J-A16038-22

2022 PA Super 127

THOMAS HENRY MASSARO 

Appellant

v.

MCDONALD'S CORPORATION; 

MCDONALD'S USA, LLC; JODAN 

ENTERPRISES (D/B/A AS 

MCDONALD'S); JO-DAN/MADALISSE 

LTD, LLC; JOHN D. DAWKINS, III; 

BARBARA DAWKINS; DANIELLE A. 

DAWKINS; AND THE DAWKINS 

MANAGEMENT GROUP.

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1410 EDA 2021

Appeal from the Order Entered June 7, 2021

In the Court of Common Pleas of Philadelphia County Civil Division at 

No(s): 200900182

BEFORE: McLAUGHLIN, J., McCAFFERY, J., and PELLEGRINI, J.*

OPINION BY PELLEGRINI, J.: FILED AUGUST 2, 2022

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 thirdparty 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, 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
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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.

I.

A.

On September 21, 2018, Massaro was assaulted by Bryant Gordon at a

McDonald’s restaurant in Philadelphia, Pennsylvania. In his complaint, 

Massaro described the encounter as follows:

6. As Massaro and [a] student sat at the McDonald’s location at 

2019 N. Broad St. early in the morning on September 21, 2018, 

the perpetrator, Bryant Gordon, a Black male, started making 

virulent and hateful statements that he hated and wanted to kill 

white people, directed at political figures on the television.

Massaro did not know the identity of Gordon at the time of these 

events.
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7. Although Massaro (an elderly white male) was facing away from 

Gordon and not engaging with him at all—instead talking to the 

student (a Black-Latino male)—Gordon eventually began verbally 

attacking Massaro because he was white.

8. The loud verbal assault lasted for approximately 1 hour, and 

included statements that Gordon wanted to kill white people and 

that he loved Hitler because he only killed white people, not Black 

people. Gordon repeatedly stated that he had a gun and shiv in 

his bag and would use them. He railed against “Euro-trash,” 

“white motherfuckers,” and “crackers” hundreds of times.

9. During this hour-long time period, a McDonald’s manager 

(Black female), an employee who was cleaning (Black female), 

and a uniformed staffer (Black male) repeatedly observed and 

heard the situation developing as they walked around the location 

as part of their job duties. The employee cleaning tables was 

circling the restaurant and throwing out trash at a trashcan next 

to Massaro’s table.

10. All three saw and heard Gordon’s tirade against the elderly 

Massaro. They were repeatedly asked to address the situation, 

remove Gordon from the building, and/or call 911. They refused 

to do so. The cleaning worker indicated that she knew Gordon 

and was friends with him.

11. Massaro and the student specifically addressed the manager 

about the man’s racist verbal assault and threats multiple times, 

to which the manager shrugged her shoulders, acted with 

indifference, and walked away. The staff and cleaning worker did 

the same when Massaro and the student asked for help. They all

refused to escort Gordon out, address his conduct, call 911, warn 

Massaro that Gordon was known to be violent, or otherwise do 

anything to remove him from the premises despite the clear 

danger he presented.

12. [McDonald’s] and their employees could (and did) easily 

ascertain that Mr. Massaro was an elderly and physically 

vulnerable man, while Gordon was much younger and in good 

physical shape. [Appellees] were aware there was a clear power 

imbalance between Gordon and Massaro, but allowed Gordon to 

physically menace and taunt Massaro for approximately one hour.
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13. Massaro later found out that the man was known to be 

dangerous to McDonald’s staff, and that the staff knew that the 

man had previously attempted to target Massaro in prior months 

(of which Massaro was unaware). On information and belief, 

Gordon actually interviewed with [McDonald’s] to work at that 

location but was rejected because he was known to be violent. At 

no point did [McDonald’s] warn [Massaro] about the potential 

harm and physical danger.

14. After continuing verbal threats, and without any provocation, 

the man began making as if to rush the elderly Massaro and the 

student, attempting to provoke and harm them. The man began 

bragging that he had murdered four people and could kill Massaro. 

He said the “first two didn’t count because I told them it was 

coming. They arrested me on the third, but I threatened a witness 

and got off. The fourth one they got me for manslaughter.” 

Gordon does have a conviction for voluntary manslaughter.

15. Massaro and the student repeatedly asked the manager, 

cleaning employee, and uniformed staff at McDonald’s to call the 

police, which was inexplicably not done despite the loud threats 

and assaultive behavior of Gordon. The management, cleaning 

employee, and uniformed staff at the location did not intervene in 

any way, despite the toxic and obviously violently unstable lunatic 

threatening McDonald’s customers. Again, Gordon’s behavior was 

incredibly loud, disruptive, and impossible to not see and hear.

16. When Massaro and the student informed Gordon on multiple 

occasions that he was under security cameras, Gordon repeatedly 

said in the presence of McDonald’s employees “you stupid white 

motherfucker, they don’t care what I do, they’ll say the cameras 

are broken.” Gordon bragged about how he could do anything at 

McDonald’s such as steal purses, snatch cell phones, or assault 

customers and that McDonald’s would not call the police or turn 

over security footage. Gordon repeatedly said that the only time 

McDonald’s would call the police was if he took money from the 

register.

17. Massaro and the student wanted to leave, but knew that if 

they left a public area with cameras they would likely be shot or 

attacked on the street without witnesses. Massaro knew it was 

safer under the cameras with other people around, rather than be 

outside the view of security cameras. Massaro was in shock and 
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disbelief that McDonald’s was not doing anything to address the 

hate, racist death threats being made against an elderly customer.

. . . .

24. As Massaro repeatedly pointed out to the McDonald’s manager 

and employees that Gordon was making death threats against 

him, Gordon then stated: “wait til you go outside, let me 

show you what a death threat is, when I throw you out in 

the goddamn traffic . . . you heard what I said I’m going to 

take you outside and throw you in the fucking moving 

traffic.”

25. [McDonald’s] did nothing to help Massaro despite Gordon 

physically menacing [an] elderly customer and threatening to kill

him. It was obvious that McDonald’s staff were familiar with 

Gordon.

26. Seeing that no one from McDonald’s was intervening, and 

emboldened, Gordon screamed at Massaro: “I’m going to 

bury you in that rose bush,” “wait til you get outside I’m 

going to take that [the iPad] thing and shove it up in your 

ass,” and “I’m going to knock you out.”

Second Amended Complaint, 2/3/2021, at ⁋⁋ 6-17, 24-26 (emphases added).1

Massaro alleged that after Gordon left the restaurant, he stepped 

outside to hail the police and, if possible, make a video recording of Gordon’s 

whereabouts so that he could be apprehended. Gordon grew irate at Massaro 

when he saw that he was being recorded and he turned back to make yet 

____________________________________________

1 Massaro had intended to introduce video and audio recordings of portions of 

the incident, but the trial court excluded them on the ground that they were 

extrinsic evidence that could not be used to support the allegations in the 

complaint. Although the evidence was not admitted, Massaro alleged in his 

complaint what the video was purported to show – that a young man made 

an unprovoked and racially motivated assault against Massaro, repeatedly 

threatening his life while restaurant employees stood idly by.
J-A16038-22

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more threats against him. As Gordon neared, Massaro collapsed to the 

ground. He asserted in his complaint that he had been struck on the skull 

during the assault inside the restaurant and later lost consciousness due to

panic when Gordon threatened him outside. According to Massaro, he nearly 

died from a heart attack due to the stress of these events. Id. at ⁋⁋ 37-42.

Moreover, Massaro alleged that his video recording had captured the 

comments of an off-duty McDonald’s employee who remarked to responding 

police that Gordon had been kicked out of the restaurant on several occasions 

due to his violent and disruptive behavior. See id. at ⁋⁋ 43-45. Massaro 

himself had previously complained to the restaurant’s staff about being 

harassed, but he specifically denied that he had knowingly lodged his 

complaints against Gordon in particular.

B.

Following the incident, Massaro filed his initial complaint, alleging that 

McDonald’s was liable for his damages. McDonald’s filed preliminary 

objections and Massaro then filed an amended complaint. Preliminary 

objections again followed, and Massaro once amended his complaint for the 

final time. This second amended complaint (the complaint), which is the 

operative pleading in this appeal, was filed on February 3, 2021.

In the complaint, Massaro included counts of negligence/gross 

negligence and premises liability. McDonald’s filed preliminary objections to 

the complaint on February 23, 2021, and Massaro filed an answer, as well as 
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his own preliminary objections. McDonald’s filed an answer to Massaro’s 

preliminary objections. Of relevance in this appeal, the parties disputed 

whether the factual allegations in the complaint could establish that 

McDonald’s owed Massaro a legal duty of care, potentially subjecting 

McDonald’s to liability for the damages caused by the attack. McDonald’s 

contended that they could not be held liable because Massaro had assumed 

the risk of being attacked in the restaurant, and Massaro’s assumption of the 

risk eliminated McDonald’s duty of care to protect him from the attack.

C.

The trial court agreed with McDonald’s, overruling Massaro’s preliminary 

objections and sustaining McDonald’s preliminary objections on the issue of 

legal duty. Massaro’s complaint was dismissed with prejudice on June 4, 

2021. A key part of this ruling was that McDonald’s owed no duty of care to 

Massaro because he had assumed the risk of a violent assault in and around 

McDonald’s premises:

This Court found that [Massaro’s] Complaint failed to state a claim 

upon which relief could be granted. This Court found that 

[McDonald’s] did not owe a duty to [Massaro] because [he], a 

business invitee, was aware of the danger of the property and 

voluntarily remained on the property. In the Complaint [Massaro] 

notes the danger on the premises:

In the months of weeks prior to this incident Massaro 

himself had complained to [McDonald’s] about ongoing 

heckling and harassing behavior at the McDonald's 

location. He met and spoke with the vice president and 

director of HR of [McDonald’s.]
J-A16038-22

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(Plaintiffs Complaint ⁋ 48). On the day of the incident, [Massaro] 

remained on the premises despite experiencing the alleged 

heckling for one hour.

The loud verbal assault lasted for approximately 1 hour, 

and included statements that Gordon wanted to kill white 

people and that he loved Hitler because he killed only white 

people, not Black people. Gordon repeatedly stated that 

he had a gun and shiv in his bag and would use them. He 

railed against “Euro-trash,” and “white motherfuckers,”

and “crackers” hundreds of times.

Trial Court Opinion, 11/30/2021, at 5.

Additionally, the trial court found that a number of policy considerations 

justified a determination that no duty was owed to Massaro:

First, the Court found that a relationship did exist between the 

parties, as [Massaro] was a business invitee on [McDonald’s]

premises. Second, [McDonald’s] establishment has a social utility 

as a franchise business providing a service to the community. 

Third, [McDonald’s] conduct did not foreseeably create an 

unreasonabl[e] risk of harm to [Massaro]. Rather, [Massaro] 

intends to hold [McDonald’s] accountable for the actions of a third 

party. Fourth, if the court imposed a duty on [McDonald’s], the 

law would place a heavy burden on premises owners as absolute 

insurers over their invitee’s safety. This would require a 

franchisee to take unreasonable precaution to prevent all criminal 

acts against invitees. Fifth, public interest would not be served by 

judicial action that would impose a duty on a franchise restaurant, 

to protect against any and all harm that could occur to others. 

Imposing an absolute duty would result in significant costs for

franchisees, who would likely choose not to open businesses in 

certain communities as a result of those costs. . . . Since no duty 

was owed, [Massaro] could not establish a prima face case of 

negligence.

Id. at 6.

Massaro timely appealed, and he now raises six issues for our 

consideration:
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1. Disputes of fact may not be decided at preliminary objections 

and must be construed in favor of the plaintiff. Was it reversible 

error for the lower court to overrule . . . Massaro’s preliminary 

objections and decide disputes of fact at the preliminary objection 

stage concerning assumption of risk, while also failing to admit all 

pled facts in favor of the plaintiff?

2. Assumption of risk requires a finding “beyond question” that 

the plaintiff knew of a specific danger and voluntarily assumed the 

risk of that specific danger. Was it reversible error for the lower 

court to ignore almost all the pled facts in the complaint to come 

to a manifestly unjust conclusion that . . . Massaro had voluntarily 

remained at the restaurant and assumed the risk of nearly being 

killed, when the pled facts the court ignored showed he was 

trapped and begging for help?

3. The lower court has a duty to consider and admit all pled facts 

and attached evidence in favor of the plaintiff at preliminary 

objections. Was it reversible error for the lower court to refuse to 

consider the objective audio-visual recordings of the attack when 

they were lodged with the court on a USB and attached to the 

complaint, recordings which directly contradicted the court’s 

assumption of risk holding?

4. Affirmative defenses are not allowed to be decided at 

preliminary objections, especially where they are fact dependent. 

Was it reversible error for the lower court to overrule [Massaro’s] 

preliminary objections and decide the fact-heavy affirmative 

defense of assumption of risk?

5. A lower court may not act as an advocate and rule at 

preliminary objections on a ground not raised by the defendant. 

Was it reversible error for the lower court to sua sponte and 

without notice decide a separate “duty” question never raised by 

defendants, a holding which also impermissibly (and incorrectly) 

decided dispute of fact in violation of the preliminary objection 

standard and in violation of binding precedent?

6. Before dismissing a complaint at preliminary objections, the 

lower court has a positive duty to provide the plaintiff with a 

chance to amend and abuses its discretion in most instances if 

amendment is not permitted. Was it reversible error for the lower 

court to not allow [Massaro] a chance to amend to address 

assumption of risk?
J-A16038-22

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Appellant’s Brief, at 14-15 (suggested answers omitted).

Most of the above grounds may be condensed for present purposes into 

a single issue which we find to be dispositive – whether Massaro pleaded 

sufficient facts to survive McDonald’s preliminary objection that he had 

assumed the risk of his alleged damages.

II.

Massaro’s primary claim is that the trial court erred in sustaining 

McDonald’s demurrer because his factual allegations were legally insufficient 

to establish that McDonald’s owed him a duty of care.2 We find merit in this 

claim.

____________________________________________

2 A preliminary objection in the nature of a demurrer allows a party to test the 

legal insufficiency of a cause of action. See Pa.R.C.P. 1028(a)(4). “A 

demurrer by a defendant admits all relevant facts sufficiently pleaded in the 

complaint and all inferences fairly deducible therefrom, but not conclusions of 

law or unjustified inferences.” Krajewski v. Gusoff, 53 A.3d 793, 802 (Pa. 

Super. 2012). “The question presented in a demurrer is whether, on the facts 

averred, ‘the law says with certainty that no recovery is possible.’” Bruno v. 

Erie Ins. Co., 106 A.3d 48, 56 (Pa. 2014) (quoting MacElree v. 

Philadelphia Newspapers, Inc., 674 A.2d 1050, 1054 (Pa. 1996)). 

Accordingly, a complaint should only be dismissed with prejudice where the 

plaintiff has failed to assert facts which may give rise to a cognizable cause of 

action, and an amendment of the claims would be futile. See Mikhail v. 

Penn. Org. for Women in Early Recovery, 63 A.3d 313, 316 (Pa. Super. 

2013). “If doubt exists concerning whether the demurrer should be sustained, 

then ‘this doubt should be resolved in favor of overruling it.’” Bruno, 106 

A.3d at 56 (quoting Bilt-Rite Contractors v. Architectural Studio, 866 

A.2d 270, 274 (Pa. 2005)); see also Juszcyszyn v. Taiwo, 113 A.3d 853, 

856 (Pa. Super. 2015) (same). We review the trial court’s ruling on a 

preliminary objection in the nature of a demurrer under a de novo standard. 

See Juszcyszyn, 113 A.3d at 856.
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A.

The tort of ordinary negligence has four elements: “(1) a legally 

recognized duty that the defendant conform to a standard of care; (2) the 

defendant breached that duty; (3) causation between the conduct and the 

resulting injury; and (4) actual damage to the plaintiff.” Traux v. Roulhac, 

126 A.3d 991, 997 (Pa. Super. 2015) (citing Ramalingam v. Keller Williams

Realty Group, Inc., 121 A.3d 1034, 1042 (Pa. Super. 2015)).

The duty element of negligence is akin to the duty element in a claim of

premises liability, as both are defined by a reasonableness standard: “The

duty owed to a business invitee is the highest duty owed to any entrant upon 

land. The landowner is under an affirmative duty to protect a business visitor 

not only against known dangers but also against those which might be 

discovered with reasonable care.” Charlie v. Erie Ins. Exch., 100 A.3d 244,

253 (Pa. Super. 2014) (quoting Emge v. Hagosky, 712 A.2d 315, 317 (Pa.

Super. 1998)).

The Restatement (Second) of Torts specifically provides that a premises 

owner is under an affirmative obligation to protect invitees from the 

intentional harmful acts of third parties:

§ 344. Business Premises Open to Public: Acts of Third

Persons or Animals

A possessor of land who holds it open to the public for entry for

his business purposes is subject to liability to members of the

public while they are upon the land for such a purpose, for physical

harm caused by the accidental, negligent, or intentionally harmful
J-A16038-22

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acts of third persons or animals, and by the failure of the

possessor to exercise reasonable care to

(a) discover that such acts are being done or are likely to

be done, or

(b) give a warning adequate to enable the visitors to avoid

the harm, or otherwise to protect them against it.

Restatement (Second) of Torts, § 344; see also Rabutino v. Freedom State

Realty Co., Inc., 809 A.2d 933, 939 (Pa. Super. 2002) (recognizing

Pennsylvania’s adoption of standards set forth in the Second Restatement of

Torts).

Comment f to Section 344 of the Second Restatement explains that the 

duty to protect business invitees against third party conduct arises once that 

third party’s dangerous conduct may be reasonably anticipated:

Since the possessor is not an insurer of the visitor’s safety, he is 

ordinarily under no duty to exercise any care until he knows or 

has reason to know that the acts of the third person are occurring, 

or are about to occur. He may, however, know or have reason to 

know, from past experience, that there is a likelihood of conduct 

on the part of third persons in general which is likely to endanger 

the safety of the visitor, even though he has no reason to expect 

it on the part of any particular individual. If the place or character 

of his business, or his past experience, is such that he should 

reasonably anticipate careless or criminal conduct on the part of 

third persons, either generally or at some particular time, he may 

be under a duty to take precautions against it, and to provide a 

reasonably sufficient number of servants to afford a reasonable 

protection.

Restatement (Second) of Torts, § 344, Comment f.

Our Supreme Court has explained further that from the perspective of

a business invitee, it is reasonable to expect a premises owner to take
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precautions against those persons among the general public who are allowed

on the premises but who might not be inclined to behave appropriately:

The reason is clear; places to which the general public are invited 

might indeed anticipate, either from common experience or known 

fact, that places of general public resort are also places where 

what men can do, they might. One who invites all may reasonably 

expect that all might not behave, and bears responsibility for 

injury that follows the absence of reasonable precaution against 

that common expectation.

Feld v. Merriam, 485 A.2d 742, 745 (Pa. 1984).

Thus, 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, 932 A.2d 128, 133 (Pa. Super. 2007) 

(citations omitted); see also Rabutino, 809 A.2d at 939 (same).

B.

If a duty of care on the part of a premises owner is established, as it is 

here, then a court must examine whether an exception would apply so as to 

absolve the premises owner of liability to a given plaintiff. One such exception 

is the assumption of risk doctrine, which eliminates a defendant’s duty of care 

to the plaintiff where the plaintiff has consented to relieve the defendant of 

that duty or the plaintiff has voluntarily participated in an activity which carries 

an inherent risk of the very damages which the plaintiff sustained. See 

generally Valentino v. Philadelphia Triathlon, LLC, 209 A.3d 941, 945 

(Pa. 2019); see also Carrender v. Fitterer, 469 A.2d 120, 125 (Pa. 1983) 
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(equating a plaintiff’s assumption of the risk with a defendant’s lack of a duty 

to protect against such risks).

Courts have stressed that the assumption of risk doctrine is a rather 

difficult exception to satisfy:

Assumption of the risk is established as a matter of law only where 

it is beyond question that the plaintiff voluntarily and knowingly 

proceeded in the face of an obvious and dangerous condition. 

Voluntariness is established only when the circumstances manifest 

in a willingness to accept the risk. Mere contributory negligence 

does not establish assumption of the risk. Rather, a plaintiff has 

assumed the risk where he has gone so far as to abandon his right 

to complain and has absolved the defendant from taking any 

responsibility for the plaintiff’s injuries. In order to prevail on 

assumption of the risk, the defendant must establish both the 

awareness of the risk and the voluntariness prong.

. . . .

A trial court should not, therefore, decide the issue as one of duty 

or lack thereof; instead, the issue should go to the jury as one of 

comparative negligence. As noted in the comment to the 

Restatement [(Second) of Torts] discussing implied assumption of 

risk, “Since interpretation of conduct is seldom so clearly indicated 

that reasonable men could not differ as to the conclusion, it is 

ordinarily a question for the jury whether what the plaintiff has 

done is a manifestation of willingness to accept the risk.” 

Restatement (Second) of Torts § 496C cmt. h (1965).

Staub v. Toy Factory, Inc., 749 A.2d 522, 529-30 (Pa. Super. 2000).

In the present case, the trial court reasoned in part that Massaro had 

assumed the risk of the assault by coming to a McDonald’s restaurant he knew 

to be dangerous and then remaining in the restaurant once a threat appeared. 

However, the trial court appears to have overlooked two critical points that 

were clearly established by the complaint.
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First, there was no allegation by Massaro that he knew in advance of

the day in question that (a) he was taking a physical risk by mentoring a 

student in his local McDonald’s, or (b) that restaurant employees would do 

nothing to intercede after an unhinged man (Gordon) directed a prolonged, 

threatening, racist tirade against him. In fact, Massaro specifically denied 

having any prior knowledge of the threat which Gordon posed on the day in 

question. See Second Amended Complaint, at ⁋ 50. This denial made the 

issue of Massasro’s prior knowledge of the danger a disputed question of fact 

for the jury to resolve.

Second, it was never alleged by Massaro that he willingly remained in 

the restaurant after a threat from Gordon became apparent. Rather, Massaro

clearly asserted in his complaint that the man threatening him had warned 

that he would be attacked as soon as he left the restaurant, leaving Massaro 

no choice but remain there. See id. at ⁋⁋ 24-26.

These allegations of fact had to be accepted as true at the preliminary 

objection stage, precluding the trial court from determining that Massaro 

voluntarily and knowingly assumed the risk of remaining in the restaurant for 

as long as he did. 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 
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assumption of risk doctrine completely eliminated McDonald’s duty of care to

Massaro.

C.

We further note that the trial court offered a dubious policy rationale to 

justify its finding that no duty of care should be imposed on McDonald’s in this 

case.

The existence of a legal duty may sometimes be resolved as a matter of 

law based on several factors outlined by the Pennsylvania Supreme Court:

The determination of whether a duty exists in a particular case 

involves the weighing of several discrete factors which include: 

(1) the relationship between the parties; (2) the social utility of 

the actor’s conduct; (3) the nature of the risk imposed and 

foreseeability of the harm incurred; (4) the consequences of 

imposing a duty upon the actor; and (5) the overall public interest 

in the proposed solution.

Althaus ex rel. Althaus v. Cohen, 756 A.2d 1166, 1169 (Pa. 2000).

As is clear from the Althaus decision and the enumerated factors 

themselves, the public policy concerns discussed above would typically relate 

to broad classes of individuals whose legal relationships are not yet settled. 

See Alderwoods (Pennsylvania), Inc. v. Duquesne Light Co., 106 A.3d

27, 40 (Pa. 2014) (explaining that the Althaus actors are “more relevant to 

the creation of new duties than to the vindication of existing ones.”). It is 

unnecessary “to conduct a full-blown public policy assessment in every 

instance in which a longstanding duty imposed on members of the public at 

large arises in a novel factual scenario. Common-law duties stated in general 
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terms are framed in such fashion for the very reason that they have broadscale application.” Dittman v. UPMC, 196 A.3d 1036, 1046 (Pa. 2014) 

(quoting Alderwoods, 106 A.3d at 40).

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.

Regardless of the inconsistency in those findings, the trial court appears 

to have only entered the order of dismissal because it misconstrued the nature 

of Massaro’s legal claims. In its opinion, the trial court suggested that no duty 

existed because a premises owner should not be made into “absolute”

guarantors of an invitee’s safety. The trial court was concerned that by 

making franchisees liable for “any and all harm that could occur to others” on 

their premises, the costs would deter the opening of “businesses in certain 

communities.” Trial Court Opinion, 11/30/2021, at 6.

Respectfully, such concerns are unfounded here. To begin with, Massaro 

never argued such a broad scope of duty on the part of McDonald’s or premises 
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owners in general; nor would he need to in order to prevail. Massaro’s claims 

were predicated on McDonald’s duty to act with reasonable care. He asserted 

that McDonald’s employees knew or should have known of the danger posed 

by the person who attacked him, and that this duty of care was breached 

when no reasonable steps were taken to protect him from that danger. 

Massaro never sought to hold McDonald’s absolutely liable for what happened, 

and it was therefore improper for the trial court to dismiss his claims on the 

ground that absolute liability does not apply.

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.
J-A16038-22

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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.3

Order vacated. Case remanded. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/2/2022

____________________________________________

3 Our holding as to the existence of a legal duty makes it unnecessary for us 

to separately examine any additional issues raised in the parties’ briefings.