Trial court erred in granting motion for directed verdict on the statutory alcohol impairment defense.

While riding a bicycle in the dark, without reflective clothing, proper lighting or reflectors on his bicycle, on a six-lane roadway, rather than an adjacent sidewalk, the plaintiff was struck by a van and suffered significant injuries. His guardian brought a negligence suit against the driver of the van and the driver’s employer. Based on Section 768.36, Florida Statutes (2011), which bars relief to a plaintiff whose alcohol impairment causes him to be more than 50% at fault for his injuries, the defense introduced evidence of the plaintiff’s impairment and sought a jury instruction concerning this defense. The trial court directed a verdict in the plaintiff’s favor on the statutory alcohol impairment defense and instructed the jury that the plaintiff’s impairment was not a cause of the accident or his injuries. The District Court of Appeal of Florida, Fourth District reversed and remanded the case for a new trial, reasoning that under these circumstances, the evidence of his blood alcohol content and impairment properly raised the issue of whether the alcohol consumption was a contributing factor in the accident.

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