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Rogers v. Burger King Corporation11/21/2003
Mandate Issued: 12/22/2003
__ P.3d __
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.
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.
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. 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. Rogers escaped at 6:30 a.m. and police took her to a hospital in Siloam Springs, Arkansas.
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.
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.
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