Preview:

Daniel L. BURNS, Jr. vs. McDONALD'S
CORPORATION & another.
Daniel L. BURNS, Jr. vs. McDONALD'S CORPORATION & another. [FN1]
No. 11-P-718.
February 6, 2012.
Food. Sale, Warranty. Uniform Commercial Code, Warranty. Negligence, Causation.
Paul W. Patten for the plaintiff.
Richard J. Riley for the defendants.
RESCRIPT.
Daniel L. Burns, Jr., appeals from an order of the Appellate Division of the District Court dismissing his appeal from a
summary judgment issued by a judge of the District Court in favor of McDonald's Corporation and McDonald's
Restaurants of Massachusetts, Inc. (collectively, McDonald's), on Burns's claims of negligence, breach of warranty,
and violation of G.L. c. 93A. On appeal, Burns argues that the motion judge and the Appellate Division erred in
concluding that Burns's claims failed as a matter of law because he could not identify either the hard object that he
allegedly bit into while consuming a McDonald's cheeseburger, or the object's origin. We affirm.
Viewed in the light most favorable to Burns, the undisputed material facts are these. On October 20, 2006, Burns
bought a double cheeseburger at the drive-through window of a McDonald's restaurant located on Route 44 in
Raynham. He began to eat the cheeseburger immediately. Upon entering Route 44 with cheeseburger in hand, Burns
was almost involved in an accident and "pushed" the remaining one-third of the burger into his mouth so that he could
grab the steering wheel of his vehicle. As Burns began to chew, he felt pain and noticed something "hard and bumpy,"
about the size of a pea, in his mouth. Burns did not know what the object was, because, although he felt it with his
tongue, he never saw it. He spit the food in his mouth into a napkin but could not find the "something hard" and claims
either to have swallowed or lost it during the traffic emergency. He did find something he believed "could have been
chips of my own tooth" in the food on the napkin.
Burns later went to his dentist, who informed him that he had a "small chip" on the artificial surface of a tooth
restoration that the dentist had performed a month earlier. Burns admitted that on that earlier occasion, a piece of the
same tooth at issue here had simply "come off" while he was eating. The same tooth broke again in December, 2006,
and developed an abscess requiring a root canal and crown. In opposing summary judgment, Burns submitted an
affidavit from his dentist stating that it was "reasonable to assume" that "some sort of traumatic injury" on October 20,
2006, might have caused the fracture that led to the December abscess and subsequent dental surgery.
The motion judge did not err in granting summary judgment in favor of McDonald's. To prove his claim for breach of
warranty under G.L. c. 106, § 2- 314, and his related G.L. c. 93A claim, Burns was required to prove that (1) his
cheeseburger contained an injury-causing object of which McDonald's was the source, and (2) a consumer would not
reasonably have expected to find the object therein. See Webster v. Blue Ship Tea Room, Inc., 347 Mass. 421, 423-
427 (1964); Phillips v. West Springfield, 405 Mass. 411, 412-413 (1989). To prove his negligence claim, Burns was
required to show that the acts and omissions of McDonald's, more likely than not, caused his injuries. See Glidden v.
Maglio, 430 Mass. 694, 696 (2000); Borden v. Betty Gibson Assocs., Inc., 31 Mass.App.Ct. 51, 55 (1991).
We agree with the reasoning of the motion judge and the Appellate Division which, in turn, applied the reasoning of
an unpublished memorandum and order of this court pursuant to our rule 1:28, Cotter v. McDonald's Restaurants of
Mass., Inc., 71 Mass.App.Ct. 1125 (2008). Burns cannot make the necessary showings on the facts of record here.
Burns provided no basis upon which a trier of fact could infer, without impermissible speculation, that the offending
object originated in the cheeseburger that McDonald's sold to him. Because Burns never saw the object, was unable to
file:///C|/Users/Peter/Desktop/opinions/11-p-718.html[6/21/2013 10:41:15 AM]




describe it in any detail, and could not determine what it was, Burns was ill-positioned to ask the jury to apply the
reasonable expectations test. Compare Phillips v. West Springfield, supra at 414 (proper for trier of fact to apply the
reasonable expectations test when plaintiff coughed up and clearly identified a one and one-half inch hooked turkey
bone). Whether the alleged cause of injury was a foreign object in the cheeseburger, something inherent to the product
such as gristle, or an object from within Burns's own mouth such as a piece of filling or piece of Burns's own tooth
was entirely a matter of speculation. See Cotter v. McDonald's Restaurants of Mass., Inc., supra. Nor could the
speculative assertion of Burns's dentist that Burns's injury "most likely" was caused by "some sort of traumatic injury
to the tooth" on October 20, provide a basis for determining the nature of the offending object and whether it
originated in the McDonald's product.
Absent any evidence that McDonald's sold Burns a "defective, dangerous and unsafe food" in breach of any warranty,
or that the acts or omissions of McDonald's proximately caused his injuries, summary judgment was properly entered
in favor of McDonald's. See Lambert v. Fleet Natl. Bank, 449 Mass. 119, 122-123 (2007).
Decision and order of the Appellate Division affirmed.
FN1. McDonald's Restaurants of Massachusetts, Inc.
file:///C|/Users/Peter/Desktop/opinions/11-p-718.html[6/21/2013 10:41:15 AM]

Download 11-p-718.pdf

Massachusetts Law