Phantom McDonald’s employee sets the standard of care
Here’s one for personal injury attorneys.
The good news is that you have a statement to the effect that a standard of care has been breached.
What’s even better is that the statement was made by an employee for the defendant at the time of your client’s accident.
The bad news is that you only have your client’s say so that that employee ever existed, let alone made the statement.
What are the odds that you could get the case resurrected after a federal judge tossed you out on your tuckus?
Attack of the McChicken
Today’s tale of agony-of-defeat turning to thrill-of-victory begins with a fried chicken sandwich.
The date: August 8, 2005
The time: 1:30 am
The place: The Daniel Boone Truck Stop, Duffield, Virginia
Frank Sutton with his family and a friend pulled into the truck stop to gas up and grab a bite to eat.
Great! There’s a McDonald’s! May not be the healthiest fare, but at 1:30 in the morning, who gives a flip?
And there’s the added comfort of always knowing what to expect from a McDonald’s, whether you’re in Duffield, Virginia, or North Pole, Alaska.
Sutton ordered a fried chicken sandwich, but he certainly didn’t get what he expected.
According to Sutton, when he bit into his fried chicken sandwich, instead of being treated to that oh-so-wonderfully-familiar McDonald’s fried-food taste, he was assaulted by a burst of hot grease.
Bill Giffon, Sutton’s friend, later testified that “grease flew all over his mouth.”
Thinking quickly, Sutton’s wife took ice from her drink and began to treat the burned areas, but the damage had been done. Blisters appeared almost immediately.
After tending to the burns, Sutton said that he approached McDonald’s employees to report what had happened, and this is where we come to the mysterious employee at the heart of Sutton’s personal injury case.
According to Sutton, when he reported his injuries, one of the female employees who had taken his order responded, “This is what happens to the sandwiches when they aren’t drained completely.”
Sutton sued McDonald’s for $2 million in federal court, claiming that the burns never healed completely. Sutton alleges that heat and sunlight still irritate his burns, hindering his ability to continue his occupation of refurbishing and assembling outdoor amusement rides.
McDonald’s itself temporarily avoided liability because of some murkiness in its relationship with Roth LLC – the restaurant chain’s franchisee at the Daniel Boone Truck Stop.
Things went from bad to worse for Sutton when he finally got his case against Roth to trial.
For reasons unknown, Sutton never identified the Roth employee who allegedly made the statement concerning the unsafe preparation of chicken sandwiches.
So Sutton could only testify as to what he heard the employee say.
Roth moved to exclude its employee’s statement that “This is what happens to the sandwiches when they aren’t drained completely,” arguing it was inadmissible hearsay.
District Judge Claude Hilton agreed to exclude that evidence on an alternative ground.
He concluded that the statement was inadmissible under Federal Rule of Evidence 801(d)(2)(C) because there was no evidence that Roth’s employee had authority to make binding admissions on Roth’s behalf.
That took the heart out of Sutton’s case and Judge Hilton wouldn’t even let it go to the jury.
At the close of Sutton’s case-in-chief, Judge Hilton granted judgment for Roth, concluding that Sutton failed to present any evidence of a standard of care for a products liability case under Virginia law.
For good measure, the judge found that Sutton was contributorily negligent by failing to “exercise reasonable care to see that [he wasn't] eating something too hot.”
4th Circuit to the rescue!
In a recent unpublished decision, the 4th Circuit breathed new life in Sutton’s quest for damages.
First, the court found that the disputed employee statement was admissible under Rule 801(d)(2)(D) because it constituted an admission by a party-opponent’s agent.
“Here, the record reveals that the declarant was wearing a McDonald’s uniform, helped fill Sutton’s order, and responded to questions about McDonald’s while working at a McDonald’s restaurant. We hold that this is sufficient evidence of agency for Rule 801(d)(2)(D),” the court said.
With the unknown employee’s statement back in the case, the court concluded that Sutton had presented sufficient evidence of a standard of care in the form of reasonable consumer expectation.
First, the court explained, the employee’s statement constituted evidence of “actual industry practice.”
Second, the court said that the reactions to Sutton’s injury by those who were with him at the time were evidence of what “reasonable purchasers” consider defective.
“Sutton’s wife removed ice from her soda, put it in a napkin, and tried to put it on Sutton’s chin. Giffon described the incident by saying ‘grease flew all over his mouth.’ Sutton threw the sandwich down. The consumers did not expect Sutton’s fried chicken sandwich to contain a hot pocket of grease, and Roth’s employee’s statement serves as strong corroboration for the reasonableness of this expectation,” the court said.
It concluded “[t]hese facts reveal ‘what society demand[s] or expect[s] from’ a fast-food, fried chicken sandwich. Under Virginia law, this constitutes evidence of a standard of care.”
The court proceeded to drag McDonald’s back into the fray, instructing on remand that Sutton be granted more of an opportunity to show that the corporation was liable under an agency theory. (Sutton v. Roth)
Spirited dissent
Circuit Judge Andre Davis nearly choked on a Chicken McNugget when his colleagues on the panel granted Sutton a new trial.
In a spirited dissent, Judge Davis bemoaned the fact that the “majority accepts Sutton’s meager proof, that the declarant ‘was wearing a McDonald’s uniform, helped fill Sutton’s order, and responded to questions about McDonald’s while working at a McDonald’s restaurant,’ as sufficient to satisfy the alleged statement’s admissibility under the rule.”
Judge Davis explained that Rule 801(d)(2)(D) “requires an affirmative showing of the declarant-employee’s area of authority. Here, the employee was unidentified. She could have been hired to clean the facility, work the cash register, take inventory, etc. Sutton presented no evidence regarding the identity of the worker who prepared the sandwich. Indeed, for all that appears, it is possible that the declarant was not even on duty that night.
“Thus, at best, it is unclear whether the unidentified employee had such duties as to empower her to speak about food preparation and to permit any such statement to be admitted against Roth under Rule 801(d)(2)(D).”
- Pat Murphy
