Cited by7 cases

This text of 561 So. 2d 1209 (Ellis v. NGN of Tampa, Inc.) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ellis v. NGN of Tampa, Inc., 561 So. 2d 1209, 1990 WL 48621 (Fla. Ct. App. 1990).

Opinion

561 So.2d 1209 (1990)

Mary Evelyn ELLIS, Individually and As Guardian of Gilbert D. Ellis, Incompetent, Appellant,
v.
N.G.N. OF TAMPA, INC., and Norbert G. Nissen, Appellees.

No. 89-01045.

District Court of Appeal of Florida, Second District.

April 18, 1990.
Rehearing Denied June 5, 1990.

Stevan T. Northcutt of Levine, Hirsch, Segall & Northcutt, P.A., and Thomas S. Martino of Martino, Price & Weldon, P.A., Tampa, for appellant.

Scott W. Dutton and Frank B. Lieppe of Santos & Dutton, P.A., Tampa, for appellees.

PER CURIAM.

In this liquor vendor liability suit, the trial court dismissed the appellant's complaint *1210 for failure to state a cause of action. We affirm.

According to the complaint, the following is what happened. On the evening in question, Gilbert Ellis, a habitual drunkard, consumed approximately twenty alcoholic drinks served to him at a bar in Tampa owned by the appellee, N.G.N. of Tampa, Inc. The other appellee, Norbert G. Nissen, is the director, owner, and manager of N.G.N. of Tampa, Inc. After consuming the drinks, and in an intoxicated condition, Gilbert drove his car in a manner causing it to overturn and crash. He sustained severe injuries including permanent brain damage. He has since been declared incompetent and the appellant is his legal guardian.

The appellant filed suit in the circuit court seeking compensatory and punitive damages. The complaint sets forth the relevant facts and also states, tracking the language of section 768.125, Florida Statutes (1987), that the appellees served Gilbert "knowing that [he] was a person addicted to the use of any or all alcoholic beverages." The appellees moved to have the complaint dismissed claiming that section 768.125 does not provide a first party cause of action for a one-car accident involving an injured adult drinker/driver and because the complaint did not allege that the bar had received written notice from the habitual drunkard's family required as a predicate to liability in section 562.50, Florida Statutes (1987). The complaint was dismissed and then amended to allege basically the same general knowledge since the appellant could not allege that the bar had in fact received written notice. The appellees moved to dismiss on the same grounds. The trial court granted the motion and dismissed the complaint on the grounds that there is no cause of action against the vendor of intoxicants under section 768.125 for injuries received by an intoxicated [adult] driver as the result of a one car accident, citing Puglia v. Drinks on the Beach, Inc., 457 So.2d 519 (Fla. 2d DCA 1984), and Pritchard v. Jax Liquors, Inc., 499 So.2d 926 (Fla. 1st DCA 1986), review denied, 511 So.2d 298 (Fla. 1987).

We affirm the dismissal of the suit but not for the reason given by the trial court. Our decision turns on our analysis of the relationship between section 562.50, found in the chapter titled "Beverage Law: Enforcement," and section 768.125, found in the chapter titled "Negligence."[1] The two sections read as follows:

562.50 Habitual drunkards; furnishing intoxicants to, after notice. — Any person who shall sell, give away, dispose of, exchange, or barter any alcoholic beverage, or any essence, extract, bitters, preparation, compound, composition, or any article whatsoever under any name, label, or brand, which produces intoxication, to any person habitually addicted to the use of any or all such intoxicating liquors, after having been given written notice by wife, husband, father, mother, sister, brother, child, or nearest relative that said person so addicted is an habitual drunkard and that the use of intoxicating drink or drinks is working an injury to the person using said liquors, or to the person giving said written notice, shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.
768.125 Liability for injury or damage resulting from intoxication. — A person who sells or furnishes alcoholic beverages to a person of lawful drinking age shall not thereby become liable for injury or damage caused by or resulting from the intoxication of such person, except that a person who willfully and unlawfully sells or furnishes alcoholic beverages to a person who is not of lawful drinking age or who knowingly serves a person habitually addicted to the use of any or all alcoholic beverages may become liable for injury or damage caused by or resulting from the intoxication of such minor or person.

Section 562.50 is primarily a criminal statute since it specifies that if a liquor vendor provides an intoxicant to a person who is habitually addicted to the intoxicant, after *1211 receiving written notice from the addict's family that the person is so addicted, such vendor shall be guilty of a second degree misdemeanor. Section 768.125, on the other hand, addresses only the civil remedy and omits any mention of a "written notice," although the serving of the alcohol to the habitually addicted person must be done "knowingly."

The appellant argues that the difference in focus of the two sections, i.e., criminal versus civil liability, and the fact that section 768.125 omits the phrase "written notice," provide compelling reasons not to read the two sections in pari materia. Therefore, she claims, the allegation in her civil complaint for damages that the bar served Gilbert knowing that he was a habitual drunkard, without mentioning written notice as the source of that knowledge, was sufficient. She also contends that section 768.125 itself provides a separate cause of action so that a habitual drunkard injured in a one-car accident as a result of being served alcohol may sue for damages against the liquor vendor. The appellees contend, on the other hand, that the statutory sections must be read in pari materia so that the written notice prerequisite of section 562.50 be maintained in the application of section 768.125 before civil liability can attach; and, further, that section 768.125 does not, itself, provide a cause of action.

We find no case law interpreting the two statutory sections in the circumstance of a first party complaint for injuries to a habitual drunkard where there has been no written notice to the liquor vendor. There are cases discussing a parallel situation where an underage drinker's first party complaint for damages results from unlawful service to the minor. Florida has allowed first party complaints on behalf of an injured minor for a number of years, long before section 768.125 was enacted. Davis v. Shiappacossee, 155 So.2d 365 (Fla. 1963). Later, judicial interpretation of chapter 562 upheld third party complaints of other persons injured by the intoxicated minor as stating a cause of action. See Prevatt v. McClennan, 201 So.2d 780 (Fla. 2d DCA 1967) (broadening liability for injuries to third parties resulting from illegal sales to minors). For a detailed history of liquor vendor liability in Florida, see especially Migliore v. Crown Liquors of Broward, Inc., 448 So.2d 978 (Fla. 1984). See also Bankston v. Brennan, 507 So.2d 1385 (Fla. 1987) (no liability for social host serving alcohol to minor, statutes must be read in pari materia); and Armstrong v. Munford, Inc., 451 So.2d 480 (Fla. 1984). The case which comes closest to the factual situation in the instant case is Pritchard v. Jax Liquors, Inc. There, the court reversed the dismissal of a complaint by a third party who was injured by a habitual addict.

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Cite This Page — Counsel Stack

Bluebook (online)
561 So. 2d 1209, 1990 WL 48621, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ellis-v-ngn-of-tampa-inc-fladistctapp-1990.