Bartholomew v. Burger King Corp.

• Decision Date: 14 April 2014
• Docket Number: Civil No. 11–00613 JMS/RLP.
• Citation: 15 F.Supp.3d 1043
• Parties: Clark BARTHOLOMEW; Tanya Bartholomew; and ARIC Bartholomew, a minor, by his next friend Clark Bartholomew, Plaintiffs, v. BURGER KING CORPORATION; CTI Foods Holding Co., LLC.; United States Army and Air Force Exchange Service; Does 1–150, Defendants.
• Court: U.S. District Court — District of Hawaii

15 F.Supp.3d 1043

Clark BARTHOLOMEW; Tanya Bartholomew; and ARIC Bartholomew, a minor, by his next friend Clark Bartholomew, Plaintiffs

v.BURGER KING CORPORATION; CTI Foods Holding Co., LLC.; United States Army and Air Force Exchange Service; Does 1–150, Defendants.

Civil No. 11–00613 JMS/RLP.

United States District Court, D. Hawai‘i.

Signed April 14, 2014.

Paul H. Saccoccio, Saccoccio & Lopez, Haleiwa, HI, Stephen M. Shaw, Honolulu, HI, for Plaintiffs.

Normand R. Lezy, Leong Kunihiro Lezy & Benton, Grant K. Kidani, Honolulu, HI, for Defendants.

ORDER DENYING DEFENDANT BURGER KING CORPORATION'S MOTION FOR SUMMARY JUDGMENT, DOC. NO. 189

J. MICHAEL SEABRIGHT, District Judge.

I. INTRODUCTION

This is a tort action arising from an incident in which Plaintiff Clark Bartholomew (“Bartholomew”) allegedly sustained injuries from eating a Triple Whopper sandwich imbedded with two needle-shaped metal objects at a Burger King Restaurant franchised to Defendant Army and Air Force Exchange Service (“AAFES”).

On October 12, 2011, Bartholomew, his wife, and his son (“Plaintiffs”) filed this action alleging tortious conduct by Defendants Burger King Corporation (“Burger King”), AAFES, and CTI Foods Holding Company (“CTI”), the hamburger patty supplier.

Currently before the court is Burger King's February 3, 2014 Motion for Summary Judgment arguing that Burger King cannot be liable for Bartholomew's injuries as a mere franchisor with insufficient control over the AAFES restaurant. Based on the following, the Court DENIES the Motion for Summary Judgment.

II. BACKGROUND

A. Factual Background

In considering Burger King's Motion for Summary Judgment, the court views the evidence in the light most favorable to Plaintiffs, the non-moving party. See, e.g., Sullivan v. Oracle Corp., 662 F.3d 1265, 1270 (9th Cir.2011). On December 1, 2010, Bartholomew's wife ordered a Triple Whopper meal at the AAFES restaurant and took it home for Bartholomew. Doc. No. 164, Am. Compl. at 6. While eating the sandwich, Bartholomew bit into a needle-like object, which pierced his tongue. Id. Two days later, Bartholomew experienced stomach pain and sought medical attention. Id. at 7. Apparently, another needle-like object was lodged in his small intestine requiring hospitalization. Id. He was placed on bed rest until December 9, 2010. Id.

On May 15, 2009, Burger King and AAFES entered into a Franchise Agreement and Development Agreement (“Franchise Agreement”). Doc. No. 189–1, Burger King Concise Statement of Facts (“CSF”) at 2.¹ Under the Franchise Agreement, AAFES is a franchisee of a Burger King Restaurant located at Schofield Barracks, Hawaii, but AAFES “is not an agent, partner, joint venture or employee of [Burger King].” Id. According to the Franchise Agreement, Burger King has “no control over the terms and conditions of employment of AAFES' employees,” and AAFES “must indicate the Independent ownership of the Restaurant and ... that the Restaurant is operated by an Independent operator.” Id. at 4. At all relevant times, Burger King had no employees or management personnel at the AAFES restaurant. Id. The Franchise Agreement also provides that AAFES must “comply strictly at all times with all elements of the Burger King System” and it reserves an “unrestricted right to enter the Restaurant” for inspection to the franchisor.

Doc. No. 205–3, Pls.' CSF at Ex. 2D–E. Thus, the Franchise Agreement disclaims any agency relationship between Burger King and AAFES but requires AAFES to strictly adhere to the Burger King brand standards.

The Franchise Agreement incorporates the Burger King Mod Manual, an extensive manual that details food assembly procedures, crisis management procedures (including food tampering and food-related injuries), and quality assurance standards. Id. at Ex. 1.A.42., 1.A.35, and 1.A.39. The manual describes a precise method by which employees are to assemble the Triple Whopper Sandwich from spreading “3/4 [ounces] of mayonnaise evenly from edge to edge” of the bun crown to placing “three meat patties on the bun heel.” Id. at 1.A.3–4. The manual also has extensive “required” instructions for storage and broiling of beef patties. Id. at 1.A.6–16. Finally, the manual mandates that “[o]nly products, supplies, and equipment on the Approved Brands List (ABL) or Approved Equipment List (AEL) are authorized for use in your restaurant.” Id. at 1.A.39.

B. Procedural Background

On October 12, 2011, Plaintiffs filed this action alleging that Burger King and CTI acted negligently in exercising their duty of care to Bartholomew, his wife, and his son. Doc. No. 1, Compl. In addition to this breach of the duty of care, Plaintiffs allege the following causes of action: negligent infliction of emotional distress; negligent training, retention, supervision, and/or hiring; statutory tort under Hawaii Revised Statutes (“HRS”) § 663–1 ; strict products liability; breach of implied warranty; and failure to warn. Id. On February 19, 2013, Burger King filed a Third Party Complaint against AAFES, Doc. No. 147, after which AAFES filed a crossclaim against CTI and a counterclaim against Burger King on August 9, 2013. Doc. No. 153. On September 7, 2013, Plaintiffs filed their First Amended Complaint adding a tenth cause of action specifically against Burger King for unfair or deceptive practices under HRS Chapter 480. Doc. No. 164.

On February 3, 2014, Burger King filed the instant Motion, Doc. No. 189.² On March 3, 2014, Plaintiffs filed their Opposition to the Motion, Doc. No. 204, and on March 10, 2014, Burger King filed its Reply. Doc. No. 206. Both AAFES and CTI filed Statements of No Position on the Motion on March 14, 2014 and March 26, 2014, respectively, Doc. Nos. 209 and 211. The court determines the Motion without a hearing under Local Rule 7.2(d).

III. STANDARD OF REVIEW

A. Motion for Summary Judgment

Summary judgment is proper where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). Rule 56(a) mandates summary judgment “against a party who fails to make a showing sufficient to establish the existence of an element essential to the party's case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ; see also Broussard v. Univ. of Cal. at Berkeley, 192 F.3d 1252, 1258 (9th Cir.1999).

“A party seeking summary judgment bears the initial burden of informing the court of the basis for its motion and of identifying those portions of the pleadings and discovery responses that demonstrate the absence of a genuine issue of material fact.” Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir.2007) (citing Celotex, 477 U.S. at 323, 106 S.Ct. 2548 ); see also Jespersen v. Harrah's Operating Co., 392 F.3d 1076, 1079 (9th Cir.2004). “When the moving party has carried its burden under Rule 56 [ (a) ] its opponent must do more than simply show that there is some metaphysical doubt as to the material facts.... [T]he nonmoving party must come forward with ‘specific facts showing that there is a genuine issue for trial.’ ” Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 586–87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (citation, internal quotation signals, and emphasis omitted); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (stating that a party cannot “rest upon the mere allegations or denials of his pleading” in opposing summary judgment).

“An issue is ‘genuine’ only if there is a sufficient evidentiary basis on which a reasonable fact finder could find for the nonmoving party, and a dispute is ‘material’ only if it could affect the outcome of the suit under the governing law.” In re Barboza, 545 F.3d 702, 707 (9th Cir.2008) (citing Anderson, 477 U.S. at 248, 106 S.Ct. 2505 ). When considering the evidence on a motion for summary judgment, the court must draw all reasonable inferences on behalf of the nonmoving party. Matsushita Elec. Indus. Co., 475 U.S. at 587, 106 S.Ct. 1348 ; see also Posey v. Lake Pend Oreille Sch. Dist. No. 84, 546 F.3d 1121, 1126 (9th Cir.2008) (stating that “the evidence of [the nonmovant] is to be believed, and all justifiable inferences are to be drawn in his favor” (citations omitted)).

B. Review of State Law Claims

This case involves questions of both state and federal law. “When interpreting state law, a federal court is bound by the decision of the highest state court.” In re Kirkland, 915 F.2d 1236, 1238 (9th Cir.1990). “In the absence of controlling forum state law, a federal court sitting in diversity must use its own best judgment in predicting how the state's highest court would decide the case.... In so doing, a federal court may be aided by looking to well-reasoned decisions from other jurisdictions.” Takahashi v. Loomis Armored Car Serv., 625 F.2d 314, 316 (9th Cir.1980) (citations omitted).

IV. DISCUSSION

Burger King's Motion seeks summary judgment as to all claims, and ultimately turns on whether it, as a mere franchisor, may be held liable for injuries arising from the consumption of a sandwich produced by a franchisee. Because the cause of the alleged negligence remains in dispute, this court cannot conclude, at this summary judgment stage, that Burger King has no possible liability.

A. General Principles of Franchisor Liability

Hawaii has very little case law specifically addressing franchisor tort liability. Ottensmeyer v. Baskin, 2 Haw.App. 86, 625 P.2d 1069 (1981), however, recognized that liability for a franchisor could arise from the actual or apparent agency of the franchisee. Id. at 88, 625 P.2d at 1071 ; cf. Son–Gi Han v. Kang, 121 Hawai'i 471, 2009 WL 4268383, at *6 (Haw.App. Nov. 25, 2009) (mem.) (“Although a franchise agreement expressly disclaims agency on part of franchisee, the court must consider the franchise agreement and the amount of control exercised over the franchisee.”) (citing Otte...