Danny
Jedi
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.
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.