Gorday v. Faris

523 So. 2d 1215, 1988 WL 31725
CourtDistrict Court of Appeal of Florida
DecidedApril 7, 1988
DocketBR-88
StatusPublished
Cited by23 cases

This text of 523 So. 2d 1215 (Gorday v. Faris) 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
Gorday v. Faris, 523 So. 2d 1215, 1988 WL 31725 (Fla. Ct. App. 1988).

Opinion

523 So.2d 1215 (1988)

Alice F. GORDAY, As Guardian of James Thomas Brown; and James Thomas Brown, Individually, Appellants,
v.
Darrell FARIS, a/k/a Chris Faris, and Jerry M. Faris, Appellees.

No. BR-88.

District Court of Appeal of Florida, First District.

April 7, 1988.
Rehearing Denied May 11, 1988.

William H. Davis of Wadsworth & Davis, Tallahassee, for appellants.

William H. Hughes, III and D. Lloyd Monroe, IV of Fuller & Johnson, P.A., Tallahassee, for appellees.

SMITH, Chief Judge.

Appellants, Alice Gorday and James Thomas "Tommy" Brown, seek review of the trial court's final summary judgment entered in favor of appellees, Darrell, a/k/a Chris, and Jerry Faris, in a tort action predicated on the theory of negligent *1216 entrustment of an automobile. Appellees' motion for summary judgment claimed entitlement to a judgment of no liability based solely on the ground that plaintiffs' action was barred by the doctrine of express assumption of risk. Appellants urged below, and here, that express assumption of risk is not applicable and that plaintiffs are entitled to a comparative negligence trial. We agree with appellants and reverse.

The injured plaintiff, Tommy Brown (age 21), and defendant Chris Faris (age 20) were night stockmen at Warehouse Foods in Tallahassee. After completing their shift at about 7:30 a.m. on May 11, 1983, they bought two six-packs of beer, and Faris drove them in his father's automobile to a friend's house. Until about 2:00 p.m., they remained at the friend's house drinking beer. Faris then drove them to Brown's house for him to change clothes. After leaving Brown's house about 3:00 p.m., they purchased a quart of bourbon through a drive-in window at Rocky's II Lounge and proceeded to Messer Field where some of Faris's friends were playing softball. While sitting in the car in the parking lot, they drank bourbon and coke. Sometime thereafter they went to Big Daddy's Lounge where Brown was denied entrance because of improper identification. Faris then drove them to the Palace Saloon where they finished off the bottle of bourbon in the parking lot. They had a couple of pitchers of beer with some of Faris's friends inside the bar. After awhile, they left the Palace Saloon, and Faris drove them to Bullwinkle's Saloon where they consumed additional alcoholic beverages. While there, Brown suggested that they drive to Dothan, Alabama to visit his girlfriend. They then left Bullwinkle's at about 11:00 p.m., and Faris drove onto Interstate 10 heading west, and Brown fell asleep. Sometime thereafter Brown awakened and observed Faris driving erratically, "swerving all over the road," as Brown stated in his deposition. Feeling sleepy, Faris subsequently pulled onto the shoulder of the interstate near Marianna. They discussed sleeping in the car for awhile but decided to continue their journey, at least as far as Marianna where Brown had friends with whom they could possibly spend the night. According to Brown, Faris suggested that Brown drive to Marianna to avoid their having to sleep on the side of the road, and Brown acquiesced, although he stated to Faris at the time that neither of them should be driving. Faris, on the other hand, testified in his deposition that he suggested to Brown that they "go to sleep for a few minutes," but that Brown "insisted he let him drive." With Brown now at the wheel, Faris fell asleep. After exiting the interstate onto Highway 90 and then driving down a rural road near Marianna, Brown fell asleep at the wheel and lost control of the car which came to rest against a pine tree. Faris suffered minor injuries, but Brown was rendered paraplegic. There were no other vehicles or persons involved in the accident.

Brown admits that he consumed the liquor, agreed to drive the car, and in doing so caused a wreck in which he seriously injured himself. Nevertheless, he now sues his friend, claiming that he was too drunk to be entrusted with the car.

Following discovery, appellees moved for summary judgment, alleging that Brown had expressly assumed the risk of driving while intoxicated. The trial court entered its final summary judgment in favor of appellees, defendants below.

I

After careful consideration, we are of the opinion that the defense of assumption of risk, which survived, to a limited extent only, the Florida Supreme Court's decision in Blackburn v. Dorta, 348 So.2d 287 (Fla. 1977), in the form of "express" assumption of risk, is not applicable as a bar to plaintiffs' action in the present case. First, we observe that the conduct of the injured plaintiff, Brown, in driving when he knew (according to his admission) that he was in no condition to drive, more closely resembles the kind of conduct classified (in the Blackburn analysis, 348 So.2d at 291, 292) as "implied-qualified" assumption of risk, which is the equivalent of contributory negligence, and thus abolished (by *1217 being merged into the defense of contributory negligence) upon the adoption of comparative negligence in Hoffman v. Jones, 280 So.2d 431 (Fla. 1973). Secondly, while the type of conduct embraced by the term "express assumption of risk" has not been fully explicated, post-Blackburn, we are unable to conclude, as a matter of law, that the defense is available to bar a cause of action for negligent entrustment by an intoxicated driver based simply upon his admission that despite his own knowledge of the inadvisability of his operating the vehicle, he nevertheless consented to drive. In our view, an intoxicated person's consent to drive a car under circumstances similar to those present here is far removed from the notion of express assumption of risk as a "contractual concept," as referred to in Blackburn (348 So.2d at 290).

Neither do we find the necessary correlation between the conduct of the injured plaintiff here and that of the plaintiffs in the "contact sports" cases in which it has been held that voluntary participation amounts to an express assumption of risk barring recovery. Kuehner v. Green, 436 So.2d 78 (Fla. 1983) (plaintiff injured in karate take down maneuver); cf. Robbins v. Department of Natural Resources, 468 So.2d 1041 (Fla. 1st DCA 1985) (one-person diving accident). Appellees acknowledge that the express assumption of risk defense has not been extended to cases involving consensual non-sports connected driving of an automobile, but urge us to do so. Appellees argue that just as the availability of the defense in contact sport cases serves the important societal function of encouraging recreational athletic endeavors, so too application of the defense to bar monetary recovery by those who voluntarily become intoxicated and injure themselves would serve the laudable societal purpose of discouraging drunken driving. The obverse to this argument is that allowing this defense to insulate from liability one who places a vehicle in the control of a drunken driver is to encourage this patently dangerous behavior. We hold, as set forth in the discussion that follows, that disposition of this case must be based upon comparative negligence principles.

II

"[E]very court in the land has recognized the liability of an automobile owner for damages resulting when he entrusts his car to a person who is drinking and likely to become intoxicated while operating it." Engleman v. Traeger, 102 Fla. 756, 136 So. 527 (1931) (dictum); see generally, Annot., Liability Based On Entrusting Automobile To One Who Is Intoxicated Or Known To Be Excessive User Of Intoxicants, 19 A.L.R.3d 1175 (1968). With one exception [Rio v. Minton, 291 So.2d 214 (Fla.

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Bluebook (online)
523 So. 2d 1215, 1988 WL 31725, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gorday-v-faris-fladistctapp-1988.