JOHN D. GORMAN, APPELLANT,
v.
ALBERTSON'S, INC., APPELLEE
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Gorman appealed a summary judgment granted to Albertson's in a case seeking damages for injuries from a car accident caused by a minor driver who allegedly purchased alcohol from Albertson's. The court reversed, finding that whether the store clerk knew the purchaser was underage based on appearance was a factual question for the jury, not appropriate for summary judgment.
Summary judgment was improper because knowledge that a purchaser is underage may be established by circumstantial evidence relating to apparent age, and whether a person's appearance conveyed such knowledge is a question of fact for the jury, not the court.
[1] A motion for summary judgment is improperly granted if the record reflects the existence of any genuine issue of material fact, or the possibility of any issue, or if the…
[2] The burden is on the party moving for summary judgment to demonstrate conclusively that the nonmoving party cannot prevail.
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Join FLexlaw to unlock all legal intelligence“The burden, furthermore, is on the party moving for a summary judgment to demonstrate conclusively that the nonmoving party cannot prevail.”
Establishes the high standard Albertson's must meet to obtain summary judgment
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Join FLexlaw to unlock all legal intelligenceGorman was injured as a passenger in a car driven by 17-year-old Kenneth Kimbrell. Gorman alleged that Albertson's employee willfully sold alcoholic b…
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SCHOONOVER, Judge.
John D. Gorman appeals a final summary judgment in favor of the appellee, Albert-son’s Inc. We find that the trial court erred in granting the summary judgment and, accordingly, reverse.
Gorman filed an action against Albert-son’s seeking damages for injuries he sustained as a result of an automobile accident which occurred while he was a passenger in an automobile being driven by seventeen year old Kenneth J. Kimbrell. Gorman’s amended complaint alleged that Albert-son’s was liable to him pursuant to section 768.125, Florida Statutes (1979), because one of its employees had willfully sold or furnished alcoholic beverages to Kimbrell, a minor, and that Gorman’s injuries resulted from Kimbrell’s subsequent intoxication.
After the case was at issue, Albertson’s filed a motion for summary judgment on the ground that there was no evidence to support the allegation that it willfully and unlawfully sold alcoholic beverages to the minor, Kimbrell. The trial court granted Albertson's motion, and this timely appeal from the summary judgment followed.
A motion for summary judgment may only be granted if the pleadings, depositions, answers to interrogatories, and admissions on file together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Fla.R.Civ.P. 1.510(c).
The burden, furthermore, is on the party moving for a summary judgment to demonstrate conclusively that the nonmoving party cannot prevail. Snyder v. Cheezem Development Corp., 373 So. 2d 719 (Fla. 2d DCA 1979).
See also, Holl v. Talcott, 191 So. 2d 40 (Fla.1966).
If the record reflects the existence of any genuine issue of material fact, or the possibility of any issue, or if the record raises even the slightest doubt that an issue might exist, summary judgment is improper. Snyder. In this case, Albert-son’s did not carry its burden. Although at this point there is no direct evidence of the state of mind of the clerk who allegedly sold the alcoholic beverages to Kimbrell, knowledge that a purchaser of alcoholic beverages is not of lawful drinking age may be established by circumstantial evidence relating to the apparent age of the person. See Willis v. Strickland, 436 So. 2d 1011 (Fla. 5th DCA 1983), petition for review denied sub nom., ABC Liquors v. Willis, 446 So. 2d 99 (Fla.1984).
See also, French v. City of West Palm Beach, 513 So. 2d 1356 (Fla. 4th DCA 1987).
Furthermore, whether in a particular instance the person’s appearance alone imparted such knowledge, and to what extent, is normally a question of fact for the jury to determine. See Willis.
We, accordingly, reverse the final summary judgment and remand for proceedings consistent herewith.
RYDER, A.C.J., and FRANK, J., concur.
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Tuttle v. Miami Dolphins, Ltd., 551 So. 2d 477 (Fla. 3d DCA 1988)…nt, would normally be a question of fact for the jury to determine. Willis v. Strickland, 436 So. 2d 1011, 1012-13 (Fla. 5th DCA 1983), review denied sub nom., ABC Liquors, Inc. v. Willis, 446 So. 2d 99 (Fla. 1984); see Gorman v. Albertson’s, Inc., 519 So. 2d 1119 (Fla. 2d DCA 1988). See also French v. City of West Palm Beach, 513 So. 2d 1356 (Fla. 4th DCA 1987). . Appellees conceded at oral argument that reasons three through five were invalid. Our disposition of the cross-appeal renders consideration of th…1 / 2
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Sabo v. Shamrock Commc'ns, Inc., 566 So. 2d 267 (Fla. 5th DCA 1990)…r that portion of the statute virtually meaningless. No court has required such proof for liability for minors. See, e.g., Willis v. Strickland, 436 So. 2d 1011 (Fla. 5th DCA 1983), rev. denied, 446 So. 2d 99 (Fla.1984); Gorman v. Albertson’s, Inc., 519 So. 2d 1119 (Fla. 2d DCA 1988); French v. City of West Palm Beach, 513 So. 2d 1356 (Fla. 4th DCA 1987). We can conceive of no policy reason for treating the proof of knowledge required by section 768.125 for sales to adults differently than for sales to minors.…1 / 2
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Publix Supermarkets, Inc. v. Austin, 658 So. 2d 1064 (Fla. 5th DCA 1995)…t, Wurtz contends that the fact of the sale to a minor without a request for identification, coupled with the factual question of a minor’s physical appearance at the time, created a jury issue, and cites to the cases of Gorman v. Albertson’s, Inc., 519 So. 2d 1119 (Fla. 2d DCA 1988) and Burns v. Three of a Kind, Inc., 439 So. 2d 1004 (Fla. 5th DCA 1983) as a basis for denial of the summary judgment. In Gorman, the Second DCA reversed the summary judgment entered below in favor of a bar that had served alcoho…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Gory Roofing Tile Mfg., Inc. v. Davison, 191 So. 2d 40 (Fla. 1966)
- Watkins DRY Wall, Inc. v. Drummond Court Corp., 373 So. 2d 719 (Fla. 3d DCA 1979)
- Snyder v. Cheezem Dev. Corp., 373 So. 2d 719 (Fla. 2d DCA 1979)
- Willis v. Clay L. Strickland, 436 So. 2d 1011 (Fla. 5th DCA 1983)
- French v. City OF W. Palm Beach & W. Palm Beach Banana Boat, Inc., 513 So. 2d 1356 (Fla. 4th DCA 1987)