DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

STEPHANIE DE LA TORRE, HUMBERTO MIRANDA, and CARLA 

GALLARDO,

Appellants,

v.

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

GRILL,

Appellee.

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.

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
2

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 
3

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 
4

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, 
5

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 
6

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 
7

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.

* * *

Not final until disposition of timely filed motion for rehearing.