In some jurisdictions, bars or even social hosts face liability for providing alcohol to a person who subsequently causes an automobile accident while intoxicated.  In Florida, however, bars and restaurants are only liable if they willfully and unlawfully serve or provide alcohol to a person who is under the legal drinking age or if they knowingly serve alcohol to a person who is “habitually addicted” to alcohol.  § 768.125, Florida Statutes.  In a recent Florida case, the plaintiffs argued that a restaurant had assumed a voluntary duty to keep intoxicated patrons from driving and that its alleged negligence in performing that duty subjected it to liability outside § 768.125.

In De La Torre v. Flanigan’s Enterprises, Inc., the plaintiffs had been injured in a collision with an intoxicated driver.  They filed suit against the company that owns and operates the restaurant where the driver had been drinking.  The driver became intoxicated while at the restaurant, and the employees stopped serving her alcohol and allegedly started serving her water.  She ultimately drove away from the restaurant.  Sometime during the night, she entered oncoming traffic and hit the vehicle occupied by the plaintiffs.

The restaurant had an internal policy to prevent intoxicated patrons from driving.  The plaintiffs alleged that the policy involved the restaurant employees or law enforcement officers taking keys from patrons and ensuring that they took a cab or left with a sober driver.  The plaintiffs sued the company that operated the restaurant, claiming it had undertaken a duty to prevent the driver from driving while intoxicated, but it was negligent.  The defendant moved to dismiss, contending that § 768.125 precluded liability.  The trial court granted the defendant’s motion, and the plaintiffs appealed.

The plaintiffs agreed that the exceptions in the statute applied, but instead they argued that liability arose from the defendant undertaking a duty to prevent drunk driving.  The appeals court looked to the Restatement (Second) of Torts in considering the “undertaker’s doctrine.”  The Restatement provides that someone who undertakes a duty may be liable if a failure to exercise reasonable care increases the risk of harm such as what the plaintiff experienced, if the duty undertaken was owed by the other to the third person, or if the harm happened because of reliance on the undertaking.

The appeals court found that the defendant’s actions did not rise to the level of the undertaker’s doctrine.  The defendant’s actions did not increase the risk of harm from the driver’s intoxication.  The appeals court found that the defendant did not undertake to perform a duty owed to third parties by the driver.  The appeals court further found it “unreasonable” to assume the driver would not have driven if not for the defendant’s actions.  The court further noted that an expansion of liability would be contrary to the legislative intent of limiting the liability of vendors for the acts of others.  The plaintiffs argued this case was distinguishable from previous cases because of the restaurant’s internal policies, but the court found, based on prior case law, that internal policies do not create a duty.

The appeals court further noted that placing liability on restaurants for internal policies to deter drunk driving could discourage not only restaurants, but also friends and family, from attempting to stop intoxicated individuals from driving or trying to sober them.  The court noted that this expansion of liability would be contrary to both legislative intent and public policy. The appeals court affirmed the dismissal.

The appeals court found the facts in this case insufficient to place liability on the restaurant, but there may still be liability on the driver.  If you have been injured in an automobile accident with a drunk driver, the South Florida car accident attorneys at Anidjar & Levine can help you identify all of the potentially liable parties and advise you on which ones to pursue.  Call us at (800) 747-3733, or submit an online “Contact Us” form.