White & Case Secures Major Victory for Main Street in the Florida Supreme Court

Global law firm White & Case LLP secured a precedent-setting victory in the Florida Supreme Court for its client, Main Street Entertainment, Inc. (Main Street), doing business as Potbelly's. In answering a certified question of "great public importance," the Florida Supreme Court clarified its view of vendor liability for injuries arising from the sale of alcohol to a minor.

At issue was whether Florida's "comparative fault statute, section 768.81, Florida Statutes, applies to tort actions involving the dram-shop exception contained in section 768.125, Florida Statutes, against a vendor who willfully and unlawfully sold alcohol to an underage patron, resulting the patron's intoxication and related injury." While the Florida Supreme Court had addressed related matters in prior cases, this was the first case in which the Florida Supreme Court directly addressed this question.

In the underlying case, the trial court had prohibited Main Street from asserting a comparative-fault defense because it concluded that an action under section 768.125 was an intentional tort. The case went to trial, and the jury awarded $30.8 million in damages. The trial court ultimately entered a final judgment of $28.7 million joint and severally against the defendants, including Main Street. White & Case's Raoul Cantero and Veronica Gordon, along with co-counsel Angela Flowers, from Kubicki Draper, presented several arguments on appeal and obtained a reversal of the final judgment at the First District Court of Appeal. The First DCA concluded that an action under section 768.125 sounds in negligence for purposes of the application of the comparative-fault statute.

In its March 7 opinion, The Florida Supreme Court agreed. It held that "the action permitted by the underage drinker exception in section 768.125 is a 'negligence action' for purposes of the comparative fault statute."

"As the Court recognized, section 768.125, absolving bars from liability for furnishing alcohol, contains an exception when a person 'willfully and unlawfully' sells alcohol to an underaged person. But selling alcohol 'willfully and unlawfully' does not convert a negligence claim into an intentional tort. Just as one can intentionally run a red light without intending injury to another, an establishment can willfully serve alcohol to a minor without intending injury to that minor or to anyone else," said partner Raoul Cantero. "The distinction is important because while in a negligence action, a defendant can assert a defense of comparative negligence—that the plaintiff was at fault as well—but such a defense is not available for an intentional tort."

The White & Case team included partner Raoul Cantero and associate Veronica Gordon (both in Miami).

Angela Flowers of Kubicki Draper served as co-counsel for Main Street Entertainment, Inc., before the Florida Supreme Court.

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