### D ISTRICT 

### C OURT 

### O F 

### A PPEAL 

### O F 

### T HE 

### S TATE 

### O F 

### F LORIDA

F OURTH D ISTRICT

STEPHANIE DE LA TORRE, HUMBERTO MIRANDA, and CARLA

GALLARDO
, Appellant s ,

v.

FLANIGAN’S ENTERPRISES, INC., d/b/a FLANIGAN’S BAR AND

GRILL
, Appellee

.

No. 4D 15

- 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

.

Neil Rose, Hollywood, for appellants.

Kathryn Ender and Lissette Gonzalez of Cole Scott & Kissane, P.A., Miami, for app ellee.

F ORST

, J

.

Appellants Stephanie de la Torre, Humberto Miranda, and Carla Gallardo were injured when their vehicle was hit by a drunk driver (“Driver”). Appellant s 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 Stat utes (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

dut y, 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 night2

and allegedly served Driver water in an effort to “sober her up.” Subsequently, Driver lef t 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 dr iving away from the premises. Appellants’ amended complaint

maintained that t his 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 d ismiss the action, arguing that the suit was precluded by section 768.125, Fl orida

Stat utes . The trial court agreed and dismissed the action. Appellants now appeal that dismissal.

Analysis

Because this appeal concerns the propriety of a dismissal for f ailure to state a cause of action, we take the allegations in the amended complaint

as true and consider them in the li ght 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, absolve s 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 willf ully 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 r esulting 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 statute3

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. 3 d 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 u ndertakes, 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 beca use 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 ac t 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.’” (qu oting 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 st emming from Driver’s intoxication, nor did the Appellee undertake to perform a duty owed by the Driver to third parties. Further, i t is unreasonable to assume, as Appellants do, that Driver would not have driven but for Appellee ’s actions.

The cases cited by Appellant s as apply ing 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 . The4

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 t he 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

una ble to adequately aid or protect himself.” Id . at 1053.

Massad reference s 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. I d . 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 i n 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 a t the meeting in which [the employee] imbibed ex cessively. 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 assis ted 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 a nd, 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). Th ere, 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,5

despite the employee’s protestations that he was too drun k 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 Fift h 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 , t here 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 leav e the premis es, 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

lia bility 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 h eld 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 Sy stem s., Inc. , 100 So. 3d 729 (Fla. 2d DCA 2012)

, a valet service returned car keys to an intoxicated driver. The val et 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 of6

an intoxicated person who is about to leave the premises of th e business.”

Id . at 398 (citing Preferred Nat’ l Ins. v. Fat Investors, Inc ., 842 So. 2d 1068 (Fla. 4th DCA 2003)) ; s ee 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 be came 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 [t he 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 D istrict 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 fo rced 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 int oxicated 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 into xicated patron] s hould 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 appea r to be almost

identical to those raised in this case.

Appellants insist that this case is different than all t hese other cases because Appellee had internal polici es 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 negligently7

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 Hotel s 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

A ccepting A ppellants ’ argument would encourag e 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 an d 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

.

M AY
, J., and S CHER

, R OSEMARIE , Associate Judge, concur.

* * *

Not final until disposition of timely filed motion for rehearing.