Negligent Entrustment: Negligent Undertaking: Leaving Intoxicated Person’s Car Keys Where He Can Find Them

Cantalupo v. Lewis, ___ So. 3d ___, 35 Fla. L. Weekly D2365 (Fla. 4th DCA 10/27/10)

The defendant and his brother went to a restaurant for dinner.  The brother drank alcoholic beverage and became impaired.  The defendant asked his brother for the car keys and drove them to the defendant’s home.  The defendant left the keys in the kitchen and went into his home office in another part of the house.  After consuming additional alcoholic beverages, the brother came into the defendant’s office with his keys and said he was going home.  At the defendant’s suggestion, the brother agreed to spend the night at the defendant’s house and handed over his car keys.  The defendant later put the keys on his living room hutch, twenty feet from the couch on which his brother would be sleeping.  The defendant did not keep the keys because he did not want his brother to wake him up in the morning when he left for work.  The brother was lying on the couch with his eyes closed when the defendant went to bed.  Less than an hour later, the brother left the house in his car and was involved in a fatal car accident.   The defendant, as a matter of law, could not be held liable for negligent entrustment or negligent undertaking.  (1) The defendant did not entrust the keys or the car to his brother by placing the keys on the hutch.  The court distinguished a case that held the defendant constructively entrusted a gun to her housemate by placing the gun between her mattress and box spring and inviting the housemate to repair the bed frame.  The court held that the other case was unique because it involved a firearm.  (2) Although the brother had a duty not to drive under the influence of alcohol, “the defendant did not undertake to perform that duty. . . .  One cannot undertake to perform’ another’s duty of inaction.”  “The fact that the defendant undertook to prevent his brother from driving under the influence at various times did not impose upon the defendant a duty to prevent his brother from driving under the influence at all times.  To hold otherwise would discourage people from taking an impaired person’s keys in the first instance . . . .”  Liability could not be imposed on the ground that defendant increased the risk of harm because his brother drank more at the defendant’s home because “[o]ur supreme court has found that a person injured by an impaired person does not have a cause of action against a social host who served alcoholic beverages to the impaired person.”