by Wilton H. Strickland

Perhaps everyone has heard of the famous McDonald’s lawsuit from the 1990s, in which an elderly woman who spilled hot coffee on her own lap successfully sued McDonald’s for damages. In former times that lawsuit would have gone nowhere because of the ironclad defense of contributory negligence — i.e., a plaintiff whose own negligence contributes to his or her own injury cannot recover against a negligent defendant, no matter how small the plaintiff’s negligence might have been. Under the modern doctrine of “comparative negligence,” however, the courthouse doors remain wide open and allow the plaintiff to recover despite his or her own negligence (albeit with damages reduced in a manner roughly calculated by the jury).

The wisdom of the modern approach is worth debating, in my view, but that is not my focus here. What interests me is a new lawsuit brewing in California between McDonald’s and an injured customer, who was assaulted in the restaurant by a homeless man and alleges that McDonald’s was negligent for not providing better security. This theory of relief is known as “premises liability” and is near and dear to my heart, as I have published two cover stories for the Florida Bar Journal devoted to it (if anyone is interested, here are the first one and the second one). But this new lawsuit has a twist: McDonald’s has filed a cross-claim against the homeless man for indemnity and contribution. This is rather comedic, not only because a giant corporation is seeking monetary relief from a pauper, but also because McDonald’s is engaging in legal judo to take advantage of the modern doctrine of comparative negligence.

All kidding aside, there are some potential weaknesses in the McDonald’s cross-claim that the opposing parties should explore. I am not licensed in California and will not presume to tell those attorneys how to do their job. What I can say is that, based on the law where I am licensed, the McDonald’s cross-claim should likely be dismissed.

First, there is no apparent basis for indemnity. As I’ve discussed in a prior article, indemnity requires either a contractual or an agency relationship (e.g., employment) that makes the party seeking indemnity vicariously liable for the actions of another. I seriously doubt that the homeless man had an indemnity agreement or an employment relationship with McDonald’s, so the indemnity claim looks dead on arrival.

Second, there is no apparent basis for contribution, which is a form of comparative negligence. McDonald’s is being sued for negligence, so McDonald’s may shift blame to other negligent persons who contributed to the injury. But there’s the rub: the homeless man did not act negligently, but intentionally when assaulting the patron. Intentional wrongdoing is categorically different from negligence and cannot support theories of comparative negligence or contribution. The Florida Supreme Court did a good job of explaining this in the (ironically named) decision of Merrill Crossings Assocs. v. McDonald, 705 So. 2d 560 (1997), where the Court held that a negligent premises owner could not shift any blame to the person who had intentionally attacked the plaintiff.

So, if I were an attorney working on the California McDonald’s case, I would fire up my legal-research engine and look for similar decisions barring contribution and indemnity there. It could keep McDonald’s fully on the hook for its own negligence.