IN THE CIRCUIT COURT OF THE 15TH JUDICIAL CIRCUIT,

IN AND FOR PALM BEACH COUNTY, FLORIDA

CIRCUIT CIVIL DIVISION: AE

CASE NO.:
50-2017-CA-008121-XXXX-MB

JOHN ERIC ROMANO, PHILLIP COHEN

And NICHOLAS KORNILOFF, as Personal
Representatives of the ESTATE OF PERRY
J. COHEN,
Plaintiff/Petitioners
vs.
CARLSON BLACK,
RICHARD BRIAN BLACK, JR,
WILLIAM STEPHANOS,
et al.,
Defendant/Respondents.

_______________________________/

ORDER GRANTING SUMMARY JUDGMENT

This matter came before the Court on Defendant William “Blu” Stephanos’

Motion for Final Summary Judgment. A hearing was conducted on August 10, 2020. The

Court has reviewed the submissions of the parties, and has heard argument of counsel.

The Court has also reviewed the court file and the summary judgment evidence presented

by the parties. Upon consideration, the Court makes the findings that follow.

This case arises out of the tragic loss of two young men, Perry Cohen and Austin

Stephanos. On July 24, 2015, Perry and Austin left together on a fishing trip from

Austin’s home in Tequesta. Neither boy has been seen since. The evidence suggests that

Perry and Austin ventured out into the ocean through the Jupiter Inlet. A storm is

presumed to have placed the boys in peril and they were lost at sea.
 As so often comes from tragedy, this case is an effort to determine and attribute

fault for an indescribable and overwhelming loss.1 The Plaintiff, John Eric Ramono, as

the personal representative of the Estate of Perry J. Cohen, brought this action against

various members of Austin Stephanos’ family. One of the family members is Austin’s

father, Defendant William “Blu” Stephanos (“Defendant”).2

On July 24, 2015, the Defendant did not have custody or control over his son,

Austin. Austin was with his mother, Carly Black. The Defendant’s first involvement on

July 24 began with a phone call from Carly alerting him that she had not heard from

Austin and that she was becoming concerned. A decision was apparently made to wait an

additional 30 minutes before taking further action.

Still not hearing from Austin, Carly called the Defendant a second time. At this

point, the Defendant told Carly that he was going to search for the boys on his own boat.

It is this search for his son, and for Perry, which the Plaintiff asserts results in the

Defendant’s liability.

The Plaintiff concedes that the Defendant had no duty to act when Carly called. It

is undisputed that neither Austin nor Perry were in the Defendant’s custody or control on

that day. Therefore, the Defendant had no obligation to call 911 or to act, or react, to the

unfolding events. Nevertheless, not unexpectedly for a parent, the Defendant did act and

the Plaintiff maintains that the Defendant is now subject to liability under the so-called

“undertaker doctrine.”
1
It perhaps need not be said, but the indescribable and overwhelming loss brought on by
this tragedy has been suffered equally by all. The Stephonos and Black families grieve
the loss of Austin. The Cohen family grieves the loss of Perry. Nothing that comes out
of this case will change the pain suffered by these families.
2
The Second Amended Complaint also asserted claims against Carlson “Carly” Black,
Austin’s mother, Richard “Bubba” Black, Jr., Austin’s stepfather, and Richard Kuntz,
Austin’s grandfather.
2
 In Clay Electric Cooperative, Inc. v. Johnson, 873 So. 2d 1182 (Fla. 2003), the

Florida Supreme Court adopted the Restatement (Second) of Torts § 324A (1965) for

assessing liability to third parties under the undertaker doctrine. Section 324A provides:

One who undertakes, gratuitously or for consideration, to render services

to another which he should recognize as necessary for the protection of a
third person or his things, is subject to liability to the third person for
physical harm resulting from his failure to exercise reasonable care to
protect his undertaking, if

(a) his failure to exercise reasonable care increases the risk of such harm,
or

(b) he has undertaken to perform a duty owed by the other to the third
person, or

(c) the harm is suffered because of reliance of the other or the third person
upon the undertaking.

Restatement (Second) of Torts § 324A (1965). The Plaintiff maintains that liability is

created under subparagraphs (a) and (c).

At its core, the Plaintiff theory of liability is a lost time argument. Plaintiff asserts

that by undertaking his own search he delayed rescue efforts by the proper authorities,

law enforcement and the Coast Guard. Plaintiff posits that this lost time reduced the

probability of finding Austin and Perry in time to save their lives.3

The “undertaking” in this case was the Defendant’s search for Austin and Perry.

Analyzing liability under the undertaker doctrine is essentially a two-step process. First,

did the Defendant fail to take reasonable care in the performance of the search (i.e. the

3
While the Court is not reaching the causation argument raised in the summary judgment,
the Plaintiff’s theory of causation is tenuous. While the Plaintiff presents expert
testimony that time makes a difference in any rescue attempt, an admittedly self-evident
proposition, to say that a delay in involving the authorities in the search is causally
related to the deaths of Austin and Perry is speculative.
3
alleged undertaking). Second, did the Defendant’s failure to exercise reasonable care: a)

increase the risk of harm; or b) cause harm because someone relied upon the search.

To establish the first prong, the failure to use reasonable care, the Plaintiff

essentially relies on a single fact. Plaintiff does not assert that the physical search

conducted by the Defendant was unreasonable. Rather, Plaintiff asserts that the

Defendant’s search was unreasonable because he did not call the authorities.

Plaintiff concedes that the Defendant did not have a duty to call the authorities

when initially contacted by Carly. This is so because Austin and Perry were not in the

Defendant’s control. Nevertheless, the Plaintiff posits that the Defendant assumed a duty

to call the authorities because he decided to conduct his own search. Plaintiff’s position

ignores the undertaking, attempts to create a duty that did not exist and relies on circular

reasoning.

The Defendant’s duty is defined by the alleged undertaking (i.e. the service

rendered to another). The undertaking was to conduct the Defendant’s own search,

nothing more. Plaintiff seeks to expand the undertaking to include a duty the Defendant

never assumed, a duty to call the authorities. If such a duty did not exist before the

Defendant decided to search for his son (which Plaintiff admits), such a duty was not

created by the simple decision to go look for his son. See, e.g., L.A. Fitness International,

LLC v. Mayer, 980 So. 2d 550 (Fla. 4th DCA 2008)(fitness worker checking on patron

did not assume duty to perform CPR).

Moreover, the Defendant’s search did not increase the risk of harm to Austin and

Perry. The Court is cognizant of the Plaintiff’s argument that the search caused delay and

decreased the likelihood of rescue. However, the risk here was not the risk of a failed

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rescue. The risk here was that two teenage boys would venture into dangerous conditions

at sea and suffer a catastrophic boating accident. The Defendant’s search did not increase

this risk.

Finally, the Court will briefly address the Plaintiff’s assertion that the search

undertaken by the Defendant caused harm because Carly delayed calling the authorities

based on the Defendant’s search. Assuming the Defendant failed to exercise reasonable

care in the search, which the Court has concluded is not supported by the record

evidence, the Defendant would be liable if the harm was suffered because of the reliance

of a third party on the undertaking.4

Plaintiff relies on a single question posed to Carly during her deposition. Carly

was asked the question: “And because he (the Defendant) was going out in the boat, you

further delayed calling 911; right.” Her answer was yes. However, the Plaintiff ignores

the balance of Carly’s testimony.

Carly was asked whether if the Defendant was not in the picture she would have

called 911 no later than 3:00. Her response was she did not know that to be true. She

went on to testify that she had no idea when she would have called 991. Most

significantly, Carly was asked when before 4:00 p.m. it crossed her mind to call 911. Her

answer was that when she called Pamela (Perry’s mother) is when she started to get

worried. Moreover, the Defendant never told Carly to refrain from calling 911. He

simply said he was going out to search for their son. Reliance on the Defendant’s

undertaking cannot be established based on Carly’s testimony or based on any statements

made by the Defendant.

4
Because the Court has found that the first prong for liability under the undertaker
doctrine has not been satisfied, resolution of the Defendant’s motion does not necessarily
require consideration of Sections 324A(a) and (c).
5
 The Court is cognizant of the standard on summary judgment. However, the

record evidence considered in the light most favorable to the Plaintiff does not support a

claim against the Defendant. The Defendant went looking for his son and for his son’s

companion, Perry. This simple, and understandable act, does not give rise to liability

based on the undertaker doctrine.

Based on the foregoing, it is hereby,

ORDERED AND ADJUDGED that Defendant William “Blu” Stephanos’

Motion for Final Summary Judgment is GRANTED.

DONE AND ORDERED in Chambers, at West Palm Beach, Palm Beach County,

Florida this 10th day of September, 2020.

Copies Furnished to:

Name Address Email
515 N FLAGLER
DR STE 1600
WICKER SMITH
ADAM W. RHYS, [email protected],
OHARA MCCOY
ESQ [email protected]
WEST PALM
BEACH, FL
33401
2028 HARRISON
BRAD ST SUITE 202 [email protected], [email protected],
EDWARDS HOLLYWOOD, [email protected]
FL 33020
BRADLEY
n/a [email protected], [email protected]
EDWARDS, ESQ.
CHRIS MOORE 729 SW [email protected],
FEDERAL [email protected],
HIGHWAY [email protected],

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 Name Address Email
SUITE 222
STUART, FL [email protected]
34994
301 YAMATO
DANIEL J. RD SUITE 4150 [email protected],
SANTANIELLO BOCA RATON, [email protected]
FL 33431
222 LAKEVIEW
AVENUE STE
DAVID A. [email protected],
120 WEST PALM
KIRSCH [email protected]
BEACH, FL
33401
GEORGE
[email protected],
EDWARD n/a
[email protected]
HARRIS
GEORGE [email protected],
n/a
HARRIS, ESQ. [email protected]
P O BOX 395 [email protected],
GUY BENNETT
STUART, FL [email protected],
RUBIN
34995 [email protected]
JACLYN N.
n/a [email protected]
SWITALSKI
JACLYN NICOLE [email protected],
n/a
SWITALSKI ESQ. [email protected]
1600 W
COMMERCIAL
JOHN H. BOULEVARD
[email protected]
RICHARDS SUITE 201 FORT
LAUDERDALE,
FL 33309
1209 N OLIVE
[email protected],
MICHAEL J. AVE WEST
[email protected], [email protected],
PIKE PALM BEACH,
[email protected]
FL 33401
RODNEY G
n/a [email protected]
ROMANO
1919 N
FLAGLER
DRIVE 2ND
[email protected],
SHANA NOGUES FLOOR SUITE
[email protected]
4150 WEST
PALM BEACH,
FL 33407

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