“Reasonableness.” What does this mean for commercial property owners?

October 24, 2022 | By Henry J. Noye

“So, you’re telling me there is a chance” is the iconic line from the 1994 blockbuster movie “Dumb and Dumber” starring Jim Carey (as “Lloyd Christmas”) and Lauren Holly (as “Mary Swanson”).  In the film, Lloyd is enamored with Mary and asks whether there is an opportunity for them to date in the future.  Mary, however, is not optimistic in her response.  Specifically, Mary tells Lloyd there is about a 1 in 1,000,000 chance that they could end up dating. 

The phrase has evolved to become a part of the vernacular to express a situation where an outcome may be possible even when it is not probable.  Similarly, the Pennsylvania Superior Court has recently stated that there “is a chance” property owners in the state could be liable to business invitees for the criminal conduct of third parties.

In Massaro v. McDonald’s, [1] the Superior Court reversed the trial court’s grant of the defendant, McDonald’s Corporation’s Preliminary Objections dismissing the plaintiff’s complaint.  Briefly, the plaintiff, Thomas Massaro, an elderly white male, was a patron of a McDonald’s restaurant in North Philadelphia.  He was there meeting with and mentoring a young Black-Latino male student when he was aggressively and continuously harassed and assaulted by an apparently deranged third party (Mr. Gordon) who was also in the restaurant.  Mr. Gordon, who is Black, and was known to be dangerous by the McDonald’s staff, made repeated loud, vulgar racist statements expressing his hatred of white people and expressing his intent to harm the plaintiff because of his race.  Mr. Gordon’s actions were witnessed by everyone in the restaurant.  Mr. Massaro made numerous requests to the employees and management of the McDonald’s to assist him or call the police.  However, no responsive actions were taken by anyone working for the restaurant.  While attempting to leave the restaurant, Mr. Massaro, suffered a heart attack as he was approached by Mr. Gordon. 

Massaro later sued McDonald’s Corporation in the Philadelphia County Court of Common Pleas for negligence in failing to assist him during this assault.  In dismissing the complaint, the trial court reasoned that McDonald’s did not owe Mr. Massaro a duty of care because he had assumed the risk of his assault.  The trial court also 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.  On appeal, the Superior Court strenuously disagreed with the trial court’s ruling. 

In a strongly worded opinion, the Superior Court scolded the trial court for improperly dismissing the case.  The Superior Court determined 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.” [2]  Furthermore, the Superior Court held, with respect to the assumption of risk defense, the trial court overlooked the fact that there was no allegation by Massaro that he knew in advance that he was taking a physical risk by mentoring a student at this location or that restaurant employees would do nothing to intercede.

The Superior Court also faulted the trial court for its “dubious policy rationale” to justify its finding of no duty of care, by applying the factors identified in Althaus v. Cohen. [3]  The appellate court further noted that there can be no doubt that a premises owner running a restaurant open to the public owes some duty of care to business invitees.

So, is the Superior Court making Pennsylvania property owners the insurers of the safety of their business invitees?  No.  Instead, the Superior Court is reaffirming the existing standard.  The facts of this case are egregious both in the treatment Mr. Massaro was subjected to and in the inaction by the McDonald’s employees.  This is the 1 in 1,000,000, scenario referenced by Mary Swanson. 

The key takeaway for commercial property owners and managers, and their insurers, is the standard of care owed to business invitees is still to act reasonably.  In this instance, that meant:

  1. Precluding Mr. Gordon from entering the restaurant; or
  2. Calling the police on their own initiative based on Mr. Gordon’s actions or certainly when requested by Mr. Messaro; or 
  3. Coming to Mr. Messaro’s aid when he asked for help (i.e. allowing he and the student stay in the back and out of Mr. Gordon’s sight). 

Any of these reasonable actions would have met the duty owed to Mr. Messaro.    

[1] 2022 Pa. Super. LEXIS 320, (Aug. 2, 2022).

[2] See Massaro, supra, 2022 Pa. Super. LEXIS, at *17, quoting Paliometros v. Loyola, 932 A.2d 128, 133 (Pa. Super. 2007)(citations omitted).

[3] 562 Pa. 547, 756 A. 2d 1166, 1169 (Pa. 2000).  Per the Superior Court, the Althaus factors, were only meant to be applied in those situations where the legal relationships are not yet settled.

The information contained in this publication should not be construed as legal advice, is not a substitute for legal counsel, and should not be relied on as such. For legal advice or answers to specific questions, please contact one of our attorneys.


About the Authors

Henry J. Noye


Henry is a partner in Obermayer’s Litigation Department and a member of the Catastrophic Loss Group. Henry has extensive background defending corporate entities in Pennsylvania state and federal courts in automotive product...

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