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Salerno v. Del Mar Financial Service, LLC

Florida Court of Appeals, Fourth District

June 6, 2018

VINCENT CHARLES SALERNO, in his individual capacity, and as Personal Representative of THE ESTATE OF SUSAN M. SALERNO, Appellant,
v.
DEL MAR FINANCIAL SERVICE, LLC; GLADSTONE LAW GROUP, P.A., and SOUTH REGIONAL TRANSPORTATION AUTHORITY, Appellees.

         Not final until disposition of timely filed motion for rehearing.

          Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Donald W. Hafele, Judge; L.T. Case No. 502015CA006907XXXXMBAG.

          Richard R. Widell, Winchester, VA, for appellant.

          Hinda Klein of Conroy Simberg, Hollywood, for appellees Del Mar Financial Service, LLC and Gladstone Law Group.

          Warner, J.

         The trial court dismissed appellant Estate's complaint charging the employer of the deceased with negligence in her death. The complaint alleged that the employer served alcohol to the deceased during working hours, with knowledge that she was an alcoholic, and then failed to provide supervision for her when the employer ejected her from the premises and she was hit by a train while walking home. Appellant attempts to state a cause of action based upon section 768.125, Florida Statutes (2013), but that statute does not create a cause of action nor is it applicable to these circumstances. Although there is a special relationship between an employer and employee and a duty to protect the employee from imminent harm within the scope of employment, there is no similar duty when the employee is going and coming from work. The employer has breached no legal duty to the employee. We affirm.

         "Because a ruling on a motion to dismiss for failure to state a cause of action is an issue of law, it is reviewable on appeal under the de novo standard of review." Regis Ins. Co. v. Miami Mgmt., Inc., 902 So.2d 966, 968 (Fla. 4th DCA 2005). When ruling on a motion to dismiss for failure to state a cause of action, the court must accept the allegations of the complaint as true. Id.

         The second amended complaint alleged that the decedent, Susan Salerno, was employed as a paralegal by both Del Mar Financial Service, LLC, a legal documentation support firm, and Gladstone Law Group, a foreclosure law firm (referred to hereafter as the "employers"). The complaint alleged the employers maintained a bar on their premises and encouraged employees to drink alcoholic beverages during the work day to entice them to work additional hours and produce more work product. It alleged that the employers knew, or should have known, that the deceased was addicted to alcohol because she was required to attend AA meetings. On June 19, 2013, the employers served the deceased so many drinks that she became intoxicated and agitated. At that point, other employees escorted her out of the building, but they provided no assistance. She could not reenter the building because her access had been revoked. The deceased began walking in the direction of her home, which was ten miles away. A train employee observed the deceased walking along the railroad tracks where she was struck by an oncoming train.

         The Estate alleged that the employers were negligent in serving the employee alcoholic beverages within the scope of her employment, but then removing her from her place of employment without monitoring her safety or providing her transportation home. It claimed that it was foreseeable that she would walk and be struck by a train. The Estate demanded damages for her wrongful death.

         The employers moved to dismiss the second amended complaint on grounds that no cause of action could be stated because section 768.125, Florida Statutes (2013), provides only a cause of action against alcohol "vendors, " not a social host or business that gratuitously serves alcohol. Section 768.125 provides:

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.

         The trial court granted the motion and dismissed the second amended complaint with prejudice for failure to state a cause of action, agreeing with the employers that section 768.125 did not create a cause of action and a business does not otherwise owe a duty to an inebriated person, except in the limited circumstance that the intoxicated person is inert, citing Preferred National Insurance v. Fat Investors, Inc., 842 So.2d 1068 (Fla. 4th DCA 2003). The Estate now appeals.

         The Estate first argues that section 768.125 does not shield the employers from liability. We agree that the statute does not shield the employers from liability from a duty they might otherwise have, because the statute is inapplicable to the employer in this situation. The statute created a limitation on the existing common law duty of vendors of alcohol. See Armstrong v. Munford, Inc., 451 So.2d 480, 481 (Fla. 1984); Migliore v. Crown Liquors of Broward, Inc., 448 So.2d 978, 980 (Fla. 1984). The statute also dealt with the serving of alcohol by social hosts. In Bankston v. Brennan, 507 So.2d 1385, 1387 (Fla. 1987), the court held that the statute did not create a cause of action against a social host who served alcohol to a minor. Later, the court concluded that it also did not create a cause of action for a social host serving alcohol to a known ...


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