Florida Statutes

Fla. Stat. § 768.36 (2025)

Alcohol or drug defense.

✓ 2025 Florida Statutes — current through the 2025 Regular Session

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768.36 Alcohol or drug defense.—

(1) As used in this section, the term:

(a) “Alcoholic beverage” means distilled spirits and any beverage that contains 0.5 percent or more alcohol by volume as determined in accordance with s. 561.01(4)(b).

(b) “Drug” means any chemical substance set forth in s. 877.111 or any substance controlled under chapter 893. The term does not include any drug or medication obtained pursuant to a prescription as defined in s. 893.02 which was taken in accordance with the prescription, or any medication that is authorized under state or federal law for general distribution and use without a prescription in treating human diseases, ailments, or injuries and that was taken in the recommended dosage.

(2) 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.

History.—s. 20, ch. 99-225; s. 27, ch. 2016-145.

Notes of Decisions

Cited in 22 cases (3 in the last 5 years), 2002–2025 · leading case: Griffis v. Wheeler, 18 So. 3d 2 (Fla. 1st DCA 2009).

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Griffis v. Wheeler, 18 So. 3d 2 (Fla. 1st DCA 2009). · cites it 20× “§ 768.36, Fla. Stat. (2005). As the trial court noted, appellant acknowledged that the statute would apply had the decedent lived and filed suit against appellees.”

Kempton v. McComb, 264 So. 3d 1180 (Fla. 5th DCA 2019). · cites it 8× “Based on the jury's verdict finding that Appellant was 55 percent negligent and Appellee was 45 percent negligent, the trial court applied section 768.36, Florida Statutes (2014), to completely bar recovery by Appellant.”

Archbishop Coleman F. Carroll High Sch., Inc. v. Maynoldi, 30 So. 3d 533 (Fla. 3d DCA 2010). · cites it 6× “Did the trial court correctly interpret section 768.36, Florida Statutes (2001), “alcohol or drug defense,” as applied to the facts of this case? 4.”

Gouveia v. Phillips, 823 So. 2d 215 (Fla. 4th DCA 2002). · cites it 3× “See § 768.36, Fla. Stat. (2000) ("In any civil action, a plaintiff may not recover any damages for loss or injur 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…”

Pearce v. Deschesne, 932 So. 2d 640 (Fla. 4th DCA 2006). · cites it 3× “Section 768.36(2), Florida Statutes (2003), reads as follows: 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…”

Shehada v. Tavss, 965 F. Supp. 2d 1358 (S.D. Fla. 2013). · cites it 2× “Fla. Stat. § 768.36 . The foregoing language indicates, however, that the intoxication defense contemplates apportionment of fault by the trier of fact and not the court: The statute plainly says .”

Patricia I. Ermini v. Mike Scott, 937 F.3d 1329 (11th Cir. 2019). “Fla. Stat. § 768.36 (2)(a)– (b) (2019). The district court instructed the jury that if it found that Scott had proved the alcohol defense by a preponderance of the evidence, Ermini couldn’t recover.”

Gilbert v. State Farm Mut. Auto. Ins. Co., 311 F.R.D. 685 (M.D. Fla. 2015). · cites it 5× “Fla. Stat. § 768.36 . To summarize, if a jury determines that Plaintiff is more than 50% at fault for her injuries because she was intoxicated, then Plaintiff shall not recover from Defendant for her injuries.”

Hetherly v. Sawgrass Tavern Inc., 975 So. 2d 1266 (Fla. 4th DCA 2008). · cites it 3× “Section 768.36 is not an issue in this appeal.”

Kevin Stewart v. Dean D. Draleaus, 226 So. 3d 990 (Fla. 4th DCA 2017). “Since Stewart should be allowed to present evidence on Reagle and Drale'aus’s alcohol consumption, it follows that he should be able to present his section 768.36 defense with respect to these two plaintiffs.”

State v. Torres, 60 So. 3d 560 (Fla. 2d DCA 2011). · cites it 2× “2d DCA 1986); see also § 768.36(2), Fla. Stat. (2008) (stating that in a civil action a victim’s intoxication may preclude recovery if he or she was more than fifty percent at fault for his or her own harm).”

Kempton v. McComb, 266 So. 3d 272 (Fla. 5th DCA 2019). · cites it 2× “McComb after applying section 768.36, Florida Statutes (2015), to completely bar recovery by Mr.”

Show all 22 citing cases →

— 768.36(2) — 8 cases

Pearce v. Deschesne, 932 So. 2d 640 (Fla. 4th DCA 2006). “Section 768.36(2), Florida Statutes (2003), reads as follows: 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…”

Gouveia v. Phillips, 823 So. 2d 215 (Fla. 4th DCA 2002). “See § 768.36, Fla. Stat. (2000) ("In any civil action, a plaintiff may not recover any damages for loss or injur 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…”

Kempton v. McComb, 264 So. 3d 1180 (Fla. 5th DCA 2019). “Based on the jury's verdict finding that Appellant was 55 percent negligent and Appellee was 45 percent negligent, the trial court applied section 768.36, Florida Statutes (2014), to completely bar recovery by Appellant.”

Hetherly v. Sawgrass Tavern Inc., 975 So. 2d 1266 (Fla. 4th DCA 2008). “Section 768.36 is not an issue in this appeal.”

State v. Torres, 60 So. 3d 560 (Fla. 2d DCA 2011). “2d DCA 1986); see also § 768.36(2), Fla. Stat. (2008) (stating that in a civil action a victim’s intoxication may preclude recovery if he or she was more than fifty percent at fault for his or her own harm).”

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