I was deeply troubled to read about the recent Florida wrongful death case of Christopher Milanese. Mr. Milanese was arrested and taken to the Boca Raton Police Department, where he was issued five (5) traffic citations, none of which were for driving under the influence.

The Police Department called a taxi cab for Mr. Milanese and released him while he was still intoxicated. Apparently, the taxi driver did not see Mr. Milanese and left the station. Mr. Milanese attempted to walk home but only made it as far as the nearest train tracks, 50 feet from the station’s door, where he was killed instantly by an oncoming train. At the time of his death, Mr. Milanese’s blood alcohol level was .199.

Mr. Milanese’s family sued the City of Boca Raton, claiming that the Police Department owed Mr. Milanese a duty not to release him from their custody while impaired and that the Police knew of the danger of the train tracks and failed to warn and protect him. A Palm Beach County Circuit Court Judge heard the arguments and dismissed the case. An appeal to Florida’s Fourth District Court of Appeal followed.

The appellate court agreed with the trial court and stated that the Police no longer had a duty to care for Mr. Milanese once he was released from custody, and that he did not face a risk of harm that was created by the Police. Citing as precedent, to support its decision, the court relied on the legal theory that Mr. Milanese was in no greater danger or no worse position than if the Police had not been involved at all. In other words, “the State does not become the permanent guarantee of an individual’s safety by having once offered him shelter.”

Our Miami hospital injury law firm is currently suing a Miami hospital for the alleged negligent discharge of a patient, being treated for alcohol abuse and depression, who committed suicide. Our case was also dismissed by the trial court and is currently on appeal to the Third District Court of Appeal. As a lawyer who sues Miami doctors and hospitals for inappropriate care of high risk patients, I find the facts of Mr. Milanese’s case painfully similar. The Boca Raton Police placed Mr. Milanese in an unreasonable and foreseeable risk of harm, considering that he was in their care and custody at a time where he was vulnerable, impaired and unable to protect himself.

First, and foremost, I do not understand why the Police would release a person while they are inebriated. I think that, alone, is grounds for the case to proceed to a jury. Second, the Police did not escort him to the taxi or offer to take him home, they simply opened the door and let him walk out. Third, the Police knew he was impaired or drunk and that an active railroad track was only 50 feet from the front door. That is simply a zone of risk that the Police have an obligation to protect him from.

Once the police felt that Mr. Milanese was too drunk to be behind the wheel of his own car, and took him into custody, they undertook the responsibility to protect him from danger, even if the danger was himself. Once they undertook the care of Mr. Milanese, by calling him a taxi cab, they should have made sure that he was safely on his way. Simply ejecting an intoxicated man into the dark of night, with an active railroad less than 50 feet away, is wrong, and the Boca Raton Police Department should be forced to explain this to a jury, at the very least.

The Undertaker’s Doctrine, in Florida, is a common law doctrine that provides, that “in every situation where a man undertakes to act or pursue a particular course, he is under an implied legal obligation or duty to act with reasonable care, to the end that the person may not be injured by any force which he sets in operation, or by any agent for which he is responsible. If he fails to exercise the degree of caution which the law requires in a particular situation, he is held liable for any damage that results to another, just as if he had bound himself by an obligatory promise to exercise the required degree of care.”

As a Florida wrongful death attorney, I am troubled by this opinion for a number of reasons, but perhaps the single most offensive issue is the notion that a trial judge intercepted justice, by preventing a jury from even hearing the facts. The case was dismissed without allowing a Palm Beach County jury to listen to all of the evidence. I fear that this case will send a message to police, hospitals, schools and businesses that it is okay if someone, who is intoxicated, misdiagnosed or treated, is hurt or killed, as long as it does not happen on your property.