Dear Miami PI Lawyer,  

What happens when a bar or restaurant in Florida serves a customer too much alcohol and that person then gets behind the wheel and causes a car accident? I work at a local pizza joint, and I have seen a lot of folks get pretty drunk at the bar while waiting for their pizzas to take home.

Just wondering,

Wolfgang G.

Miami, Florida


Dear Wolfgang,

That’s a very good question. A partial answer is that Florida’s legislature is quick to find ways to protect businesses from being held responsible for just about everything.  Statute 768.125 protects businesses from being sued for over-serving unless the customer is underage or a known and habitual drunk.((768.125 Liability for injury or damage resulting from intoxication.—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.))   

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Recently, however, in a case in Broward County, Florida, a Flanigan’s restaurant was sued after one of its intoxicated patrons got behind the wheel and caused a very serious traffic accident. The injured plaintiffs tried to get around the protection of Statute 768.125 by claiming that Flanigan’s has an internal policy of not serving customers who appear to be intoxicated, taking their keys away, and ensuring they leave either by taxi or with a sober driver.  

Once the Flanigan’s employees realized that this customer was drunk, they attempted to “sober her up” by giving her water. The plaintiff sued Flanigan’s and alleged that by offering her water, the employees assumed a “voluntary duty,” which created a separate cause of action against them. Ironically, in Florida this is referred to as the “undertaker’s doctrine.”

The trial court disagreed with Plaintiff’s’ voluntary duty argument, and they appealed to the 4th District Court of Appeal. On appeal, the parties agreed that neither of section 768’s exceptions applied and dismissed the case against Flanigan’s.((STEPHANIE DE LA TORRE, HUMBERTO MIRANDA, and CARLA GALLARDO, Appellants, v. FLANIGAN’S ENTERPRISES, INC., d/b/a FLANIGAN’S BAR AND GRILL, Appellee. 4th District. Case No. 4D15-195. March 9, 2016.))   

In order for the Undertaker’s Doctrine to apply, individuals who undertake or offer to render a service to someone for the protection of someone else are potentially legally responsible if they fail to do so with reasonable care and one of three things occurs(( Restatement (2d) of Torts, § 324A.)):

  1. The failure to exercise reasonable care increases the risk of harm, or
  2. He undertakes to perform a duty owed by the other to someone else, or
  3. Someone has relied upon him to perform the service.

The Appellate court found that Flanigan’s actions did not increase the risk of harm by cutting off the alcohol served to the driver and giving her water and that there was no duty owed by Flannigan’s specifically to the plaintiffs in this case. Furthermore, the court reasoned that it was unreasonable even to assume that “but for” the actions taken by Flanagan’s the lady would not have driven.  

The court distinguished this case from other cases where Florida employers have been held liable for drunk driving accidents caused by their employees, reasoning that an employer has greater control of an employee than Flanigan’s would have had over a customer.

In coming to this unfortunate conclusion, the court reasoned that this would expand the “no good deed goes unpunished theory,” which I do not believe is really a legal or statutory doctrine, but merely reflects the court’s fear that expanding liability in this case would open a floodgate for further litigation where others, like homeowners, might find themselves being sued for over-serving alcohol to drunk drivers. With drunk driving fatalities at an all-time high, would that really be a bad thing?

Sadly, this case makes it clear that Florida law does not impose a duty on business owners to ensure the safety of a drunk person about to leave the premises. This is a ridiculous law with dangerous implications; it only serves (no pun intended) to protect the profits of Florida businesses by encouraging them to sell more and more alcohol to intoxicated customers who are potential drivers. By failing to impose a duty not to serve intoxicated customers on our businesses, we are putting everyone at risk.  

Thank you for your questions, Wolfgang.,

Miami PI Lawyer


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