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D.L.S. v. Maybin9/16/2005
JUDGES Concurring: Anne Ellington Ann Schindler
PUBLISHED OPINION - Opinion ordered published October 31, 2005
The assistant manager of a McDonald's franchise restaurant introduced a 15-year-old employee to drugs and sex. Her father, Clifford Street, brought suit on behalf of himself and his daughter against the assistant manager, the franchise owner and, on a theory of vicarious liability, against McDonald's Corporation. The trial court dismissed the claims against McDonald's on grounds the company had no apparent agency relationship with the franchisee. On the record presented here, we affirm.
FACTS
William Roberts, doing business under the name W&D Enterprises, operated a McDonald's restaurant in Newcastle under a franchise agreement with McDonald's Corporation.
In April 1999, Roberts hired 23-year old David Maybin to work at the Newcastle McDonald's, despite Maybin's disclosure that he had 'legal problems' and had committed a bank robbery. Maybin's criminal record was in fact extensive. He had held up employees at the airport shuttle where he worked on two occasions, and had robbed an Albertson's grocery store. He had been convicted of three counts of robbery, possession of marijuana and drug paraphernalia, and theft.
Maybin initially worked as an hourly crew member. At some point, he served eight months in jail for the robberies. After his release, Roberts rehired him, and within a month, promoted him to assistant manager. Maybin took over operations on the night shift.
At the time, there apparently existed a thriving drug scene among employees at the Newcastle McDonald's. Assistant Manager Christie Barber's husband, a former employee of the Newcastle McDonald's, allegedly supplied marijuana to the employees, many of whom (including managers) smoked pot daily at the restaurant. One manager was terminated for selling drugs out of the restaurant. Maybin was soon using drugs at work.
Into this sorry scene came D.L.S., then fifteen. She applied to work at the Newcastle McDonald's in about May 2000, and was hired immediately. Within weeks of starting work, she became part of the drug scene at the restaurant. By mid-summer, she was involved with Maybin, who provided her with free food, alcohol, and drugs (including ecstasy), and kissed her openly in the workplace. Just before D.L.S.'s sixteenth birthday, Maybin took her to a motel where they spent the night and engaged in sexual intercourse.
After about four months, D.L.S. ran away from home to be with Maybin. Her parents immediately terminated her employment at the Newcastle McDonald's, and D.L.S.'s father went to the restaurant and threatened Maybin with a fire poker. (Maybin did not return to the restaurant thereafter.) D.L.S. continued to see Maybin and to use drugs with him until December 2000. Then she disappeared for six months. She was later reunited with her family.
In 2002, D.L.S. and her father sued McDonald's Corporation, franchise owner Roberts, and Maybin. McDonald's moved for summary judgment on grounds it was not liable for the acts of its franchisee. The trial court granted the motion and dismissed their claims against McDonald's.
DISCUSSION
We employ the usual standard of review on summary judgment. The only question before us is whether McDonald's Corporation has liability as Roberts' principal. The parties' franchise agreement clearly provided that Roberts was not an agent of McDonald's, and the evidence established no control over daily operations. Under these circumstances, McDonald's has no liability as Roberts' actual principal. Folsom v Burger King, 135 Wn.2d 658, 672, 958
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