Torts
— Automobile accident — Undertaker’s doctrine — Action against owner and
operator of restaurant at which drunk driver whose vehicle hit plaintiffs’
vehicle had been drinking — No error in dismissing suit based on finding that
section 768.125 insulated businesses from liability for damages caused by
intoxicated patrons and therefore precluded the action — Defendant did not
undertake voluntary duty to prevent patron from driving while intoxicated by
ceasing to serve alcohol to patron at some point and allegedly serving patron
water in attempt to “sober her up” — Defendant’s actions did not increase risk
of harm stemming from patron’s intoxication, defendant did not undertake to
perform a duty owed by the patron to third parties, and it is not reasonable to
assume that the patron would not have driven but for defendant’s actions — Any
internal policies defendant may have had about preventing drunk patrons from
leaving did not create duty to third parties

STEPHANIE DE LA TORRE, HUMBERTO MIRANDA, and CARLA GALLARDO,
Appellants, v. FLANIGAN’S ENTERPRISES, INC., d/b/a FLANIGAN’S BAR AND GRILL,
Appellee. 4th District. Case No. 4D15-195. March 9, 2016. Appeal from the
Circuit Court for the Seventeenth Judicial Circuit, Broward County; John B.
Bowman, Judge; L.T. Case No. 12-018104 02. Counsel: Neil Rose, Hollywood, for
appellants. Kathryn Ender and Lissette Gonzalez of Cole Scott & Kissane,
P.A., Miami, for appellee.

(FORST, J.) Appellants Stephanie de la Torre, Humberto
Miranda, and Carla Gallardo were injured when their vehicle was hit by a drunk
driver (“Driver”). Appellants filed a complaint against Appellee Flanigan’s
Enterprises, which owns and operates the restaurant at which Driver had been
drinking. The trial court dismissed the suit, finding that section 768.125,
Florida Statutes (2011), insulated businesses from liability for damages caused
by intoxicated patrons and therefore precluded the action. Appellants now
appeal this dismissal, arguing Appellee’s actions on the night of the accident
constituted the assumption of a voluntary duty, which removed the case from the
protections of section 768.125. We disagree and affirm the dismissal of the
action.

Background

Driver went to the restaurant operated by Appellee on the
night of December 2, 2011. While there, Driver became intoxicated. Appellee and
its employees stopped serving alcohol to Driver at some point in the night and
allegedly served Driver water in an effort to “sober her up.” Subsequently,
Driver left the restaurant in her vehicle. At some point later that night, she
crossed into oncoming traffic and struck a vehicle containing Appellants, who
were injured in the accident.

Appellee had an internal policy designed to prevent drunken
patrons from driving away from the premises. Appellants’ amended complaint
maintained that this policy called for Appellee’s employees and/or law
enforcement officers to ensure that intoxicated patrons did not drive by taking
car keys away from the patrons and ensuring that they left in a taxi or with a
sober driver.

Appellants filed a suit against Appellee, alleging that it
undertook a voluntary duty to prevent the Driver from driving while
intoxicated, but was negligent in performing this duty. Appellee moved to
dismiss the action, arguing that the suit was precluded by section 768.125,
Florida Statutes. The trial court agreed and dismissed the action. Appellants
now appeal that dismissal.

Analysis

Because this appeal concerns the propriety of a dismissal
for failure to state a cause of action, we take the allegations in the amended
complaint as true and consider them in the light most favorable to the
Appellants; all reasonable inferences must be drawn in the Appellants favor. Estate
of Massad ex rel. Wilson v. Granzow, 886 So. 2d 1050, 1051 (Fla. 4th DCA
2004).

The common law rule, codified by section 768.125, absolves
sellers from blame for the drunken acts of another. Ellis v. N.G.N. of
Tampa, Inc., 586 So. 2d 1042, 1044-47 (Fla. 1991). Specifically, section
768.125 states:

A
person who sells or furnishes alcoholic beverages to a person of lawful
drinking age shall not thereby become liable for injury or damage caused by or
resulting from the intoxication of such person,
except that a person who willfully and unlawfully sells or furnishes alcoholic
beverages to a person who is not of lawful drinking age or who knowingly serves
a person habitually addicted to the use of any or all alcoholic beverages may
become liable for injury or damage caused by or resulting from the intoxication
of such minor or person.

(emphasis added). The parties agree that neither of the
exceptions is pertinent to the case at hand. In fact, Appellants argue that
this statute is not relevant at all, as they contend liability is not premised
on the sale of the alcohol to Driver, but rather arises from the so-called
“undertaker’s doctrine” and Appellee’s attempts at preventing Driver from
driving under the influence.

The Florida Supreme Court has used the Restatement (Second)
of Torts, sections 323-324A, to define the “undertaker’s doctrine.” Wallace
v. Dean, 3 So. 3d 1035, 1040 (Fla. 2009). Section 324A of the Restatement
(2nd) pertains to liability to third parties arising from the undertaker’s
doctrine and states:

One
who undertakes, gratuitously or for consideration, to render services to
another which he should recognize as necessary for the protection of a third
person or his things, is subject to liability to the third person for physical
harm resulting from his failure to exercise reasonable care to protect his
undertaking, if

(a)
his failure to exercise reasonable care increases the risk of such harm, or

(b)
he has undertaken to perform a duty owed by the other to the third person, or

(c)
the harm is suffered because of reliance of the other or the third person upon
the undertaking.

Restatement (2d) of Torts, § 324A. Florida courts have used
similar language. See Union Park Mem’l Chapel v. Hutt, 670 So. 2d 64, 66
(Fla. 1996) (“Voluntarily undertaking to do an act that if not accomplished
with due care might increase the risk of harm to others or might result in harm
to others due to their reliance upon the undertaking confers a duty of
reasonable care, because it thereby ‘creates a foreseeable zone of risk.’ ”
(quoting McCain v. Fla. Power Corp., 593 So. 2d 500 (Fla. 1992)).

Appellee’s actions in this case are insufficient for the
undertaker’s doctrine to apply. Appellee’s actions in “cutting off” Driver and
giving her water did not increase the risk of harm stemming from Driver’s
intoxication, nor did the Appellee undertake to perform a duty owed by the
Driver to third parties. Further, it is unreasonable to assume, as Appellants
do, that Driver would not have driven but for Appellee’s actions.

The cases cited by Appellants as applying the undertaker’s
doctrine are distinguishable from the case at hand. Appellants primarily rely
on Massad, 886 So. 2d at 1050. In that case, a man became intoxicated at
the home of another. Id. at 1051. The guest fell and hit his head. Id.
The host took it upon himself to care for the guest and gave him a prescription
medication not prescribed for the guest that worsened the guest’s condition. Id.
The host then left the guest next to a pool. Id. The guest fell into the
pool and drowned. Id. The guest’s estate brought an action against the
host, who claimed liability was precluded by section 768.125. Id. at
1052. The trial court dismissed the case, but we reversed, holding that while
that section and the common law protect social hosts from liability for the
serving of alcohol to their guests, the host in this case faced potential
liability “based upon conduct that occurred at a point in time when [the host]
‘took charge’ of [the guest], when he was helpless and unable to adequately aid
or protect himself.” Id. at 1053.

Massad references Carroll Air Systems,
Inc. v. Greenbaum, 629 So. 2d 914 (Fla. 4th DCA 1993). In that case, a
business bought drinks for one of its employees while he was entertaining
clients. Id. at 915. The employee later drove while intoxicated and hit
a third party. Id. The injured party brought an action against the
employer. This Court held that the employer was not protected by section
768.125, as “the ‘fault’ of the employer was not in the furnishing of the
drinks but in its knowledge, actual or constructive, that [the employee] was
intoxicated and was not in a condition to drive. [The employer] Carroll Air was
not merely a social host at the meeting in which [the employee] imbibed
excessively. Unlike the social host, an employer has a far greater ability to
control the actions of its employees.” Id. at 917.

Both Massad and Carroll Air Systems are
distinguishable from the current case. In both of those cases, the liable party
had more control over the intoxicated party than Appellee had over Driver. In
the instant case, Appellee did not “take charge” of Driver in any sense —
encouraging her to drink water is substantially different than giving an
intoxicated guest prescription medicine, as was the case in Massad. Nor
is there any evidence that an employee of Appellee assisted Driver to her car
or that any of its employees was aware that Driver had started her car while
under the influence. In Carroll Air, the employer actively encouraged
the driver’s drinking and paid for his drinks. Further, the Carroll Air opinion
notes the control employers have over their employees, which was the source of
the duty that was breached in that case. There was no such control here and,
unlike the employer, Appellee in this case took steps to limit Driver’s
drinking.

Appellants also cite to Bardy v. Walt Disney World Co.,
643 So. 2d 46 (Fla. 5th DCA 1994). There, a Disney employee got drunk at a
party hosted by Disney on the Disney World premises. Id. at 47. The
employee went to sleep in his car. Id. A Disney security guard forced
him to drive away, despite the employee’s protestations that he was too drunk
to drive, and threatened to have the employee arrested if he did not leave. Id.
The employee proceeded to attempt to drive away and promptly ran into a light
pole. Id. The employee brought an action against Disney. Id. The
Fifth DCA held that Disney may be liable for damages to the employee, while a
dissent from Judge Diamantis argued the suit was precluded by section 768.125. Id.
at 48-50. Bardy is also easily distinguished from this case. In that
case, like in Carroll Air, there was an employer-employee relationship.
Moreover, Disney required the employee to drive and threatened him with legal
consequences for failure to do so. In contrast, there is no allegation Appellee
requested or demanded the Driver to leave the premises, much less drive
herself.

In addition to the Appellants’ failure to show that the
undertaker’s doctrine should apply to this case, the legislative intent behind
section 768.125 was to limit liability for the actions of others and an
expansion of liability would be contrary to these goals. As we noted in Massad:

The
supreme court has viewed section 768.125 as “a limitation on the liability of vendors
of intoxicating beverages,” Migliore [v. Crown Liquors of
Broward, Inc.], 448 So. 2d [978,] 980 [(Fla. 1984)] (emphasis
added), which “codified the original common law rule absolving vendors from
liability for sales but provided exceptions for sales to those who were not of
a lawful drinking age or to a person habitually addicted to alcoholic beverage
use.” Ellis v. N.G.N. of Tampa, Inc., 586 So. 2d 1042, 1046 (Fla. 1991)
(emphasis added).

Massad, 886 So. 2d at 1052. Consistent
with this policy goal, our sister courts have repeatedly held that
establishments should not be liable for the drunk driving of third parties. For
instance, in Weber ex rel. Estate of Weber v. Marino Parking Systems., Inc.,
100 So. 3d 729 (Fla. 2d DCA 2012), a valet service returned car keys to an
intoxicated driver. The valet was insulated from liability, with the court’s
opinion noting that failure of the valet service to return the keys could
result in liability for conversion. Id. at 731. In Aguila v. Hilton,
Inc., 878 So. 2d 392 (Fla. 1st DCA 2004), a hotel required several
intoxicated persons to leave the hotel when a spring break party got out of
hand. Id. at 394. One of the intoxicated individuals later drove off and
hit several third parties. Id. at 395. The First DCA held that the hotel
was not liable for the drunk driver’s actions, noting “a legal duty does not
exist merely because the harm in question was foreseeable. To the contrary, it
is clear . . . that the defendant’s conduct must ‘create’ the risk.” Id.
at 396. Further, the court stated “Florida law does not impose a general duty
on the owner of a business to ensure the safety of an intoxicated person who is
about to leave the premises of the business.” Id. at 398 (citing Preferred
Nat’l Ins. v. Fat Investors, Inc., 842 So. 2d 1068 (Fla. 4th DCA 2003)); see
also Boyton v. Burglass, 590 So. 2d 446, 448 (Fla. 3d DCA 1991) (“Florida
courts have long been loathe to impose liability based on a defendant’s failure
to control the conduct of a third party.”).

Perhaps most similar to the case at hand is Hall v. West,
157 So. 3d 329 (Fla. 2d DCA 2015). In that case, a driver became intoxicated at
a bar. Id. at 330. He then drove away and ultimately hit a third party. Id.
The injured party sued the bar, arguing “his claims are unrelated to the sale
of alcohol; independent of any sale of alcoholic beverages, he insists that
[the bar] was negligent in allowing [the driver] to drive away while
intoxicated.” Id. at 331. The injured party, like Appellants, also
alleged liability for, inter alia, failure to “ensure that an intoxicated
patron left the premises with a safe ride home in accordance with its own
policies and procedure . . . .” Id. at 330-31.

The Second District held that the suit was precluded by
section 768.125. Hall, 157 So. 3d at 331. The court distinguished that
case from Bardy, noting that the driver was not forced to drive by the
bar’s managers or employees. Id. at 332. The court concluded by noting:

Finally,
despite what [the defendant’s] operating policies may have been, Florida law
imposes no general duty on a business owner to ensure the safety of an
intoxicated person who is about to leave the premises. And, that business has
no legal duty to control the conduct of a third person to prevent that person
from harming others. Aguila, 878 So. 2d at 398 (citations omitted). Unfortunately,
even if [the intoxicated patron] should not have driven, [the defendant] could
not restrain him, take away his keys, or impound his car. See Weber, 100
So. 3d at 731.

Hall, 157 So. 3d at 331. While Hall did
not specifically address the undertaker’s doctrine, the allegations in that
case appear to be almost identical to those raised in this case.

Appellants insist that this case is different than all these
other cases because Appellee had internal policies preventing drunk patrons
from leaving. However, there is ample case law stating that internal policies
do not create a duty to third parties. See Pollock v. Fla. Dep’t. of Hwy.
Patrol, 882 So. 2d 928, 937 (Fla. 2004) (“While a written policy or manual
may be instructive in determining whether the alleged tortfeasor acted
negligently in fulfilling an independently established duty of care, it does
not itself establish such a legal duty vis-a-vis individual members of the
public.”); Gunlock v. Gill Hotels Co., 622 So. 2d 163, 164 (Fla. 4th DA
1993) (“[W]e can find no authority that evidence of an internal policy creates
a substantive duty to conform to the standard of conduct contained therein.”).

Conclusion

Accepting Appellants’ argument would encourage restaurants
and bars to avoid liability by intentionally not having a policy or practice to
deter drunk driving and to continue serving alcohol to intoxicated patrons.
Moreover, this seeming “no good deed goes unpunished” theory would presumably
extend to other parties, such as friends or family members, that voluntarily
encouraged intoxicated individuals to stop drinking or attempted to “sober them
up.” Again, allowing for an expansion of liability to these parties would be
contrary to public policy and the intent of the legislature.

Because the Appellee’s actions did not increase the
risk to the public, assume a duty owed to a third party, or create justifiable
reliance by the Driver, the undertaker’s doctrine does not apply to this case.
Therefore, we affirm the trial court’s dismissal of Appellants’ cause of
action.

Affirmed. (MAY, J., and SCHER, ROSEMARIE,
Associate Judge, concur.)