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No More Happy Meals – Court Finds Affirmative Duty For Franchise Restaurant To Protect Invitees From Third-Party Harm

September 2, 2022

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<p style="text-align: justify;">In a recent presidential opinion by the Pennsylvania Superior Court in<em> <a href="">Massaro v. McDonald's Corp.</a>,</em> 2022 Pa. Super. Lexis 320, 2022 WL 3036753 (Aug. 2, 2022), the court provided clarity on the affirmative duty of a property owner to protect a business invitee from intentional harmful acts of a third party.</p>
<p style="text-align: justify;">In <em>Massaro</em>, plaintiff, Thomas Massaro (“Plaintiff”) was assaulted by an allegedly mentally ill homeless man while tutoring a student at a busy McDonald’s in Philadelphia, Pennsylvania. The third-party assailant, Bryant Gordon (“Assailant”) began making virulent and hateful statements towards Plaintiff for nearly an hour, ultimately threatening to kill him when he left the property. Numerous McDonald’s employees observed the interaction and when asked to call 911, refused. When Plaintiff left McDonald’s in search of police aid and was followed by Assailant, Plaintiff had a heart attack and nearly died. It is alleged that Assailant had a history of provoking customers at the property which McDonald’s was likewise alleged to have full knowledge of.</p>
<p style="text-align: justify;">Naturally, Plaintiff filed a complaint in the Philadelphia Court of Common Pleas raising claims of negligence against McDonald’s for failing to take reasonable steps to protect him from the Assailant. The trial court granted McDonald’s preliminary objections finding that McDonald’s had no duty through a public policy analysis because Plaintiff was aware of the danger and voluntarily remained in the premise, assuming the risk of assault, and that it would have been unreasonable for McDonald’s to have intervened. Being that assumption of the risk can only be raised once duty is established, Plaintiff appealed this conflicting ruling to the Pennsylvania Superior Court, who ultimately reversed.</p>
<p style="text-align: justify;">Essentially, the Superior Court held that McDonald’s affirmative duty to protect a business invitee from intentional harmful acts of third parties was clearly established, at the pleadings stage. Thus, the issue was whether he had assumed the risk of harm by remaining in McDonald’s subjecting himself to the increased likelihood of harm. Considering it would have been more dangerous for Plaintiff to leave McDonald’s, he did not willfully remain on the property warranting assumption of the risk. Importantly, the court held that it is unnecessary to conduct a full-blown public policy duty assessment whenever a longstanding duty imposed arises in a novel factual scenario. Here, the Court largely determined that McDonald’s, at a bare minimum, possessed a duty to call the police after witnessing the interaction and constant requests from the plaintiff to call the police.</p>
<p style="text-align: justify;">Massaro acts as a reminder to business owners that minimal intervention is sufficient to satisfy their well-established affirmative duty to protect business invitees from third-party tortfeasors, irrespective of novel circumstances.</p>
Thanks to Kendal Hutchings for her contribution to this article.  Should you have questions, contact <a href="">Matthew Care</a>.

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