       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

       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.

                              No. 4D17-305

                              [June 6, 2018]

  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

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      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 alcoholic.
See Dowell v. Gracewood Fruit Co., 559 So. 2d 217, 218 (Fla. 1990). As
the employers are neither vendors of alcohol nor could they be considered
social hosts under these circumstances, the statute has no application.

   The Estate contends that Carroll Air Systems, Inc. v. Greenbaum, 629
So. 2d 914 (Fla. 4th DCA 1993), is controlling. However, that case does
not apply to the factual allegations of this complaint. In Carroll, an
employer was held vicariously liable for the actions of its employee in
driving while intoxicated and causing a fatal accident. Id. at 915-16. The
employee had attended a business meeting where alcohol was served. Id.
at 915. The employee was found to be in the course and scope of his
employment when the accident happened. Id. at 916. Vicarious liability of
the employer arose because the employer had the ability to control the
employee, but it failed to exercise that control when it let the employee
drive while intoxicated. Id. at 917.

   Carroll is distinguishable, because the employee was acting within the
course and scope of his employment. Liability was fixed on the employer,

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not because the employer served alcohol and the employee was
intoxicated, but because the employer allowed the employee to drive in the
course and scope of his employment while intoxicated. Id. (“[T]he ‘fault’ of
the employer was not in the furnishing of the drinks but in its knowledge,
actual or constructive, that Mills was intoxicated and was not in a
condition to drive.”). Here, the deceased was not in the scope of her
employment when she was walking home along the railroad tracks.

   The Estate also argues that the employer had a “heightened duty of
care” to its employee, which it breached by serving her alcohol and then
ejecting her from the premises without supervision to go home. The
question is whether there is such a duty of supervision on an employer
where the injury to the employee occurs outside the scope of employment.

   Although we have found no Florida cases which are directly on point,
in Hernandez v. Tallahassee Medical Center, Inc., 896 So. 2d 839 (Fla. 1st
DCA 2005), the court addressed the issue of the duty of an employer to an
employee travelling to her place of employment. Hernandez, a surgical
nurse at the medical center, suffered from an epileptic-seizure disorder,
which was known to the hospital and which prevented her from driving to
work. Id. at 840. She would normally take a taxi and be reimbursed by
the hospital. Id. She also had to take her daughter to daycare before
reporting to work. Id. On the day of the accident, she reported that she
was sick with symptoms of her disorder. Id. at 840-41. However, the
hospital ordered her to report to work, although it knew that she likely
would have to drive herself that day, to take her child to daycare before
reporting. Id. at 841. She drove to work, but she suffered a seizure along
the way, resulting in an accident in which she suffered injuries. Id. She
sued the hospital, alleging negligence and basing her complaint on the
theory that the hospital’s conduct created a foreseeable zone of risk,
placing on the defendant the duty to protect against that risk. Id. Noting
that the foreseeability of the risk alone does not create a duty, the court
explained that a plaintiff must show that the “defendant’s conduct created
or controlled the risk.” Id. As there was a special relationship of employer
and employee, the court addressed the question of whether the hospital’s
conduct created the foreseeable zone of risk, thus giving rise to the duty
to protect against the harm.

   The court in Hernandez looked to Restatement (Second) of Torts § 314B
(1965), which provides:

      (1) If a servant, while acting within the scope of his
      employment, comes into a position of imminent danger of
      serious harm and this is known to the master or to a person

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      who has duties of management, the master is subject to
      liability for a failure by himself or by such person to exercise
      reasonable care to avert the threatened harm.

Id. at 843 (emphasis in original). Commenting on the rule, the court noted:

      It is important to observe that the duty the employer owes to
      the employee under sections 314B and 512 is conditioned
      upon the employee “acting within the scope of his
      employment.” As a consequence, if the employee’s actions
      cannot be said to be within the scope or course of his or her
      employment, no duty is placed on the employer to exercise
      reasonable care to avert the threatened harm. “Scope of
      employment” is defined as, among other things, “the field of
      action in which a servant is authorized to act out in the
      master-servant relationship.” BLACK’S LAW DICTIONARY
      1374 (8th ed. 2004). This is similar to the definition applied
      to “course of employment” in the law of workers’
      compensation: “[T]he time, place, and circumstances under
      which the accident occurs.” Strother v. Morrison Cafeteria,
      383 So. 2d 623, 624 (Fla. 1980). It follows that if an injury
      takes place while an employee is outside the scope of
      employment, the employer cannot be held responsible for
      same.

Id. Looking to worker’s compensation law, the court noted that travelling
to and from work was not considered to be in the course and scope of
employment:

      No doubt the general rule absolving the employer from
      responsibility for the injury of an employee not in the course
      of employment was based in large measure on the policy
      consideration of the attenuated degree of control over the
      employee’s actions, particularly while driving an employee-
      owned vehicle. If no liability for compensation is fastened upon
      an employer by the workers’ compensation system, a process
      based not on fault but on the connection between the injury and
      the employment, for an injury suffered by an employee while
      going to or coming from work, we similarly cannot conclude that
      the law of negligence, requiring the showing of a defendant’s
      fault, places liability on an employer for an injury sustained by
      its employee outside the scope of employment based only upon
      the employer’s knowledge of the threatened harm.


                                     5
Id. at 843-44 (emphasis added). As a result, Hernandez was not within
the scope of employment when she was travelling to work, and the hospital
owed no duty to Hernandez, even though it ordered her to report to work,
knowing that she had seizures and was not supposed to drive. Id. at 844.

    Hernandez involved travelling to work, but the same analysis would
apply to travelling from work, as in the case here. The accident occurred
while the deceased was walking down the railroad track on her way home.
It was outside the scope of her employment. While she became intoxicated
during her employment, drinking alcohol was not required in her position,
but simply an “enticement” to get her to work longer. She voluntarily
drank to the point of intoxication. Although she was ejected from the
premises by other employees when she became agitated, she was not in
imminent danger of serious harm until she began to walk home along the
railroad tracks, which was voluntary on her part. Just as in Hernandez,
the employers owed no duty because she was not in the scope of her
employment when the accident occurred.

   Only one court has found that an employer may be liable where an
employee is injured travelling away from work. In Bardy v. Walt Disney
World Co., 643 So. 2d 46, 47 (Fla. 5th DCA 1994), Bardy, a Disney
employee, became intoxicated while attending a staff party on the Disney
premises. He went to his car to lie down. Id. A security guard found him
and ordered him to leave the premises. Id. When Bardy told him that he
was intoxicated, the guard demanded that he drive away immediately or
be arrested. Id. Bardy drove off the premises and got into an accident
only 500 feet from the parking lot, causing himself injuries. Id. The Fifth
District reversed a summary final judgment in favor of Disney. It
concluded that Disney had a duty to its employee and relied on the fact
that the security guard ordered an intoxicated person to drive the vehicle,
finding an act of misfeasance, rather than nonfeasance:

      Disney is not free from all liability as a matter of law. Bardy
      was an employee of Disney, an invitee on Disney property for
      social purposes (at least until the invitation was revoked by
      the guard), and the alcohol he drank (thirty 16 oz. cups of
      beer) had been supplied by Disney. More important, it was an
      employee or agent of Disney who allegedly ejected him from the
      property, ordering him to move the motor vehicle. The driving
      of a motor vehicle by an intoxicated person is not only obviously
      perilous to the driver but to others as well, and is a violation of
      law.



                                      6
Id. at 48 (emphasis added). However, Bardy is clearly distinguishable from
the present case, where the intoxicated deceased was not ordered to leave
the work premises in a vehicle, a dangerous instrumentality.

   We agree with Hernandez and conclude that in Florida there is no
common law cause of action against the employers under the facts of this
case. The deceased was voluntarily intoxicated. The employers did not
require her to drink alcoholic beverages, and they did not place her in a
dangerous instrumentality. Walking down the railroad track was an act
of her own volition and remote from her employment. The accident was
tragic, but the employers had no legal duty to the employee under the
circumstances.

   Affirmed.

MAY and DAMOORGIAN, JJ., concur.

                           *        *        *

   Not final until disposition of timely filed motion for rehearing.




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