De La Torre v. Gallardo – Florida Dram Shop Law

When a drunk driver crashes into your vehicle in Florida, what recourse do you have to recover damages?beer

The answer depends on the underlying circumstances, but generally, you will want to explore:

  • The at-fault driver/ insurance;
  • The owner of the vehicle/ insurance;
  • The employer of the at-fault driver (if he or she was working);
  • The establishment that served the at-fault driver alcohol.

That last one – which falls under Florida’s dram shop law – will only work if the drunk driver was either under 21 or known to the establishment to be habitually addicted to alcohol. Per F.S. 768.125, those are the only circumstances under which an establishment may be held accountable for the injurious actions of a drunk driver. 

The goal of a dram shop law is to stop commercial establishments from over-serving people who might not be capable of determining when they’ve had too much to drink. However, there are many people who say it doesn’t go far enough. In fact, there are many other states that allow injured victims of drunk drivers to sue establishments that continued to serve alcohol to patrons whom they knew or should have known they were drunk.

Although that is not the case in Florida, there are some plaintiffs who continue to test the boundaries of the statute. One example of this was seen in the recent case of De La Torre v. Flanigan’s Enterprises, Inc., DBA Flanigan’s Bar and Grill.

According to court records, a woman was drinking at a bar one night in December of 2011. While there, she got drunk. At one point, the employees stopped serving alcohol to her and provided her with water in an attempt to “sober her up.”

Soon after, the driver got into her vehicle, crossed into oncoming traffic and struck a vehicle. Inside that vehicle were plaintiffs, and they were seriously injured.

The bar had an internal policy – not required by law – that was supposed to help stop patrons from driving away from the premises drunk. It involved either taking the patron’s keys and/or calling law enforcement to do so or contacting a taxi or sober driver for the employee.

However, on this night, the workers did not take this action.

Plaintiff sued the bar, alleging it had undertaken a voluntary duty to prevent the driver from leaving drunk, and that it was negligent in performing this duty.

The bar moved to dismiss the case, arguing the lawsuit was precluded by F.S. 768.125, and it had no statutory duty to stop an over-21 person about whom they had no prior knowledge of a history of alcohol abuse. Trial court agreed and dismissed the action.

Plaintiffs appealed. Although conceding that none of the statutory exceptions were applicable in this case, they contended liability wasn’t predicated on the sale of alcohol, but rather by the fact that the bar had undertaken a duty of care. Known as the so-called “undertaker’s doctrine,” it was noted in the 2009 Florida Supreme Court case of Wallace v. Dean.

It can be invoked when a person gratuitously or for consideration renders services to another as necessary for the protection of a third person and/or that person’s things and is therefore liable to that third person for physical harm resulting from his failure to exercise reasonable care in that undertaking.

However, Florida’s 4th District Court of Appeal ruled that the undertaker’s doctrine did not apply in this case. Florida law doesn’t require business owners ensure the safety of intoxicated persons who leave the premises and to impose that additional requirements on those who attempt to enact policies to reduce drunk driving would, the court ruled, be unfair and counterproductive.

Call Fort Lauderdale Injury Attorney Richard Ansara at (954) 761-4011. Serving Broward, Miami-Dade and Palm Beach counties.

Additional Resources:

De La Torre v. Flanigan’s Enterprises, Inc., March 9, 2016, Florida’s 4th District Court of Appeal

More Blog Entries:

Report: U.S. Drivers are Distracted More Than Half the Time, March 20, 2016, Fort Lauderdale DUI Injury Lawyer Blog