Florida/Georgia Personal Injury & Workers Compensation

...He also argued several times that his mental/physical condition affected his judgment, thus vitiating his ability to give a valid consent. Therefore whether clearly pleaded or not these issues were tried with the consent of the parties. [2] There is no issue in this case arising under section 768.36(2), as it has not been raised in any pleading. See § 768.36, Fla....

...After he gave deposition testimony admitting intoxication (but not drunkenness), she moved for summary judgment on liability. The trial judge agreed with her, rejecting plaintiff's argument that with comparative negligence, only the jury could apportion the relative fault. We reverse. Section 768.36(2), Florida Statutes (2003), reads as follows: In any civil action, a plaintiff may not recover any damages for loss or injury to his or her person or property if the trier of fact finds that, at the time the plaintiff was injured: (a)...

...uld be submitted to jury"). As Gates indicates, only in the rare case when there is simply no factual dispute as to apportionment of negligence, does the trial judge have the authority to make a ruling on the issue as a matter of law. We stress that section 768.36(2) does not purport to make trial judges the sole authority for apportioning comparative fault....

...were impaired or the plaintiff had a blood or breath alcohol level of 0.08 percent or higher; and (b) As a result of the influence of such alcoholic beverage or drug the plaintiff was more than 50 percent at fault for his or her own harm. Fla. Stat. § 768.36 ....

...They raise two issues on appeal: (1) whether the trial court erred in directing a verdict where evidence was presented from which a jury could find that the operation of appellees' motor vehicle constituted negligence, and (2) whether the trial court erred in ruling that section 768.36, Florida Statutes (2006), applies in a wrongful death action against the claims of the personal representative brought on behalf of the survivors....

...The trial court found that the intoxication defense presented questions of fact regarding "alcohol and the amount of alcohol (or not) of the decedent as well as issues of comparative fault." In noting appellant's argument that the "plaintiff" referred to in section 768.36, Florida Statutes, does not include an estate, the court set forth, "[T]he claim in this wrongful death suit is purely derivative through the decedent....

...suit can acquire greater rights derivatively than the decedent himself would have, had he survived." The trial court stated: Plaintiff concedes that if [the decedent] had survived, then [he] would be barred any recovery if the standards of F.S. Sec. 768.36(3) were met. Yet by virtue of his death, his Estate acquires greater legal rights than [the decedent] himself could ever have had (again, assuming the standards of F.S. Sec. 768.36 were met)....

...Wheeler was negligent in his failure to react and swerve to avoid hitting the pedestrian in his lane. The trial court therefore erred in directing a verdict in favor of the appellees. Appellant also argues that the trial court erred in ruling that the intoxication defense provided for in section 768.36, Florida Statutes, applied in a wrongful death action against the claims of a personal *5 representative brought on behalf of the decedent's survivors....

...entitlement to maintain an action and recover damages if death had not occurred. Id. at 118 (holding that no cause of action for wrongful death survived the decedent because she had no right of action at her death). Turning to the statute at issue, section 768.36, Florida Statutes (2005), entitled "Alcohol or drug defense," provides: (2) In any civil action, a plaintiff may not recover any damages for loss or injury to his or her person or property if the trier of fact finds that, at the time t...

...faculties were impaired or the plaintiff had a blood or breath alcohol level of 0.08 percent or higher; and (b) As a result of the influence of such alcoholic beverage or drug the plaintiff was more than 50 percent at fault for his or her own harm. § 768.36, Fla....

...Did the principal's visit to the front of the private residence during the party, or the school's handbook regarding such parties, create a duty on the part of the school pursuant to the undertaker's doctrine? 3. Did the trial court correctly interpret section 768.36, Florida Statutes (2001), "alcohol or drug defense," as applied to the facts of this case? 4....

...At trial, the court excluded this evidence, but allowed the school's counsel to ask the parents whether they knew that "before the day of the accident" Gabriel had consumed alcohol. During trial, the court also struck the school's affirmative defense based on section 768.36(2), Florida Statutes (2001)....

...e a principal or the school an insurer if the principal stops by the site of a student open house party to ask whether a parent is present in the residence. This would, in the trite but apt phrase, let no good deed go unpunished. C. Alcohol Defense—Section 768.36 As noted, the trial court struck the school's affirmative defense raising the bar of section 768.36, "alcohol or drug defense." The applicability of the bar set forth in that statute raises two separate questions....

...nd operator of a vehicle that collided with the decedent's vehicle. The evidence established that the decedent's blood alcohol level exceeded .08 percent at the time of the accident. The defendants affirmatively defended on various grounds including section 768.36....

...t aspect of the sanctions ruling is also moot. [3] A blood alcohol level of .08% or higher subjects the vehicle operator to a criminal charge of driving under the influence; § 316.193, Fla. Stat. (2001). That level is also the critical threshold in section 768.36, Florida Statutes, barring a recovery of civil damages under certain circumstances (and discussed in greater detail below)....

...ay the full value of Plaintiff s underinsured motorist claim for damages she sustained in an automobile accident. (Doc. No. 2). In response, Defendant has raised Plaintiffs intoxication as a potential bar to her recovery, pursuant to Florida Statute § 768.36....

...rage or drug to the extent that the plaintiff s normal faculties were impaired or the plaintiff had a blood or breath alcohol level of 0.08% or higher;” and (2) as a result of such intoxication, the plaintiff was more than 50% at fault. Fla. Stat. § 768.36 ....

...Plaintiff has not provided the Court with a persuasive argument as to how she will suffer prejudice if the issues of liability and damages are bifurcated. Plaintiff cites to empirical research and merely explains to the Court the effect on her lawsuit of a jury finding Plaintiff to be 50% at fault under Florida Statute § 768.36....

...Plaintiff states, "Bifurcation will be highly prejudicial to the Plaintiff since a finding by the jury that the Plaintiff was more than 50% at fault will mean that the Plaintiff is completely barred from recovery for the balance of her damages.” (Doc. No. 32 at p. 3). The Court notes that Florida Statute § 768.36 demands this result.

...an intoxicated driver can implicate comparative negligence principles to reduce damage awards. See, e.g., Fla. E. Coast Ry. Co. v. Keilen, 183 So.2d 547, 549-50 (Fla. 3d DCA 1966); Gerena v. Carter, 496 So.2d 1009, 1009 (Fla. 2d DCA 1986); see also § 768.36(2), Fla....

...wrence McComb, pursuant to section 768.79, Florida Statutes (2015), and Florida Rule of Civil Procedure 1.442. The award of attorney's fees and costs was *273 based on the trial court's entry of a final judgment in favor of Mr. McComb after applying section 768.36, Florida Statutes (2015), to completely bar recovery by Mr....

be permitted to pursue , his defense under section 768,36, Florida Statutes (2006), which provides in

than 50% responsible for her own harm. Fla. Stat. § 768.36(2)(a)– (b) (2019). The district court instructed

defendants’ affirmative defense, which was based on section 768.36, Florida Statutes (2011). The statute provides

...Although the criminal case resulted in the conviction of the perpetrator, the Personal Representative sought to pursue civil liability against the owners, managers, and operators of the apartment complex where Kimberly resided. On appeal, the Personal Representative raised two issues concerning the applicability of section 768.36, Florida Statutes (2005), the alcohol defense statute....

...wrence McComb, pursuant to section 768.79, Florida Statutes (2015), and Florida Rule of Civil Procedure 1.442. The award of attorney's fees and costs was *273 based on the trial court's entry of a final judgment in favor of Mr. McComb after applying section 768.36, Florida Statutes (2015), to completely bar recovery by Mr....

...1976) ("Strict liability means negligence as a matter of law or negligence per se, the effect of which is to remove the burden from the user of proving specific acts of negligence."). [4] The unqualified immunity of the forcible felony defense contrasts with the comparative alcohol defense created by section 768.36(2), Florida Statutes (2007). This latter defense applies only when the claimant is found to have caused more than 50% of his own injuries and bars any recovery for those caused by the defendant. Section 768.36 is not an issue in this appeal....

...favor of Appellee, Lawrence McComb, after a jury trial in Appellant's motorcycle-automobile negligence action. Based on the jury's verdict finding that Appellant was 55 percent negligent and Appellee was 45 percent negligent, the trial court applied section 768.36, Florida Statutes (2014), to completely bar recovery by Appellant. Appellant argues, inter alia , that the trial court erred in applying section 768.36 because the jury's verdict did not indicate, as required by subsection (2)(b), whether Appellant was more than 50 percent at fault "[a]s a result of the influence of [an] alcoholic beverage." We agree with Appellant and reverse on this ground. We otherwise affirm without further discussion. Section 768.36 creates an "alcohol or drug defense" that completely bars a plaintiff's recovery....

...faculties were impaired or the plaintiff had a blood or breath alcohol level of 0.08 percent or higher; and (b) As a result of the influence of such alcoholic beverage or drug the plaintiff was more than 50 percent at fault for his or her own harm. § 768.36(2), Fla....

...alcohol level was 0.08 or higher at the time of the motor vehicle collision. It did not, however, find that Appellant's fault was "[a]s a result of ... [an] alcoholic beverage" as required by subsection (2)(b). 1 *1182 If a party intends to rely on section 768.36 as a defense, the jury must make all of the statute's required factual determinations. The verdict form in this case did not give the jury an opportunity to do so. As a result, the trial court erroneously applied section 768.36 to completely bar Appellant's recovery....

...favor of Appellee, Lawrence McComb, after a jury trial in Appellant's motorcycle-automobile negligence action. Based on the jury's verdict finding that Appellant was 55 percent negligent and Appellee was 45 percent negligent, the trial court applied section 768.36, Florida Statutes (2014), to completely bar recovery by Appellant. Appellant argues, inter alia , that the trial court erred in applying section 768.36 because the jury's verdict did not indicate, as required by subsection (2)(b), whether Appellant was more than 50 percent at fault "[a]s a result of the influence of [an] alcoholic beverage." We agree with Appellant and reverse on this ground. We otherwise affirm without further discussion. Section 768.36 creates an "alcohol or drug defense" that completely bars a plaintiff's recovery....

...faculties were impaired or the plaintiff had a blood or breath alcohol level of 0.08 percent or higher; and (b) As a result of the influence of such alcoholic beverage or drug the plaintiff was more than 50 percent at fault for his or her own harm. § 768.36(2), Fla....

...alcohol level was 0.08 or higher at the time of the motor vehicle collision. It did not, however, find that Appellant's fault was "[a]s a result of ... [an] alcoholic beverage" as required by subsection (2)(b). 1 *1182 If a party intends to rely on section 768.36 as a defense, the jury must make all of the statute's required factual determinations. The verdict form in this case did not give the jury an opportunity to do so. As a result, the trial court erroneously applied section 768.36 to completely bar Appellant's recovery....

...ment, discussed below, requires reversal. Improper Closing Argument Appellants presented evidence and argument at trial that Decedent’s impairment by the use of cocaine and marijuana was a causal factor for the accident. On this issue, section 768.36, Florida Statutes (2012), provides, in pertinent part: (2) In any civil action, a plaintiff may not recover any damages for loss or injury to his or her person or property if the trier of...

...County. J. Scott Duncan, Judge. February 5, 2025 BILBREY, J. The case concerns the interaction between the open house party statute, section 856.015, Florida Statutes (2018), and the alcohol or drug defense statute, section 768.36, Florida Statutes....

...statute in a suit alleging negligence per se based on a violation of the open house party statute. Guided by the plain language of the alcohol defense statute, as well as various cases, we find no error in giving a jury 1 Further references to section 768.36 in this opinion omit drugs since no drugs were alleged to have contributed to the incident at issue. instruction on the alcohol defense statute and affirm as explained below....

...against a particular type of harm.” We then stated, “By enacting section 856.015, the legislature has therefore imposed a duty of care on social hosts and created a civil cause of action for a statutory violation.” Newsome, 710 So. 2d at 186. The alcohol defense statute in section 768.36(2) states, In any civil action, a plaintiff may not recover any damages for loss or injury to his or her person or property if the trier of fact finds that, at the time the plaintiff was injured: (a) The...

...ntial amount of alcohol on January 31, 2003. On April 11, 2006, Ale House filed a motion for summary judgment. In its written motion, Ale House asserted that the sole cause of Luque's accident was the unforeseeable negligence of another driver; that section 768.36, Florida Statutes relieved it of any liability; and that the Luques were attempting to perpetrate a fraud on the court....