Miller v. McDonald's Corp.

• Decision Date: 11 October 1983
• Docket Number: No. 83,83
• Citation: 439 So.2d 561
• Parties: Danny Glenn MILLER v. McDONALD'S CORPORATION, et al. CA 0014.
• Court: Court of Appeal of Louisiana — District of US

Page 561

439 So.2d 561

Danny Glenn MILLER v. McDONALD'S CORPORATION, et al.

No. 83 CA 0014.

Court of Appeal of Louisiana First Circuit.

Oct. 11, 1983.

Fred R. DeFrancesch, Baton Rouge, for plaintiff-appellant Danny Glenn miller.

Vincent P. Fornias, Baton Rouge, for defendants-appellees McDonald's Corp. and McDonald's Perkins Road, Inc.

Before SHORTESS, LANIER and CRAIN, JJ.

CRAIN, Judge.

This case is before us on an appeal from a judgment which sustained an exception of no cause of action and dismissed Danny Glenn Miller's (plaintiff) suit. For this reason, the facts below are stated in the light most favorable to plaintiff and are taken from his original and supplemental petitions.

Plaintiff entered the McDonald's hamburger restaurant on Perkins Road in Baton Rouge and placed an order. The order amounted to less than $2.00. Plaintiff paid with a $10.00 bill but received change for a $5.00 bill. He became involved in an argument with the manager about the "shortchanging." Some of the other customers present "passed remarks" regarding the argument. After an uncertain interval and without getting any more change, plaintiff "left the enclosed restaurant to sit at one of the exterior tables on the premises." He was followed out by three women who had been directly behind him in line at McDonald's. These three women "had become part of the manager's argument" involving the disputed change. They began shouting obscenities at plaintiff and continued to do so as they entered an automobile. The automobile pulled up next to the table where plaintiff was sitting, and a gunshot was fired which struck plaintiff. One of the three women fired the shot.

Plaintiff brought this suit against McDonald's Corporation, McDonald's Perkins Road, Inc., and the XYZ Insurance Company to recover for the damages he sustained from the shooting. The original petition was found by the trial court to state no cause of action. Plaintiff amended to expand upon the allegations of negligence and included a claim for the $5.00 change he never received. The trial court sustained the second exception of no cause, and the case was appealed. This court reversed the trial court's ruling because of the claim for the $5.00 change. ¹ Defendants then deposited into the registry of the court the $5.00. The parties stipulated that the "shortchanging" claim had been satisfied by this tender. They resubmitted the issue to the trial court and anticipated its ruling would be adverse to plaintiff. The trial court again sustained the exception of no cause of action and dismissed plaintiff's suit. Plaintiff has appealed again.

The peremptory exception of no cause of action tests the legal sufficiency of the pleadings. When a petition states a cause of action as to any ground or portion of the demand, the exception of no cause of action must be overruled. Miller v. McDonald's Corporation, 415 So.2d 418 (La.App. 1st Cir.1982) and authorities cited therein. Taking the well-pleaded factual allegations as true, the issue is whether the petition on its face presents a case which legally entitles plaintiff to redress. Hero Lands Company v. Texaco, Inc., 310 So.2d 93 (La.1975); Mercier v. Flugence, 408 So.2d 52 (La.App. 3rd Cir.1981).

Whether or not plaintiff has stated a cause of action entitling him to redress in this case will be determined by applying to the facts, as stated in his petitions, the duty-risk analysis established by our Supreme Court in Dixie Drive It Yourself Sys. v. American Beverage Co., 242 La. 471, 137 So.2d 298 (1962) and its progeny. Under this approach, a plaintiff must prove the following elements:

(a) that the conduct of which he complains was a cause in fact of the harm;

(b) the existence of a duty on the part of the defendant which was imposed to protect against the risk involved;

(c) breach of that duty by the defendant; and

(d) actual damage to his person or property as a result of defendant's action or omission.

Applying this law to plaintiff's petitions, we see that plaintiff alleged "[t]he manager of the McDonald's did nothing to deflate a potentially explosive situation and in fact his violent and active participation was a primary cause of the resulting injury to your named petitioner." Yet the only fact alleged as to the manager's actions is that he was involved in an argument with plaintiff. We find that "potentially explosive situation," "violent and active participation," and "primary cause" are merely vague and conclusory statements, not well-pleaded factual allegations necessary to a cause of action. La.C.C.P. art. 891.

Plaintiff's amended petition added paragraphs which stated as follows:

IV--A

Petitioner was followed out shortly by three women who were directly behind him on (sic) line at McDonald's. They started shouting obsenities (sic) at your petitioner and continued to do so as they entered their automobile.

....

V--A

The automobile contained the three women who had become part of the manager's argument over the shortchanging of your petitioner. One of these women fired the shot which severely injured your petitioner.

Accepting these allegations as true, we fail to see any act or omission by the McDonald's manager which was a cause-in-fact of the shooting. Plaintiff's argument with the manager over the amount of change ceased when plaintiff left the store and the manager remained inside. Nothing in the petition alleged that the manager had anything to do with the three women following plaintiff out of the restaurant, shouting obscenities at him and shooting him. Since the manager's actions were not a cause-in-fact of the shooting, recovery against McDonald's for injuries sustained from the shooting is legally impossible under a duty-risk analysis.

The plaintiff alleged that this McDonald's was the site of prior criminal disturbances and was "frequented by youths who...