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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 P leas 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,

_________________ __________ ______ ____ _______

* Retired Senior Judge assigned to the Superior Court.J

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arguing that they could not be hel d 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 consist ent 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 ca re on

the part of McDonald’s would constitute an undue burden which would

disincentivize its business operations

. We hold that the trial court improperly

dismiss ed the case by misconstruing the allegations
, resol ving 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.J

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7. Although Massaro (an elderly white male) was facing away from G ordon 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 G ordon 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,” an d “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 wal ked 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 wer e 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 man ager 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 phys ically menace and taunt Massaro for approximately one hour.J

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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 actua lly 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 employe e, 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

a re 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 kne w it was safer under the cameras with other people around, rather than be outside the view of security cameras. Massaro was in shock andJ

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disbelief that McDonald’s was not doing anything to address the hate, racist death threats being made against an elder ly 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 o ut 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 ta ke 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 recor ded and h e 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 su pport 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 threaten ing his life while restaurant employees stood idly by.J

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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

- 4 2

. 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 behav ior. 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 /gr oss

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

the complaint on February 23, 2021
, and Massaro filed an answer, as well asJ

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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

. McD onald’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,

202 1. A key part of this ruling w as 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 f ound that [ McDonald’s ] did not owe a duty to [Massaro] because [he], a business invite e , 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 an d harassing behavior at the McDonald's location. He met and spoke with the vice president and director of HR of [ McDonald’s .]J

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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 lo ved 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 again st 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:J

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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 obje ctions 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 o f 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

rem ained 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 direc tly 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] prelim inary 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 s ua 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 l ower court to not allow [Massaro] a chance to amend to address assumption of risk?J

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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 dispositiv e

– 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 in sufficient

to establish that McDonald’s owed him a duty of care. 2 W e 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 inferenc es 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 re covery 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 Mi k hail 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 Ju szcyszyn 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.J

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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) )

.

T he 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 la nd 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 harmfulJ

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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 otherwis e 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 gen eral 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.

Re statement (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 takeJ

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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 ar e 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.” Pa liometros 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 t o 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. Phila delphia Triathlon, LLC , 209 A.3d 941, 945

( Pa

. 2019) ; see also C arrender v. Fitterer , 469 A.2d 120, 125 ( Pa. 1983)J

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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 est ablished 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 compla in 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.” Restat ement (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, t he 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, t he trial court appears to have overlooked two critical points that

were clearly establ ished by the complaint

.J

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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 app arent. 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

.

T h ese allegation s of fact had to be accepted as true at the preliminary

objection stage
, preclud ing 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 evi dence that Massaro

could have done something more to protect himself, this would be an issue of

comparat ive negligence to be resolved by the jury. See Staub , 749 A.2d at

529

. T he trial court therefore erred as a matter of law in ruling that theJ

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assumptio n of risk doctrine completely eliminated McDonald’s duty of care to

Massaro

.

C

.

W e 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 factor s 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 overa ll 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 l ongstanding duty imposed on members of the public at

large arises in a novel factual scenario. Common

- law duties stated in generalJ

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terms are framed in such fashion for the very reason that they have broad

scale application.” Dittman v. UPMC , 196 A.3d 103 6, 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, t he 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 th e in consistency in th ose 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, t he trial court suggested that no duty

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

guarantor s 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 concern s are unfounded here. To begin with, Massaro

never argue d such a broad scope of duty on the part of McDonald’s or premisesJ

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owners in general ; nor would he need to in o rder 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 th e

ground that absolute liability does not apply.

Moreover, we do not agree with the trial court’s assessment that

impos ing 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 ha rassed 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 ent ering 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

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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 reman d ed for further

proceedings. 3

Order vacated. Case remanded. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/2/2022

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3 O ur holding as to the existence of a le gal duty makes it unnecessary for us to separately examine any additional issues raised in the parties’ briefing s

.