42
Fla. L. Weekly D1593aTop of Form

Wrongful
death — Reverse dram shop liability statute — Error to enter summary judgment
for defendant golf club whose employee served alcoholic beverages to golfer who
was subsequently involved in automobile accident which resulted in death of
decedent where there was factual issue as to whether intoxicated golfer was
habitually addicted to alcohol and, if so, whether golf club knew of his
addiction — Factual issue as to whether vendor of alcoholic beverages had knowledge
that purchaser was a habitual drunkard may be created by circumstantial
evidence

JORGE GONZALEZ, AS PERSONAL
REPRESENTATIVE OF THE ESTATE OF BEATRIZ GONZALEZ, Appellant, v. STONEYBROOK
WEST GOLF CLUB, LLC, INC., Appellee. 5th District. Case No. 5D16-2680. July 14,
2017. Appeal from the Circuit Court for Orange County, Janet C. Thorpe, Judge.
Counsel: James C. Blecke, of The Haggard Law Firm, P.A., Coral Gables, for
Appellant. Kathryn L. Ender, of Cole, Scott & Kissane, P.A., Miami, for
Appellee.

( HODGES, R.W., Associate Judge.)
Jorge Gonzalez (“Gonzalez”), as personal representative of the Estate of
Beatriz Gonzalez (“the Decedent”), appeals from the final summary judgment
entered in favor of Stoneybrook West Golf Club, LLC, Inc. (“Stoneybrook”). The
standard of review of a trial court’s entry of final summary judgment is de
novo. Volusia Cty. v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126,
130 (Fla. 2000). Summary judgment is proper if there exists no genuine issue of
material fact and the moving party is entitled to a judgment as a matter of
law. Id. Because we find the existence of a genuine issue of material
fact in this case, we reverse and remand.

Stoneybrook is a golf club whose
employees serve alcoholic beverages both inside the clubhouse and on the golf
course. Nathan Hartman is a golfer who routinely played golf at Stoneybrook and
purchased alcohol from Stoneybrook employees. After playing a round of golf and
consuming alcohol, Hartman caused an automobile crash that resulted in the
death of the Decedent. At the time of the crash, Hartman had a blood alcohol
content of .302. Gonzalez sought damages for the wrongful death of the Decedent
against Stoneybrook pursuant to Florida’s reverse dram shop liability statute,
codified at section 768.125, Florida Statutes (2014). This statute provides, in
pertinent part, that a vendor serving alcoholic beverages is not liable for
damages resulting from a purchaser’s intoxication unless the vendor serves the
purchaser knowing that he or she is habitually addicted to alcohol. Id.

Stoneybrook filed a motion for final
summary judgment, contending that there was no competent evidence of record
that Hartman was habitually addicted to alcohol or, if so, that Stoneybrook had
any knowledge of his alleged addiction. The trial court agreed and granted
summary judgment.

Gonzalez had responded to the motion
for summary judgment by filing the depositions of Hartman, a friend of Hartman
named David Ziglar, and the relevant Stoneybrook employees. The depositions
established that Hartman had played golf at the club approximately seventy to
eighty times over a three-year period prior to the crash. Ziglar testified in
his deposition that Hartman was intoxicated virtually each time they played
together at Stoneybrook. He added that Hartman normally started the day by
drinking two strongly poured whiskey and Cokes in sixteen-ounce Styrofoam cups
poured by bartenders who were familiar with Hartman. At the turn at the
midpoint of the golf round, Hartman normally went to the Stoneybrook clubhouse
and purchased another strongly poured sixteen-ounce whiskey and Coke and would
often buy additional drinks from the “cart girl, a Stoneybrook employee.”
Ziglar testified that, on the day of the crash, Hartman had four such drinks,
including approximately eight ounces of straight alcohol poured by the “cart
girl” on the course. In addition, Gonzalez filed an affidavit from Dr. William
Hearn, the former Laboratory Director of the Miami-Dade County Medical
Examiner’s Department, in which he opined that Hartman’s blood alcohol content
when he left Stoneybrook was over .27.

As this court previously noted in Evans
v. McCabe 415, Inc., the Florida Supreme Court has found that under the
habitual drunkard exception the plaintiff must present evidence that the vendor
knew that the alcohol purchaser was a habitual drunkard. 168 So. 3d 238, 239
(Fla. 5th DCA 2015) (citing Ellis v. N.G.N. of Tampa, Inc., 586 So. 2d
1042, 1048 (Fla. 1991)). This knowledge element may be met by the presentation
of sufficient circumstantial evidence. Ellis, 586 So. 2d at 1048-49
(citing Sabo v. Shamrock Commc’ns, Inc., 566 So. 2d 267, 269 (Fla. 5th
DCA 1990), approved sub nom. Peoples Rest. v. Sabo, 591 So. 2d 907 (Fla.
1991)). As stated in Ellis, “serving an individual a substantial number
of drinks on multiple occasions would be circumstantial evidence to be considered
by the jury in determining whether the vendor knew that the person was a
habitual drunkard.” Id. at 1048.

Based on our review of the record,
we conclude that Gonzalez offered sufficient evidence to raise a factual
dispute not resolvable by summary judgment as to whether Hartman was habitually
addicted to alcohol and, if so, whether Stoneybrook knew of his addiction.
Therefore, we reverse the summary judgment and remand for further proceedings
consistent with this opinion.

REVERSED and REMANDED. (ORFINGER and
LAMBERT, JJ., concur.)

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