An appeals court in Florida declined to extend dram shop liability to bartenders or servers who recognize an adult patron’s intoxication, take measures to “sober them up,” but don’t stop them from driving.
In Torre v. Flanigan’s Bar and Grill, plaintiffs were injured in Broward County when they were struck by a drunk driver. F.S. 768.125 offers victims the opportunity to pursue a lawsuit against the establishment that served the drunk driver alcohol only under very limited circumstances. However, victims in Torre sought a court ruling that the bar could still be responsible because it had assumed an additional duty of care that involved recognizing the patron’s level of impairment.
Florida’s Fourth District Court of Appeal did not agree.
The law allows Florida drunk driving accident victims to recover damages from a person who sells or furnishes alcoholic beverages to a person who in turn gets behind a wheel and injures or kills others – but only if the driver was either underage or known to be habitually addicted to the use of any or all alcoholic drinks. Most injury lawyers know that to bring a dram shop case outside of these boundaries is asking the court for a tall order.
In the Torre case, plaintiff attorneys sought to establish an expanded duty of care assumed by the establishment.
According to court records, the crash happened on Dec. 2, 2011. Defendant restaurant was open that evening, and the driver patronized the establishment that day. There, she became intoxicated. At some point, evidence showed the bar and its employees stopped serving alcohol to the driver. There was also evidence to indicate employees gave the driver water in an effort to “sober her up.”
Nonetheless, driver left the restaurant in her car.
A short time thereafter, the driver crossed into oncoming traffic and struck a vehicle in which plaintiffs were riding. Plaintiffs were injured in the drunk driving accident.
Defendant restaurant had an internal policy to prevent drunk customers from driving away from their property. That policy required employees and/ or law enforcement to make sure the drunk person did not drive away by either seizing their keys or making sure they left only in a taxi or with a sober driver.
Restaurant employees did not abide this policy that night.
Plaintiffs allege the defendant undertook a voluntary duty to make sure the driver would not drive intoxicated, but then was negligent in performing this duty.
Defendant countered that Florida law precluded any lawsuit for dram shop liability of an adult who was not known to be a habitual abuser of alcohol. Trial court granted the motion to dismiss.
Plaintiff appealed, pointing to a number of cases in which the courts had held there could be third-party social host liability and dram shop liability under certain circumstances. The primary case upon which plaintiffs relied was that of Estate of Massad ex rel. Wilson v. Granzow, in which one man went to another’s home and became intoxicated. That guest fell and hit his head. The host took it upon himself to care for that guest, gave him a prescription drug not prescribed to the victim, which worsened the guest’s condition. Host then left guest next to a pool. Guest fell into the pool and drowned. Appeals court found the host could be found liable because while statute and common law protects social host from liability for serving alcohol to guest, the host in this case faced potential liability because of what had taken place after the alcohol was served. Specifically, the host “took charge” of the guest, who was helpless and unable to adequately aid or protect himself.
The court ruled that did not apply in this case. Courts have repeatedly held that establishments should not be liable for the drunk driving of third parties.
Further, the court noted that to accept plaintiff’s argument would be to encourage bars and restaurants to avoid liability by intentionally having no policy or practice to deter drunk driving and to continue to serve alcohol to already-drunk patrons.
The dismissal was affirmed.
If you have been injured in an accident, contact the Hollander Law Firm at 888-751-7777 for a free and confidential consultation. There is no fee unless we win.
Torre v. Flanigan’s Bar and Grill, March 9, 2016, Florida’s Fourth District Court of Appeal
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