40 Fla. L. Weekly D31a
underage person who was involved, while intoxicated, in automobile accident that
killed decedent — Error to enter summary judgment for defendants on basis that
sale of alcoholic beverages to underage person was not willful, where there was
factual issue as to whether defendant knew or should have known that person was
underage, and jury can determine, based on photographs of underage person taken
before and after accident, whether he looked younger than statutory age — Court
also erred in denying motion for leave to file amended complaint to add claim
for punitive damages, as there was sufficient evidence of a reasonable basis for
recovery of punitive damages to submit issue to jury
Estate of CATHERINE E. CASE, Appellants, v. ANDREWS B. NEWMAN, an individual,
DOLPHUS B. NEWMAN, an individual, DONALD NEWMAN, an individual, and SHREEJEE NI
PEDHI’S INC., a Florida Corporation, d/b/a BOMBAY LIQUORS and RAVINDU PATEL,
Appellees. 1st District. Case No. 1D13-5856. Opinion filed December 17, 2014. An
appeal from the Circuit Court for Clay County. John H. Skinner, Judge. Counsel:
J. Michael Lindell and D. Brad Hughes of Lindell & Farson, P.A.,
Jacksonville, for Appellants. David C. Knapp of McDonald, Toole, Wiggins, P.A.,
Orlando, for Appellees Shreejee Ni Pedhi’s Inc., a Florida Corporation, d/b/a
Bombay Liquors and Ravindu Patel.
Case, Terry L. and Elizabeth R. Case appeal summary final judgment entered in
favor of Shreejee Ni Pedhi’s, Inc. d/b/a Bombay Liquors and Ravindu Patel (the
vendor defendants). They contend evidence of record was enough for a jury to
find that the vendor defendants willfully and unlawfully sold alcohol to the
underage driver involved, while intoxicated, in the automobile accident that
killed Catherine. We reverse the judgment, reverse the order denying leave to
file an amended complaint to add a claim for punitive damages, and remand for
co-owner of Bombay and a cashier) sold alcohol to Andrews on several occasions
without requiring proof of age, Andrews’ youthful appearance notwithstanding,
including on the night of the fatal accident.1 Count V alleged that the vendor defendants willfully
and unlawfully sold alcohol to Andrews when Mr. Patel knew or should have known
that Andrews was underage. Based on the same underlying factual allegations,
count VI alleged that the willful and unlawful sale of alcohol to Andrews
constituted negligence per se, because willful sales to underage purchasers
violate a statute on the subject.2
for punitive damages against the vendor defendants. The vendor defendants
opposed this motion and moved for summary judgment in turn, arguing the
appellants could not make out a prima facie case of any violation of section
768.125.3 Section 768.125, Florida Statutes
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
lawful drinking age requires “knowledge that the recipient is not of lawful
drinking age. . . . [which] may be proved by direct evidence of actual knowledge
or such knowledge may be established by circumstantial evidence.” Willis v.
Strickland, 436 So. 2d 1011, 1012 (Fla. 5th DCA 1983).
Liquors that he was underage, and that Mr. Patel believed he was older, because
he acted and spoke as if he were older. Arguing for summary judgment, the vendor
defendants contended that, because there was no evidence that Andrews’
appearance at the time of the alleged purchase was other than “older,” as he had
testified in his deposition, there was no evidence that Mr. Patel knew or should
have known that he was selling alcohol to a minor, and therefore no proof of the
element of willfulness. The vendor defendants also maintained below, as they
argue here, that, if the appellants could not prove a willful sale of alcohol to
Andrews, they could not meet the heightened burden required to recover punitive
complaint to add a claim for punitive damages, and entered final summary
judgment against the plaintiffs. The trial court ruled there was no evidence of
a willful sale because there was no evidence describing Andrews’ appearance “at
the time of the incident,” other than the minor’s “own testimony, in which he
describes the steps he took to look older, and in which he states that the
cashier, in fact thought he was older.” In fact, there were also photographs of
record, albeit none taken on the day of the alleged sale.
Wingate, 84 So. 3d 427, 429 (Fla. 1st DCA 2012). “Our task is to determine
whether, after reviewing every inference in favor of [a]ppellants as the
non-moving party, no genuine issue of material fact exists and the moving party
is entitled to a judgment as a matter of law.” Id. Summary judgment may
not be granted if there is even the slightest doubt that material factual issues
remain. See Alpha Data Corp. v. HX5, L.L.C., 139 So. 3d 907, 910
(Fla. 1st DCA 2013). See also Feizi v. Dep’t of Mgmt. Servs., 988
So. 2d 1192, 1193 (Fla. 1st DCA 2008) (“ ‘If the evidence raises any issue of
material fact, if it is conflicting, if it will permit different reasonable
inferences, or if it tends to prove the issues, it should be submitted to the
jury as a question of fact to be determined by it.’ ” (quoting Moore v.
Morris, 475 So. 2d 666, 668 (Fla. 1985))). The material fact at issue here
is whether Mr. Patel knew, or should have known, Andrews was underage when he
allegedly sold him a bottle of Lord Calvert.
facts relating to the apparent age of a person. The appearance of a person alone
can impart knowledge of his or her age within certain ranges and to certain
degrees of certainty. Whether it does or not in a particular instance, and to
what extent, would normally be a question of fact for the jury to determine.”
Willis, 436 So. 2d at 1012-13. See also Gorman v. Albertson’s,
Inc., 519 So. 2d 1119, 1120 (Fla. 2d DCA 1988) (“Although at this point
there is no direct evidence of the state of mind of the clerk who allegedly sold
the alcoholic beverages to Kimbrell, knowledge that a purchaser of alcoholic
beverages is not of lawful drinking age may be established by circumstantial
evidence relating to the apparent age of the person.”). “Furthermore, whether in
a particular instance the person’s appearance alone imparted such knowledge, and
to what extent, is normally a question of fact for the jury to determine.
See Willis.” Id.
658 So. 2d 1064, 1067 (Fla. 5th DCA 1995), where the evidence
indicated4 the minor had gone to
“considerable effort to appear older,” in the present case Andrews testified
only that Mr. Patel thought he was older because: “I talked older and I can
communicate and I can talk — talk the bull with them.” He clarified that when
he said he “talked older” he meant that he spoke with a southern accent. The
only other description Andrews gave regarding his appearance when, he said, he
purchased alcohol the night of the accident was that he wore a white [base]ball
cap. Wearing a baseball cap and “talk[ing] the bull” using a southern accent do
not, as a matter of law, render the purchaser’s otherwise youthful appearance
immaterial. When asked if he ever tricked Mr. Patel in any way regarding his age
or lied to Mr. Patel about his age, moreover, Andrews answered “No, sir.”
477 (Fla. 3d DCA 1988), where the complaint alleged that Guy Tuttle, then
seventeen, became intoxicated consuming beer he purchased at a football game
from vendors who failed to ask for proof of age, and was injured as a result.
The defendants argued the absence of proof of willful sales to a minor entitled
them to a directed verdict, and the Third District agreed: “At trial, . . . Guy
failed to present evidence about his physical appearance at the time of the
incident, six years earlier. It was therefore impossible for the jury to
determine whether he looked younger than the statutory age so that the sale to a
minor was, under the circumstances, ‘willful.’ ” Id. at 481.
judgment, the appellants relied on photographs of Andrews taken around the time
of the accident. Both Andrews and Andrews’ grandfather “admitted” (in response
to requests for admission before they were dismissed as parties) that the
photographs “fairly and accurately depict Andrews Newman’s physical appearance
during the 2010-2011 school year and leading up to the subject accident on March
12, 2011.”5 A friend of Andrews agreed,
moreover, during her deposition, that the pictures “fairly reflect the way he
looked back then.” The record also contains the “booking” photograph of Andrews,
taken June 29, 2011. (Andrews is now serving a prison sentence for his part in
determine — based on photographs of Andrews taken some months before the
accident and approximately three months after the accident — whether he looked
younger than the statutory age on the day of the accident, so that the alleged
sale of alcohol to a minor was “willful.” That there was no proffer of a
photograph taken the very day of the alleged sale and accident did not make
summary judgment appropriate. See id. at 483, 483 n.5 (Pearson,
J., concurring) (“[T]he jury was called upon to conclude solely from Tuttle’s
appearance at age 23-1/2 that he had appeared younger than 19 when he bought the
beer from the vendor six years earlier. . . . Of course, a picture depicting Guy
Tuttle near the time of the accident might very well have overcome the
deficiency. None was presented.”).
anyone who looked to be under the age of 30 (unless it was someone he had
previously asked to provide identification). Yet Andrews testified that he
probably first purchased alcohol at Bombay Liquors during May of 2010, when he
was sixteen years old, and that Mr. Patel never asked him for identification or
asked his age, and that he had never had or displayed a “fake ID.” In sum,
record evidence raises a genuine issue as to whether Mr. Patel knew or should
have known he was selling alcohol to a minor.
file an amended complaint to add a claim for punitive damages.6 Section 768.72, Florida Statutes (2014), provides in
(1) In any civil action, no claim for punitive damages shall be
permitted unless there is a reasonable showing by evidence in the record or
proffered by the claimant which would provide a reasonable basis for recovery of
such damages. . . .
(2) A defendant may be held liable for punitive damages only if the
trier of fact, based on clear and convincing evidence, finds that the defendant
was personally guilty of intentional misconduct or gross negligence. As used in
this section, the term:
(a) “Intentional misconduct” means that the defendant had actual
knowledge of the wrongfulness of the conduct and the high probability that
injury or damage to the claimant would result and, despite that knowledge,
intentionally pursued that course of conduct, resulting in injury or
(b) “Gross negligence” means that the defendant’s conduct was so
reckless or wanting in care that it constituted a conscious disregard or
indifference to the life, safety, or rights of persons exposed to such
(3) In the case of [a] corporation, . . . punitive damages may be
imposed for the conduct of an employee or agent only if the conduct of the
employee or agent meets the criteria specified in subsection (2)
(a) The . . . corporation . . . actively and knowingly participated
in such conduct;
(b) The officers, directors, or managers of the . . . corporation .
. . knowingly condoned, ratified, or consented to such conduct; or
(c) The . . . corporation . . . engaged in conduct that constituted
gross negligence and that contributed to the loss, damages, or injury suffered
by the claimant.
punitive damages claim, the evidence is viewed in a light favorable to the
moving party.” Wayne Frier Home Ctr. of Pensacola, Inc. v. Cadlerock Joint
Venture, L.P., 16 So. 3d 1006, 1009 (Fla. 1st DCA 2009).
alleged sale of alcohol to a minor to withstand a motion for summary judgment on
the main claim, there was sufficient evidence of “a reasonable basis for
recovery” of punitive damages to submit to a jury the issue of punitive damages.
death in a collision with a vehicle driven by Andrews Newman, then seventeen
years old, the appellants named as defendants Andrews Newman, his father, and
his grandfather (the owner of the vehicle Andrews drove), along with the vendor
defendants. The appellants have since entered into separate settlement
agreements with the minor driver, his father, and his grandfather.
(2010) (“It is unlawful for any person to sell . . . alcoholic beverages to a
person under 21 years of age . . . . A person who violates this subparagraph
commits a misdemeanor of the second degree . . . .”).
Supermarkets, Inc. v. Austin, 658 So. 2d 1064, 1066 (Fla. 5th DCA 1995)
(rejecting the plaintiff’s argument that a cause of action for negligence
against a vendor for sale of alcohol to a minor continues to exist in Florida
and noting that the statement in Ellis v. N.G.N. of Tampa, Inc., 586 So.
2d 1042, 1047-48 (Fla. 1991) — “that, although limited by the provisions of
section 768.125, there is a cause of action against a vendor for the negligent
sale of alcoholic beverages to a minor” [and once the elements of the criminal
offense in section 562.11(1)(a), Florida Statutes “have been proven, the
plaintiff has established negligence per se”] — “is dictum because Ellis
did not concern the sale of alcohol to a minor” and “the statutory limitation .
. . expressly limits a vendor’s liability . . . to a ‘willful and unlawful’ sale
and not merely a negligent one”). We do not hold otherwise, and it may be
appropriate to strike Count VI as surplusage on remand.
Florida no longer recognizes negligence per se with regard to the sale of
alcohol to a minor. See ante n.2.
Austin, relied on by the trial court, is distinguishable. In
Austin, Publix argued on appeal that the trial court erred in denying its
motion for summary judgment on the issue of the willfulness of its sale of
alcohol to the minor involved there. In the absence of evidence that the
unidentified cashier had actual knowledge of the minor’s age, the question
became “whether there was any circumstantial evidence surrounding the sale which
could give rise to an attribution of constructive knowledge on the part of
Publix.” Id. at 1067.
the summary judgment hearing, according to Publix, affirmatively indicated that
Austin did not appear to be a minor — indeed, he had gone to considerable
effort to appear older and had successfully purchased beer from several
establishments. In fact, Austin testified in his deposition that he had
purchased beer for several of his friends because of his more mature appearance.
There was no other evidence in the record to indicate that it was a willful sale
by the unknown cashier.” Id. The court concluded “there was no evidence
before the trial court at the time of summary judgment hearing indicating that
Austin’s appearance at the time of purchase was anything other than that
indicated in his deposition — i.e., that he did not appear to be a minor
at that time.” Id. Because the plaintiff “failed to come forward at the
time of summary judgment with any counter evidence sufficient to reveal a
genuine issue in regard to the willfulness of the sale,” the district court held
the trial court should have granted the motion by Publix for summary judgment.
Id. at 1068.
accident and within some three months of the accident were part of the record.
In further contrast to Austin, where the minor testified he had
successfully purchased beer from several establishments and had purchased beer
for several of his friends because of his more mature appearance, Andrews
testified, “Nowhere else would sell me alcohol. I tried every liquor store in
Middleburg.” Andrews also testified the clerk of a different store where he had
purchased beer during this same period probably knew he was underage, even
though he never told him.
admission and to the deposition of the driver’s friend are what appear to be two
identical photographs of Andrews, with the exception that one photograph has
“09-10” written in the upper left corner and the driver’s first name written in
the lower right corner.
parties disagreed regarding the meaning of “09-10.” Counsel for vendor
defendants argued this established the picture was taken during the 2009-2010
school year, a year before the accident. Counsel for appellants argued it
indicated the picture was taken sometime during September of 2010. The trial
court then stated “the picture 09-10 would be for the September ’09 to May ’10
school year,” and the accident occurred “two months before the end of the school
year in ’11.” No evidence, however, was presented regarding the date the picture
922, 924 (Fla. 1976), the supreme court said that “courts and the Legislature
have evolved the notion that drunk drivers menace the public safety and are to
be discouraged by punishment. . . . In line with that policy, therefore, we hold
that juries may award punitive damages where voluntary intoxication is involved
in an automobile accident in Florida . . . . We affirmatively hold that the
voluntary act of driving ‘while intoxicated’ evinces, without more, a
sufficiently reckless attitude for a jury to be asked to provide an award of
punitive damages if it determines liability exists for compensatory damages.”
Similarly, the legislature has now determined that selling alcoholic beverages
to a person under twenty-one years of age presents a danger to public safety and
should be punished as a crime. See §§ 562.11(1)(a)1. & 562.11(1)(b),
Fla. Stat. (2014).
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