High Court rules McDonald's not liable in man's beating

[Danny]

This is something local I have been keeping my eye on.

http://www.concordmonitor.com/apps/pbcs.dll/article?AID=/20060722/REPOSITORY/607220315


A Hill man badly beaten in 2003 while cleaning the Fisherville Road McDonald's during a midnight shift cannot sue the fast food giant for his life-altering injuries because another company ran the restaurant, the state Supreme Court ruled yesterday.

It doesn't matter that McDonald's oversaw some parts of the Fisherville Road operation - food safety, shift management and the "wholesome" appearance -McDonald's was not responsible for the eatery's security, the justices said in their unanimous decision.

That responsibility fell to the Colley/McCoy Management Co., which runs the Fisherville Road restaurant. But state law prohibits Dana VanDeMark, 51, from suing Colley/McCoy, his direct employer, because he receives worker's compensation for his injuries. Once a week, VanDeMark receives a check for $280, which is 60 percent of what he was earning as McDonald's overnight custodian.

VanDeMark, who spent a week in the hospital after the attack and has found recovery difficult, could not be reached yesterday. His lawyer, Benjamin King of Concord, was disappointed with the court's decision. He had hoped the justices would follow a Rhode Island court that held McDonald's liable after a door shattered and hurt someone inside one of its restaurants. That site also was operated by another company.

"That court said, 'It's all or nothing, McDonald's,'" King said. "'You either control the franchisee or you don't control the franchisee.' The (New Hampshire) court could have easily decided this in our favor . . . but it (didn't) in order to insulate McDonald's from liability."



VanDeMark was attacked around 3 a.m. on Feb. 6, 2003, after he stepped outside McDonald's for a cigarette break. The outside lights meant to illuminate the parking lot were not on, according to VandeMark.
Two men approached him and ordered him back into the building. Inside, one man hit VanDeMark with a bat twice on the leg, knocking him to the ground. The men dragged VanDeMark to the back to the restaurant and tied him up with an electrical cord. While one sat on VanDeMark's back, the other ransacked the restaurant. They wanted to know the combination to the restaurant's safe.

When VanDeMark told them he didn't know it, they beat him until he lost consciousness. He awoke face-down on the restaurant floor, but he remained motionless until his attackers left. Once they were gone, VanDeMark untied himself and pressed the restaurant's panic button, which was supposed to call the Concord police. He then lost consciousness again.

VanDeMark alleges the panic alarm was broken and didn't alert the police. A co-worker found VanDeMark at 4:45 a.m., when the restaurant opened.

Two men later pleaded guilty to the attack. Travis Turcotte, 26, of Concord and Mitchell Edward, 23, of Franklin, and are serving lengthy prison sentences. VanDeMark has been recovering slowly.

In an interview with the Monitor a year after the attack, VanDeMark said he often saw double and found his eyes were sensitive to the light. During surgery, doctors put Titanium plates in his skull to hold it together. A "dimple" remained in his forehead. He found himself thinking more slowly and forgetting things. He got dizzy when he stood. "I can't do what I used to do anymore," he said. "I feel like I've been repowered. . . . I'm just on low voltage."

With the help of his attorneys, King and Chuck Douglas, VanDeMark sued McDonald's for unspecified damages. Douglas and King hoped by arguing that neither the parking lots lights or panic alarm were working, they could win VanDeMark enough to cover medical expenses, lost wages and his pain and suffering.

Before the lawsuit could reach a jury, though, Judge Kathleen McGuire found in favor of McDonald's. She said Colley/McCoy ran the Fisherville Road McDonald's as an independent contractor, meaning McDonald's was not liable for negligence on the premises.

VanDeMark appealed to the state Supreme Court. In their ruling issued yesterday, the justices agreed with McGuire's interpretation of the business agreement McDonald's had with Colley/McCoy.

But that's not to say Colley/McCoy worked wholly independently of the fast food giant.

McDonald's had the right to terminate the franchise agreement if it found that Colley/McCoy failed to "maintain and operate the restaurant in a good, clean, wholesome manner and in compliance with the standards prescribed by the McDonald's System," according to court records.

McDonald's also hired field consultants to monitor its restaurants and in 2001 began sending one to the Fisherville Road site. In 2002, eight months before VanDeMark was attacked, the consultant found problems with the way Colley/McCoy handled shift management, food safety and production, as well as safety and security.

The consultant asked Colley/McCoy to fix the first three deficiencies but not those concerning safety, according to court records.

McGuire and the justices concluded that because McDonald's did not make an effort to take on the safety and security of the Fisherville Road location it had not assumed responsibility for those measures, and therefore could not be held liable.

They pointed to another court case from Illinois in which McDonald's had been held liable after employees were injured during a robbery of a site also run by an independent contractor. But in that case, McDonald's had used its own staff to work as security supervisor and operations manager. The onsite management company did not have staff of its own to fill those positions.

King said yesterday he believes McDonald's purposely avoids taking on the responsibility of security at its franchises to avoid liability if something goes wrong.

John Kissinger of Manchester, McDonald's lawyer, asked a spokeswoman for McDonald's to answer a reporter's questions. Tara McLaren issued a written statement by email yesterday.

"The safety and security of our customers and employees in our restaurants is very important to us," she wrote. "We make every effort to work with our franchisees to ensure a safe experience and will continue to do so."

She did not respond to additional questions, namely whether the panic alarm had been repaired and what measures, if any, McDonald's had taken to make the Fisherville Road restaurant safer.

------ End of article

By ANNMARIE TIMMINS

Monitor staff



This isn't your "run of the mill" hot coffee on the lap suits.
What are your opinions?
I think it's good old passing the buck.And meanwhile he gets swallowed whole.

 

[Rhansen]

It seems to me that the legal system is more interested in protecting corporations from liability than in serving justice, though I am still a little salty over my recent lawsuit (stemming from an auto accident).

state law prohibits Dana VanDeMark, 51, from suing Colley/McCoy, his direct employer, because he receives worker's compensation for his injuries

I find that part particularly disturbing. Is he supposed to decline work comp so that he can be compensated for his injuries?

 

[Ruth]

It seems to me that the legal system is more interested in protecting corporations from liability than in serving justice, though I am still a little salty over my recent lawsuit (stemming from an auto accident).

state law prohibits Dana VanDeMark, 51, from suing Colley/McCoy, his direct employer, because he receives worker's compensation for his injuries

I find that part particularly disturbing. Is he supposed to decline work comp so that he can be compensated for his injuries?

The law is essentially made to protect psychopaths. It is designed by psychopaths to protect individual psychopathic interests as well as well as psychopathic group entitities. Good examples of which are corporations and governments. This kind of reminds me of how distorted 'By the people, For the people...' has become. God, what a joke!

 

[Azur]

As much as I don't like corporations, I fail to see how this event is the corporation's responsibility. I'm sorry for the gentleman's unfortunate incident, but what if he had been struck be a meteor in the parking lot? Is it really any different? Stung by a bee, while allergic? Bitten by a rabid dog? The possibilities go on. Who is he supposed to sue? The Universe?

This mindset of "it's everybody else's responsibility other than mine" is a major problem with people today. It's why governments have so much power. People have and willfully choose to, give their power away, through lack of personal responsibility.

Cheers.

 

[Ruth]

This mindset of "it's everybody else's responsibility other than mine" is a major problem with people today. It's why governments have so much power. People have and willfully choose to, give their power away, through lack of personal responsibility.

Sometimes these responsibilities actually do exist. Its called 'duty of care'.

We have certain expectations of our employers, governments, schools, families, law enforcers, health care professionals etc, etc, to name a few... and when these people fail to protect the people in their care or over whom they have power, either by a deliberate act or an ommission, they have breached 'duty of care'. They may have been negligent in their responsibilities to the community. Its supposed to be a two way street out there. Even in the 'old days' slave owners (in some instances) had certain legal responsibility to and for their slaves.

I think, in this case, the injured man failed because he sued his employer, rather than the employer's contractor who was presumably in charge of security. It is an example of the difference between moral responsibility (which any psychopath will not see a requirement for) and legal responsibility (which takes more creativity to avoid and also, you run the risk of being 'sprung').

MacDonalds has a moral and a legal responsibility to their employees and customers. Unfortunately to get a psychopath to 'do the right thing', the moral responsibility must have a cost to it (i.e. not doing 'the right thing' has to hurt them more than 'doing the right thing'). Conscience with a price tag? In order to 'pay out' MacDonalds has to perceive that not taking moral responsibility is more financially damaging to them globally and in the long term, than being legally exonerated (is this game theory?).

 

[Azur]

Sometimes these responsibilities actually do exist. Its called 'duty of care'.

I agree sometimes those responsibilities do exist. As when they are expressly part of the package offered in the service, such as day care, or hospitals. (There are more). But then these organizations are contracted for the specific service of "care".

We have certain expectations of our employers, governments, schools, families, law enforcers, health care professionals etc, etc, to name a few... and when these people fail to protect the people in their care or over whom they have power, either by a deliberate act or an ommission, they have breached 'duty of care'.

And these expectations are what I am talking about. Most expectations such as you mention, are completely misplaced. People's expectations are the end result of pervasive programming and apprarent when you see the behaviour for what it is. The only people responsible in this case are the ones that acted.

If I get mugged in a parking lot, the business that owns the parking lot is responsible for my welfare? If I had been 5 meters over the parking lot line, on city property, it becomes the city's responsibility to "take care" of me? Is this limited to events involving other human beings, or my stupidity in failing to notice where I was walking when I plunged down a pot hole, or being hit in the head by a golf ball sized piece of hail? Or being startled by a sign that flashed at me, and caused a less than good reaction? Poor little me, my environment attacked me, someone should have done something about that!

I get a kick out of those people that sue a business when they slip on ice on their front stairs. If those same people would have slipped on ice in a wooded park, should they sue the city/government/title holder for not salting the entire forest because there is ice in the winter?

Where does it end?

Ludicrous.

(Now to be fair, being hoodwinked by criminals is harder to spot than an icy sidewalk, to be sure).

They may have been negligent in their responsibilities to the community. Its supposed to be a two way street out there. Even in the 'old days' slave owners (in some instances) had certain legal responsibility to and for their slaves.

Lovely. Slave owners were under restriction to "take care" of their slaves. Says a lot about the law (of the day, minute, second) versus ethical behaviour. I bet those slaves felt relatively better for it. Should I draw out the larger picture here and why your statement embodies the perceptual problem to a "T"?

I think, in this case, the injured man failed because he sued his employer, rather than the employer's contractor who was presumably in charge of security. It is an example of the difference between moral responsibility (which any psychopath will not see a requirement for) and legal responsibility (which takes more creativity to avoid and also, you run the risk of being 'sprung').

The injured man failed? Failed at succeeding to blame someone else, other than the criminals, for being attacked? Failed to extract a pound of flesh from someone other than the responsible parties of the aggression, for a perceived lack of perceived security?

MacDonalds has a moral and a legal responsibility to their employees and customers. Unfortunately to get a psychopath to 'do the right thing', the moral responsibility must have a cost to it (i.e. not doing 'the right thing' has to hurt them more than 'doing the right thing'). Conscience with a price tag? In order to 'pay out' MacDonalds has to perceive that not taking moral responsibility is more financially damaging to them globally and in the long term, than being legally exonerated (is this game theory?).

You seem to have linked the notion that MacDonald's is a psychopathic organization BECAUSE they did not recompense this individual because of his misadventure with miscreants that are not under the perview or control of MacDonald's. Whether MacDonald's is a psychopathic organization or not, matters not in this case. That they were the title holders of the land upon which the incident occured matters not (it could have been Jimmy's Furniture Emporium, or even some desolate forest somewhere). What's important is the perception that "acts of the Universe" should not happen to people, that they are things that can be controlled, and that if an event should happen that is less than "optimal" to the wishes of the person, that the so called authorities/PTB/corporations/anybody but me should have foreseen and countered the probability that something that I didn't want to happen, happened.

How's that for denying and shutting out reality?

Since someone else should be taking care of my actual living experience, should I not be responsible to turn over any beneficial accruments of said living to the people that made my living experience what it should be? Are they entitled to receive something by the virute of what they are legally supposed to provide? This "two way street" is in a section of town I'd rather avoid, thanks very much.


Am I being too subtle for you here?

 

[Rhansen]

As much as I don't like corporations, I fail to see how this event is the corporation's responsibility.

You bring up a good point. But this is a workplace accident, slightly different than your frivolous lawsuit insinuation. Being a work comp claim, it should fall to his employers insurance provider. Since the insurance company only pays 60% of his former wage and didn't cover all expenses...

VanDeMark receives a check for $280, which is 60 percent of what he was earning

Douglas and King hoped by arguing that neither the parking lots lights or panic alarm were working, they could win VanDeMark enough to cover medical expenses, lost wages and his pain and suffering.

...he is right to seek compensation. Apparently the attorneys thought (mistakenly perhaps) that McDonalds was the right defendant.

just my two cents

 

[Azur]

You make some good points here.

The sticky wicket here, though, is whether being mugged is considered "a workplace accident". It wasn't an accident, really, it was an act carried out by individuals. Nobody (that I've heard of anyway) "accidentally" mugs someone.

If an employee is operating a machine, let's say, and he is under full confidence that the machine has been properly serviced and maintained (the corporation's responsibility) and subsequently gets hurt because the machine wasn't in proper working condition, then I can see the direct liability and negligence being the corporation's.

I was mostly concerned with an attitude I see frequently that people expect someone else to take care of them. This is a rabbit hole that goes deep, including not finding things out for yourself, or expecting others to have your welfare in mind at all times. This is very thing that is exploited by people who have "taken" over most of our institutions.

Cheers.