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Florida’s Dram Shop Law and the Undertaker’s Doctrine

Florida’s dram shop law, codified in F.S. 768.125, severely limits the circumstances under which injured third parties can recover damages from bars, restaurants and other establishments that serve patrons long past the point of impairment. When these patrons then get behind the wheel and cause an accident, those bars and restaurants usually aren’t liable. beerhand

There are two primary exceptions:

  • When the person who was served alcohol was under the legal age of 21;
  • When the person is known to the establishment as one who is habitually addicted to alcohol.

In a recent case before Florida’s 4th District Court of Appeal, drunk driving injury victims argued the law should also be applicable to an establishment that assumes responsibility to stop patrons from getting behind the wheel drunk and then failing to do so.

Plaintiffs in De La Torre v. Flannigan’s Enterprises, Inc. relied heavily on the “undertaker’s doctrine.” 

The Florida Supreme Court has used the Second Restatement of Torts, sectiosn 323-324A to define the “undertaker’s doctrine,” which involves the liability of third parties who gratuitously undertake the responsibility to render services to another person for that person’s protection. The third party can, by these actions, be held liable for physical harm that results from failure to exercise reasonable care.

There are a number of cases where this assertion has worked. In one case, Massad ex rel. Wilson v. Granzow, a party host took it upon himself to care for a guest who was drunk and had fallen and suffered a head injury. Host allegedly gave the guest a prescription painkiller, which worsened his symptoms, and then left him alone by the pool, where the guest drowned. The court applied the undertaker’s doctrine and the host was found liable.

In another case, Carroll Air Systems, Inc. v. Greenbaum, a business purchased drinks for an employee while he was entertaining clients.Employee later drove drunk and struck a third party, who was injured. The court ruled the employer wasn’t protected by Florida’s limited dram shop law because although employer didn’t furnish the drinks, it had knowledge – actual or constructive – that employee was intoxicated and in no condition to drive. Although the employer was not at the meeting, employer had the ability to control its employees.

But the 4th DCA said these cases are distinguishable from the case against Flannigan’s.

According to court records, a woman went there and drank several alcoholic beverages one evening in 2011. After a while, woman became intoxicated. Staffers at one point stopped serving alcohol to her, observing that she was drunk, and began serving her water. However, no one on staff tried to stop her when she left and got in the wheel of her car.

This was despite the fact that the restaurant had a policy in place to stop drunk patrons from driving. This involved taking the patron’s keys, calling law enforcement or ensuring the person had a sober driver. None of those actions were taken in this case, and the woman got in her car, left and was involved in a drunk driving accident, injuring the passengers.

Passengers later sued the bar, citing the undertaker’s doctrine. They argued that because the bar had this policy – and employees failed to adhere to it – the restaurant should be held liable. They argued the issue was not that the bar served the woman, but that employees failed in the duty they had assumed by way of restaurant policy.

However, neither the trial court nor the appeals court saw it that way. The state does not require establishments to stop people from driving drunk, and those that make efforts to try shouldn’t be punished for doing so, the 4th DCA reasoned.

Still, drunk driving accident victims should consult with an experienced injury lawyer in order to explore all potential avenues of recovery.

If you have been a victim of a traffic accident, call Chalik & Chalik at (954) 476-1000 or 1 (800) 873-9040.

Additional Resources:

De La Torre v. Flannigan’s Enterprises, Inc., March 9, 2016, Florida’s Fourth District Court of Appeal

More Blog Entries:

Study: U.S. Drivers Increasingly Dangerous, Distracted More Than Half the Time, March 21, 2016, Miami DUI Injury Lawyer Blog

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