Alcohol or drug defense

Common Elements summary — Section 768.36 bars recovery in a negligence case if the plaintiff was, at the time of the injury, under the influence of alcohol or a controlled substance to the extent that the plaintiff's normal faculties were impaired, and the plaintiff was more than 50 percent at fault for the injury as a result. For HOA and COA boards this is a real defense in pool, dock, gym, and clubhouse tort claims involving intoxicated residents or guests. A resident who climbs a fence and dives into the shallow end at 2 AM with a blood-alcohol level above the legal limit has a 768.36 problem before the association's defense even begins. The defense is not automatic. The association must plead it, develop the blood-alcohol or toxicology evidence (typically through subpoenaed hospital records), and persuade a jury on the fault apportionment. But where the facts support it, 768.36 can shift a six-figure exposure to a defense verdict. Make sure your defense counsel asks about toxicology in the very first deposition.