Tallahassee, FL—A Florida state court judge Wednesday declared a mistrial in a case against two Tallahassee-area bars over the devastating brain injury a Florida woman suffered in a late night hit-and-run, after jurors declared themselves hopelessly deadlocked. Faircloth v. Cantina Tallahassee, LLC, et al., 2015-CA-002778.
Circuit Court Judge Kevin Carroll ordered the mistrial after jurors deliberated more than 10 hours across three days over responsibility for the November 2014 wreck that left Jaquelyn Faircloth with brain damage so severe she is unable to speak or care for herself.
Devon Dwyer, 20 at the time, hit Faircloth, then 18, with his truck as she crossed Tallahassee’s West Pensacola Street. Moments before the crash, Dwyer had left Potbelly’s, a bar near the Florida State University campus, where he had been drinking for about four hours. Shortly before she was struck, Faircloth had left Cantina 101, a nearby bar where she had also been drinking.
Dwyer, who fled the crash scene, was sentenced to two-and-a-half years in prison for the hit-and-run.
The owner of Cantina 101 admitted liability for its part in the crash by serving Faircloth alcohol when she was underage. However, while Main Street Entertainment, the owner of Potbelly’s, admits to serving Dwyer alcohol, it contends he was not drunk at the time of the wreck. Instead, it claims Faircloth’s own negligence caused the crash.
Late Tuesday afternoon, after more than a day of deliberations, jurors had signaled their difficulty in reaching a consensus by requesting Dwyer’s testimony be read back to them. After listening to the testimony again Wednesday morning, jurors retired to deliberate before declaring themselves deadlocked, and leading Judge Carroll to deliver an Allen charge.
About an hour later, the jurors declared their impasse irresolvable, and Judge Carroll ordered the mistrial.
That decision came about two days after closings in which Faircloth’s attorney, Avera & Smith’s Mark Avera requested up to $46.4 million in damages for Faircloth’s injuries. “She is truly a prisoner in her own body,” Avera said. “A prisoner to her wheelchair, and to her bed.”
The trial centered on whether Dwyer, who had purchased 18 beers and six bourbons the night of the wreck, was drunk, and whether that caused the accident.
During Monday’s closings, Kubicki Draper’s Michael Carney reminded jurors Jacob Salow, a passenger in Dwyer’s truck the night of the crash, maintained his friend was not drunk.
And Carney told jurors Dwyer himself never deviated from his claim that he had no more than five of the drinks he bought that night. “At times when maybe you might think that he would have a reason, just as a human being, to say maybe it was more, he never did,” Carney said.
Carney argued Dwyer could not have avoided the accident. Faircloth, Carney said, could not easily be seen because she was wearing dark clothes that night. And he added Faircloth’s cousin, who was with her when the accident occurred, told police Faircloth ran across the street and slammed into the side of Dwyer’s truck.
Avera challenged the claim Faircloth was running when the wreck occurred, and countered that Dwyer was driving 55 miles per hour in a 30 mph zone. He also argued expert testimony concluded Faircloth could have been seen as she crossed West Pensacola Street, giving Dwyer ample time to avoid hitting her.
Avera said Dwyer’s failure to try to avoid the crash was one piece of “overwhelming” evidence proving Dwyer was intoxicated. Walking jurors through a timeline of the night, Avera acknowledged there was no blood-alcohol evidence to prove Dwyer was drunk. However,he reminded jurors that one of Dwyer’s acquaintances described him as looking drunk that night, while Dwyer himself admitted his drinking played a part in his decision to flee the scene and try to hide his truck.
“I wish I could bring you a blood-alcohol level, but we can’t do that because Mr. Dwyer fled the scene to hide himself, and to hide his vehicle, and to hide his blood-alcohol level,” Avera said. “Those are not the acts, ladies and gentlemen, of someone in control of their faculties. Those are the acts of an impaired driver, an intoxicated driver.”
This is a developing story and will be updated as events warrant.
Email Arlin Crisco at firstname.lastname@example.org.
Jacquelyn Faircloth is represented by Avera & Smith’s Mark Avera and Hinkle & Foran’s Donald Hinkle.
Main Street Entertainment is represented by Kubicki Draper’s Brian Chojnowski.
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