Rogers v. Burger King Corp.

• Citation: 82 P.3d 116,2003 OK CIV APP 108
• Decision Date: 21 November 2003
• Docket Number: No. 99,402.,99,402.
• Parties: Pauline L. ROGERS, Plaintiff/Appellant, v. BURGER KING CORPORATION, Carey Johnson Oil Company, Inc., and BRU Corporation, Defendants/Appellees.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

82 P.3d 116

2003 OK CIV APP 108

Pauline L. ROGERS, Plaintiff/Appellant, v. BURGER KING CORPORATION, Carey Johnson Oil Company, Inc., and BRU Corporation, Defendants/Appellees.

No. 99,402.

Court of Civil Appeals of Oklahoma, Division No. 3.

November 21, 2003.

Steven K. McKinney, Elrod Law Firm, Siloam Springs, AR, for Plaintiff/Appellant.

Rodney C. Ramsey, Britton, Gray, Ramsey and McCutcheon, P.C., Oklahoma City, OK, for Defendants/Appellees.

Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 3.

Opinion by KENNETH L. BUETTNER, Judge.

¶ 1 Plaintiff/Appellant Pauline L. Rogers appeals the summary judgment granted to Defendant/Appellee Burger King Corporation (Burger King), as well as the order dismissing Rogers's claims against Carey Johnson Oil Company, Inc. (Carey Johnson), and BRU Corporation (BRU). Because we find Rogers could prove no set of facts which would entitle her to relief in this case, we affirm the dismissal of the claims against Burger King and Carey Johnson. We affirm the dismissal of Rogers's claim against BRU because the Workers' Compensation Court had exclusive jurisdiction over Rogers's claim against her employer.

¶ 2 In her Petition, Rogers asserted that she was employed as a night porter at the Burger King restaurant on the Cherokee Turnpike in Delaware County. An EZ Go convenience store, which operated 24 hours a day, was located in the same building as the restaurant. Rogers alleged that on February 1, 2000, she reported to work at 10:00 p.m., the restaurant closed at 11:00 p.m., and the crew had left by 11:30 p.m.

¶ 3 Rogers alleged there was no restroom facility within the restaurant and that she therefore used the restroom located in the common area of the facility. Rogers alleged that at 4:30 a.m. on February 2, 2000, she left the restaurant to go to the restroom. While she was in the restroom, a man, later identified as Larry Aragon, entered the restroom, tore down the stall door and forcibly removed Rogers from the restroom and led her at gunpoint to a stolen car.¹ Rogers asserted that Aragon threatened to kill her, abducted her, and drove with her throughout eastern Oklahoma and western Arkansas for two hours, during which time he stopped the car twice in order to rape and sexually assault her.² Rogers escaped at 6:30 a.m. and police took her to a hospital in Siloam Springs, Arkansas.³

¶ 4 Rogers averred that BRU is the holder of a franchise purchased from Burger King, and that Burger King retains control and authority to approve the site location, design, and construction of the restaurant operated by BRU. Rogers also asserted that Burger King had control over the training manuals and training procedures of all franchise operations, including store security. Rogers asserted that Burger King retained sufficient control over the store to render it vicariously liable for any damages Rogers incurred. Rogers asserted that Carey Johnson owned and operated the EZ Go convenience store in the same building.

¶ 5 Rogers argued that "it was foreseeable that operating a retail facility that was open to the public 24 hours a day in a remote location created a hazard of criminal activity against any customer or employee...." Rogers argued that because of the remote location and the hours of operation, Burger King, Carey Johnson, and BRU had a duty to operate the facility in such a manner as to protect those lawfully on the premises from criminal activity. Rogers argued that Burger King, Carey Johnson, and BRU negligently breached that duty by failing to provide: 1) a panic button or other system to summon immediate help; 2) a surveillance system for the common areas of the facility; and 3) a system of established safety procedures to train employees in avoiding dangerous situations and responding to emergencies. Rogers argued that the negligence of Burger King, Carey Johnson and BRU was the proximate cause of the attack and the resulting injuries. Rogers also argued that the decision made by Burger King, Carey Johnson and BRU to operate a 24 hour business in a remote location with inadequate security measures showed a reckless disregard for her rights and she therefore asked for an award of punitive damages.

¶ 6 In its Answer, Burger King argued that Rogers had failed to state a claim on which relief could be granted, in part because it owed no duty to protect Rogers from criminal activity and had no notice of any condition which presented a potential danger to Rogers. Burger King also asserted that it was not vicariously liable for the negligence of the owner or operator of the restaurant. Burger King lastly asserted Rogers was contributorily negligent and had assumed the risk of criminal harm.

¶ 7 In their Motion to Dismiss, Carey Johnson and BRU acknowledged the allegations made by Rogers and asserted in addition that Rogers was an employee of BRU, Rogers left the restaurant to go to a public restroom, and was abducted by a person who was not affiliated with any of the defendants. BRU argued that the Workers' Compensation Court offered the exclusive remedy for Rogers's claims against her employer, BRU, citing 85 O.S.2001 § 12. Carey Johnson argued that Rogers had failed to state a cause of action against it because it owed no duty to Rogers. Carey Johnson argued that Rogers had claimed that it was liable because it employed one 18 year old female employee in its 24-hour convenience store. Carey Johnson argued that none of those facts gave rise to a duty of care to Rogers, who was not its employee. Carey Johnson also asserted that it owed no duty to provide a system of established safety procedures to train employees, noting that Rogers had asserted that Burger King had control over the training of its employees. Carey Johnson also asserted it had no duty in Oklahoma to install a surveillance system or a panic button alarm system, or to provide security personnel on site. Carey Johnson also argued that a business owes no duty to protect invitees from criminal assault. Carey Johnson asserted a business owner does have a duty to summon police if it knows that a criminal act is occurring, and Rogers's Petition indicated that Carey Johnson's employee did call police and therefore did not breach that duty.

¶ 8 In her response, Rogers asserted that although BRU owned the building which housed the Burger King restaurant and the convenience store, BRU and Carey Johnson shared control over the common area of the premises, in which she was attacked. Rogers asserted that BRU had the burden of proving that the Workers' Compensation Act afforded her exclusive remedy against BRU. Rogers also asserted that whether her injuries arose out of and in the course of her employment was an issue of fact which precluded dismissal. Rogers argued that the risk of a criminal attack was a purely personal risk not related to employment, and that she therefore could proceed in the district court rather than the Workers' Compensation Court.

¶ 9 Rogers further argued that Carey Johnson had a duty to protect its invitees because it "should have reasonably foreseen the risk of an attack on a female using the restroom during early morning off-hours in a public place...." Rogers asserted that the unique circumstances of the location of the restaurant and convenience store on the turnpike gave rise to a duty to protect invitees from criminal harm.

¶ 10 The trial court issued its Judgment dismissing Rogers's claims against BRU and Carey Johnson August 13, 2002. The trial court found that the allegations in the Petition failed to show that Carey Johnson had breached any duty owed to Rogers. The trial court also concluded that Rogers's sole remedy against BRU was to proceed in the Workers' Compensation Court. The court therefore dismissed Rogers's claims against those parties. That dismissed order was not certified for immediate review.

¶ 11 Burger King filed its Motion for Summary Judgment August 26, 2002. Burger King argued that Rogers had failed to state a claim against it because it was not Rogers's employer, and that as a franchisor, it was not liable for criminal acts occurring on property not owned by Burger King. Burger King also argued that Rogers had failed to present any evidence supporting her contention that Burger King exercised sufficient control over BRU to create an agency relationship which may have made Burger King liable under respondeat superior. Burger King also argued that because it was not Rogers's employer, it did not have a duty to offer self-defense training to her, nor did it have a duty to install surveillance equipment or a panic button alarm system, or to have security personnel on site in an adjacent public restroom. Lastly, Burger King argued that the owner of the building had no duty to protect its invitees from third-party criminal activity and by extension there could be no duty on Burger King, as a franchisor, to protect Rogers from a third-party criminal assault in the public area of the building.

¶ 12 In her Response, Rogers argued that Burger King retained sufficient control over the site location, the facility design, the training manuals, and training procedures for the Burger King restaurant at issue in this case, so that Burger King should be held vicariously liable for Rogers's injuries. The trial court issued its summary judgment order in favor of Burger King May 16, 2003.

¶ 13 In her Petition in Error, Rogers asserts three issues: 1) whether workers' compensation is the exclusive remedy available against BRU; 2) whether Carey Johnson owed a duty to Rogers under the facts of this case; and 3) whether Burger King exercised sufficient control over BRU and the premises involved to create a duty toward Rogers. None of the parties attached any evidentiary materials to their pleadings in support of, or in opposition to, dismissal or summary judgment.

¶ 14 In addressing an appeal from a decision dismissing a petition for...