Darlene Evans ("Evans"), as personal representative of the Estate of Jared Evans ("Decedent"),
Section 768.125, Florida Statutes (2009), provides in full:
§ 768.125, Fla. Stat. (2009). In Ellis v. N.G.N. of Tampa, Inc., 586 So.2d 1042 (Fla.1991), the Florida Supreme Court held that to establish a cause of action under the habitual drunkard exception of this statute, a plaintiff must present "evidence that the vendor had knowledge that the individual the vendor served was a habitual drunkard." Id. at 1048. In addition, the court stated "that this element can properly be established by circumstantial evidence."
In opposition to the motion for summary judgment filed by McCabe, Evans filed sworn affidavits and deposition transcripts from Decedent's girlfriend and family members attesting to Decedent's regular attendance at McCabe and his excessive and habitual use of alcoholic beverages. Evans also filed an affidavit from an expert witness who opined, based upon his review of the evidence, that McCabe had knowledge that Decedent was a habitual drunkard at the time it last served him alcoholic beverages. Evans argued that this evidence, at the very least, suggested that genuine issues of material fact existed as to whether, at the time McCabe served Decedent alcoholic beverages shortly before his death, Decedent was a habitual drunkard and McCabe knew of his condition. Evans also filed a motion seeking sanctions against McCabe for spoliation of evidence, asserting that McCabe had destroyed a surveillance video that would have provided evidence of Decedent's condition
After a hearing, the trial court entered an order granting McCabe's motion for summary judgment,
The standard of review of a trial court's entry of summary final judgment is de novo. Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000). "A summary judgment is proper if there is no genuine issue of material fact and if the moving party is entitled to a judgment as a matter of law." Id. "A summary judgment should be cautiously granted in negligence cases ...," Giallanza v. Sands, 316 So.2d 77, 77 (Fla. 4th DCA 1975), and should not be granted "unless the facts are so crystallized that nothing remains but questions of law," Shaffran v. Holness, 93 So.2d 94, 97-98 (Fla.1957); see also Moore v. Morris, 475 So.2d 666, 668 (Fla.1985). Additionally, it is generally "reversible error to enter summary judgment when discovery is in progress." See UFF DAA, Inc. v. Towne Realty, Inc., 666 So.2d 199, 200 (Fla. 5th DCA 1995).
We conclude, based on our review of the record, that genuine issues of material fact exist both as to whether Decedent was a habitual drunkard and whether McCabe knew of this condition when it served him alcoholic beverages shortly before the crash that ended his life. We also find that summary final judgment was prematurely entered prior to resolution of Evans's motion for sanctions. Accordingly, we reverse the summary final judgment entered in McCabe's favor and remand for further proceedings.
REVERSED and REMANDED.
JACOBUS, B.W., Senior Judge, and McCUNE, R.J., Associate Judge, concur.