STRICKLIN

v.

ALLEN

FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

_____________________________

No. 1D2023-3011 _____________________________

JENNA STRICKLIN,

Appellant,

v.

BYRON ALLEN,

Appellee. _____________________________

On appeal from the Circuit Court for Santa Rosa 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.¹ Appellant Jenna Stricklin claims the trial court erred when it gave a jury instruction on the alcohol defense 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

2 instruction on the alcohol defense statute and affirm as explained below. We also affirm the denial of Stricklin’s motion for new trial without further comment. Stricklin was seriously injured when the all-terrain vehicle she was driving crashed into a tree on Byron Allen’s property. Stricklin was under 21 and had been drinking alcohol. Stricklin alleged that Allen had allowed an open house party at his residence before the crash, while Allen denied the allegations. Although Stricklin filed a three-count complaint against Allen, the case proceeded to trial only on the count alleging negligence per se based on violation of the open house party statute. At trial, Stricklin testified that during a social gathering with others at Allen’s house, she drank vodka that she had purchased with a fake id. She testified that she also drank Allen’s vodka from his liquor cabinet with his implied permission. Stricklin testified that a bottle of vodka was sitting out in Allen’s kitchen, and Allen knew that she was drinking. After drinking, she drove the ATV and crashed. Stricklin offered other witnesses to corroborate her testimony. Allen testified that the social gathering occurred with his permission but denied providing alcohol or allowing Stricklin or any other underage guests to consume alcohol at his residence. Allen also offered other witnesses to corroborate his testimony that he did not permit an open house party. Following the close of evidence, over Stricklin’s objection, the trial court gave a jury instruction on the alcohol defense as requested by Allen. The court told the jury, “BYRON ALLEN denies that claim and also claims that JENNA STRICKLIN was intoxicated such that her normal faculties were impaired and as a result of the influence of such alcoholic beverage, was JENNA STRICKLIN more than 50% at fault for her own harm.” The jury was supplied with a special verdict form that first asked, “Did BYRON ALLEN violate Florida Statute § 856.015?” The jury checked “NO.” The verdict form then instructed the jury, “If your answer to question 1 is NO, your verdict is for Defendant, and you should not proceed further except to date and sign this verdict form and return it to the courtroom.”

(a) The plaintiff was under the influence of any alcoholic beverage 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 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.

As the Florida Supreme Court has instructed, “where a statute is free from ambiguity, we must follow its plain meaning.” State Farm Mut. Auto. Ins. v. Nichols, 932 So, 2d 1067, 1073 (Fla. 2006). So when section 786.36(2) states that it applies, “[i]n any civil action,” no limitation is present, regardless of the plaintiff involved.2 See, e.g., Nichols, 932 So. 2d at 1072–73 (discussing the plain meaning of “any civil action for damages” in the PIP statute).

2 While it might make sense for the alcohol defense statute to contain an exception for underage drinkers, “where no exemption from the provisions of a statute exist, the court is powerless to create [such an exception].” Verizon Commc’n Inc. v. Fla. Dep’t of Revenue, 386 So. 3d 599, 602 (Fla. 2024) (alteration in original) (quoting State ex rel. Victor Chem. Works v. Gay, 74 So. 2d 560, 563 (Fla. 1954)).

3 Apportionment of fault under the comparative fault statute does not apply to intentional torts. § 768.81(4), Fla. Stat. But the alcohol defense statute does not contain this limitation. Since the only count tried alleged negligence per se, we do not address whether the result would be different if an intentional tort had been involved. See Main St. Ent., Inc. v. Faircloth, 342 So. 3d 232, 238 (Fla. 1st DCA 2022), approved in part, 392 So. 3d 1042 (Fla. 2024) (declining to decide “whether the alcohol defense applies to intentional torts” since only a negligence action was involved).⁴ The dram-shop exception statute involved in Main Street Entertainment differs from the open house party statute at issue here, but this distinction is immaterial as to the application of the alcohol defense in this negligence case. The dram-shop exception statute creates derivative liability. See Main St. Ent., 342 So. 3d at 236. “In cases of derivative liability ‘(1) there is no cause of action unless the directly liable tortfeasor commits a tort and (2) the derivatively liable party is liable for all of the harm that such tortfeasor has caused.’” Id. at 237 (quoting Grobman v. Posey, 863 So. 2d 1230, 1236 (Fla. 4th DCA 2003)). A violation of the open house party statute can allow for derivative liability for a tort committed by the underage drinker, see Trainor v. Estate of Hansen, 740 So. 2d 1201 (Fla. 2d DCA 1999), or for a direct negligence claim arising from injury to the underage drinker. See Newsome, 710 So. 2d at 186 (explaining that the open house party

6 that the dram-shop exception created a cause of action sounding in negligence, not an intentional tort. Main St. Ent., 342 So. 3d at 237.5 Even though the alcohol defense statute applied in a different manner to the derivative negligence involved in Main Street Entertainment, it was appropriate for the jury to consider the alcohol defense since the action sounded in negligence. Id. at 237–38. Our reasoning in Main Street Entertainment on the application of the alcohol defense statute to a negligence cause of action likewise applies here. Finally, the jury found that Allen did not violate the open house party statute. Even had the trial court erred in allowing the jury to consider Stricklin’s fault, apportionment of fault is harmless where a jury finds no negligence by the defendant. See Hasburgh v. WJA Realty, 697 So. 2d 219 (Fla. 4th DCA 1997); Kinya v. Lifter, Inc., 489 So. 2d 92 (Fla. 3d DCA 1986).

AFFIRMED.

RAY and LONG, JJ., concur.

_____________________________

Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________

Robert L. Parks and Gabriel Garay of Garay Law, Coral Gables, for Appellant.

statute “is clearly designed to protect minors from the harm that could result from the consumption of alcohol or drugs”).⁵ The Florida Supreme Court affirmed this holding in Faircloth v. Main Street Entertainment, Inc., 392 So. 3d 1042 (Fla. 2024). The Court did not address our holding that the alcohol defense applied to an underage drinker in a negligence action. Id. at 1048.

7 William D. Anderson and Mark J. Upton of Daniell, Upton, Anderson, Law & Busby, P.C., Daphne, AL, for Appellee.