LANDOWNERS LIABILITY-BUSINESS INVITEE-HARASSMENT OF PATRON-McDONALD’S

Massaro v. McDonald’s, 2022 Pa. Super. LEXIS 320 (August 2, 2022) (Pellegrini, J.)  Thomas Henry Massaro (Massaro) appeals an order of the Court of Common Pleas of Philadelphia County (trial court) dismissing his claims with prejudice for lack of legal sufficiency. It was alleged by Massaro, a senior citizen, that he was continuously harassed and assaulted by a deranged third-party while mentoring a student in a McDonald’s restaurant. His repeated requests for help from the restaurant’s staff had gone unheeded for about an hour. The above-captioned Appellees (collectively referred to here as “McDonald’s”) filed a preliminary objection in the nature of a demurrer, arguing that they could not be held liable for Massaro’s injuries as a matter of law because he had remained in the restaurant beyond the point where it was reasonable for him to do so. The trial court sustained McDonald’s preliminary objection on what appear to be two not entirely consistent grounds. The trial court first determined that McDonald’s did not owe Massaro a duty of care because he had assumed the risk of a known danger in the restaurant. Next, the trial court found that, as a matter of public policy, recognizing a duty of care on the part of McDonald’s would constitute an undue burden which would disincentivize its business operations. We hold that the trial court improperly dismissed the case by misconstruing the allegations, resolving disputed material facts, and misapplying the law. Accordingly, the order on review must be reversed. Under the facts alleged, McDonald’s owed Massaro the same “duty owed to any business invitee, namely, that [they] would take reasonable precaution against harmful third-party conduct that might be reasonably anticipated.” Paliometros v. Loyola, 2007 PA Super 242, 932 A.2d 128, 133 (Pa. Super. 2007) (citations omitted); see also Rabutino, 809 A.2d at 939 (same). Even assuming that there was some evidence that Massaro could have done something more to protect himself, this would be an issue of comparative negligence to be resolved by the jury. See Staub, 749 A.2d at 529. The trial court therefore erred as a matter of law in ruling that the assumption of risk doctrine completely eliminated McDonald’s duty of care to Massaro.  In the present case, there can be no doubt that a premises owner running a restaurant open to the public owes a duty of care to business invitees. This makes the Althaus factors inapplicable. Moreover, the trial court tacitly recognized the existence of a duty owed by McDonald’s to Massaro because it found he had assumed the risk of being in the restaurant. The assumption of risk doctrine could not logically come into play unless the trial court had first presupposed that, as a paying customer on the premises, McDonald’s had a duty to take reasonable steps to protect him from known dangers. Moreover, we do not agree with the trial court’s assessment that imposing a duty of care on McDonald’s in this case would be an undue burden. On the one hand, it was alleged that restaurant employees could clearly observe Massaro being harassed and physical assaulted for an hour by a person they had long known to be a violent nuisance. Furthermore, it would have taken minimal effort by restaurant employees to reduce or even eliminate the threat. They could have prohibited Gordon from entering the restaurant that day, called the police immediately once the harassment against Massaro began, or come to Massaro’s aid when he asked for help. Under the circumstances alleged in the complaint, it clearly would have been reasonable for McDonald’s to aid Massaro in some manner. Thus, the trial court erred as a matter of law in sustaining McDonald’s preliminary objection, and the case must be remanded for further proceedings.