In personal injury cases, all plaintiffs need to be made aware of the intoxication defense and its potential to negate a successful recovery.
Florida Statute 768.36 Alcohol or drug defense provides that:
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 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 referenced above, section 768.36 provides a two part test which is designed to limit or extinguish the plaintiff’s ability to recover for personal injury damages if a jury finds a plaintiff at fault for his or her own injuries as a result of intoxication. If the defense can prove the two elements listed above, then a plaintiff is unable to recover from a defendant, even if the defendant may be 49 percent at fault for the injuries caused.
Given the immense impact a successful intoxication defense may have on a case, it is essential that both the plaintiff and his counsel address the case facts, including whether alcohol or drugs impacted or contributed to the injuries in question. Further, in the event of a trial, it is crucial that a jury be made aware that if its allocation of more than 50% of fault is placed on the plaintiff the plaintiff’s damages will be reduced by 100%.