Faverty v. McDonald's Restaurants of Oregon, Inc.

• Citation: 133 Or.App. 514,892 P.2d 703
• Parties: Frederic M. FAVERTY, Respondent, v. McDONALD'S RESTAURANTS OF OREGON, INC., an Oregon corporation, Appellant. 9001-00394; CA A70327.
• Decision Date: 19 November 1993
• Court: Court of Appeals of Oregon

Page 703

892 P.2d 703

133 Or.App. 514

Frederic M. FAVERTY, Respondent, v. McDONALD'S RESTAURANTS OF OREGON, INC., an Oregon corporation, Appellant.

9001-00394; CA A70327.

Court of Appeals of Oregon.

Argued and Submitted Nov. 19, 1993.

Resubmitted In Banc, ^* Dec. 15, 1994.

Decided March 22, 1995.

I. Franklin Hunsaker argued the cause for appellant. With him on the briefs were Donald C. McClain, McClain & Rayburn, Douglas G. Houser and Bullivant, Houser, Bailey, Pendergrass & Hoffman.

Robert J. Neuberger argued the cause for respondent. With him on the brief were Robert K. Udziela and Pozzi, Wilson, Atchison, O'Leary & Conboy.

Jeffrey V. Hill, Bradford H. Lamb, Zarosinski & Hill, James M. Coleman and Power & Coleman filed a brief amicus curiae for Nat. Council of Chain Restaurants.

Joseph S. Ruggie, Jr., Keith P. Spiller, Michael N. Chesney, Thompson, Hine and Flory, M. Elizabeth Duncan and Foley & Duncan, P.C. filed a brief amicus curiae for Defense Research Institute, Inc.

Kathryn H. Clarke and Alfredo Wheelock, III, filed a brief amicus curiae for Oregon Trial Lawyers Ass'n.

LANDAU, Judge.

Defendant appeals from a judgment on a jury verdict awarding damages to plaintiff for injuries he suffered when his van was struck by a car driven by defendant's off-duty employee, Matt Theurer. Plaintiff's theory is that defendant was negligent in working Theurer unreasonably long hours, knowing that he would then be a hazard to himself and others when he drove himself home from the work place. Defendant assigns error to the trial court's denial of several motions, to its overruling of an exception to one of plaintiff's jury instructions and to its refusal to allow the jury to compute the percentage of fault attributable to Theurer. We affirm.

We state the facts in the light most favorable to plaintiff, who prevailed at trial. Dikeman v. Carla Properties, Ltd., 127 Or.App. 53, 62, 871 P.2d 474 (1994). Theurer was an 18-year-old high school senior. He participated in numerous extracurricular activities, and he was a member of the National Guard. He also worked part time at one of defendant's fast food restaurants. He was known to be an enthusiastic worker, but his family and friends believed that he was trying to do too much and was not getting enough sleep.

At the time of the accident, defendant had many employees who attended high school during the day and worked part time in the evenings. Defendant's restaurant closed at 11 p.m., and cleanup and closing procedures sometimes continued past midnight. Defendant's managers generally tried to accommodate employee scheduling requests, but that was not always possible. However, defendant had a policy of not scheduling high school students to work later than midnight more than once per week. The employee manual said that employees also were not to be scheduled for split shifts. According to one of defendant's managers, that was because employees did not like having to commute for split shifts, and they were to be avoided "so people can get their rest." Notwithstanding defendant's efforts, employees still sometimes complained about being tired after closing, and defendant was aware that at least two of its employees had automobile accidents as a result of falling asleep while driving home after working late shifts.

A few times each year, defendant would schedule special cleanup projects to be performed after midnight, while the restaurant was closed. Employees other than high school students usually would be scheduled to perform that work. One of defendant's managers testified that, if student workers were needed, such projects could be scheduled for weekends or during spring break. However, due to the untimely dismissal of another employee, one of defendant's managers asked for a volunteer to fill in for the cleanup shift that was scheduled from midnight to 5 a.m. on a Tuesday. Theurer offered to work the extra shift. The manager knew that Theurer drove approximately 20 miles to and from work.

During the week before the special cleanup project, Theurer worked five nights. One of those nights, he worked past midnight, one--the night before the cleanup project--until 11:30 p.m., one until 11 p.m. and two until approximately 9 p.m.

On Monday, April 4, 1988, Theurer worked his regular shift from 3:30 p.m. to 7:30 p.m., followed by the cleanup shift beginning at midnight and ending on Tuesday, April 5, at about 5:00 a.m. After the cleanup project was completed, Theurer worked yet another shift from 5:00 a.m. to 8:21 a.m. During that shift, Theurer told the manager that he was tired and asked to be excused from his next regularly scheduled shift so that he could rest. The manager agreed.

Theurer then began the trip home. A short time later, he became drowsy or fell asleep while driving his car approximately 45 miles per hour on a two-lane highway. At a bend in the road, his car crossed the dividing line into the lane of oncoming traffic and crashed into plaintiff's van. Theurer died, and plaintiff was severely injured.

Plaintiff settled his potential claims against Theurer's representatives. Plaintiff then filed this action, alleging that defendant was negligent in requiring Theurer to work too many hours without adequate rest, and in permitting Theurer to drive a car when defendant should have known that Theurer could not drive safely. Defendant moved to dismiss the complaint, on the ground that the allegations do not support the conclusion that plaintiff's injuries were a reasonably foreseeable consequence of defendant's conduct, as a matter of law. The trial court denied the motion. Defendant then answered, denying any negligence. Defendant asserted two affirmative defenses. In the first, defendant alleged that plaintiff's injuries were caused by his own negligence. In the second affirmative defense, defendant alleged that plaintiff's injuries were caused by the negligence of Theurer and, accordingly, any negligence of defendant must be determined in comparison with that of both plaintiff and Theurer. Plaintiff moved to dismiss the second affirmative defense on the ground that the jury is not entitled to consider the relative fault of parties who have settled and are not before the court. The trial court granted the motion.

The case was then tried to a jury. During the trial, plaintiff amended his complaint, so that the sole allegation of negligence is that

"[d]efendant was negligent in working Theurer more hours than was reasonable under the circumstances when defendant knew, or in the exercise of reasonable care should have known, that Theurer would operate a motor vehicle and be a hazard to himself and to others."

Defendant moved for a directed verdict, arguing that the evidence could not support a verdict that plaintiff's injuries were a reasonably foreseeable consequence of defendant's decision to allow Theurer to work the hours that he did. Defendant also asserted that plaintiff's claim fails as a matter of law, because state labor laws have preempted any common law liability concerning the scheduling of workers, and there is no evidence of violations of those statutes. The trial court denied the motion. The jury was instructed, in relevant part:

"Now, ladies and gentlemen, in general it is the duty of every person in our society to use reasonable care to avoid damage that would be reasonably anticipated. Reasonable care is that care which persons of ordinary prudence exercise in the management of their own affairs to avoid injury to themselves or to others.

"Common law negligence, therefore, is the doing of some act that a reasonably careful person would not do or it's the failure to do something that a reasonably careful person would do under the same or similar circumstances. The care exercised should be in keeping with dangers apparent or reasonably foreseeable at the time and place in question and not in the light of resulting sequence of events or hindsight.

"A person is liable only for the reasonably foreseeable consequences of his, her, or its actions. There are two things that must be foreseeable. First, the plaintiff must be within the general class of persons that one reasonably would anticipate might be threatened by the defendant's conduct; second, the harm suffered must be within the general class of harms that one reasonably would anticipate might result in the defendant's conduct. It is not necessary that a party foresee either the precise injury or the exact manner of its occurrence."

The jury then returned a verdict in favor of plaintiff, finding that plaintiff was not negligent at all.

Defendant appealed. Approximately three months after the filing of the notice of appeal, a magazine article reported that at least one of the jurors in this case said that the jury increased its award by $100,000 after someone speculated that plaintiff would have to pay a lawyer one-third of his damages for a contingent fee. Defendant moved for a new trial, arguing that the article constituted evidence of jury misconduct. The trial court denied the motion.

In its first assignment of error, defendant contends that the trial court should have granted defendant's motion to dismiss plaintiff's complaint. In its second assignment of error, defendant contends that the trial court should have granted defendant's motion for a direct verdict. In support of both assignments, defendant argues that it cannot be held liable to plaintiff as a matter of law, because it had no duty to prevent Theurer from working as many hours as he did. According to defendant, as Theurer's employer, it had no duty to limit Theurer's work schedule, both because employers have no such duty at common law and because state labor statutes have preempted the field. Plaintiff argues that, under Fazzolari v. Portland School Dist. No. 1J, 303 Or. 1, 17, 734 P.2d 1326 (1987), the defendant's liability in negligence generally depends on whether the defendant's conduct...