4th DCA: Undertaker's Doctrine

Stephanie De La Torre, et al v. Flanigan's Bar and Grille
District Court of Appeal of Florida, Fourth District
Case No: 4D15-195
March 9, 2016

Occupants of a car were injured when their car was hit by a drunk driver. Occupant filed a complain against Flanigan’s Bar and Grille, which owns and operates the restaurant at which the drunk driver had been drinking. Record evidence shows that the drunk driver was cutoff from alcohol and offered water before driving away.

Broward County Circuit Court judge dismissed the lawsuit finding that Fla. Stat. §768.125 insulated Flanigan’s Bar and Grille from liability damages caused by the drunk driver. The injured occupants appealed to the 4th District Court of Appeal and this is the oral argument.

Does the “undertakers doctrine” apply to remove Flanigan’s Bar and Grille from statutory protection against liability for intoxicated acts of patrons?

The “undertakers doctrine” pertains to liability to third parties 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 third person, or (c) the harm is suffered because of reliance of other or the third person upon the undertaking.

Fla. Stat. §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.

4th DCA held that Flanigan’s action in this case were insufficient for the “undertaker’s doctrine to apply.” Flanigan’s actions in “cutting off” the drunk driver and giving her water did not increase the risk of harm stemming from the driver’s intoxication, nor did Flanigan’s undertake to perform a duty owed by the drunk driver to 3rd parties. The court finally held that it would be unreasonable to assume that the drunk drier would not have driven but for Flanigan’s cutting her off and giving her water.

For education purposes only.

Micah J. Longo
The Longo Firm
12555 Orange Drive, Ste. 233
Davie, FL 33330
Tel: (954) 862-3608
http://www.longofirm.com