Filed: Jan. 21, 2010
Latest Update: Feb. 12, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-1914 FRANK SUTTON, Plaintiff – Appellant, v. ROTH, L.L.C.; JOHN DOE; MCDONALD’S CORPORATION, Defendants – Appellees. Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Claude M. Hilton, Senior District Judge. (1:07-cv-00779-CMH-TRJ) Argued: October 28, 2009 Decided: January 21, 2010 Before KING, SHEDD, and DAVIS, Circuit Judges. Vacated and remanded by unpublished opinion. Judg
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-1914 FRANK SUTTON, Plaintiff – Appellant, v. ROTH, L.L.C.; JOHN DOE; MCDONALD’S CORPORATION, Defendants – Appellees. Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Claude M. Hilton, Senior District Judge. (1:07-cv-00779-CMH-TRJ) Argued: October 28, 2009 Decided: January 21, 2010 Before KING, SHEDD, and DAVIS, Circuit Judges. Vacated and remanded by unpublished opinion. Judge..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-1914
FRANK SUTTON,
Plaintiff – Appellant,
v.
ROTH, L.L.C.; JOHN DOE; MCDONALD’S CORPORATION,
Defendants – Appellees.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Claude M. Hilton, Senior
District Judge. (1:07-cv-00779-CMH-TRJ)
Argued: October 28, 2009 Decided: January 21, 2010
Before KING, SHEDD, and DAVIS, Circuit Judges.
Vacated and remanded by unpublished opinion. Judge Shedd wrote
the majority opinion, in which Judge King joined. Judge Davis
wrote a dissenting opinion.
ARGUED: Beverly G. Stephenson, B. G. STEPHENSON, LP, Fairfax,
Virginia, for Appellant. David Drake Hudgins, HUDGINS LAW FIRM,
Alexandria, Virginia, for Appellees. ON BRIEF: Joseph J.
Jablonski, Jr., B. G. STEPHENSON, LP, Fairfax, Virginia, for
Appellant.
Unpublished opinions are not binding precedent in this circuit.
SHEDD, Circuit Judge:
Frank Sutton appeals the district court’s orders granting
(1) judgment as a matter of law in favor of Roth, L.L.C. and
John Doe (collectively, “Roth”) and (2) summary judgment in
favor of McDonald’s Corporation. For the reasons set forth
below, we vacate both orders and remand this case for further
proceedings consistent with this opinion.
I.
A.
We review both orders de novo, viewing the evidence in the
light most favorable to Sutton, the nonmoving party. Buckley v.
Mukasey, 538 F.3d 306, 321 (4th Cir. 2008). Around 1:30 a.m. on
August 8, 2005, Sutton, along with his wife, adult son, and a
work associate (Bill Giffon), stopped to refuel at the Daniel
Boone Truck Stop in Duffield, Virginia. While refueling, the
group noticed a McDonald’s restaurant attached to the truck
stop’s convenience store. Roth owns this restaurant as a
franchisee of McDonald’s Corporation.
Because their vehicles were too big to fit through the
restaurant’s drive-thru, Sutton and his entourage went inside
the restaurant/convenience store to order. When they entered,
Sutton noticed that the partition between the McDonald’s
restaurant and the convenience store was closed. Sutton asked
2
the convenience store clerks whether the McDonald’s restaurant
was still open, and they replied that it was. Sutton returned to
the partition and called for a McDonald’s employee, but no one
answered. The convenience store operators then informed Sutton
that the McDonald’s employees were outside, behind the
restaurant.
Sutton went outside and found two young women in McDonald’s
uniforms talking with two young men. Sutton asked them if the
restaurant was still open, and they replied affirmatively.
Sutton walked back inside, and the two women met him at the
partition. Sutton placed and paid for his order. He then watched
the two women go into the restaurant. Shortly thereafter, the
women returned with Sutton’s change and his order. Sutton’s
group then went to a small table in the convenience store to
eat.
When Sutton bit into his fried chicken sandwich, “grease
flew all over his mouth.” J.A. 250 (Testimony of Bill Giffon).
As Sutton described it, “the grease from the inside of the
chicken sandwich spread out all over my bottom lip, my top lip,
down onto my chin.” J.A. 192. Sutton immediately dropped his
sandwich, and his wife took ice out of her drink, put it into a
napkin, and began to dab his face. Almost instantly, blisters
appeared on Sutton’s lips.
3
After tending to his face, Sutton sought out the two
McDonald’s employees to report the incident. Unable to find them
inside, Sutton went back outside, where he found them again
talking with two young men. He told them what had happened and
showed them the blisters on his lips and chin. One of the women
responded, “This is what happens to the sandwiches when they
aren’t drained completely.” J.A. 12. After they finished eating,
Sutton and his entourage left the truck stop.
The next morning Sutton discovered that some of the
blisters on his lips had bled onto his pillow. At this point, he
realized that his burns were worse than he initially thought.
Two days after the accident, he returned to the restaurant to
file an incident report with the manager on duty. Four days
after the accident, Sutton went to an urgent care facility for
medical attention; there he was told that the burns would heal
naturally over the next month.
Sutton’s lips continued to bother him over the next few
months. Because sunlight and heat irritated his burns, Sutton’s
lips consistently bothered him during his work of refurbishing
and assembling outdoor amusement rides. Sutton declined specific
jobs if he knew the necessary work would aggravate his lips.
Seven months after the accident Sutton sought additional
treatment for his injuries. Dr. Donnelly, an ear, nose, and
throat specialist, treated Sutton with lip balm, and he
4
instructed Sutton to avoid excessive exposure to sunlight.
Sutton visited Dr. Donnelly on a regular basis for ongoing
observation and treatment.
B.
Sutton sued Roth and McDonald’s Corporation for negligence
and breach of the warranty of merchantibility under Virginia
law, seeking $2,000,000 for lost wages, medical bills, and pain
and suffering. McDonald’s Corporation thereafter moved for
dismissal and/or summary judgment, arguing that under its
franchise agreement Roth was not its agent. In support of this
motion, McDonald’s Corporation relied solely on an attached
affidavit authored by its senior counsel David Bartlett.
McDonald’s Corporation did not attach the franchise agreement to
the motion. In response, Sutton argued that the court should not
consider the McDonald’s Corporation’s affidavit because it was
replete with hearsay. In the alternative, Sutton argued that,
even if the court considered the affidavit, Sutton needed more
discovery to oppose the motion, though he did not file an
affidavit under Federal Rules of Civil Procedure Rule 56(f).
Finally, Sutton argued that, even if the court did not grant him
more discovery, there was still a question of fact about
apparent agency and his claim for a breach of the warranty of
merchantibility did not rely on an agency relationship between
McDonald’s Corporation and Roth. The district court granted
5
summary judgment for McDonald’s Corporation because it found
that McDonald’s Corporation had demonstrated that there was no
agency relationship between Roth and McDonald’s Corporation and
Sutton had failed to rebut McDonald’s Corporation with any
contrary evidence. It did not address Sutton’s alternate
arguments. Following this motion, Sutton and Roth proceeded to
trial.
Roth moved in limine to exclude its employee’s statement
that “This is what happens to the sandwiches when they aren’t
drained completely.” J.A. 12. Roth argued that the statement was
inadmissible hearsay. In opposition, Sutton argued that the
statement was admissible under Federal Rule of Evidence
801(d)(2)(D) because it constituted an admission by a party-
opponent’s agent. The district court granted the motion, finding
that the statement was inadmissible under Rule 801(d)(2)(C)
because there was no evidence that Roth’s employee had authority
to make binding admissions on Roth’s behalf. The court did not
address the statement’s admissibility under Rule 801(d)(2)(D).
During trial, Sutton, Giffon, and Sutton’s wife testified. 1
At the close of Sutton’s case-in-chief, Roth moved for judgment
as a matter of law pursuant to Federal Rules of Civil Procedure
1
Sutton also introduced the deposition of Dr. Donnelly.
J.A. 255.
6
Rule 50. Roth argued that Sutton failed to present any evidence
of a standard of care, which is a necessary element to a
products liability case under Virginia law. Sutton argued that
Virginia’s unwholesome foods jurisprudence controlled his claim
and, therefore, he need not introduce any standard of care. See
generally Bussey v. E.S.C. Rest., Inc., 620 S.E.2d 764, 767 (Va.
2005). The district court agreed with Roth.
The district court then found that because Sutton had
failed to demonstrate any evidence of a standard of care, his
claim failed as a matter of law. The district court also found,
sua sponte, that Sutton was contributorily negligent by failing
to “exercise reasonable care to see that [he wasn’t] eating
something too hot.” 2 J.A. 304. Consequently, the district court
entered judgment for Roth and dismissed the jury.
C.
On appeal, Sutton first argues that the district court
erred in excluding Roth’s employee’s statement about the
consequences of failing to properly drain fried chicken. Second,
Sutton argues that the district court erred in granting Roth
2
We note that the defendants’ answer asserted that Sutton’s
claims were barred by contributory negligence. J.A. 16. However,
contributory negligence was not mentioned again until the
district court, without prompting or suggestion by either
litigant, relied on it as an alternative rationale for its order
granting judgment as a matter of law. J.A. 303-04.
7
judgment as a matter of law because he presented a prima facie
case of negligence through Roth’s employee’s excluded statement
and evidence of Sutton’s injury. In the alternative, Sutton
argues that, even without the statement, he presented a prima
facie case of negligence under Virginia’s unwholesome foods
jurisprudence. Finally, Sutton argues that the district court
erroneously granted summary judgment to McDonald’s Corporation
because it relied on an affidavit replete with hearsay, and that
it failed to address Sutton’s request for more discovery,
Sutton’s apparent agency argument, and Sutton’s breach of the
warranty of merchantibility claim.
II.
We first review the district court’s order granting Roth
judgment as a matter of law. Judgment as a matter of law is
appropriate only when a party has been fully heard on an issue
and there is no legally sufficient evidentiary basis for a
reasonable jury to find for that party on that issue. Fed. R.
Civ. P. 50(a)(1).
A.
As noted, the district court granted Roth judgment as a
matter of law because it found that Sutton had failed to present
any evidence of a standard of care. Sutton argues that the court
erred because under Virginia’s unwholesome foods jurisprudence,
8
a plaintiff need not present evidence of a standard of care. See
Bussey, 620 S.E.2d at 767.
Under Virginia law, a plaintiff need not present evidence
of a standard of care in an unwholesome foods case. Id. However,
to trigger unwholesome foods law, a plaintiff must show “that
the food product contained foreign matter.” Harris-Teeter, Inc.
v. Burroughs,
399 S.E.2d 801, 802 (Va. 1991). Here, there is no
evidence that Sutton’s fried chicken sandwich contained any
substance foreign to fried chicken. 3 Therefore, the district
court properly required Sutton to present evidence of a standard
of care, and we now must determine whether, under the law of
Virginia, Sutton presented evidence of a standard of care at
trial.
Under Virginia law, government standards, industry
standards, or the reasonable expectations of consumers can
constitute evidence of a standard of care in a products
liability case. Alevromagiros v. Hechinger Co., 993 F.2d 417,
420 (4th Cir. 1993) (applying Virginia law) (citing Sexton v.
3
Sutton argues that a sub-dermal, pocket of hot grease is
foreign to a fried chicken sandwich. Though Sutton is right that
hot grease is a foreign substance to chicken generally, hot
grease is necessary and expected (even desired) for fried
chicken. See Harris-Teeter, 399 S.E.2d at 802 (finding that a
plastic decoration on a child’s birthday cake was not a foreign
substance).
9
Bell Helmets, Inc., 926 F.2d 331, 337 (4th Cir. 1991)).
Describing these different types of evidence, we have said that:
While government and industry standards are readily
identifiable for a given product at a given time, the
reasonable expectation of purchasers requires a
factual examination of what society demanded or
expected from a product. This may be proved from
evidence of actual industry practices, knowledge at
the time of other injuries, knowledge of dangers, the
existence of published literature, and from direct
evidence of what reasonable purchasers considered
defective at the time.
Sexton, 926 F.2d at 337. However, before we review the record to
determine whether Sutton presented any evidence of a standard of
care, we must determine whether the district court considered
all of Sutton’s admissible evidence.
B.
Sutton argues that the district court erred by excluding
Roth’s employee’s statement about the consequences of failing to
drain fried chicken sandwiches. 4 The district court excluded this
statement under Federal Rule of Evidence 801(d)(2)(C), but
Sutton argues (and has consistently argued) that it is
admissible under Rule 801(d)(2)(D).
We review evidentiary rulings for an abuse of discretion.
Precision Piping and Instruments, Inc. v. E.I. du Pont de
4
Sutton also argues that the district court erroneously
excluded an incident report. We do not reach this issue because
it is unnecessary to our holding.
10
Nemours and Co., 951 F.2d 613, 619 (4th Cir. 1991). A district
court abuses its discretion “if its decision is guided by
erroneous legal principles or rests upon a clearly erroneous
factual finding.” Brown v. Nucor Corp.,
576 F.3d 149, 161 (4th
Cir. 2009) (internal quotation marks and citations omitted).
Evidentiary rulings are also “subject to harmless error review.”
United States v. Brooks,
111 F.3d 365, 371 (4th Cir. 1997).
Under Rule 801(d)(2)(D), a statement is not hearsay if it
is offered against a party and is “a statement by the party’s
agent or servant concerning a matter within the scope of the
agency or employment, made during the existence of the
relationship.” To introduce a statement under 801(d)(2)(D) the
record must reveal “independent evidence establishing the
existence of the agency.” United States v. Portsmouth Paving
Corp., 694 F.2d 312, 321 (4th Cir. 1982).
Here, the record reveals that the declarant was wearing a
McDonald’s uniform, helped fill Sutton’s order, and responded to
questions about McDonald’s while working at a McDonald’s
restaurant. We hold that this is sufficient evidence of agency
for Rule 801(d)(2)(D). Therefore, regardless of the statement’s
inadmissibility under Rule 801(d)(2)(C), this statement is
clearly admissible under Rule 801(d)(2)(D). The district court,
therefore, abused its discretion in excluding Roth’s employee’s
statement. We further find this error to be harmful because, as
11
discussed below, this statement constitutes evidence of a
standard of care.
C.
After reviewing all of Sutton’s admissible evidence, we
find that Sutton presented sufficient evidence of a standard of
care in the form of reasonable consumer expectation. First,
Roth’s employee’s statement constitutes evidence of “actual
industry practice[].” Alevromagiros, 993 F.2d at 420. Second,
Sutton’s companions’ reactions to his injury are evidence of
“what reasonable purchasers considered defective.”
Id. at 421.
Sutton’s wife removed ice from her soda, put it in a napkin, and
tried to put it on Sutton’s chin. Giffon described the incident
by saying “grease flew all over his mouth.” J.A. 250 (emphasis
added). Sutton threw the sandwich down. The consumers did not
expect Sutton’s fried chicken sandwich to contain a hot pocket
of grease, and Roth’s employee’s statement serves as strong
corroboration for the reasonableness of this expectation. These
facts reveal “what society demand[s] or expect[s] from” a fast-
food, fried chicken sandwich.
Sexton, 926 F.2d at 337. Under
Virginia law, this constitutes evidence of a standard of care.
The district court, therefore, erroneously granted judgment as a
12
matter of law in favor of Roth. 5 For these reasons, the district
court’s decision must be reversed and remanded. Having found
that the district court erroneously granted Roth judgment as a
matter of law, we next review the district court’s order
granting McDonald’s summary judgment.
III.
Though we review a grant of summary judgment de novo, we
review a district court’s refusal to allow discovery prior to
entering summary judgment for abuse of discretion. Harrods Ltd.
v. Sixty Internet Domain Names, 302 F.3d 214, 244 (4th Cir.
2002).
Shortly after Sutton filed suit and before the court
entered a scheduling order for discovery, McDonald’s Corporation
moved for summary judgment and/or dismissal, arguing that it had
no agency relationship with Roth. McDonald’s Corporation relied
on an affidavit by its general counsel averring that McDonald’s
Corporation had no control over Roth’s franchise and its
5
Acting sua sponte, the district court also found that
Sutton was contributorily negligent for biting into the hot
sandwich. J.A. 303-04. Even if it were appropriate for the court
to raise this issue in the manner it did, it is not contributory
negligence as a matter of law to merely bite into food served
hot by a restaurant. Therefore, to the extent necessary, we
reject the district court’s alternative rationale for granting
Roth judgment as a matter of law.
13
franchise agreement. However, McDonald’s Corporation did not
attach the franchise agreement to its motion.
In response, Sutton argued that the district court should
not consider McDonald’s Corporation’s affidavit because it was
based on hearsay. Sutton also argued that, even if the court
considered the affidavit, he needed more discovery to rebut
McDonald’s factual allegations. Sutton explained that he needed
more discovery about the actual relationship between McDonald’s
Corporation and Roth in order to determine if Roth was indeed an
agent of McDonald’s Corporation. Sutton also specifically
requested the franchise agreement. However, Sutton did not
attach an affidavit asserting contrary facts or file an
affidavit under Federal Rules of Civil Procedure Rule 56(f).
Finally, Sutton argued that, even if the court denied him more
discovery, summary judgment was improper because there was a
question of fact about apparent agency and that his warranty of
merchantibility claim against McDonald’s Corporation did not
rely on a theory of agency.
In an opinion rendered six days after the scheduling order
provided for discovery to begin, J.A. 7, the district court
granted summary judgment and dismissed McDonald’s Corporation
because it found that McDonald’s Corporation had “affirmatively
shown that no agency relationship exist[ed] with [Roth]” and
that Sutton had failed to assert any facts to rebut this
14
conclusion. J.A. 36. The district court did not address Sutton’s
other arguments. 6
We first address Sutton’s request for more discovery.
Generally, a district court should decline to grant summary
judgment where the non-moving party has not had the opportunity
to discover information necessary to oppose summary judgment.
Harrods Ltd., 302 F.3d at 244 (quoting Anderson v. Liberty
Lobby, Inc.,
477 U.S. 242, 250 n.5 (1986)). Typically, a party
makes this argument via a Rule 56(f) affidavit. However, if the
nonmoving party’s filing “serve[s] as the functional equivalent
of [a Rule 56(f)] affidavit, and if the nonmoving party was not
lax in pursuing discovery, then we may consider whether the
district court granted summary judgment prematurely, even though
the nonmovant did not record its concerns in the form of a Rule
56(f) affidavit.” Harrods
Ltd., 302 F.3d at 245 (internal
quotation marks and citations omitted).
Here, Sutton’s memorandum in opposition to summary judgment
effectively served as a Rule 56(f) affidavit. At the time of
6
Sutton subsequently filed a motion to reconsider this
decision, noting that the court did not address his arguments
about the hearsay contained in the McDonald’s Corporation’s
affidavit, more discovery, apparent agency, or the warranty of
merchantibility. J.A. 41-50. At oral argument on this motion,
the district court declined to hear argument on these
independent claims; rather it relied on the reasoning in its
initial order. J.A. 64.
15
McDonald’s Corporation’s motion and Sutton’s response, the court
had yet to enter a scheduling order for discovery. Sutton’s
filing requested more discovery, specifically identified what
discovery he needed, and sought discovery about a fact-intensive
issue, agency. Further, there is no claim that Sutton failed to
pursue discovery diligently. Therefore, the district court
abused its discretion by failing to address Sutton’s request for
more discovery, and we must vacate the district court’s grant of
summary judgment in favor of McDonald’s Corporation.
Further, under these facts, we hold that Sutton was
entitled to additional discovery under Rule 56(f) because he
sufficiently demonstrated why, at the time of the motion for
summary judgment, he could not have “present[ed] facts essential
to justify [his] opposition” without more discovery. Fed. R.
Civ. P. 56(f). In his brief, Sutton “particularly set out the
reasons for further discovery” by explaining what facts he
needed and why those facts were necessary. Nader v. Blair, 549
F.3d 953, 961 (4th Cir. 2008). Because the district court
dismissed McDonald’s Corporation without any further discovery,
Sutton did not have the opportunity to seek discovery on the
issue of agency from McDonald’s Corporation. On remand, Sutton
is entitled to that opportunity.
Further, we decline to address Sutton’s arguments related
to apparent agency or the warranty of merchantibility in the
16
first instance. Though we can address arguments for summary
judgment that the district court ignored, O'Reilly v. Board of
Appeals of Montgomery County, Md., 942 F.2d 281, 284 (4th Cir.
1991), in light of our holding, the district court, as
necessary, should consider Sutton’s arguments related to
apparent agency and the warranty of merchantibility in the first
instance. 7
IV.
Based on these findings, we vacate the district court’s
orders granting summary judgment to McDonald’s Corporation and
granting judgment as a matter of law in favor of Roth, and we
remand this case to the district court for further proceedings
consistent with this opinion.
VACATED AND REMANDED
7
Because we find that the district court abused its
discretion by failing to consider Sutton’s discovery request, we
need not reach Sutton’s argument related to McDonald’s
Corporation’s affidavit. We do note, however, that the affidavit
is of questionable value because the affiant’s “personal
knowledge” is based on a review of files rather than direct,
personal knowledge of the underlying facts.
17
DAVIS, Circuit Judge, dissenting:
The majority vacates the district court’s orders granting
judgment as a matter of law in favor of Roth, L.L.C., and John
Doe (collectively, “Roth”) and summary judgment in favor of
McDonald’s Corporation and remands for a new trial. I
respectfully dissent because, in my view, the district court:
(1) did not abuse its discretion in excluding the unidentified
employee’s alleged statement as inadmissible hearsay, and, in
any event (2) properly entered judgment as a matter of law in
favor of Roth because Sutton failed to provide evidence of a
standard of care.
I.
The majority correctly analyzes the admissibility of the
employee’s alleged statement, “This is what happens to the
chicken sandwiches when they aren’t drained properly,” J.A. 12,
under Fed. R. Evid. 801(d)(2)(D). 1 Under Rule 801(d)(2)(D), a
1
It is unclear under which rule of evidence the district
court excluded the employee statement. In their briefs and
during oral arguments, counsel referred to both Fed. R. Evid.
801(d)(2)(C) and 801(d)(2)(D). It is clear, however, that the
employee statement does not fall under Fed. R. Evid.
801(d)(2)(C). Pursuant to Fed. R. Evid. 801(d)(2)(C), Sutton
would have had to show that the clerk was authorized by Roth to
make the alleged admission. Precision Piping & Instruments, Inc.
v. E.I. du Pont de Nemours & Co., 951 F.2d 613, 619 (4th Cir.
1991). There was no such authorization here.
18
statement is not hearsay if the statement was made by an agent
regarding a matter within the scope of the agency. Indeed, the
agent “need not have the authority to make the statement at
issue, but rather the subject of the statement must relate to
the employee’s area of authority.” United States v. Brothers
Constr. Co., 219 F.3d 300, 311 (4th Cir. 2000).
The majority accepts Sutton’s meager proof, that the
declarant “was wearing a McDonald’s uniform, helped fill
Sutton’s order, and responded to questions about McDonald’s
while working at a McDonald’s restaurant,” Majority Op. at 11,
as sufficient to satisfy the alleged statement’s admissibility
under the rule. Respectfully, I take a contrary view, bearing in
mind the standard of review, because scope of employment is
exactly what Rule 801(d)(2)(D) primarily concerns. See, e.g.,
Cline v. Roadway Express, Inc., 689 F.2d 481 (4th Cir. 1982);
Precision Piping & Instruments,
Inc., 951 F.2d at 620. Indeed,
the Eleventh Circuit has cautioned against the admission of
statements under Rule 801(d)(2)(D) when there is insufficient
foundational evidence regarding the scope of the declarant’s
employment:
[A]lthough the necessary proof may certainly be
circumstantial, there must be an adequate foundational
showing . . . that the subject of the statement
'concerned a matter' which was within [the] scope of
the speaker's agency or employment. Merely showing
that a statement was made by one who is identified
generally as an agent or employee of the party,
19
without some further proof as to . . . the scope of
his employment . . . establishes neither.
Wilkinson v. Carnival Cruise Lines, Inc., 920 F.2d 1560, 1566
(11th Cir. 1991) (quoting White Indus. v. Cessna Aircraft Co.,
611 F. Supp. 1049, 1064 (W.D. Mo. 1985)).
Rule 801(d)(2)(D) requires an affirmative showing of the
declarant-employee’s area of authority. Here, the employee was
unidentified. She could have been hired to clean the facility,
work the cash register, take inventory, etc. Sutton presented no
evidence regarding the identity of the worker who prepared the
sandwich. Indeed, for all that appears, it is possible that the
declarant was not even on duty that night.
Thus, at best, it is unclear whether the unidentified
employee had such duties as to empower her to speak about food
preparation and to permit any such statement to be admitted
against Roth under Rule 801(d)(2)(D). In short, there is a
dearth of evidence regarding the declarant-employee’s area of
authority. (Of course, Sutton, his wife, and his son had it
fully within their power, on the morning of the incident, to
record the identities of the two young women present on behalf
of the restaurant; their failure to do so is regrettable, but
they must live with the consequences of their inaction.) The
district court committed no abuse of discretion in ruling on the
admissibility of the alleged statement.
20
II.
The majority holds that, had the employee’s alleged
statement been admitted, Sutton would have successfully made out
claims for traditional negligence and breach of implied warranty
of merchantability against Roth. I respectfully disagree. As
explained above, the employee’s alleged statement was properly
excluded. Even if the alleged statement had been admitted,
however, Sutton would still have failed to establish the proper
standard of care and any breach thereof.
In order to make out a prima facie case of negligence or
breach of warranty, a plaintiff must establish, inter alia, a
relevant standard of care and lack of fitness of the accused
product, respectively. See Didato v. Strehler, 554 S.E.2d 42, 47
(Va. 2001); Delk v. Columbia/HCA Healthcare Corp.,
523 S.E.2d
826, 830 (Va. 2000). Sutton sought to avoid these requirements
by characterizing this case as an “unwholesome food case.” The
majority correctly rejects that characterization.
Nevertheless, the majority relies on a case, never cited by
Sutton or discussed by the parties, for the proposition that
evidence of the “reasonable expectations of consumers” may
constitute evidence of the standard of care in a products
liability case under Virginia law. Alevromagiros v. Hechinger
Co., 993 F.2d 417, 420 (4th Cir. 1993). But the dicta from
21
Alevromagiros on which the majority relies does not do the work
that the majority would have it do.
First, it is unclear whether Alevromagiros states, even in
its dicta, a principle of Virginia law. 2 This is because that
case cites as support for its dicta another Fourth Circuit case
interpreting Kentucky law. See Sexton By and Through Sexton v.
Bell Helmets, Inc., 926 F.2d 331 (4th Cir. 1991).
See 993 F.2d
at 420.
Even more fundamentally, Sexton explained the operation of
the supposed “consumer expectations” test as follows:
While government and industry standards are readily
identifiable for a given product at a given time, the
reasonable expectation of purchasers requires a
factual examination of what society demanded or
expected from a product. This may be proved from
evidence of actual industry practices, knowledge at
the time of other injuries, knowledge of dangers, the
existence of published literature, and from direct
evidence of what reasonable purchasers considered
defective at the time. While society demands and
expects a reasonably safe product, an examination of
societal standards at any given point in time usually
reveals an expectation that balances known risks and
dangers against the feasibility and practicability of
applying any given technology.
2
In Alevromagiros this court affirmed a directed verdict
for the defendant because there was no evidence of a violation
of an established standard of care. 993 F.2d at 421-22. The
plaintiff failed to present (1) expert testimony stating that
the allegedly defective ladder sold to the plaintiff failed to
conform to published industry standards and (2) evidence
regarding the reasonable expectations of consumers.
22
Id. at 337 (emphases added). Thus, as can be seen, even were it
assumed that a “consumer expectations” test applies here,
Sutton’s burden of proof is not remotely satisfied merely by
testimony from himself and his son that they (together with
their dinner companions) thought the chicken sandwich was
“negligently prepared” or “defective.” Rather, the test is an
objective one, informed by societal standards.
Id. Sutton never
undertook to offer such evidence because, again, his theory was
that this is an “unwholesome food” case.
Consequently, Sutton presented no expert testimony
establishing a standard of care for the preparation of fast
foods. This failure was and is fatal to his case because, as a
matter of law, however “hot,” the sandwich was, it was not
“unwholesome” and in Virginia, “[e]xpert testimony is ordinarily
necessary to establish the appropriate standard of care.”
Beverly Enterprises-Virginia, Inc. v. Nichols, 441 S.E.2d 1, 3
(Va. 1994), citing Raines v. Lutz,
341 S.E.2d 194, 196 (Va.
1986). The employee’s alleged statement that, “This is what
happens to the sandwiches when they aren’t drained completely,”
J.A. 12, does not establish the requisite standard of care, or
substitute for such evidence.
This case is most analogous to Greene v. Boddie-Noelle
Enterprises, Inc., 966 F. Supp. 416, 417 (W.D.Va. 1997), in which
a customer sued a fast food restaurant after he suffered burns
23
from spilled hot coffee purchased at a drive-thru window. In
Greene, the plaintiff failed to offer evidence of the standard
of care and the defendant’s breach of that standard. Id. at 417.
Specifically, the plaintiff did not offer evidence that the
coffee was too hot or the coffee lid was unsecured, thereby
violating industry standards for safety.
Id. The fact that
plaintiff was burned was not proof of the product's defect.
Id.
at 419. According to the court, “a product need not be
foolproof, or perfect.” Id.; see Austin v. W.H. Braum, Inc.,
249
F.3d 805, 805 (8th Cir. 2001) (ruling that the high temperature
at which hot chocolate was served did not render the drink
unreasonably dangerous); Holowaty v. McDonald’s Corp., 10 F.
Supp. 2d 1078, 1083 (D. Minn. 1998) (granting summary judgment
in favor of McDonald’s where no evidence existed that coffee
purchased was hotter than usual for commercially brewed coffee).
Similarly, Sutton failed to offer evidence establishing any
relevant standard as to the amount, location, and temperature of
hot grease in a fried fast food chicken sandwich. Accordingly,
the district court did not err in granting the motion for
judgment at the close of the plaintiff’s case.
III.
In light of the above, I find it unnecessary to consider
whether the district court erred in granting summary judgment
24
dismissing defendant McDonald’s Corporation from the case.
Plaintiff failed to offer sufficient evidence against the
ostensible agent, Roth, and so his claims fail as a matter of
law as to the alleged principal, McDonald’s Corporation.
IV.
For the reasons stated above, I respectfully dissent.
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