Summary
granting summary judgment based on lack of control by McDonald's
Summary of this case from Wilkerson v. McDonald's Corp.Opinion
Civil Action No. 98-40240-NMG
November 29, 2001
REPORT AND RECOMMENDATION
Nature of the proceeding
By Orders of Reference dated June 4 and October 16, 2001, Defendant, McDonald's Corporation's Motion For Summary Judgment (Docket No. 57), Defendant Gladen Corp.'s Motion For Summary Judgment (Docket No. 59), and Defendant, Nelson Amirault's Motion For Summary Judgment (Docket No. 95) have been referred to me for Findings and Recommendations pursuant to 28 U.S.C. § 636 (b)(1)(B).
Nelamir corporation is the franchisee which owns and operates the McDonald's Restaurant in question. Ms. McLaughlin originally named Nelson Amirault as a Defendant in his capacity as the owner/operator of the McDonald's Restaurant. However, on July 12, 2001, I allowed Ms. McLaughlin's assented to motion to substitute Nelamir corporation for Defendant Nelson Amirault and ordered that the amended complaint reflecting this change be docketed. See Docket No. 63. Therefore, for purposes of this Report and Recommendation, I will treat Nelson Amirault's motion for summary judgment as having been filed by Nelamir corporation.
Nature of the Case
Shannon McLaughlin ("Plaintiff" or "Ms. McLaughlin") has brought a negligence suit against McDonald's Corp ("McDonald's Corp."), Nelamir Corporation ("Nelamir") and Gladen Corp., Trustee of Sturbridge Realty Trust d/b/a Sturbridge Host Hotel ("Sturbridge Host") for injuries sustained when she was abducted and/or raped on property owned by them. McDonald's Corp. and Nelamir are named in Count I and Sturbridge Host is named in Count II of the Amended Complaint (Docket No. 82)
Facts Facts Relating to Ms. McLaughlin's Assault
1. On June 16, 1997, just before Midnight, Ms. McLaughlin drove to the McDonald's Restaurant at 364 Main Street, Sturbridge, Massachusetts ("McDonald's Restaurant") to pick up her boy friend, Kurt Boehm, who worked there. Affidavit of Amy J. Delisa and Attached Exhibits (Docket No. 62) ("Gladen Exs."), Ex. 1 (Excerpts of Deposition of Shannon McLaughlin) ("McLaughlin Dep."), at pp. 47, 49; Amended complaint, at ¶ 2.
In July 1997, the property occupied by the McDonald's Restaurant included a parking lot containing approximately fifty spaces, a dumpster, and the restaurant building (including the drive thru). The McDonald's Restaurant was surrounded by trees and shrubbery on its West and North boundaries. The North boundary abutted an unpaved, dirt parking lot and the East boundary abutted a partially unpaved parking lot. The South boundary abutted Main Street a four lane highway, which is also referred to as Route 20. Pl's Materials In Support of Her Local Rule 56.1 Concise Statement of Disputed and Additional Material Facts (Docket No. 68) ("Pl's Exs."), Ex. I (Aerial photograph of McDonald's Restaurant).
3. Upon arriving at the McDonald's Restaurant, Ms. McLaughlin pulled around to the drive thru and spoke to Mr. Boehm. McLaughlin Dep., at p. 49. Mr. Boehm told Ms. McLaughlin that he was running late and would be right out. Gladen's Exs., Ex. 3 (Excerpts of Deposition of Kurt Boehm) ("Boehm Dep."), at p. 28. Ms. McLaughlin then parked her car, nose out, in the second space from the street on the side of the parking lot opposite the drive thru. McLaughin Dep., at pp. 51-52.
4. As Ms. McLaughlin was waiting in her car, she heard a loud hissing noise, like air being let out of something. Since she had a spare tire on her rear wheel, Ms. McLaughlin got out of her car to check her tires.Id., at p. 55.
5. Ms. McLaughlin walked to the back of her car to check the rear tire and then began walking around the car to get back inside. As she attempted to open the driver's side door, Ms. McLaughlin was grabbed from behind and a knife was put to her throat. Id., at p. 60.
6. Ms. McLaughlin's assailant, who is now known to be Lowell Roberts ("Roberts"), told Ms. McLaughlin to be quiet and he threatened to kill her if she screamed. Id.
7. Roberts took Ms. McLaughlin to the rear of the McDonald's Restaurant where some trash dumpsters were located and thereafter, to the rear of Piccadilly Pub which is located adjacent to the McDonald's Restaurant.Id., pp. 62-67. As Roberts walked Ms. McLaughlin to the Piccadilly Pub, he grabbed her arm to make it appear as though they were holding hands.Id., at p. 67.
8. Roberts digitally assaulted Ms. McLaughlin at the rear of the Piccadilly Pub. Id., at p. 71. After a few minutes, Roberts took Ms. McLaughlin through the front parking lot of the Sturbridge Host, which was dimly lit. Id., at pp. 71, 74. They stopped near a picnic table located near a lake and Roberts positioned Ms. McLaughlin so that they were on the side of the picnic table closest to the lake and furthest from the hotel. Roberts bent Ms. McLaughlin over the picnic table and raped her for approximately fifteen minutes Id. at pp. 113, 120-121 and 127.
9. Roberts then took Ms. McLaughlin to a bench located near the lake. Roberts sat on the bench with his back to the hotel, forced Ms. McLaughlin to sit in front of him and forced her to perform oral sex on him. Id., at pp. 118-119, and 127. This assauls lasted approximately twenty-five minutes. Id., at p. 118.
10. Thereafter, Roberts took Ms. McLaughlin down a sharp embankment towards the lake, where they were hidden from view. Roberts again raped Ms. McLaughlin. He also slapped her and pulled her hair. Id., at pp. 114, 115-116, and 127-29, This assault lasted about an hour. Id., at p. 129.
11. When two people walking on a nearby path came into the vicinity, Roberts told Ms. McLaughlin to get into the water. Ms. McLaughlin crouched down nearby when she noticed Roberts was gone. She then walked up the embankment and saw two men. One of the men asked Ms. McLaughlin if she was alright. She told them she had been raped and they ran off. Id., at pp. 114-15.
12. Ms. McLaughlin then put on her clothes and ran to a rear door of the Sturbridge Host, where she reported the incident and the police were called. Id., at p. 115.
Facts Relating to The Search For Ms. McLaughlin
13. Mr. Boehm had got off work at approximately 12:05 a.m. He walked to Ms. McLaughlin's car and noted that the keys, her pocketbook and her cigarettes were in the car. Mr. Boehm searched the area around the McDonald's Restaurant looking for Ms. McLaughlin and checked the Mobil Station across the street. Boehm Dep., at pp. 28, 31 and 32.
14. Mr. Boehm noticed a police officer at the Mobil Station. He approached the officer, Officer Lavallee, and informed him that Ms. McLaughlin was missing. Id., at p. 32; Gladen Exs., Ex. 4. (Excerpts of Deposition of Jeffrey Lavallee) ("Lavallee Dep."), at p. 19.
15. Officer Lavallee made radio contact with a senior officer, Officer Boiteau, and advised him of the situation. The officers then began searching area side streets in their cars looking for Ms. McLaughlin. During their search, they traveled through the parking lot of the Sturbridge Host. Id., at pp. 20-21.
16. Initially, Officer Lavallee did not suspect that Ms. McLaughlin had been the victim of "foul play". Officer Lavallee did no: call dispatch when first approached by Mr. Boehm because Ms. McLaughlin had only been missing for a shots period of time and because he had informed the patrol unit that she was missing (which is what dispatch would have done). Id., at pp. 74, 135.
17. Officer Lavallee drove Mr. Boehm home, picked up Mr. Boehm's roommate and brought them back to Ms. McLaughlin's car so they could search the area. Meanwhile Officer Boiteau continued to search the surrounding area. Id. at pp. 22-24, and 136.
18. After dropping off Mr. Boehm and his roommate, Officer Lavallee continued to search for Ms. McLaughlin and drove through the Sturbridge Host parking lot at least twice. Id., at 25 and 186. officer Lavallee never searched behind the hotel and did not notify the hotel that Ms. McLaughlin was missing. Id., at pp. 158-59, 170, 181-82.
19. At some point, while Officer Lavallee was searching the McDonald's Restaurant area, he observed a man whom he later identified as Wayne Shepard, standing in the parking lot of the Piccadilly Pub attempting to flag him down. Id., at p. 25. When Officer Lavallee drove over to Mr. Shephard, Mr. Shephard informed him that a woman had been raped behind the Sturbridge Host and that he and his friend had chased down the assailant. Id.
Facts Relating to Roberts
20. On July 16, 1997, at approximately 6:00 p.m., Roberts, a truck driver, parked his trailer truck on a strip of land owned by the Sturbridge Host. Roberts intended to get fuel for his truck and sleep for the night. Pl's Exs., Ex. P (Excerpts of Deposition of Lowell Roberts), at pp. 28, 32; Id. Ex. B (Excerpts of Deposition of Jeffrey Lavallee), at pp. 75-76; Id., Ex. C (Excerpts of Deposition of Alan Curboy), at pp. 85-86.
21. After parking his truck Roberts went to the Piccadilly Pub. Gladen Exs., Ex. 8 (Excerpts of Deposition of Lowell Roberts) ("Roberts Dep."), at p. 32. Roberts had not consumed any alcohol that day prior to entering the pub. However, once there, he consumed several alcoholic drinks Id., at pp. 33-34.
22. Roberts was intoxicated when he left the Piccadilly Pub. He then went to a bar down the street where he consumed more alcoholic beverages. Id., at pp. 34, 36 and 38.
23. Roberts, who went to the second bar to get drunk, was severely intoxicated when he left that establishment, Id., at pp. 39-40.
24. Roberts returned to the Piccadilly Pub area and at that time, intended to rob the Piccadilly Pub. Id., at p. 40. Roberts has no memory of his assault on Ms. McLaughlin. Id., at pp. 51-52.
25. Roberts pled guilty to the rape and assault of Ms. McLaughlin. While in jail, Roberts was diagnosed with obsessive compulsive disorder. According to Roberts, as part of this disorder, bizarre thoughts come into his mind and if he is under the influence of alcohol at the time, he would tend to act on them. Id., at pp. 57, 65-67.
26. In the past, when Roberts was intoxicated and formulated an intent to act, he did not care if the action he was considering would lead to his arrest. He would use all means necessary, including violent acts against someone, to get what he wanted, without: regard to the consequences. Id., 92-93, and 95.
27. Roberts does not remember the lighting situation at the time he abducted Ms. McLaughlin, that is, he does not remember whether the parking lot lights were on. Roberts could not say whether any environmental conditions affected his decision to assault: and rape Ms. Mclaughlin. Defendant, Nelson Amirault's Mot. For Sum. J. ("Nelamir's Mot."), Ex. G (Excerpts of Deposition of Lowell Roberts), at pp. 44-45, 47-48.
Facts Relating To McDonald's Restaurant, Sturbridge Host and Any Security Measures Provided By Such Defendants
28. Sturbridge, which has a population of under 10,000, covers 33 square miles. Nelamir's Mot., Ex. D (Excerpts of Deposition of Alan Curboy) ("Curboy Dep."). The State Police Barracks and the Sturbridge Police Department are both within an eighth to a quarter of a mile from the McDonald's Restaurant/Sturbridge Host. Id., at p. 139.
29. The area in the vicinity of the McDonald's Restaurant/Sturbridge Host was not a high crime area. Curboy Dep., at pp. 174-75; Lavallee Dep., at p. 153. There was an armed robber', which occurred in the parking lot of the Sturbridge Host on Christmas Eve, 1987. Occasionally, there were domestic calls from the Sturbridge Host. Curboy Dep., at pp. 174-75. From 1993 through 1997, the only violent crime which occurred in this vicinity was an aggravated assault, which was minor in nature. Id., at p. 22. The aggravated assault, which occurred in the winter of 1994 or 1995, was the result of an altercation between students from two rival high school basketball teams and took place following a game between the two teams. The altercation started in a nearby Friendly's parking lot and concluded inside the McDonald's Restaurant, where the assault occurred.Curboy Dep., at pp. 141-42. In the summer of 1997, there was a problem with teenagers loitering in the McDonald's Restaurant area around midnight, but the police were not aware that there was any criminal activity going on. Lavallee Dep., at pp. 94-95. The youths gathered in a dirt parking lot behind the McDonald's Restaurant and their activities sometimes included, smoking, buying and selling marijuana. Nelamir's Mot., Ex. F (Excerpts of Deposition of Wayne Shepard), at pp. 28-30, 38.
30. At the time of Ms. McLaughlin's assault, Nelamir did not know of any drug activity on its property or any abutting property. Nelamir's Mot., Ex. B (Excerpts of Deposition of W. Lea MacDonald), at pp. 64-65.
31. In July 1997, the McDonald's Restaurant did not employ a police detail or security guard. Pl's Exs., Ex. K (Excerpts of Deposition of W. Lea MacDonald), at p. 41.
32. At the time of the attack on Ms. McLaughlin, the McDonald's Restaurant had a parking lot lighting system consisting of a few lights, including two lights positioned on the East side of the premises. Pl's Exs., Ex. I (Aerial Photograph) and Ex. B (Excerpts of Deposition of Officer Jeffrey Lavallee)
33. At the time Ms. McLaughlin was abducted from the McDonald's Restaurant parking lot, the exterior parking lot lights were off and the lot was dark Id., Ex. A (Excerpts of Deposition of Shannon McLaughlin), at pp. 68-69; Id., at Ex. M (Excerpts of Deposition of Wayne Shepard), at pp. 45-46.
34. In July 1997, the McDonald's Security Operations and Training Manual, issued by McDonald's Corp., recommended that "Restaurants should consider leaving lot lights on after closing . . . [as] an additional security measure". Id., Ex. S (Exhibit 5 to the Deosition of W. Lea MacDonald — McDonald's Security Operations Training Manual) ("Operations and Training Manual"), at p. 17-4. Althouqh the McDonald's Restaurant general manager on duty the night of Ms. McLaughlin's assault does not remember what time she turned off the parking lot lights, it was her usual practice to shut them off at closing. Id., Ex. Q (Excerpts of Deposition of Jennifer Bliss), at pp. 47-48; see also Ex. R (Excerpts of Deposition of Shane Wickers), at pp. 44-45, 66 and Ex. F (Excerpts of Deposition of Richard Butterworth), at pp. 14-15.
35. Businesses in the vicinity of the McDonald's Restaurant which provide lights for their premises and the surrounding area around the time of Ms. McLaughlin's abduction include the Mobil Station across the street, which was open twenty-four hours, Friendly's, Burger King, Sturbridge Host and the Piccadilly Pub. The streetlights along Route 20 (Main Street) also provide some light to the area. Curboy Dep., at pp. 124, 145-46.
36. The lighting in the McDonald's Restaurant's parking lot, when the McDonald's Restaurant's lights were shut off, was sufficient for police on patrol to see the shape and form of persons walking through the lot.Nelamir's Mot., Ex. E (Excerpts of Deposition of Jeffrey Lavallee), at pp. 56-57. However, the majority of the parking lot was dark and could not be seen from the Mobil station and the strip of land between McDonald's Restaurant and the: Piccadilly Pub, which was owned by the Sturbridge Host, was primarily dark. Pl's Exs., Ex. F (Excerpts of Deposition of Richard Butterworth), at pp. 41-42.
37. Generally, at around midnight, there was a moderate amount of vehicular traffic on Route 20 (Main Street). The Sturbridge Police passed by McDonald's Restaurant approximately once every ten to fifteen minutes. Id., at pp. 130-31, 152.
38. In 1997, Sturbridge Host had security personnel who patrolled the perimeter of the hotel and the parking lot as part of their duties. Gladen Exs., Ex. 5 (Excerpts of Deposition of Charles Summers) ("Summers Dep."), at p. 34; Id., Ex. 6 (Excerpts of Deposition of Kenneth Klisiewicz), at pp. 33-34. At the time of Ms. McLaughlin's abduction, the general manager of the Sturbridge Host was not sure as to the extent which the Sturbridge Host owned the strip of land between the McDonald's Restaurant and the Piccadilly Pub. Pl's Exs., Ex. G (Excerpts of Deposition of Charles Summer), at p. 44
39. The security guard on duty the night of Ms. McLaughlin's assault was Barry Knight, a former military police officer. Summers Dep., at p. 19. The Sturbridge Host's security guards were not specifically instructed to patrol the strip of land between the McDonald's Restaurant and the Piccadilly Pub. Pl's Exs., Ex. G (Excerpts of Deposition of Charles Summer), at p. 44; Id., Ex. D (Excerpts of Deposition of Kenneth Klisiewicz), at pp. 37. The standard form checklist of premises to patrol utilized by the Sturbridge Host's security guards did not expressly include the strip of land between the McDonald's Restaurant and the Piccadilly Pub. Id., Ex. D (Excerpts of Deposition of Kenneth Klisiewicz), at pp. 105-06. In the summer of 1997, the Sturbridge Police Department conducted security checks on local businesses, including the Sturbridge Host. As part of these duties, patrol officers drove through the hotel parking lot at least once a night. Lavallee Dep., at p. 171.
40. For approximately two years prior to the attack on Ms. McLaughlin, tractor trailer trucks would park on property owned by the Sturbridge Host, including the strip of land between the McDonald's Restaurant and the Piccadilly Pub. Pl's Exs., Ex M (Excerpts of Deposition of Wayne Shepard), at pp. 36-37; Id., Ex R (Excerpts of Deposition of Shane Wickers), at pp. 75-76.
41. Around the time of Ms. McLaughlin's attack, truck drivers from DeCosta Egg in Maine would use Sturbridge Host property as a trailer drop location and would routinely exchange trailers on such property around midnight. Id., Ex. F (Excerpts of Deposition of Richard Butterworth), at pp. 34-37; Id., Ex. B (Excerpts of Deposition of Jeffrey Lavallee), at pp. 83-86.
42. The Sturbridge Police Department did not consider the presence of truckers in the McDonald's Restaurant/sturbridge Host vicinity to increase the likelihood of criminal activity in that area. Curboy Dep., at p. 157.
Facts Relating to the Relationship Between McDonald's Corp. and Nelamir.
43. The McDonald's Restaurant from which Ms. McLaughlin was abducted was owned and operated by Nelamir pursuant to a franchise agreement dated February 15, 1988. Defendant, McDonald's Corporation's Motion For Summary Judgment (Docket No. 57) ("McDonald's Mot."), Ex. B (Affidavit of Peter L. Schaefer) ("Schaefer Aff."), at ¶ 10; Ex. C (Assignment and Consent of Assignment of Franchise To A Corporate Purchaser attached to Excerpts of Deposition of W. Lea MacDonald) ("Franchise Agreement")
44. At the time of Ms. McLaughlin's assault, McDonald's Corp. leased the real property(including the parking lot), buildings and improvements comprising the McDonald's Restaurant (the "premises") to Nelamir, under an Operator's Lease, dated May 14, 1979, which was assigned to Nelamir pursuant to the Franchise Agreement. McDonald's Mot., Ex. C (Operator's Lease attached to Excerpts of Deposition of W. Lea MacDonald) ("Lease"), at ¶ 2.01. Nelamir was responsible for maintaining the McDonald's Restaurant in good repair and for replacing all damaged property and equipment Id., at ¶ 4.02.
45. McDonald's Corp. did not own, operate or participate in the management of the business of the McDonald's Restaurant at the time of Ms. McLaughlin's assault, nor did McDonald's Corp. pay the utilities of the McDonald's Restaurant. Schaefer Aff., at ¶ 3-5, and 7. Furthermore, Nelamir hired and trained employees for the McDonald's Restaurant. McDonald's Mot., Ex. C (Excerpts of Deposition of W. Lea McDonald), at p. 8. McDonald's Corp. did not, and did not have the right to, hire, fire or discipline the McDonald's Restaurant's employees.Schaefer Aff., at ¶. McDonald's Corp. did "not sell any product at or to [the McDonald's Restaurant]" and it did not have the right to control the day-today activities necessary to operate the McDonald's Restaurant. Id., at ¶¶ 8, 9.
46. The License Agreement, dated May 14, 1979, which was assigned to Nelamir pursuant to the Franchise Agreement, expressly provides that: Nelamir does not have any authority, express or implied, to act as McDonald's Corp.'s agent; and Nelamir is an independent contractor and shall remain liable for all loss or damage to the McDonald's Restaurant and "for all claims . . . based on injury . . . of any person or persons, directly or indirectly, resulting from the operation of the [McDonald's] Restaurant". McDonald's Mot., Ex. C (License Agreement attached to Excerpts of Deposition of W. Lea MacDonald) ("License Agreement"), at ¶ 16.
47. McDonald's provided Nelamir with an Operations and Training Manual on Security. The manual provided that licensees such as Nelamir could choose the information contained therein that would be most helpful to their restaurant. Operations and Training Manual, at p. 17-1.
48. Nelamir used the manual in training managers and as a management reference source. McDonald's Mot., Ex. C (Excerpts of Deposition of W. Lea MacDonald), at pp. 21-22. Nelamir followed have prevented such attack. In making this third argument, McDonald's Corp. adopts the arguments made by Nelamir.
Ms. McLaughlin alleges that: McDonald's Corp., as an owner and operator of the McDonald's Restaurant, failed to provide adequate security and/or to adequately light the restaurant premises and as a result, she was harmed. However, although McDonald's Corp. owns the building in which the McDonald's Restaurant is located and the real estate on which it sits, McDonald's Corp. leases such property to Nelamir which operates the McDonald's Restaurant. I agree with McDonald's Corp. that any liability it may have to Ms. McLaughlin would be either in its capacity as a franchisor or lessor. I will now address whether McDonald's Corp. may be liable to Ms. McLaughlin in either capacity.
1. Whether Ms. McLaughlin Has Stated A Claim Against McDonald's Corp. In Its Capacity As A Franchisor.
The License Agreement between the parties expressly states that there is no agency relationship between McDonald's Corp. and Nelamir. However, even where the parties have eschewed an agency relationship, an agency relationship may exist where "there is mutual consent, express or implied, [that one party] is to act on behalf and for the benefit of [another], and subject to [such other party's] control". Theos Sons, Inc. v. Mack Trucks. Inc., 431 Mass. 736, 742 and 743 at n. 12 (2000). "Even where an agent-principal relationship exists, however, the principal has liability for the agent's acts toward third parties only if the agent was acting with the actual or apparent authority of the principal in that transaction". Id., at 743. In this case, Ms. McLaughlin asserts the record establishes that McDonald's Corp. exercised pervasive control over the operation of the McDonald's Restaurant and consequently, an agency relationship existed between McDonald's Corp. and Nelamir. Ms. McLaughlin further asserts that McDonald's Corp. had actual authority, albeit implied, over the security measures taken by Nelamir at the McDonald's Restaurant and as a result, McDonald's Corp. may be held vicariously liable for the negligence of Nelamir. In the alternative, Ms. McLaughlin asserts that Nelamir acted with apparent authority of its principal McDonald's Corp. and since Ms. McLaughlin could have reasonably believed that Nelamir was authorized to act for McDonald's Corp., McDonald's Corp. is liable for Nelamir's negligence in failing to adequately light and/or secure the parking lot of the McDonald's Restaurant.
In support of her position that an agency relationship existed between Nelamir and McDonald's Corp., Ms. McLaughlin argues that McDonald's Corp. controlled the daily operation of the McDonald's Restaurant as evidenced by the fact that McDonald's Corp. provided Nelamir with manuals which contained "detailed information relating to the operation of the Restaurant including (a) food formulas and specifications for designated food and beverage products; (b) methods of inventory control; (c) bookkeeping and accounting procedures; (d) business practices and policies; and (e) other management, advertising and personnel policies", and Nelamir was required to "promptly adopt and use exclusively the formulas, method.; and policies contained in the business manuals".Licensing Agreement, at Section 4. Ms. McLaughlin also relies on the fact that the Franchise Agreement required Nelamir's owner "to enroll himself and his managers, present and future, at Hamburger University or at such other training center as may be designated by [McDonald's Corp.] from time to time [and McDonald's Corp.] shall bear the cost of maintaining Hamburger University . . . including overhead costs of training . . . materials and all technical training tools and agrees to provide [Nelamir] both basic and advances instruction for the operation of a McDonald's System restaurant". Id., at Section 6. Ms. McLaughlin further relies on the fact that Nelamir was required to pay McDonald's Corp. a semi-monthly service fee equal to a percentage of the gross sales of the restaurant. Id., at Section 8. McDonald's Corp., on the other hand, argues that it did not exercise pervasive control over Nelamir's operation of the McDonald's Restaurant as evidenced by the fact that it did not participate in the management of the restaurant; it did not have the right to hire, fire or discipline employees of the restaurant; and it did not pay the utilities for the restaurant.
While it is true that at the time of Ms. McLaughlin's assault, McDonald's Corp. dictated the manner in which Nelamir was required to operate the McDonald's Restaurant, McDonald's Corp. did not control the day to day operation of the restaurant. Rather, the requirements McDonald's Corp. imposed on Nelamir were intended to ensure quality control and, with respect to financial matters, ensure that the service fee was determined uniformly in the McDonald's Corp's "System". On these facts, I find as a matter of law that no agency relationship existed between McDonald's Corp. and Nelamir.
Even if I were to find that an agency relationship existed, Ms. McLaughlin would have to establish that with respect to security matters, Nelamir operated with the actual or apparent authority of McDonald's Corp. See Theos Sons, 431 Mass. at 743-44. However, McDonald's Corp. did not exercise supervisory control over security measures utilized by Nelamir at the McDonald's Restaurant. Instead, McDonald's Corp. issued an Operations and Training manual which addressed security issues and contained information that Nelamir "should consider . . . as company policy" and Nelamir was permitted to "choose the information that [would be] most helpful in the operation of [the McDonald's Restaurant]". Operations and Training Manual, at p. 17-1. The Operations and Training Manual suggested that `Restaurants should consider leaving lot lights on after closing . . . [as] an additional security measure'. It., at 17-4. Under these circumstances, McDonald's Corp. cannot be said to retain control over the security measures utilized by Nelamir at the McDonald's Restaurant. Therefore, as a matter of law Ms. McLaughlin has failed to establish that McDonald's Corp. is liable to her under "an agency theory premised on actual authority". Id.
Ms. McLaughlin asserts that there is a genuine issue of material fact as to whether McDonald's Corp. is liable to her as having apparent authority over security measures utilized by Nelamir at the McDonald's Restaurant. In support of this theory, Ms. McLaughlin asserts that the Licensing Agreement between McDonald's Corp. and its franchisees, such as Nelamir, create such uniformity amongst the restaurants that patrons have no way of knowinq whether a particular restaurant is owned by a franchisee or MoDonad's Corp. Therefore, Ms. McLaughlin argues, patrons of the McDonald's Restaurant, such as herself, could reasonably believe that Nelamir was authorized to act on McDonald Corp.'s behalf. "Apparent authority exists only if the plaintiff reasonably relied on the principal's words or conduct at the time he entered the transaction that the agent is authorized to act on the principal's behalf". Theos Sons. Inc., 431 Mass. at 745. The Massachusetts Supreme Judicial Court ("SJC") has cast doubt on whether it is appropriate to consider the doctrine of "apparent authority" under circumstances in which a plaintiff is injured as the result of an accident or assault, Kansallis Finance Ltd., 421 Mass. 659, 664 (1996). Assuming that in this case it is appropriate to make such an inquiry, I find that as a matter of law, Ms. McLaughlin could not have reasonably determined that Nelamir was acting as an agent of McDonald's Corp. The mere use of trademarks and logos by a franchisee does not raise a genuine issue of material fact as to whether Nelamir had apparent authority to act as McDonald's Corp.'s agent. Theos, 431 Mass. at 746. This is particularly true in situations involving businesses such as the McDonald's Restaurant, because the public is well aware that such entities are often operated as franchises.
For the reasons stated above, I find that McDonald's Corp. cannot be held vicariously liable for the alleged negligence of Nelamir in failing to adequately light or otherwise secure the parkinq lot of the McDonald's Restaurant. Accord see Wendy Hong Wu v. Dunkin Donuts, Inc., 105 F. Supp.2d 83, 87 (E.D.N Y 2000) (Whether franchisor should be held vicariously liable for negligent conduct of its franchisee depends on whether "the franchisor controls the day-to-day operations of the franchisee, and more specifically whether the franchisor exercises a considerable degree of control over the instrumentality at issue in a give case"); Pizza K. Inc. v. Santagata, 547 S.E.2d 405 (Ga.App. 2001);Risner v. McDonald's Corp., 18 S.W.2d 903, 906 (Ct.App.Tex. 2000) (liability of franchisor for negligence on property of franchised restaurant limited to franchisor that maintain control of activity concerning which negligence charged); Oullette v. Sheraton Corp., 1 Mass.L.Rptr. 65, 1993 WL 818925 (Mass.Super. 1993) (determination of agency, and therefore, liability, rests on whether or not franchisor exercised pervasive and evident control over operations of franchisee). I will now address Ms. McLaughlin's argument that McDonald's Corp. is liable to her in its capacity as lessor of premises.
2. Whether Ms. McLaughlin Has Stated A Claim Against McDonald's Corp. In Its Capacity As Landlord of The Premises.
McDonald's Corp. argues that it is not liable to Ms. McLaughlin in its capacity as a commercial landlord because: it did not contract to make repairs to the premises; it did not exercise any control over any of the common areas of the premises; and the rape of Ms. McLaughlin was not reasonably foreseeable. McDonald Corp.'s first argument simply misconstrues the law in Massachusetts which is that "the common law imposes on a commercial landowner a duty to take reasonable precautions to protect persons lawfully in common areas of rental property against foreseeable risks". Whittaker v. Saraceno, 418 Mass. 196, 198 (1994) (emphasis added) Therefore, regardless of the terms of the Lease, McDonald's Corp. had a duty to take reasonable precautions to protect persons in the common areas of the McDonald's Restaurant. At the same time, since McDonald's Corp. did not contract to make repairs to the premises or to provide security at the premises, the lease between McDonald's Corp. and Nelamir did not create any special or heightened duty of care on the part of McDonald's Corp. concerning the safety of patrons of the McDonald's Restaurant.
McDonald's Corp. next argues that it is not liable to Ms. McLaughlin because it did not retain any control over the area of the premises where the attack occurred, i.e., the parking lot of the McDonald's Restaurant. I agree. Pursuant to the Lease, Nelamir rents the entire premises from McDonald's Corp., including the parking lot where Ms. McLaughlin was attacked. As previously stated, the Lease did not require McDonald's Corp. to provide security in the parking lot, to maintain the parking lot or to make repairs in the parking lot. Under these circumstances, the parking lot cannot be considered a "common area". Because the parking lot where Ms. McLaughlin was attacked was not a common area, McDonald's Corp. is not liable to Ms. McLaughlin. See Luisi v. Foodmaster Supermarkets, Inc., 50 Mass. App. Ct. 575, 579 (2000). Although I have determined that McDonald's Corp. is not liable to Ms. McLaughlin, for the sake of completeness, I will examine McDonald's argument that it is not liable to Ms. McLaughlin because it could not have reasonably foreseen the harm which befell her.
"There is no question that a possessor of land open to the public for business owes a duty to all persons lawfully on its premises to use reasonable care to prevent injury to [them] by third persons whether their acts are accidental, negligent, or intentional'. However, a possessor of land is not a guarantor of the safety of persons lawfully on its premises. The duty owed is limited to guarding against reasonably foreseeable risks of harm.". Luisi, 50 Mass. App. Ct. at 576-77 (guotingCarey v. New Yorker of Worcester. Inc., 355 Mass. 450 (1969)) (alteration in original). In order to hold a landowner liable, a plaintiff must establish "that the landowner know or had reason to know of a threat to the safety of persons lawfully on the premises against which the landowner could have taken reasonable preventive steps". Id.; see also Whittaker, 418 Mass. at 197 (landlord is not guarantor of safety of persons in building's common area; at same time, landlord cannot ignore reasonably foreseeable risk of harm to persons lawfully on premises which could result from unlawful intrusions into common areas of leased premises). "All circumstances are examined in defining the scope of a duty of care based on the reasonable foreseeability of harm. The previous occurrence of similar criminal acts on or near a defendant's premises is a circumstance to consider, but the foreseeability question is not conclusively answered in favor of a defendant landlord if there has been no prior similar criminal act". Whittaker, 418 Mass, at 199. "Prior criminal acts are simply one factor among others that establish the foreseeability of the act of the third party". Mullins v. Pine Manor College, 389 Mass. 47 (1983).
In this case, Ms. McLaughlin has established that there were instances of criminal activity on or near the McDonald's Restaurant, albeit of a far more benign nature than the attack on her. However, Ms. McLaughlin has failed to establish that McDonald's Corp. new or reasonably should have known of even these minor criminal incidents. Under these circumstances, Ms. McLaughlin has failed to allege any facts to establish that McDonald's Corp. failed to take reasonable steps to protect persons, such as herself, who were lawfully in the parking lot of the McDonald's Restaurant because it knew or should have known that there was a threat to the safety of such persons.
For the reasons set forth above, I find that McDonald's Corp.'s motion for summary judgment should be allowed.
Nelamir's Motion For Summary Judgment
Nelamir asserts that it is entitled to summary judgment because Nelamir did not have a duty to prevent the attack on Ms. McLaughlin since such an attack was not foreseeable; and Ms. McLaughlin cannot prove that reasonable security measures would have prevented the attack. I have previously set out the standard for determining whether it is reasonably foreseeable to a possessor of property, such as Nelamir, that persons lawfully on their property may be harmed. In this case, the record establishes that Nelamir: was aware of at least a few criminal incidents which took place at or near the McDonald's Restaurant, albeit, such criminal incidents were fairly minor in nature and for the most part, did not involve violence; knew or should have known that teenagers were congregating in the adjacent parking lot until late at night; and that truckers were parking in an adjacent parking lot overnight or for a few hours. While Ms. McLaughlin's case is not the strongest, there are at least sufficient facts in the record to withstand a motion for summary judgment on the issue of whether the attack on her was reasonably foreseeable to Nelamir and therefore, whether Nelamir had a duty to prevent the attack.
As to Nelamir's argument that Ms. McLaughlin did not establish that the attack was preventable, it is not necessary for me to address whether Nelamir should have retained a security guard to patrol the area. The record shows that Nelamir employees' shut off the lights after the restaurant closed, but before the employees had vacated the premises. Furthermore, the testimony of the Mobil station attendant establishes that there is at least a question of fact as to whether, with the lights turned off, anyone on the street near the McDonald's Restaurant or elsewhere in the vicinity could see into the parking lot of the McDonald's Restaurant. Regardless of Roberts testimony, these circumstances at least raise a genuine issue of material fact as to whether Nelamir could have taken additional security measures (such as leaving on the lights in the parking lot until all employees had left) which would have prevented the attack on Ms. McLaughlin.
All off the Defendants argue that because of Robert's mental state and inebriated condition, he would have attacked Ms. McLaughlin regardless of any additional security measures they could have taken. They also point to the fact that Roberts testified that he would act without regard to the consequences of his actions and he was not aware of the lighting situation at the time he attacked Ms. McLaughlin. However, on the record before me, the evidence suggests that the lights in the McDonald's Restaurant parking lot were off and lights in at least parts of the Sturbridge Host were the attack occurred were dim. The record also suggests that when Roberts heard Mr. Shepard and his companion, he fled. On this record, there is at least a genuine issue of material fact as to whether additional security measures would have deterred Roberts.
Since Ms. McLaughlin has amended her complaint to substitute Nelamir for Mr. Amirault, Mr. Amirault's assertions that he is entitled to summary judgment in his individual capacity is moot:.
Sturbridge Host's Motion For Summary Judgment
Under Massachusetts law, the duty owed to a person injured on another's property depends on whether the person was a lawful visitor to the premises or an unlawful visitor, such as a trespasser. As I have previously stated, in the former situation, that is, where the person is a lawful visitor, the landowner owes such person a duty to guard against reasonably foreseeable risks of harm. In the latter situation, where such person is an adult trespasser, the landowner owes such person "no greater duty of care than that he refrain from wilful, wanton or reckless disregard for the trespasser's safety", except that, if the landowner becomes aware on the presence of an imperiled trespasser, the landowner "owes a duty of reasonable care". Schofield v. Merrill, 386 Mass. 244, 245-6 n. 2 (1982). Sturbridge Host argues that at the time she was attacked, Ms. McLaughlin was a trespasser on its property. Sturbridge Host further argues that as a matter of law, it did not show wilful, wanton or reckless disregard for her safety and therefore, did not breach a duty to her."The precise dividing line between a trespasser and a nontrespasser for common law tort liability purposes has not been defined in Massachusetts". Commonwealth v. Callahan, 405 Mass. 200 (1989). However, in a criminal case involving interpretation of the terms "invitee" and "licensee" as used in a criminal statute, the SJC noted that the terms as used in the statute were borrowed from common law. The SJC then reviewed the status of a pickup truck driver who, while four wheeling on private property, accidently struck and killed a juvenile who was riding in a "go cart". The SJC concluded that: where the landowner had taken no steps to exclude the public from the property, but had posted no trespassing signs (which had been torn down over the years) and had notified the local police that members of the public were not welcome and where the publics use of the property was without the landowner's permission, the pick up driver was a trespasser. Id., at 204. However, this case is readily distinguishable from Callahan. First, in Callahan, the SJC noted that criminal statutes "must be construed strictly against the Commonwealth".Id., at 205. This is a civil case and no such presumption applies. Second, Sturbridge Host permitted the public access to the areas where Ms. McLaughlin's attack occurred, including permitting truck drivers to park their rigs on its property(indeed, Sturbridge Host was not even aware that it was the owner of one of the strips of land where the attack occurred); and there were no "No trespassing" signs posted on the property.
In support of its argument, Sturbridge Host cites two New York state cases, Waters v. New York City Housing Authority, 505 N.E.2d 922 (1987) and Parker D/U Third Realty Company, 141 A.D.2d 301 (1988), in which summary judgment was granted to the defendants on the grounds that such defendants did not have a duty to persons who are taken onto their property for purposes of completing a crime which began on a public way. In those cases, the courts focused on the fact that neither the victims nor the perpetrators had a relationship to the landowner independent of the crime itself. In this case, the Sturbridge Host allowed truck drivers, such as Roberts, to park on its property and Roberts did in fact park on Sturbridge Host property. Furthermore, on the record before me, the Sturbridge Host if it did not encourage, at least tolerated the public's use of the property on which Ms. McLaughlin was attacked. Under these circumstances, I find that Massachusetts courts would not find that Ms. McLaughlin was unlawfully on Sturbridge Host property, that is, Ms. McLaughlin was not a trespasser. I will now address the Sturbridge Host's argument that it could not have reasonably foreseen the attack on Ms. McLaughlin and for that reason, is not liable to her.
Had Ms. Mclaughlin parked on the adjacent strip of land where Sturbridge Host consistently permitted truckers to park without objection and been abducted from her car on Sturbridge Host property would she be a trespasser? Had Ms. McLaughlin walked from the McDonald's Restaurant parking lot to have food and/or a drink at the Sturbridge Host prior to picking up her boyfriend and been abducted on Sturbridge Host property as she was walking back to the McDonalds Restaurant parking lot, certainly Sturbridge Host could not argue she was a trespasser. Had Ms. McLaughlin had food and/or a drink at the Sturbridge Host and then gone back to her car at the McDonald's Restaurant parking lot and then been abducted and dragged back onto Sturbridge Host property, would she be a trespasser? When a business such as the Sturbridge host allows the public free access to its property, does not post signs limiting such access and does not treat persons who come onto the property as trespassers (in other words, when a business such as Sturbridge Host knows that persons who do not patronize it commonly come onto the premises), its duty to persons who come onto the property should not change based on such minor factual nuances.
For much the same reason that I find that there is a question of fact on this issue as to Nelamir, I find that there is a question of fact with respect to Sturbridge Host. First, much of the area where Ms. McLaughlin was attacked on Sturbridge Host property was only minimally lit, if lit at all. Although Sturbridge Host had security personnel that patrolled much of the premises, it appears that it did not regularly patrol all the areas where Ms. McLaughlin was attacked. Indeed, the Sturbridge Host was not even aware that it owned part of the land on or near which some of the attack on Ms. McLaughlin occurred. Furthermore, even if they were minor in nature, the Sturbridge Host was the site of numerous altercations and criminal acts on its property. Under these circumstances, I find that there is a question of fact as to whether the Sturbridge Host violated a duty to Ms. McLaughlin and whether had it taken reasonable security precautions, the attack on Ms. McLaughlin could have been prevented.
Conclusion
I recommend that:
1. McDonald's Corporation's Motion For Summary Judgment (Docket Mo. 57) be allowed;
2. Defendant Gladen Corp.'s Motion For Summary Judgment (Docket No. 59) be denied and
3. Defendant, Nelson Amirault's Motion For Summary Judgment (Docket. No. 95) be denied.