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Fourth DCA rules that law firm that allegedly maintained open bar for employees was not liable under Reverse Dram Shop Act for employee's subsequent accidental death while intoxicated

On June 6, 2018, in Salerno v. Del Mar Financial Service, LLC; Gladstone Law Group, P.A. et al, No. 4D17-305, the Florida Fourth DCA affirmed a trial court’s dismissal of a wrongful death complaint against a South Florida foreclosure law firm which had been brought by the personal representative of the estate of a law firm employee who was struck and killed by a train walking home from work. The complaint alleged that the law firm had a bar on their premises and encouraged employees to drink alcoholic beverages during the workday 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 the day of the accident, the decedent had allegedly had so much to drink that she became intoxicated and agitated and had to be escorted from the building. She subsequently was struck by a train and died while walking along the railroad tracks. The Fourth DCA affirmed the dismissal of the complaint on the basis that Florida’s reverse dram shop act statute, Section 768.125, does not impose liability on social hosts who serve alcohol to known alcoholics, citing Dowell v. Gracewood Fruit Co., 559 So. 2d 217, 218 (Fla. 1990), and because the decedent was determined not to have been acting within the scope of her employment when she walked home from work. The Fourth DCA distinguished Bardy v. Walt Disney World Co., 643 So. 2d 46, 47 (Fla. 5th DCA 1994), in which the Fifth DCA reverses a summary judgment in favor of Disney regarding an employee’s injuries he suffered in a motor vehicle accident after attending an office party. The Fourth DCA noted that the Fifth DCA had found that Disney had a duty to its employee because a security guard had ordered the employee to leave the premises in a dangerous instrumentality (a motor vehicle) while he was intoxicated.