TEMPLE et al v. MCDONALD'S CORPORATION

Filing 14

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE HARVEY BARTLE, III ON 3/13/12. 3/14/12 ENTERED AND COPIES E-MAILED.(mbh, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
LINDA TEMPLE, et al.

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v.
McDONALD'S CORPORATION

CIVIL ACTION

NO. 11-7516

MEMORANDUM
Bartle, J.

March 13, 2012
Plaintiff Linda Temple brings this diversity action

against defendant McDonald's Corporation for negligence for
injuries she suffered in a slip and fall accident at a McDonald's
Restaurant in Rising Sun, Maryland.
sued for loss of consortium.

Her husband Paul Temple has

Before the court is the motion of

defendant to dismiss the complaint for improper venue under Rule
12(b)(3) of the Federal Rules of Civil Procedure and for failure
to state a claim for relief under Rule 12(b)(6).
I.
When deciding a Rule 12(b)(6) motion to dismiss, the
court must accept as true all factual allegations in the
complaint and draw all inferences in the light most favorable to
the plaintiff.

Phillips v. Cnty. of Allegheny, 515 F.3d 224, 233

(3d Cir. 2008); Umland v. Planco Fin. Servs., Inc., 542 F.3d 59,
64 (3d Cir. 2008).

We must then determine whether the pleading

at issue "contain[s] sufficient factual matter, accepted as true,
to 'state a claim for relief that is plausible on its face.'"
Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (citing Bell

Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

A claim

must do more than raise a "'mere possibility of misconduct.'"
Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009)
(quoting Iqbal, 129 S. Ct. at 1950).

Under this standard,

"[t]hreadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice."
129 S. Ct. at 1949.

Iqbal,

The court may consider the allegations set

forth in the complaint as well as "matters of public record" and
"an undisputedly authentic document that a defendant attaches as
an exhibit to a motion to dismiss if the plaintiff's claims are
based on the document."

Pension Benefit Guar. Corp. v. White,

998 F.2d 1192, 1196-97 (3d Cir. 1993).
II.
The following facts are taken in the light most
favorable to plaintiffs.

On February 19, 2010, plaintiffs

entered a McDonald's Restaurant in Rising Sun, Maryland, which is
owned and operated by a franchisee, McDonald's Restaurants of
Maryland, Inc. ("McDonald's of Maryland").

Defendant McDonald's

Corporation is the franchisor and owner of the real property on
which the restaurant is located.

While entering the restaurant,

Linda Temple slipped on a patch of ice on the wheelchair ramp and
surrounding walkway on the property.

She fell and sustained

serious injuries to her back, neck, ribs, and right leg.
After the fall, plaintiffs instituted this action
against the defendant franchisor, McDonald's Corporation.
According to plaintiffs' complaint, it failed to ensure that the
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area around the restaurant was free from snow, water, and ice.
Plaintiffs also alleged that defendant employed personnel who
were not sufficiently qualified to maintain the premises in a
safe manner, failed to warn plaintiffs and other customers of the
hazardous condition, and failed to inspect the premises at
reasonable intervals in order to discover and correct the
hazardous ice condition.
III.
In support of its motion to dismiss, defendant
essentially argues that plaintiffs have sued the wrong party and
that any claim is properly against McDonald's of Maryland.
Defendant first asserts that the complaint should be dismissed
for improper venue under 28 U.S.C. § 1391.

That statute provides

that a complaint may be filed in
"a judicial district in which any defendant resides, if all
defendants are residents of the State in which the district is
located."

28 U.S.C. § 1391(b)(1).

A corporation is deemed to

reside "in any judicial district in which such defendant is
subject to the court's personal jurisdiction with respect to the
civil action in question."

28 U.S.C. § 1391(c)(2).

Defendant is registered as a foreign corporation in
Pennsylvania.

Since it is subject to personal jurisdiction here,

venue is also proper as to it.
§ 5301(a)(2).

See 42 Pa. Cons. Stat. Ann.

Defendant's arguments to the contrary concern

McDonald's of Maryland, an entity which is not a party to this

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lawsuit.

We are not concerned with venue as to an entity that

has not been sued.
Accordingly, the motion of defendant McDonald's
Corporation to dismiss the complaint for improper venue under
Rule 12(b)(3) will be denied.
IV.
As noted above, defendant also asserts that plaintiffs
have failed to state a claim for relief because it does not "own,
operate, or maintain" the McDonald's Restaurant where the
accident occurred.

That restaurant was owned and operated by

McDonald's of Maryland, a franchisee of defendant.

McDonald's of

Maryland leased the restaurant building and surrounding land from
defendant.
In order to establish a claim for negligence under
Maryland law, a plaintiff must prove that:

(1) the defendant

owed a duty to the plaintiff; (2) the defendant breached that
duty; (3) the plaintiff suffered actual harm; and (4) the harm
was proximately caused by the defendant's breach of duty.

Grimes

v. Kennedy Krieger Inst., Inc., 782 A.2d 807, 841 (Md. 2001).
"The existence of a duty is a matter of law to be determined by
the court and, therefore, is an appropriate issue to be disposed
of on motion for dismissal."

Bobo v. Maryland, 697 A.2d 1371,

1376 (Md. 1997).
The general rule in Maryland is that a landlord is not
liable for injuries to a tenant or third party caused by defects
or dangerous conditions where it has parted with control of the
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leased premises.
1932).

Marshall v. Price, 161 A. 172, 172-73 (Md.

The Maryland Court of Appeals, the highest court of the

State of Maryland, has stated the rationale for this rule:
When land is leased to a tenant, the law of
property regards the lease as equivalent to a
sale of the premises for the term. The
lessee acquires an estate in the land, and
becomes for the time being both owner and
occupier, subject to all of the
responsibilities of one in possession, to
those who enter upon the land and those
outside of its boundaries.
Henley v. Prince George's Cnty., 503 A.2d 1333, 1342 (Md. 1986)
(quoting William L. Prosser & Robert E. Keeton, Law of Torts
§ 63, at 434 (5th ed. 1984)).
Conversely, a landlord owes a duty to the occupant of a
leased property or to a third party on the premises if:

(1) the

landlord controlled the dangerous or defective condition; (2) the
landlord knew or should have known of the condition; and (3) the
loss suffered was a foreseeable result of that condition.
Hemmings v. Pelham Wood Ltd. Liab. Ltd. P'ship, 826 A.2d 443, 452
(Md. 2003).

For example, where a landlord has leased premises to

multiple tenants, it has a duty to maintain common areas under
its control in a reasonably safe condition.

E.g., Shields v.

Wagman, 714 A.2d 881, 884-85 (Md. 1988); Honolulu Ltd. v. Cain,
224 A.2d 433, 435-436 (Md. 1966).

When analyzing a landlord's

duty, courts must apply a balancing test, considering the
landlord's degree of control and ability to remedy the condition
along with the foreseeability of the harm.

Matthews v. Amberwood

Assocs. Ltd. P'ship, 719 A.2d 119, 129 (Md. 1998).
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Thus, whether

defendant as a franchisor and landlord owed a duty of care to
plaintiffs turns on the extent of defendant's control over the
property where the accident occurred.
In opposition to the motion to dismiss, plaintiffs
assert that "a representative from McDonald's Corporation has
appeared at zoning hearings regarding the Rising Sun McDonald's
Restaurant and signed a legal agreement granting an easement on
the premises of the Rising Sun McDonald's Restaurant."

This fact

is merely consistent with ownership of the premises which, as
stated above, does not alone establish liability.

It is not

relevant to whether defendant had control over the specific
condition which caused plaintiff's injury, that is the icy
condition on the ramp and walkway on the property.
Plaintiffs also point to certain portions of the Lease
and License Agreement to demonstrate defendant's control.

The

Lease and License Agreement provide that the leased premises may
only be used for a McDonald's Restaurant.

McDonald's of Maryland

may use only products, trade fixtures, and equipment which have
been approved by defendant and must receive written consent from
defendant before making "any change in, alteration of, or
addition to any part of the Premises."

Additionally, defendant

reserves the right to withhold its approval for any
"construction, improvement, repair, alteration, or replacement"
and may enter and inspect the premises at any time.
The License Agreement further states that McDonald's of
Maryland must enroll its managers in defendant's training
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program, "Hamburger University," submit financial reports to
defendant, and comply with the "McDonald's System."1

McDonald's

of Maryland must pay defendant a percentage of gross monthly
sales in addition to rent and allow defendant to audit its
records.
However, under the Lease and License Agreement
McDonald's of Maryland shall maintain the building, equipment,
and parking area in good condition.

McDonald's of Maryland is

also responsible for "repairs or replacements required because of
damage, wear and tear, or in order to maintain the Restaurant
building and parking area in good condition and in conformity to
blueprints and plans."

The Lease provides that "[b]y taking

possession of the Premises, Lessee acknowledges that Lessee has
inspected the Premises and the improvements thereon and found
them to be in a safe, satisfactory, and completed condition."
Significantly, the Lease also states:
Lessee shall have no authority, express or
implied, to act as agent of Lessor, or any of
its affiliates for any purpose. Lessee is,
and shall remain, an independent contractor
responsible for all obligations and
liabilities of, and for all loss or damage
to, the Restaurant and its business ... based
on injury, illness or death of any person or
persons.

1. The "McDonald's System" is described in the License Agreement
as "proprietary rights in certain valuable trade names, service
marks and trademarks ... designs and color schemes for restaurant
buildings, signs, equipment layouts, formulas and specifications
for certain food products, methods of inventory and operation
control, bookkeeping and accounting, and manuals covering
business practices and policies."
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The Lease and Licensing Agreement clearly contemplate
that McDonald's of Maryland would control the day-to-day
operations of the restaurant.

Under the License Agreement,

defendant retains significant control over the food and
beverages, equipment, and layout of the McDonald's Restaurant in
question.

It does so to protect the "valuable good will and wide

family acceptance" of McDonald's trademarks.

Nonetheless,

defendant's desire to ensure that business is conducted in a
manner uniform with all other McDonald's Restaurants does not
mean that it undertakes to supervise such daily operations as the
removal of snow or ice from the premises and the salting or
sanding of the areas surrounding the restaurant.

See, e.g.,

Wendy Hong Wu v. Dunkin' Donuts, Inc., 105 F. Supp. 2d 83, 87-94
(E.D.N.Y. 2000); Hoffnagle v. McDonald's Corp., 522 N.W.2d 808,
814-15 (Iowa 1994); Cassavaugh v. McDonald's Corp., No.
106004036, 2010 WL 5644847, at *3-4 (Conn. Super. Dec. 20, 2010);
Little v. Howard Johnson Co., 455 N.W.2d 390, 392-94 (Mich. App.
1990).

The Lease specifically requires McDonald's of Maryland to

maintain the restaurant building and parking area "in good
repair, order or condition."

It also provides that McDonald's of

Maryland would accept the leased premises only if it found them
to be in a "safe ... condition."

Based on the Lease and

Licensing Agreement, we find as a matter of law that defendant
did not exercise control over the specific cause of the injury,
that is the presence of ice or snow around the restaurant, and
did not owe a duty of care to plaintiffs.
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Finally, plaintiffs contend that defendant may be held
liable for the negligent construction or design of the McDonald's
of Maryland Restaurant.

In opposition to the motion to dismiss,

they assert that "[t]he area of Plaintiff's fall was negligently
designed so that water from the drain spout poured directly out
over the sidewalk and collected in the area of the wheelchair
ramp" and that "[d]uring periods of freezing temperatures, the
water that collected in the area of the wheelchair ramp would
foreseeably turn to ice, creating a dangerous condition."
Plaintiffs are correct that a contractor can be held
liable for negligent design or construction.

See Council of

Co-Owners Atlantis Condo., Inc. v. Whiting-Turner Contracting
Co., 517 A.2d 336, 341 (Md. 1986).

Here, the Lease states that

defendant "[s]hall construct or shall have others construct or
remodel or otherwise prepare the Premises for a McDonald's
Restaurant in accordance with the then current plans and
specifications of McDonald's Corporation."
The complaint sets forth a list of detailed allegations
including, as discussed above, that defendant failed to maintain
the premises, inspect the premises, and warn persons such as
plaintiffs of the dangerous icy condition on and near the
entrance to the restaurant.

However, the complaint does not

contain a single word regarding negligent design or construction.
It does not allege that the drain spout was incorrectly placed or
set forth any other facts to support this claim.

Thus, the

complaint does not meet the pleading standards as set forth by
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the Supreme Court.
U.S. at 570.

See Iqbal, 129 S. Ct. at 1949; Twombly, 550

Plaintiffs cannot wait to raise these allegations

for the first time in response to the motion of defendant to
dismiss.2

See Pa. ex rel. Zimmerman v. PepsiCo, Inc., 836 F.2d

173, 181 (3d Cir. 1988).
Accordingly, the motion of defendant McDonald's
Corporation to dismiss the complaint for failure to state a claim
for relief under Rule 12(b)(6) will be granted.

2. We note that plaintiffs, who are represented by counsel, did
not exercise their right under the 2009 Amendments to Rule 15(a)
of the Federal Rules of Civil Procedure to file an amended
complaint within twenty-one days after the defendant's Rule 12(b)
motion was filed.
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