ORDER
This matter comes before the Court pursuant to Defendant MillerCoors LLC’s Motion to Dismiss Plaintiffs Complaint (Doc. # 4), filed on July 5, 2011. Plaintiff Heather Lynn Cook filed a Response in Opposition to the Motion (Doc. #21) on August 11, 2011. MillerCoors filed a Reply (Doc. #26) on August 29, 2011, and Cook filed a Response to the Reply (Doc. # 29) on September 9, 2011. For the reasons that follow, the Court grants the Motion.
I. Background
This suit arises from a motorcycle accident that occurred on July 18, 2008, in Pinellas County, Florida. (Doc. #3 at ¶¶ 18-22). The operator of the motorcycle, John Prado, was killed instantly and Cook, who was a passenger, was injured. (Id.) Prior to the crash, Mr. Prado had consumed several “Sparks” alcoholic beverages containing caffeine and other stimulants. (Id.) The Sparks product was manufactured, marketed and sold by MillerCoors. (Id. at ¶ 5).
Cook filed suit in state court on June 6, 2011. In her Complaint, Cook argues that alcoholic beverages such as Sparks containing stimulants are “uniquely dangerous” because they appeal to younger drinkers and because the addition of caffeine enables one to drink more alcohol without feeling as intoxicated as one normally would. (Id. at ¶ 6). Despite this perception, however, the stimulants do not reduce alcohol’s negative effects on motor skills and visual reaction times. (Id. at ¶ 9). Thus, consumers of these beverages are more likely to “engage in dangerous behavior such as driving.” (Id. at ¶ 8). After consuming Sparks, Mr. Prado “neither felt nor subjectively appeared impaired” but toxicology reports from his autopsy revealed that his blood alcohol level was 0.10 at the time of the crash. (Id. at ¶¶ 19, 22).
Cook’s Complaint asserts three counts against MillerCoors. In Count I, Cook alleges that the combination of alcohol and stimulants created a latent inherent danger and MillerCoors failed to warn Mr. Prado of that inherent danger. (Id. at ¶¶ 24-25). In Count II, Cook alleges that the addition of stimulants to the alcoholic beverage constituted a design defect. (Id. at ¶ 30). In Count III, Cook alleges that MillerCoors negligently manufactured Sparks, knowing that it was unreasonably dangerous and that inexperienced drinkers would be more likely to drink to excess due to the addition of stimulants. (Id. at ¶ 35). Cook also asserts a claim of auto negligence against the Estate of Prado (Count IV).
MillerCoors removed this action to this Court on diversity grounds on July 5, 2011 (Doc. # 1)
MillerCoors further argues that the addition of stimulants “did not lessen Mr.
MillerCoors also argues that the Estate of Prado is not subject to suit. The Court will address this claim separately because joinder of the Estate, if proper, would defeat diversity in this action because Mr. Prado was a resident of Florida.
II. Legal Standard
On a motion to dismiss, this Court accepts as true all the allegations in the complaint and construes them in the light most favorable to the plaintiff. Jackson v. BellSouth Telecomms.,
However, the Supreme Court explains that:
While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiffs obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level.
Bell Atl. Corp. v. Twombly,
The Court notes that the Motion to Dismiss has not been converted into a motion for summary judgment because the Court has not considered matters outside the pleadings.
As a preliminary matter, this Court must address the viability of Cook’s claim against the Estate of Prado. A finding by this Court that Cook has stated a valid claim against the Estate would require remand since the Estate’s presence in this matter would destroy diversity.
Under 28 U.S.C. § 1441, a defendant may remove an action brought in state court to federal court if “the district courts of the United States have original jurisdiction.” 28 U.S.C. § 1441(a). Original jurisdiction is established where there is complete diversity of citizenship among the parties and the amount in controversy exceeds $75,000. 28 U.S.C. § 1332(a)(1). “A defendant’s ‘right to removal cannot be defeated by a fraudulent joinder of a residential defendant having no real connection to the controversy.’ ” Allen v. Monsanto Co., No. 3:08-cv-320/MCR,
“A defendant alleging fraudulent joinder has the burden of proving the alleged fraud.” Accordino v. Wal-Mart Stores E., LP, No. 3:05-cv-761-J-32MCR,
In its Motion, MillerCoors asserts that the Estate of Prado is not subject to suit because (1) Cook has already dismissed identical claims against the Estate with prejudice and (2) Florida law bars claims against an estate made more than two years after the decedent’s death. (Doc. #4 at 1). Cook does not address these arguments in her response to the Motion, nor has she filed a motion for remand.
Cook filed a separate lawsuit in state court against the Personal Representative of the Estate of John F. Prado on April 1, 2009, and filed a notice of voluntary dismissal with prejudice in that matter on October 5, 2010. (Doc. # 1 at 31-33, 35). The Court finds that Plaintiffs claims against the Estate in this action are in essence identical to the claims asserted against the Estate’s Personal Representative in the prior matter and therefore barred by res judicata.
Furthermore, the instant action was filed against the estate more than two years after Mr. Prado’s death on July 18, 2008. Under Florida law, “2 years after the death of a person, neither the decedent’s estate, the personal representative, if any, nor the beneficiaries shall be liable for any claim or cause of action against the decedent ... except as provided in this section.” Fla. Stat. § 733.710(1). The statute provides an exception for creditors who have properly filed a claim against the
Finally, a review of the file indicates that Cook has not properly served the Estate. For the foregoing reasons, the Court finds that the Estate was fraudulently joined and grants MillerCoors’s Motion with regard to Count IV of the Complaint. Having established jurisdiction, the Court will address the remainder of the Motion.
IV. Analysis
The crux of MillerCoors’s argument is that there is no cause of action against a manufacturer of alcoholic beverages for injuries resulting from their consumption because the effects of alcohol consumption are well known. (Doc. #4 at 2). Cook counters, in essence, that these holdings apply to “conventional” alcoholic beverages, not to an alcoholic beverage mixed with stimulants designed to suppress the consumer’s awareness of alcohol’s well-known effects. (Doc. #21 at 2). The Court will address the parties’ arguments in detail with regard to each count in the Complaint.
A. Failure to Warn
In Count I, Cook alleges that the combination of alcohol and stimulants in Sparks created a latent inherent danger in the product. Because of that danger, MillerCoors had a duty to warn consumers but failed to warn Mr. Prado. As a result, Mr. Prado became intoxicated to the point of . impairment, causing the motorcycle crash. (Doc. # 3 at ¶¶ 24-26).
In order to prevail on a failure-to-warn claim, a plaintiff must establish the existence of a duty. A manufacturer’s duty to warn arises when there is a need to inform consumers of dangers of which they are unaware. Robinson v. Anheuser Busch, Inc., No. Civ.A.-00-D-300-N,
Generally, however, a manufacturer does -not have a duty to warn consumers of dangers which are obvious or commonly known.... Because the dangers associated with alcohol consumption are very well known, courts have usually found that alcohol manufacturers and retailers do not have a duty to warn consumers about the risks posed by the excessive use, or prolonged use of alcohol because those risks are common knowledge.
Id.; see also Bruner v. Anheuser-Busch, Inc.,
Cook argues that these holdings do not apply because “Sparks misleads drinkers into believing they are ‘less intoxicated than they really are.’ ” (Doc. # 21 at 9). She further explains that she does not allege a common law duty to warn regarding the well-known effects of alcohol, but rather that “Sparks masks the otherwise ‘well recognized’ effects of alcohol and so eneourage[s] excessive drinking.” (Id.)
Nonetheless, Cook does not allege that Mr. Prado was unaware that he was drinking alcohol. Therefore, the Court must assume that he did so with knowledge of its potential effects. Mr. Prado’s subjective awareness of those effects does not alter the legal reasoning of precedent within the Eleventh Circuit: There is no duty to warn because of the “universal recognition of all potential dangers associated with alcohol.” Victory over Addiction Int’l, Inc. v. Am. Brands, Inc., No. 97-14489-Civ-Ryskamp, 1998 U.S. Dist. Lexis
Courts in other circuits have declined to impose a duty to warn on manufacturers of alcoholic beverages based upon a plaintiffs perception or understanding of the risks involved with a particular product. See, e.g., Malek v. Miller Brewing Co., 749 S.W.2d 521 (Tex.App.1988) (finding no duty to warn despite claim that advertising led plaintiff to believe that “Lite” beer was less intoxicating than other beer); Pemberton v. Am. Distilled Spirits Co.,
Cook discusses at some length the concerns of state attorneys general and experts regarding the marketing and use of alcoholic energy drinks by young people. (Doc. # 3 at ¶¶ 10-11, 16). She contrasts these concerns with MillerCoors’s packaging and aggressive promotion of Sparks. (Id. at ¶¶ 13-15). She states that “[n]o case has been cited or found that immunizes a company from liability when it goes to such lengths to market a dangerous intoxicant to young consumers.” (Doc. # 21 at 9). However, Cook cites no case imposing such liability.
While it may be tempting to translate these allegations into a duty to warn, courts must be careful to distinguish between moral and legal duties. See Malek,
MillerCoors argues that Cook’s state-law failure-to-warn claim is preempted by federal statutes specifying the warnings required on all containers of alcoholic beverages. (Doc. # 4 at 15-16). The Alcoholic Beverage Labeling Act provides that “[n]o statement relating to alcoholic beverages and health, other than the statement required by section 215 of this title, shall be required under State law to be placed on any container of an alcoholic beverage or on any box, carton, or other package ____” 27 U.S.C. § 217. Cook counters that this regulation applies only to containers and that her Complaint “alleges that MillerCoors misled consumers about the risks of Sparks through its mass advertising campaign.” (Doc. # 21 at 15).
Cook makes a well-reasoned argument against preemption. Nonetheless, courts have declined to extend the duty to warn to the marketing of alcoholic beverages.
Based upon the foregoing analysis, the Court finds that Cook has failed to allege facts sufficient to establish a duty to warn.
B. Design Defect
In Count II, Cook further alleges that the addition of stimulants to an alcoholic beverage constituted a design defect. (Doc. # 3 at ¶ 30). Failure to correct the design defect rendered Sparks not reasonably safe and contributed substantially to Mr. Prado’s crash. (Id. at ¶ 33). MillerCoors asserts that Cook’s design defect claim must fail because Sparks is not unreasonably dangerous. (Doc. #4 at 5).
To sustain a defective product claim, a plaintiff must show “(1) that a defect was present in the product; (2) that it existed at the time the manufacturer parted possession with the product; and (3) that it caused the injuries of which the Plaintiff complains.” Barrow v. Bristol-Myers Squibb, No. 96-689-CIV-ORL-19B,
Cook appears to assert a theory of strict liability. “It is unnecessary in a strict liability action to show that the manufacturer has been negligent in any way.” Jennings v. BIC Corp.,
Cook again distinguishes Sparks from “conventional” alcoholic beverages because of the addition of stimulants. She alleges in her Complaint that “[t]he United States Food and Drug Administration does not recognize any of the stimulants and other non-traditional ingredients [in Sparks] as Generally Recognized as Safe (GRAS) for use in alcoholic beverages.” (Doc. # 3 at ¶ 7). The Court accepts this allegation as true and construes it in the light most favorable to Cook. However, Cook does not establish a correlation between the lack of FDA recognition of the additives and the safety of the product. “In evaluating the sufficiency of a plaintiffs pleadings, we make reasonable inferences in plaintiffs favor but we are not required to draw plaintiffs inference.” Sinaltrainal v. Coca-Cola Co.,
More significantly, the “direct and proximate result” of the alleged design defect involves the effects of alcohol — that Mr. Prado “became intoxicated to the point that his normal faculties were impaired.” (Doc. # 3 at ¶ 31). Those effects are well known, irrespective of Mr. Prado’s subjective awareness of them. “The defectiveness of a design is determined based on an objective standard, not from the viewpoint of any specific user.” Jennings,
The Court therefore finds that Cook has failed to allege facts sufficient to show that Sparks is unreasonably dangerous, and grants the Motion with regard to Count II of the Complaint. Count II is dismissed without prejudice with leave to amend.
C. Negligence
In Count III, Cook alleges that MillerCoors negligently manufactured Sparks, knowing that it was unreasonably dangerous and that consumers, particularly young people and inexperienced drinkers, would be more likely to drink to excess due to the addition of stimulants. (Doc. # 3 at ¶ 35). To prove any products liability claim sounding in negligence, including negligent design or manufacture, a plaintiff must show “(1) that the defendant owed a duty of care toward the plaintiff, (2) that the defendant breached that duty, (3) that the breach was the proximate cause of the plaintiffs injury, and (4) that the product was defective or unreasonably dangerous.” Cooper v. Old Williamsburg Candle Corp.,
MillerCoors argues that it had no legal duty to protect Cook from the harm caused by Mr. Prado’s operation of his motorcycle while intoxicated. (Doc. # 4 at 5). MillerCoors further argues that Mr. Prado’s choice to consume alcohol and operate his motorcycle was the proximate cause of the crash and Cook’s injuries. (Id.)
1. Duty
To sustain her negligence claim, Cook must show that MillerCoors owed a duty to prevent the harm caused to her by Mr. Prado. “The common law has long established that a commercial maker of alcoholic beverages owes no duty of care as regards the intended and well recognized properties of their products.” Victory over Addiction Int'l,
Furthermore, “[a]s a general principle, a party has no legal duty to control the conduct of a third person to prevent that person from causing harm to another.” Aguila v. Hilton, Inc.,
Instead, Cook argues that the “special relationship” requirement was rejected by the Florida Supreme Court in United States v. Stevens,
The Court finds these holdings inapplicable to the present case. Stevens involved the duty of a government lab to prevent bioterrorism by protecting biohazards under its control — particularly in light of its history of missing lab specimens. McCain involved the duty of Florida Power Corp. to accurately mark the location of underground power lines. Key to the analysis in both cases was the defendant’s exclusive knowledge of the risk and the inability of potential victims to protect themselves. In contrast, Florida courts have declined to impose a duty on manufacturers of alcoholic beverages because the risks associated with alcohol are well
2. Proximate Cause
Cook alleges that, because of MillerCoors’s negligence, Mr. Prado became intoxicated to the point of impairment, causing the crash and Cook’s injuries. “In Florida, however, voluntary drinking of alcohol is the proximate cause of an injury, rather than the manufacture or sale of those intoxicating beverages to that person.” Bruner,
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 use of any or all alcoholic beverages may become liable for injury or damage caused by or resulting from the intoxi- . cation of such minor or person.
Fla. Stat. § 768.125. Cook has not alleged that either of the exceptions applies in this case.
Cook argues that the common law rule was overturned by Ellis v. N.G.N. of Tampa, Inc.,
Cook argues that “[n]othing in Florida law prohibits a finding of proximate cause when, as here, a manufacturer has intentionally developed an alcoholic drink to reduce a consumer’s ‘ability to make responsible decisions in the consumption of alcohol.’ ” (Doc. # 21 at 12). However, the Ellis court held that Fla. Stat. § 768.125 limits liability for the sale of alcoholic beverages with express exceptions for two specific classes of persons— minors and alcoholics.
Generally, proximate cause is a question of fact. However, the question of proximate cause does not always require interpretation by a jury. Tatom v. Seaboard Air Line R. Co.,
Based upon the foregoing analysis, the Court finds that Cook cannot sustain a negligence cause of action in this case. The Court therefore grants the Motion as to Count III of the Complaint. Count III is dismissed with prejudice.
ORDERED, ADJUDGED, and DECREED:
(1) Defendant MillerCoors LLC’s Motion to Dismiss Plaintiffs Complaint (Doc. # 4) is GRANTED.
(2) Counts I and II of Cook’s Complaint are dismissed without prejudice. Cook may file an amended Complaint with regard to those claims within fourteen days of the date of this Order. Counts III and IV are dismissed with prejudice.
Notes
. MillerCoors alleged that the Estate of Prado was fraudulently joined.
. When a document outside the pleadings is considered, Federal Rule of Civil Procedure 12(c) requires that "the motion be treated as a motion for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all materials made pertinent by such a motion.”
. Cook argues that "other courts have considered similar filings when ruling on motions to dismiss.” (Doc. # 29 at 4-5). For support, she cites Condit v. Dunne,
. Although the documents related to the prior state court action are attached to the Notice of Removal, which is not a pleading, the Court may take judicial notice of these official public records without converting the motion to dismiss into one for summary judgment. Davis v. Williams Commc'ns, Inc.,
. The Court did not consider the new allegations in Cook’s Response to the Motion that Sparks was unlawfully marketed "without approval from the FDA.” (Doc. #26 at 16).