Politte v. McDonald's Corp.
| Decision Date | 29 November 1993 |
| Citation | 16 F.3d 417 |
| Parties | NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of |
| Court | U.S. Court of Appeals — Tenth Circuit |
Before BRORBY, HOLLOWAY and KELLY, Circuit Judges.
Plaintiffs-appellants, the Polittes, appeal the district court's grant of summary judgment on their promissory estoppel and negligence claims in favor of Defendant-appellee McDonald's Corporation. The Polittes claim that McDonald's Corporation failed to make repairs necessary to prevent ongoing water damage to the Golden, Colorado McDonald's restaurant. Our jurisdiction arises under 28 U.S.C. 1291. Because we find no evidence of a promise by McDonald's to solve all water problems and no duty to do so, we affirm.
Our review is de novo and we apply the same legal standard used by the district court in evaluating the summary judgment motion, namely Fed.R.Civ.P. 56(c). Applied Genetics Int'l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir.1990). Summary judgment is appropriate if "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). We view the evidence and draw any inferences in a light most favorable to the party opposing summary judgment, but that party must identify sufficient evidence which would require submission of the case to a jury. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-52, 254 (1986); Adickes v. S. H. Kress & Co., 398 U.S. 144, 157 (1970); Hall v. Bellmon, 935 F.2d 1106, 1111 (10th Cir.1991).
A movant need only point to those portions of the record that demonstrate an absence of a genuine issue of material fact given the relevant substantive law. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). If a movant establishes its entitlement to judgment as a matter of law given uncontroverted, operative facts contained in the documentary evidence, summary judgment will lie. See Anderson, 477 U.S. at 251. See also Matsushita Elec. Indust. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) () (citing First Nat'l Bank v. Cities Serv. Co., 391 U.S. 253, 289 (1968)). A movant is not required to provide evidence negating an opponent's claim. Celotex, 477 U.S. at 323.
We must determine which state law governs because the parties disagree and the district court did not resolve the issue in its order. See Mitchell v. State Farm Fire & Cas. Co., 902 F.2d 790, 792 (10th Cir.1990). McDonald's argues that the choice of law clauses in the lease and franchise agreement specify that Illinois law applies. These clauses, however, do not apply to non-contract claims such as promissory estoppel and negligence. Sutter Home Winery, Inc. v. Vintage Selections, Ltd., 971 F.2d 401, 407 (9th Cir.1992); NCC Sunday Inserts, Inc. v. World Color Press, Inc., 759 F.Supp. 1004, 1011 n. 11 (S.D.N.Y.1991).
The law of the forum state controls in making the choice of law determination. Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496 (1941). Colorado adopted the Restatement (Second) of Conflict of Laws for tort actions in Dworak v. Olson Const. Co., 551 P.2d 198, 199-200 (Colo.1976), and for contract actions in Wood Bros. Homes v. Walker Adjustment Bureau, 601 P.2d 1369, 1372 (Colo.1979) (en banc). While the Restatement does not express a promissory estoppel rule, in the absence of an agreement between the parties as to which law applies in contract claims not controlled by the lease or franchise agreement, we apply the "most significant relationship" test of Restatement (Second) of Conflict of Laws 188. See Wood Bros. Homes, 601 P.2d at 1372. Because the negotiations took place in Colorado, the restaurant is located in Colorado, and any obligations that may have arisen under promissory estoppel or due to negligence would be fulfilled in Colorado, Colorado law controls.
Colorado adopted the Restatement (Second) Contracts 90(1) promissory estoppel rule in Vigoda v. Denver Urban Renewal Auth., 646 P.2d 900, 905 (Colo.1982) (en banc). While Colorado has not delineated how detailed a promise must be under 90, it, at least, requires a clear promise. Mead Associates, Inc. v. Antonsen, 677 P.2d 434, 436 (Colo.App.1984) (); accord Kiely v. St. Germain, 670 P.2d 764, 766 (Colo.1983) (); Vigoda, 646 P.2d at 904 ().
The Polittes argue that McDonald's 1984 offer to permanently solve the parking lot problem was a promise to assume all liability arising as a result of both surface and ground water problems at the Golden restaurant. The summary judgment record simply does not support this assertion. McDonald's promise, memorialized in a July 13, 1984 letter to McDonald's encompasses repairs only to the parking lot. II Aplt.App. IX, tab 3, ex. 2. A review of correspondence from McDonald's to the Polittes likewise shows a promise to repair the parking lot but nowhere shows a broader promise to assume liability for all present or future water damage. II Aplt.App. IX, tab 1, ex. 8. Because we find no evidence of a promise by McDonald's to solve all water problems, summary judgment on this claim was appropriate. We need not reach the issue of whether the Polittes relied on McDonald's representations to their detriment. The Polittes' failure of proof concerning the promise, an essential element of their case, necessarily renders other facts immaterial. Celotex, 477 U.S. at 323.
This case does not concern the scope of an ill-defined promise; rather, it concerns two distinct promises, one made and one alleged to have been made. McDonald's made good on its promise to correct the "parking lot problem," and the Polittes do not suggest otherwise. The Polittes argue that the "parking lot problem" encompasses all of the "site problems" which probably result from an underground spring located either on or near the property. There simply is no evidence supporting the existence of this "second" promise.
The dissent contends we should not rely upon how the Polittes framed the promise in their complaint, because there may be another theory on which the Polittes may recover, perhaps with additional discovery. The problem with this approach is that it is inconsistent with summary judgment law--after an opportunity for discovery, the movants have a right to oppose the claims plead and to establish that the claims have no factual basis. See Celotex, 477 U.S. at 321; Anderson, 477 U.S. at 256-57; Matsushita, 475 U.S. at 586. An identification of the relevant substantive law is required, Anderson, 477 U.S. at 248, and that cannot be accomplished practically without reference to the complaint. Just as a movant is not required to produce evidence negating a plaintiff's claim, Celotex, 477 U.S. at 323, neither is a movant required to anticipate every foreseeable basis for a plaintiff's remedy and attempt to negate such anticipated bases. Plaintiffs are expected to plead with reference to the facts they have in their possession.
Mr. Politte's statements, taken out of context, do not create a genuine issue of a material fact because they are not significantly probative, see Anderson, 477 U.S. at 249, of the expanded duty the Polittes now claim was assumed by McDonald's. The Polittes had the burden of coming forward with such evidence under the relevant substantive law, given that McDonald's has claimed that they lack the evidence. See Celotex, 477 U.S. at 322-23. Summary judgment was thus proper.
The Polittes also based their negligence claim upon McDonald's undertaking of parking lot repairs in 1984. They claim that because McDonald's assumed a duty to repair the parking lot, it also assumed a duty to detect and resolve any possible underground water problems.
In Colorado, the question of whether a defendant has assumed a duty is a mixed question of fact and law. Jefferson County School Dist. R-1 v. Justus, 725 P.2d 767, 771 (Colo.1986) (en banc). In order to survive a motion for summary judgment, the plaintiff first must show that the defendant "undertook to render a service that was reasonably calculated to prevent the type of harm that befell the plaintiff." Id. The scope of an assumed duty "can obviously be no broader than the undertaking actually assumed." Id. at 772-73 n. 5.
Again, the summary judgment record simply does not contain evidence which would support an assumption of a duty so broad as to include all water problems on the property for all time. See Jefferson County School Dist. R-1 v. Gilbert, 725 P.2d 774, 776-77 (Colo.1986) (en banc) (). As evidence of the scope of duty, the Polittes offer various letters exchanged between them and McDonald's Corporation, depositions, and deposition exhibits. But this evidence does not suggest that McDonald's Corporation undertook a task any broader than repairs to the parking lot surface. In his deposition, Mr. Politte refers to the problem as "the Golden parking lot problem", (II Aplt.App. IX, tab 7 at 211), as did written correspondence with McDonald's in 1984. (II Aplt.App. IX, tab 3, ex. 2). McDonald's hired...
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