Skip to comments.Fortress Burger King
Posted on 08/16/2005 11:27:19 AM PDT by Graybeard58
A Burger King patron in Rockford, Ill., backs her car into a lamppost in the parking lot and then panics. She puts her car into drive and puts the pedal to the metal. She quickly loses control of her vehicle, which jumps the sidewalk and flies through a plate-glass window, striking and fatally injuring a patron.
Who was negligent in this freak accident? The driver? Or the deep-pockets restaurant, for improperly designing and constructing its building and sidewalk and for not installing protective barriers around the building?
If you said the latter, you should enroll in law school, if you aren't already a trial lawyer.
The dead patron's estate sued the restaurant chain for millions for "designing the building to be bricked up only a few feet from the ground, when the defendant(s) knew or should have known that ... may allow a vehicle from the parking lot to drive into the building, and crash through the glass on top of the brick."
The trial judge reasonably dismissed the suit, concluding the "likelihood of this scenario is so minor that to guard against it in the manner suggested would require fortifying every building within striking distance of any crazed or incredibly inept driver."
Stunningly, the dismissal was reversed by the Illinois Appellate Court, which said Burger King must safeguard its patrons from all possible accidents, no matter how improbable.
The restaurant chain's failure to do so in this case was "a breach of (its) duty of reasonable care, despite whatever cost or inconvenience would be involved in the exercise of that duty," the court ruled.
However, reasonable care is open to interpretation. Would it entail building a restaurant with a solid brick faÃÂ§ade? If so, the car still might have crashed through the wall, and the patron would have been injured or killed by the car and falling bricks.
Either way, he still could have sued, claiming the solid wall prevented him from seeing the car coming and thereby robbed him of a chance to flee.
Perhaps Burger King should have built a wall strong enough to hold back a full-sized sedan, in which case one could be sure the first vehicle to hit the wall would have been a Hummer or a Navigator.
Maybe it should have restaurants that can withstand nuclear blasts, which of course would leave it liable for the wrongful death of the drivers of runaway cars who are killed crashing into the restaurants.
Each of these alternatives would meet the doctrine of reasonable care, yet each unreasonably leaves Burger King wide open to the abuses of the predatory trial bar. But that's the beauty of the damned-if-you-do, damned-if-you-don't trial-lawyer racket.
Burger King has appealed to the Illinois Supreme Court. Here's hoping that justices have the common sense and decency to recognize that the reckless or incompetent driver killed the patron by putting her car in drive and then standing on the accelerator.
The legal lottery continues.
As for the restaurant, the before mentioned design and construction is determined by the city's code and requirements.
Tort reform is a must...
Shakespear was right .... King Henry VI (Act IV, Scene II)
The crooked, mega-greedy shyster-friendly Illinois Appellate Court:
This happened in Maui a few years ago. IIRC, this old lady put her car in drive instead of reverse and from her parking space drove right through a plate glass window into a restaraunt and killed a patron.
Nowadays, employers and corporations have to make so many things idiot proof. That's why we have warnings on hair dryers telling us not to use them when we're in a shower.
People don't realize that for every award given to some boneheaded plaintiff, the defendant corporation owes more in liability insurance premiums. And that increase means the goods and services the defendant provides will go up in price for the consumer. If you order a Whopper tomorrow, it will cost more than it did today.
Thanks, John Edwards, Stan Chesley, Paul Hackett and all of the other ambulance-chasing, money-grubbing, plaintiff's lawyers for bringing us to this place!! (sarc)
If it is TOO strong, it could hurt the driver. Maybe 3 feet of silid concrete surrounded by a safer barrier like on the NASCAR tracks.
This case should have been tossed on proximate cause. Here is a little research on a related issue:
several jurisdictions have rendered judgment as a matter of law finding that the conduct of an intoxicated, sleeping, unconscious or a patently culpable driver was the sole proximate cause of accidental injuries, even where parties alleged illegal or dangerous conditions placed in a public right of way or the improper design of parking facilities and entryways.
The court found the unconsciousness of a driver the sole proximate cause of a collision with an illegally located obstruction in Chacko v. Commonwealth of Pa., 148 Pa.Cmwlth. 494, 611 A.2d 1346 (Pa. Cmwlth. 1992). In that case, Ruby Matthews, who suffered from diabetes, lost consciousness and then control of her vehicle, causing a collision with a Philadelphia Electric Co. utility pole. The plaintiffs claimed the Electric Company was negligent because their utility pole was placed too close to the roadway, in violation of a city ordinance. In affirming summary judgment granted based upon proximate cause, the court looked to the Restatement definition for intervening cause:
"an act of a third person or other force which by its intervention prevents the actor from being liable for harm to another which his antecedent negligence is a substantial factor in bringing about."
Id. 611 A.2d at 1349 quoting The Restatement (Second) of Torts §440
The court additionally found guidance in The Restatement (Second) of Torts § 442(c), which instructs that a factor to consider is, [W]hether the force is operating independently of any situation created by the first actor's negligence and whether it is or is not a normal result of that situation. Chacko, supra, 611 A.2d at 1349 and see Yun v. Ford, 276 N.J.Super. at 159, adopting the Restatement. The court discussed that the unconsciousness of Ms. Matthews acted independently of and could not be said to be the normal result of the alleged negligence. It therefore found that, Matthews's loss of consciousness was indeed extraordinary and not reasonably foreseeable. Id.
The Court held that an obstruction placed in a public right of way did not proximately cause plaintiffs damages in Amarhanov v. Fassel, 442 Pa.Super. 111, 658 A.2d 808 (Pa. Super. 1995). In that matter, the defendant, Kevin OMarra, was performing renovations to a home located at 2124 East Lehigh Avenue in Philadelphia, when he placed a construction dumpster in the parking lane along the curb. The plaintiff was rummaging for discarded construction materials, when a vehicle operated by Mr. Fassel collided with the dumpster. The court affirmed summary judgment awarded to OMarra based upon proximate cause principles, reasoning that, [Amarhanovs] injury was caused by the negligent driving of Fassel and such injury was not a natural and probable consequence of lawfully placing a dumpster in front of one's house. Id. 658 A.2d at 810.
The Supreme Court of Rhode Island found an obstruction in the public right of way not a proximate cause in DAmbra v. Peak Building Corp., 680 A.2d 939 (R.I. Sup. 1996). There, an unidentified vehicle failed to obey a stop sign, causing plaintiffs vehicle to collide with a construction dumpster. Peak Building placed the dumpster in the parking lane on Richmond Street in Providence, pursuant to a permit issued by the city. However, plaintiffs argued that the dumpster was negligently placed and that it did not have reflective tape or flashing beacon lights attached to it as required by a city ordinance. The court affirmed summary judgment granted based upon proximate cause, even though, [T]the determination of proximate cause is oftentimes for the factfinder to decide Nevertheless, the court reasoned that the dismissal was, [C]onsistent with our prior holding in Mahogany v. Ward, 16 R.I. 479, 484, 17 A. 860, 862 (1889), wherein we held that a defendant was not bound to anticipate mischievous or wrongful acts on the part of others, and hence was not bound to guard against them. See also Prue v. The Goodrich Oil Co., 49 R.I. 120, 123, 140 A. 665, 666 (1928)(one is not bound to provide against what is unusual and unlikely to happen or events which are only remote or slightly probable). DAmbra, supra, 680 A.2d at 941.
Likewise, the courts in Kentucky have found the failure to obtain a right of way occupancy permit was not a proximate cause of motor vehicle collision injuries in Estate of Wheeler v. Veal Realtors and Auctioneers, Inc., 997 S.W.2d 497 (Ky. App. 1999). In that case, the Kentucky Department of Highways ordered Veal Realtors and Auctioneers to remove a tree in connection with an application for an encroachment permit for the construction of an entrance. Subsequently, the plaintiff lost control over his vehicle and collided with the subject tree. In affirming summary judgment based upon proximate cause, the court examined Peak v. Barlow Homes, Inc., 765 S.W.2d 577, 578 (Ky.App. 1989), where a passenger in a pickup truck was killed in a collision caused by the attempt of another driver to turn a truck into a service entrance, which was constructed without a permit. The Wheeler, supra, court discussed that in both cases, the accidents were directly attributable to other negligent acts and were not proximately caused by the statutory violations. Id. 997 S.W.2d at 499.
In Illinois, the collision resulting from an unconscious driver, and not conditions resulting from a roadway resurfacing project, was the sole proximate cause in Estate Of Elfayer v. The City Of Chicago, 325 Ill.App.3d 1076, 757 N.E.2d 581 (Ill. App. 2001). In that case, Salvador Alvarez blacked out, lost control of his vehicle, which hit an overpass median and crossed over into the opposite lane of travel, causing a fatal collision. Alvarez had a blood-alcohol level of .206 percent and cocaine in his system. Plaintiffs expert opined that the City of Chicago was negligent because a roadway resurfacing project caused a median to be only six inches in height, where the original design specification called for an eight inch height. In upholding summary judgment, the court noted that, [W]hen the negligent driving was caused by a drunk driver, we have absolved municipalities from liability. See Thompson v. County of Cook, 154 Ill.2d 374, 383, 181 Ill.Dec. 922, 609 N.E.2d 290 (Sup. Ct. 1993)(drunk driver was sole proximate cause of accident, as roadway merely provided a location); Billman v. Frenzel Construction, 262 Ill.App.3d 681, 687, 200 Ill.Dec. 96, 635 N.E.2d 435 (Ill. App. 1993)(drunk driver was effective intervening cause breaking any causal chain between alleged defects in intersection and resulting injuries). Estate Of Elfayer, supra, 757 N.E.2d at 588.
In the State of Washington, the reckless conduct of an intoxicated driver, and not the roadway or the condition of adjacent property, was the sole proximate cause in Medrano v. Schwenderman, 66 Wash.App. 607, 836 P.2d 833 (Wash. App. 1992). In that case, Schwenderman consumed alcoholic beverages then lost control of his pickup truck, causing a collision with a utility pole. The paved portion of the roadway was 20 feet wide, not including shoulders. The posted speed limit was 25 m.p.h. Schwendermans truck traveled Eighty-five feet from where it left the road, hit the power pole, spun around, travelled an additional 80 feet, rolled onto its side, and then continued on for another 30 feet before coming to a stop. The court granted summary judgment based upon the argument that Schwendeman's reckless driving was an intervening cause breaking any causal connection, and thus the alleged failure in the design and maintenance of the road and the location of the power pole were too attenuated to be considered a legal cause of the accident. Id. 836 P.2d at 837. In affirming, the court looked to established precedent that extreme negligence or carelessness constituted an intervening cause. Id. 836 P.2d at 836-837, citing Cunningham v. State, 61 Wash.App. 562, 571, 811 P.2d 225, 230 (Wash.App.,1991)(no legal causation where driver was intoxicated, speeding and inattentive), Braegelmann v. County of Snohomish, 53 Wash.App. 381, 386, 766 P.2d 1137, 1140 (Wash.App.,1989), rev. den. 112 Wash.2d 1020, 1989 WL 661602 (1989)(no legal causation due to extreme negligence of a speeding and intoxicated driver), Klein v. City of Seattle, 41 Wash.App. 636, 639, 705 P.2d 806, 807 - 808 (Wash.App.,1985)(no legal causation when speeding driver crossed center line), and Kristjanson v. City of Seattle, 25 Wash.App. 324, 326, 606 P.2d 283, 284 (Wash.App., 1980)(no legal causation when driver was intoxicated, speeding and crossed center line). The court concluded that [N]either logic, common sense, justice, nor policy favor a decision that would subject the County and Puget Power to legal liability on these facts because they, [S]hould not be required to protect against the consequences of criminally reckless drivers. Id. 836 P.2d at 837.
The courts of Michigan have likewise found reckless driving, and not the condition of the roadway, was the sole proximate cause in Helmus v. Michigan Department Of Transportation, 238 Mich.App. 250, 604 N.W.2d 793 (Mich. App. 2000). In that case, a vehicle operated by Grace Jones entered an intersection controlled by a blinking red light, causing a fatal accident. Jones had been drinking liquor for several hours before the accident and her blood alcohol level was 0.12 percent two hours after the accident. She alleged that the intersection should have been controlled by a three-color traffic controll signal. The court affirmed judgment granted as a matter of law against Jones, reasoning that, It was the careless manner in which Jones proceeded through the intersection that ultimately caused this collision, not the absence of a three-light traffic control signal. Id. 604 N.W.2d at 798.
In Georgia, the inattention of an intoxicated driver, and not a right of way obstruction, was the sole proximate cause in Ferrell V. United Water Services Unlimited Atlanta, Llc., 271 Ga.App. 887, 611 S.E.2d 126 (Ga. App. 2005). There, the plaintiff parked his van in the vicinity of a roadway worksite administered by the Water Company. The excavation had been filled, there were no cones, flagmen or other precautions and the backhoe had been loaded onto its trailer. Subsequently, a vehicle operated by Larry McClellan crashed into the rear of the Ferrell van, pinning Ferrell against the water company truck. A blood taken from McClellan revealed the presence of morphine and cocaine. Id. 611 S.E.2d at 127. In granting summary judgment, the court discussed that the evidence showed overwhelmingly that Ferrell's injuries were caused by McClellans unforeseeable conduct, by being inattentive, by accidentally stepping on the accelerator instead of the brake and by driving while impaired by drugs. Id. 611 S.E.2d at 128.
The courts of New York determined that a sleeping drivers operation of a motor vehicle was likewise the sole proximate cause of the damages in Saviano v. City of New York, 5 A.D.3d 581, 774 N.Y.S.2d 82 (N.Y. App. Div. 2004). In that case, the Sanitation Department and the NYPD secured the scene of an accident on the Belt Parkway involving a sanitation truck. Shortly thereafter the defendant, Andre Blackburn, who had consumed several glasses of wine before driving, fell asleep behind the wheel, causing his car to strike the vehicles present at the scene of the first accident. The court found the conduct of Blackburn to be the sole proximate cause of the accident. Id.
Likewise in New York, the conduct of a sleeping driver, and not the design of a strip mall parking lot, was the sole proximate cause of injuries to pedestrians in Comolli v. 81 and 13 Cortland Associates L.P., 727 N.Y.S.2d 795, 285 A.D.2d 863 (N.Y. App.Div. 2001). In that case, Trevor H. Pindling fell asleep while operating church van on an access road parallel to the storefronts. The van struck and killed one pedestrian, bounced off a wall and then injured others. The plaintiffs alleged through their expert that the parking lot was negligently designed because it should have included rumble strips and barriers to impede traffic and protect pedestrians. Id. 285 A.D.2d at 864. In determining whether summary judgment awarded to the defendants was appropriate, the court noted that the issue of proximate cause is usually determined by a jury. Id. citing Derdiarian v Felix Contr. Corp., 51 N.Y.2d 308, 434 N.Y.S.2d 166 (N.Y. App. 1980). Nevertheless, it found that, [I]t was the intervening act - falling asleep at the wheel - which caused the accident, Id. citing Rivera v City of New York, 11 NY2d 856, 857, 227 N.Y.S.2d 676 (N.Y. App. 1962) and that, The design of the parking lot or access road merely furnished the condition or occasion for the occurrence of the event rather than one of its causes, citing Sheehan v City of New York, 40 NY2d 496, 503, 387 N.Y.S.2d 92 (N.Y. App. 1976)(Negligent brake failure of truck causing collision with stopped bus was sole proximate cause of injuries, notwithstanding violation of traffic regulation requiring buses to utilize designated bus stops); Margolin v Friedman, 43 NY2d 982, 404 N.Y.S.2d 553 (N.Y. App. 1978)(The absence of warnings and the design and maintenance of a car wash was not the proximate cause where a patron lost control of their vehicle); Morales v Lia, 238 AD2d 786, 656 N.Y.S.2d 458 (N.Y. App. 1997)(The alleged failure of a mall operator to employ an array of controls, devices, markings and signs to control and direct vehicular and pedestrian traffic was not the proximate cause of injuries to a pedestrian, where the operator continued to drive the vehicle for 75 feet looking for a parking space, despite being blinded by the sun); Hersman v Hadley, 235 AD2d 714, 651 N.Y.S.2d 754 (N.Y. App. 1997), lv denied 90 NY2d 802 (1997)(Vehicle operation by a driver making left hand turn into an uncontrolled Walmart construction entrance was the sole cause of the injuries, notwithstanding construction specifications requiring the installation of signalization, prior to permitting public access); Vayser v Waldbaum, Inc., 225 AD2d 760, 640 N.Y.S.2d 179 (N.Y. App. 1996)(The accident happened as a result of the driver's failure to control his vehicle and the premises 'merely furnished the condition or occasion for the occurrence of the event rather than [being] one of its causes'.). Comolli, supra, 285 A.D.2d at 864.
They petitioned the HOA (we're a small neighborhood with only 18 members) to make significant changes to the road so the water would be diverted from their property. At the HOA's expense, of course, not their own.
After a long battle, they finally did what they should have done in the first place, which was to create low berms along the edge of their property. But they now hate the rest of us, and will go to their graves believing they were done wrong.
You should send this to Burger King.
Sounds to me like any city or state government could be liable for accidents where a pedestrian on a sidewalk is hit by a moving car, even if the driver is negligent. After all, the government failed to provide adequate barriers between the moving traffic and pedestrians.
She should be suing the lamppost manufacturer for making one in which a car would bounce off it when hit. The lawyers could argue that when struck, little "Magic Fingers©" should pop out and hold the car snugly against it to prevent it from careening off. Of course, she could also then sue for whiplash, but that's another story.
Where's that tort reform Bush was talking about last year?
I view lawyers the same way I view the Muslims who remain silent about their terrorist cockroach brethren.
Are there actually any "decent" lawyers out there? If so, then why haven't they spoken out against the cockroaches in the Bar?
Exactly how was the case disposed of in trial court? Was it a motion to dismiss? Summary Judgment? More than likely the judge took the issues away from the jury. The jury is the proper fact-finder. Whether Burger King had a duty, and if so, breached it's duty, is a question of fact. It is still a no-no for a judge to unilaterally decide facts in a jury trial, and thats exactly the way it should be.
More than likely the appellate court reversed this on procedural grounds (judges error) and not on substantive law.
Actually, the case probably should have been remanded to the trial court for rehearing.
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