TALLAHASSEE — Mark Avera described his client as now being a “passive observer” in her own life.
Speaking to jurors during opening arguments in a hit-and-run trial in Florida centered around the issue of alcohol, Avera described how Jacquelyn Faircloth had lost her ability to communicate.
"She has no ability to communicate her thoughts or emotions or basic needs; an itch, a pain, an 'I love you,'" Avera, managing partner of Florida-based Avera Smith, told the court on Feb. 18. "None of those she can express without painstaking work involving a communication device."
Then just a teenager, Faircloth’s life was changed forever back in 2014 when she was visiting her brother at Florida State University. On the November evening in question, she was struck by a pickup truck driven by then 20-year-old Devon Dwyer while crossing the street near the university.
Investigators soon determined that both Faircloth and Dwyer had been drinking that night and both of the bar establishments that served them were at one time actively targeted as defendants. The proceedings before 2nd Judicial Circuit of Florida Judge Kevin Carroll are being webcast gavel-to-gavel by the Courtroom View Network.
Avera told the court the Cantina Tallahassee bar that served his client was not required to be in the courtroom for his opening summation because owners there have admitted to serving Faircloth, who at 18 at the time and still legally considered a minor. He added he plans to request as much as $31.6 million in damages, as well as an as-yet unspecified amount for pain and suffering, most of it sought from Main Street Entertainment, parent company to the Potbelly restaurant where Dwyer worked at and was drinking that night.
According to WCTV, Faircloth’s father insists that since the accident his daughter has been forced to have six surgeries and has suffered three seizures.
“It is difficult to put into words what Jackie’s life is like today,” Avera added in his opening statement. “And, although I’ve worked hard at it, words are inadequate to describe it.”
In time, Avera told the court that evidence will prove Dwyer purchased as many as 18 beers and six bourbons that night over a four-hour window he spent at the bar after his shift had ended.
Even as he acknowledged that no blood-alcohol tests were performed on Dwyer following the crash, he added that one witness will testify that he appeared intoxicated and an expert witness would add in testimony that he was going roughly 55 miles per hour in a 30 mph speed zone at the time of the crash.
“You don’t have a blood-alcohol level for Mr. Dwyer because he took that with him when he fled the scene,” he added.
Meanwhile, attorneys for Dwyer wasted little time pouring cold water on Avera’s assertions. In calling Dwyer as his first witness, defense attorney Brian Chojnowski, of Kubicki Draper, conceded that his client had been drinking before the accident but was nowhere near drunk when it occurred.
Instead, he argued that it was Faircloth’s own negligence that caused the tragedy in the form of her drunkenly darting out into traffic. While on the stand, Dwyer added that he only had four drinks that night and the rest on his tab were for friends taking advantage of his 50 percent off employee discount.
Finally, Dwyer, also legally a minor at the time, claimed he had only fled the scene because he feared being punished for drinking underage. His Ford pickup truck was later found hidden in the yard of one of his friend's home and he was ultimately sentenced to 30-months behind bars for leaving the scene of an accident.
But as for the crash itself, Chojnowski argued that nothing his client did that night proves the accident was his fault.
“Devon Dwyer, up until the collision, wasn’t operating his vehicle in a way that would be inconsistent with a 20-year-old guy driving a pickup truck,” he said. “An intoxicated person may run into the street, may run into the side of a vehicle. A sober person may drive 10 maybe 15 miles, maybe more, over the speed limit. That speeding is not an indicator, in and of itself, of Devon Dwyer’s intoxication.”