In De La Torre v. Flanigan’s Enters., Inc., No. 4D15-195, 2016 WL 889334 (Fla. 4th DCA Mar. 9, 2016), the Plaintiffs filed a complaint against the restaurant that served the drunk driver that injured them in an auto accident. The trial court dismissed the action in light of the application of Florida Statutes § 768.125, which provides:
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.
Fla. Stat. § 768.15 (emphasis added).
The Plaintiffs attempted to invoke the undertaker’s doctrine and argued that § 768.125 is inapplicable because the restaurant’s actions constituted an assumption of a voluntary duty to prevent the driver from driving while intoxicated. The restaurant had an internal policy in place to prevent drunk patrons from driving by “cutting off” the driver.
The undertaker’s doctrine involves a voluntary 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 creates a foreseeable zone of risk. Relying on Florida cases finding that restaurants should not be liable for the drunk driving of third parties, the Fourth District held that the restaurant’s actions were insufficient for the undertaker’s doctrine to apply. The Court reasoned that appellants’ argument would encourage establishments to not have a policy or practice to deter drunk driving.
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