Opinion
No. 92-2176.
October 19, 1993. Rehearing Denied May 3, 1994.
Appeal from the Circuit Court, Dade County, Jon I. Gordon, J.
Aurell, Radey, Hinkle, Thomas Beranek and John Beranek, Tallahassee, Krupnick, Campbell, Malone, Roselli, Buser Slama and Jon E. Krupnick, Ft. Lauderdale, for appellant.
Kenney, Burd, Knutson Markowitz and Madelyn Simon Lozano, Miami, for appellees.
Before BASKIN, COPE and GERSTEN, JJ.
Sondra O'Neale, as parent and legal guardian of Leonard Michael Riley O'Neale, appeals an adverse summary judgment. We reverse.
Because this is an appeal from a summary judgment, we take the facts in the light most favorable to the plaintiff as the non-moving party.
In March, 1991 Riley O'Neale and three other teenage boys drove to a Shell service station to buy beer. They parked the car out of sight of the service station attendant.
Lewis Last, who was seventeen, went inside to buy beer. He had bought beer at this service station previously. Last bought at least two, possibly four, six-packs, as well as ice.
Last returned to the car with the beer. Last did not consume any beer and served as the "designated driver" for most of the evening. Later, however, another seventeen year old, Jason Fritz, began driving. Fritz had consumed the beer purchased that evening and had become intoxicated. While driving, Fritz caused an accident in which O'Neale was injured.
The car was owned by Fritz' grandmother.
Plaintiff brought a personal injury action. At issue in this appeal are plaintiff's claims against the service station owner and related defendants for unlawfully furnishing beer to minors. The defendants are service station employee Ed Murdock, the service station owner Haruth, Inc., Shell Oil Company, and two other individuals.
The other two individuals are Harold Hershoff and Craig Hershoff, officers of Haruth.
Plaintiff also made claims against Jason Fritz, Fritz' grandmother (the automobile owner), and the Florida Department of Transportation. Those claims are not at issue here.
The question before us is the proper interpretation of section 768.125, Florida Statutes (1991). The statute provides in part:
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 . . . may become liable for injury or damage caused by or resulting from the intoxication of such minor. . . .
(Emphasis added).
The phrase at issue here is "sells or furnishes." Id. It is undisputed that Last went into the store alone. He purchased the beer, carried it to the waiting car, and the boys drove away. The trial court took the view that the service station had sold or furnished alcohol only to Last. Since Last did not consume the alcohol or cause any injury, the court concluded that the service station defendants had no liability. Accordingly the court entered summary judgment for the service station defendants.
At the time the summary judgment motion was scheduled for consideration, plaintiff moved for a continuance. Pursuant to leave of court, plaintiff had just added service station employee Ed Murdock as a defendant. Murdock allegedly was the employee who sold the beer to Last. At the time of the summary judgment hearing, Murdock had just been served and had not yet obtained counsel. Consequently, plaintiff had been unable to take Murdock's deposition. Plaintiff also had been unable to take the deposition of nonparty Lewis Last, who had made the beer purchase.
Murdock denies that he was the attendant who made the sale.
The plaintiff argued that summary judgment was premature until those depositions — of Last as the buyer and Murdock as the alleged seller of the beer — were taken. Plaintiff contended that if Last made statements to Murdock at the time of the purchase indicating that the beer was destined for his underage friends, such statements would put the seller on notice that the seller was furnishing the alcoholic beverages not just to Last, but also to his underage friends. With such notice, the sale to Last would accomplish selling or furnishing alcohol to the other minor occupants of the car, within the meaning of section 768.125.
Under the trial court's interpretation, the statute applied only to Last — the person who physically purchased the beer. Under that reading, it made no difference what occurred in the conversation at the time Last made the purchase. Accordingly the trial court denied the request for continuance and entered summary judgment.
In our view the trial court read the statute too narrowly, and the summary judgment was premature. In Migliore v. Crown Liquors of Broward, Inc., 448 So.2d 978 (Fla. 1984), the supreme court canvassed a number of decisions involving civil liability for sale of alcohol to minors. In explaining why no liability had been found in two earlier cases, Bryant v. Jax Liquors, 352 So.2d 542 (Fla. 1st DCA 1977), cert. denied, 365 So.2d 710 (Fla. 1978), and Stanage v. Bilbo, 382 So.2d 423 (Fla. 5th DCA 1980), the court said:
"In contrast, the minors in Bryant, to whom the rum was illegally sold, were not alleged to have consumed the alcoholic beverage, nor were facts alleged indicating that the seller had reason to believe that the rum was going to be consumed by Bryant or others, whose impairment of faculties resulting from consumption of alcoholic beverages caused Bryant's injuries. Likewise, in Stanage there was no showing that the injuries resulted from the consumption by the purchasing minor of the illegally sold beer nor were facts alleged from which it could be said that the seller should have foreseen that the beer was likely to be consumed by the minors whose impaired condition might have caused the injuries in question."Migliore v. Crown Liquors of Broward, Inc., 448 So.2d at 980 (citations omitted; emphasis added). See generally Ellis v. N.G.N. of Tampa, Inc., 586 So.2d 1042, 1046 (Fla. 1991).
More recently, the second district has noted that there is liability under the statute for a sale of "alcohol directly to a minor or vicariously through a sale to an adult, knowing that the alcohol was destined for a minor's consumption." Dixon v. Saunders, 565 So.2d 802, 803 (Fla. 2d DCA 1990) (emphasis added; citations omitted). If there is liability for sale to an adult knowing that the alcohol is destined for a minor's consumption, plainly there is also liability if a vendor sells to a minor, knowing that the alcohol is destined for another minor's consumption.
In sum, if a vendor sells alcohol to minor A, and there are facts putting the vendor on notice that minor A will furnish the alcohol to minor B, then the vendor "sells or furnishes" alcohol to both A and B within the meaning of the statute. In the present case, if at the time of the purchase of the beer Last made statements putting the seller on notice that the beer was destined for Last's underage companions waiting in the car, then the seller sold or furnished the beer not only to Last, but also to the underage occupants of the car.
At the time of the summary judgment hearing below, Murdock was a newly added defendant who had just been served and who did not yet have counsel. The plaintiff also reported difficulty in locating Last, who is not a party to the litigation. The trial court's denial of the request for a continuance was entirely understandable in light of its interpretation of the statute, because under the interpretation adopted by the trial court, it would make no difference what Last and Murdock said during the purchase of the beer.
However, under the interpretation we adopt, the conversation which occurred during the purchase is relevant and could form a basis for liability. Accordingly, we conclude that the summary judgment was premature. Plaintiff should have an opportunity on remand to take the requested depositions. This ruling is, of course, without prejudice to the trial court to entertain any appropriate motion for summary judgment at the conclusion of discovery.
The plaintiff asks us to go farther and to rule that the quantity of beer purchased, standing alone, would put the service station on notice that Last was buying beer for delivery to other minors, and not for his own consumption. The decided cases are to the contrary. The statute applies to a person who " willfully and unlawfully sells or furnishes alcoholic beverages" to a minor. § 768.125, Fla. Stat. (1991) (emphasis added); see Armstrong v. Munford, Inc., 451 So.2d 480, 481 (Fla. 1984). To demonstrate a willful violation there must be facts putting the seller on notice that the alcohol is destined for consumption by a specific minor or group of minors. Migliore v. Crown Liquors of Broward, Inc., 448 So.2d at 980; see also Bryant v. Jax Liquors, 352 So.2d at 543-44. Under the decided cases, proof of purchase of a quantity of alcohol which might or might not be destined for other minors is not enough to show a willful violation. Migliore, 448 So.2d at 980; Bryant, 352 So.2d at 544.
Finally, plaintiff also argues that Last was the agent for the three boys who remained in the car. Plaintiff contends that delivery to Last was constructive delivery to the boys in the car, regardless of whether the seller had any reason to know that Last was buying for the other minors. For the reasons already stated, that argument, too, is unavailing. Because the statute requires a willful violation, there must be proof of facts putting the vendor on notice that the beer would be delivered to the minors waiting in the car. Migliore, 448 So.2d at 980; Burson v. Gate Petroleum Co., 401 So.2d 922, 923-24 (Fla. 5th DCA 1981).
We reverse the summary judgment and remand for further proceedings consistent herewith.
BASKIN, J., concurs.
I respectfully dissent.
The majority opinion determines that the trial court interpreted section 768.125, Florida Statutes (1991), too narrowly and entered summary judgment prematurely. Since section 768.125 is a limiting statute, and since the appellant had ten months to allege facts sufficient to withstand the motion for summary judgment, I respectfully dissent.
Appellees are the franchisee/owner and related parties of the service station at which Lou Last, a minor, purchased beer. Appellant, Sondra O'Neale, is the parent and guardian of the minor who was a passenger injured in an automobile accident caused by the driver, Jason Fritz, an intoxicated minor. At issue in this appeal are appellant's claims against appellees for willfully and unlawfully selling or furnishing beer to the non-purchaser-minor who caused the accident.
Appellees moved for summary judgment ten months after the initiation of this suit. The parties had conducted discovery and appellant had already amended the complaint once. Just prior to the hearing on the summary judgment motion, the appellant unsuccessfully moved for a continuance.
On summary judgment, one of the appellees argued that under section 768.125, Florida Statutes (1991), the seller of alcoholic beverages is only responsible for injuries caused by the purchaser of the beer. The trial court granted the motion. Shortly thereafter, the related co-appellees adopted the same motion. One year after the suit was filed, the trial court granted final judgment to all appellees.
The record revealed that four teenage boys drove to appellees' service station to buy beer. The boys parked the car at the side of the store, out of sight of the service station attendant. Last, the minor who purchased the beer, entered appellees' store alone. However, he did not consume any beer. Jason Fritz, another minor, consumed some of the beer. Some time later, while he was driving, Fritz caused the accident in which appellant's son was injured. Last was not even in the car at the time of the accident.
During the summary judgment hearing, the appellant neither alleged nor presented any evidence that the seller had notice of a minor, other than the purchaser, who would consume the beer. In opposing the motion, appellant merely indicated that there remained a question as to whether the seller had notice that he was furnishing beer to minors other than the purchaser.
The trial court correctly applied a narrow interpretation to section 768.125. In Migliore v. Crown Liquors of Broward, Inc., 448 So.2d 978, 981 (Fla. 1984), the Florida Supreme Court found that section 768.125 is a limitation on the liability of vendors of intoxicating beverages. Thereafter, the supreme court explained that the Legislature had passed section 768.125, which limited a vendor's liability, in response to the trend of judicial decisions which had broadened vendor liability. Bankston v. Brennan, 507 So.2d 1385 (Fla. 1987). It would therefore be anomalous and illogical for this court to hold that a statute enacted to limit pre-existing vendor liability should be interpreted in this expansive manner.
Section 768.125 applied only to Last — the minor who purchased the beer — and any injury or damage caused by Last's intoxication. Since Last neither consumed the beer, nor caused any injury, there is no liability on the part of the appellees. Therefore, I would affirm the summary judgment entered under the statute.
Assuming arguendo, that the broad interpretation of the statute is appropriate and that the statute's critical words are "sells or furnishes," the summary judgment must still be affirmed.
The majority cites Migliore for the proposition that a vendor who willfully sells alcohol to minor A, knowing that minor A will furnish the alcohol to minor B, is liable for injury or damage caused by minor B's intoxication. However, the Migliore quote cited for this proposition clearly requires the plaintiff to allege facts indicating knowledge by the seller that the alcohol sold was to be consumed by minors other than the purchaser. No such facts have been alleged in this case. Ten months after initiating this suit, conducting discovery and amending the complaint, appellant still had not alleged that the seller knew that the beer was to be consumed by anyone other than the purchaser. There is no allegation that the seller knew that the beer would wind up in Fritz's possession after the sale to Last.
In contrast, the minors in Bryant, to whom the rum was illegally sold, were not alleged to have consumed the alcoholic beverage, nor were facts alleged indicating that the seller had reason to believe that the rum was going to be consumed by Bryant or others, whose impairment of faculties resulting from consumption of alcoholic beverages caused Bryant's injuries. Likewise, in Stanage there was no showing that the injuries resulted from the consumption by the purchasing minor of the illegally sold beer nor were facts alleged from which it could be said that the seller should have foreseen that the beer was likely to be consumed by the minors whose impaired condition might have caused the injuries in question.
Migliore v. Crown Liquors of Broward, Inc., 448 So.2d at 980 (emphasis added) (quoting Burson v. Gate Petroleum Co., 401 So.2d 922, 924 (Fla. 5th DCA 1981)).
Our sister court recently affirmed summary judgment for a defendant bowling alley which was sued by the parents of a minor who died as a result of a traffic accident. Dixon v. Saunders, 565 So.2d 802 (Fla. 2d DCA 1990). The deceased was a passenger in a car driven by an intoxicated minor. An unknown adult had purchased beer at the bowling alley and given it to the deceased and the driver. The minors drank the beer while they bowled. Summary judgment was appropriate since there was no evidence that the bowling alley sold or furnished the beer to the minors, or that the bowling alley " knew when it sold the beer to the adult that it would wind up in the minors' possession." Id. at 803 (emphasis added).
At a summary judgment hearing, the court must only consider those issues framed in the pleadings. Reina v. Gingerale Corp., 472 So.2d 530, 531 (Fla. 3d DCA 1985). The court is not to consider those issues argued only in opposition to the motion for summary judgment. Reina, 472 So.2d at 531. The trial court must then determine whether the issues raised were genuine or were merely speculative.
On a motion for summary judgment after the movant initially demonstrates the non-existence of factual issues, the non-moving party must make a showing, aside from his pleadings, that a fact issue can be generated, unless the undisputed facts would not entitle the movant to judgment as a matter of law.Colon v. Lara, 389 So.2d 1070, 1072 (Fla. 3d DCA 1980) (emphasis added) (quoting Soper v. Stine, 184 So.2d 892, 894 (Fla. 2d DCA 1966)).
In this case, the first time that appellant questioned whether the appellees had knowledge of minors, other than Last, who were furnished alcohol, was in opposition to summary judgment. Appellant failed to demonstrate that a fact issue could be generated. Ten months after filing this complaint, appellant merely indicated that a fact issue might be generated as to the appellees' notice of other minors, and then only after further discovery.
Summary judgment was appropriate since appellant failed to establish that a fact issue existed or could be generated. Speculation that a fact issue might be raised was insufficient to withstand a motion for summary judgment. Colon, 389 So.2d at 1072. The granting of the motion for summary judgment was not premature since ten months had elapsed since the suit was filed. Therefore, I would affirm the order granting summary judgment even under the majority's broad interpretation of the statute.