VINCENT CHARLES SALERNO, in his individual capacity, and as Personal Representative of THE ESTATE OF SUSAN M. SALERNO, Appellant,
DEL MAR FINANCIAL SERVICE, LLC; GLADSTONE LAW GROUP, P.A., and SOUTH REGIONAL TRANSPORTATION AUTHORITY, Appellees.
final until disposition of timely filed motion for rehearing.
from the Circuit Court for the Fifteenth Judicial Circuit,
Palm Beach County; Donald W. Hafele, Judge; L.T. Case No.
Richard R. Widell, Winchester, VA, for appellant.
Klein of Conroy Simberg, Hollywood, for appellees Del Mar
Financial Service, LLC and Gladstone Law Group.
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.
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.
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.
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.
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.
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
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 ...