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Florida Third DCA rules that hotel guest who was not at hotel when tort was committed owed no duty of care to companion who remained at the hotel and was killed by third party

On February 19, 2020, in The Waves of Hialeah, Inc. v. Machado, et al., No. 3D18-300, the Florida Third DCA affirmed the trial court’s directed verdict excluding the defendant’s requested Fabre defendant in a premises liability wrongful death case. The plaintiff was the personal representative of the estate of a deceased hotel guest who was murdered by an individual who encountered her on the hotel property. The plaintiff alleged that the hotel provided negligent security because the hotel staff had previously been warned about the individual’s presence on the hotel property after he had harassed a maid. The defendant hotel sought to include as a Fabre defendant a person who had accompanied the decedent to the hotel and paid for their hotel room, on the theory that he undertook a duty to the plaintiff when he agreed to leave the hotel to retrieve her phone at a restaurant because he knew that she was impaired by drugs and alcohol. The defendant argued that the duty arose pursuant to the undertaker’s doctrine. See Restatement (Second) of Torts § 324 (1965); Estate of Massad ex rel. Wilson v. Granzow, 886 So. 2d 1050, 1053 (Fla. 4th DCA 2004); Union Park Memorial Chapel v. Hutt, 670 So.2d 64, 66-67 (Fla.1996). This doctrine imposes a duty on a person who gratuitously aids a helpless person and imposes liability if they fail to exercise reasonable care to secure their safety or if they discontinue the aid leaving the person in a worse position. The Fourth DCA rejected this theory, concluding that there was no “special relationship” between the decedent and her companion which created a duty in this case, citing Boynton v. Burglass, 590 So. 2d 446, 448 (Fla. 3d DCA 1991), as amended on denial of reh'g (Dec. 24, 1991).