High school senior Matthew Theurer punched out at & 8:21 A.M. on Tuesday, April 5, 1988, after spending thenight cleaning deep-fat fryers at a McDonald’s in Portland, Ore- gon. He had volunteered for the A all-nighter between two school days. But now he was tired, Theurer told the manager, who granted him relief from his shift later that day.
Then the 18-year-old got into the red 1982 Nissan Sentra that his McDon¨ald’s earnings had paid for and headed for his home town of Estacada, 19 miles away.
A few miles down Highway 224, Frederic Faverty was en route to a job trimming the shoes on a horse when he no¨ticed the red car coming toward him, taking a curve wide. It drifted over the double line-and came straight at him. Faverty swung right, too late.
The head-on crash demolished Theurer’s light compact and flipped Faverty’s tan 1979 Chevrolet Suburban truck onto its side. The 40-year-old Faverty was badly hurt, with extensive leg, hip, and ankle injuries.
Matt Theurer died on impact. The in¨vestigating officer reported that Theurer had apparently fallen asleep at the wheel.
Almost three years later, on March 29 of this year, a Multnomah County circuit court jury concluded that the accident was the fault of McDonald’s. Finding after a five-day trial that the company had negligently worked Theurer such long hours that he was a hazard on the road, the jury awarded Faverty $400,000 in damages, by a 9-to-3 vote.
Less than a week later Theurer’s mother filed a $10 million wrongful death suit against McDonald’s, seeking punitive damages for wanton disregard of the safety of her son and society at large. Her case has not yet gone to trial.
All this quickly raised alarms among employer groups: Yet another crazy jury verdict, less spectacular than some, per¨haps, but menacing to employers everywhere. "It’s like putting someone’s boss in the position of being their parents and de¨ciding when they should go home to bed," Mona Zeiberg, senior labor counsel for the U.S. Chamber of Commerce, told The Wall Street Journal The next thing, added John Sullivan, president of the Association for California Tort Reform, will be a law suit blaming an employer for "an em¨ployee who leaves work mad and then causes an accident."
Michael Lowery, a corporate attorney for McDonald’s-which is appealing the verdict-said in a letter in response to questions about the case that "the potential consequence… is that an employer would be required to check the physical condition of every employee before the employee leaves work and make a deter¨mination as to whether the employee may pose a danger to himself or others… [This] establishes an insuperable burden upon all employers."
That’s a bit overheated. But the Faverty verdict, if upheld on appeal, will represent a new high-water mark in employer liability for havoc wrought by off-duty employees. A review of the case, including interviews with 11 of the jurors, shows how tort liability tends to expand-in tiny increments, each understandable in context-toward any deep pocket with an indirect connection to someone else’s injury.
The most obvious risk here is to fast-food chains like McDonald’s, as well as small Mom-and-Pop establishments, that employ lots of teenagers, often at night. The broad theory of negligence in the Faverty case could also, however, reach thousands of other employers-hospitals, law firms, re¨tailers, factories, newspapers, construction companies, and more-whose employees sometimes drive home after working themselves to the point of exhaustion.
Whether Faverty V. McDonald’s repre¨sents the march of progress or liability run amok is debatable. But it cannot be dis¨missed as an example of jurors gone mad-or of a lawyer blowing his case, for that matter. Rather, the case represents law gone squishy in a quest to provide a remedy for every wrong. It extends a decades-old trend in which liability-limiting black letter rules are disappearing into the widening maw of common law negligence theory.
The result is that judges are asking juries to make ever more subjective judgments of law about individual suffering and corporate responsibility, with no mandate to consider the social costs of imposing liability.
Faverty filed his lawsuit in January 1990, 21 months after the accident. He was represented by Robert Neuberger, a 38-year-old associate with Portland’s Pozzi Wilson Atchison O’Leary & Conboy.
While Neuberger declines to discuss his consultations with his client, it’s clear enough from the record why any good plaintiffs lawyer would have seen McDonald’s as a logical target.
Theurer had only $25,000 in automobile liability coverage, the minimum required by state law. And Faverty had no medical or disability insurance. While he collected the $25,000, it did not come close to covering his more than $50,000 in past and projected medical expenses, let alone lost income, permanent impairment, and pain and suffering. Neuberger says he did not consider suing Theurer’s family; it would have made little sense, since Theurer’s fa¨ther was dead, and his mother, Helen Jean Krushwitz, had little money and would have had an obvious claim on the jury’s sympathy.
That left McDonald’s. And the restaurant where Theurer had worked, in a southeastern suburb of Portland, was owned and operated by McDonald’s Corporation, not just a local franchisee. Pockets don’t come much deeper.
Neuberger made no claim that Theurer was acting "within the scope of his employment at the time of the ac¨cident, or that McDonald’s was liable for Theurer’s negligence under the usual principle of vicarious liability for the on-the-job torts of employees. The lawyer dropped his initial claims that McDonald’s had violated Oregon labor laws and had been negligent in failing to stop Theurer from driving away that morning.
The latter claim, Neuberger feared, might prompt a ruling by Judge Harl Haas, the trial judge, or an appellate court that McDonald’s had no right, and thus no duty, to tell Theurer what he could do on his own time.
Neuberger decided instead to let the idea that McDonald’s should have dissuaded Theurer from driving emerge during the trial without nam¨ing it as a cause of action. "I could get to the same place without having to take a risk,” he explains.
So, as Neuberger conceived and presented it, Faverty’s was a classi¨cally simple negligence claim, just like those finding taverns and social hosts liable for serving liquor to drunks who then get into accidents.
As he sums up his argument: "McDonald’s failed to exercise reasonable care by scheduling this young Mr. Theurer to work more hours than was reasonable under the circumstances. What in the world are they doing scheduling a high school kid on a school night to work this kind of shift?" It was just another case of failing to take due care to prevent a foreseeable danger.
"I don’t give myself a lot of credit," the lawyer adds. "I just kind of did what was obvious." Obvious, but nonetheless bold: As McDonald’s has stressed in seeking dismissal of the case, and will stress on appeal, no case in Oregon or in the United States, at least none that Neuberger was able to find, had held an employer liable for an employee’s off-duty accident on facts like these.
A suit like Faverty’s would have been dismissed out of hand 25 years ago by virtually any court in the United States. Under common law tort and agency doctrine, employers were liable only for the on-the-job torts of employees. They were not re¨sponsible for employees’ actions go¨ing to and coming from work, because they had no right-and thus no duty-to control them. Nor did they have any general duty to make sure employees got adequate rest, beyond complying with labor laws. Period. Any unreasonableness on the part of McDonald’s in scheduling Theurer’s work would have been irrelevant.
Even now the Faverty verdict is highly unusual. The closest parallels Neuberger could find to the Faverty case involved employer conduct worse than anything McDonald’s had done. A few decisions involved em¨ployers who provided liquor to em-ployees at company parties. The only case involving fatigue from overwork was a 1983 decision by the West Virgina Supreme Court of Appeals that an employer could be held liable for a tired worker’s accident driving home, but only in the most extraordinary circumstances. In that case, the employer had forced a 19-year-old employee to clear track for 27 hours straight after a train derailment, even though the employee repeatedly complained of fatigue and said he wanted to go home. Then the em¨ployer had taken him to his car to start a 50-mile drive home.
While Neuberger lacked a prece¨dent directly on point, he did have some solid building blocks, supplied by the tort liability explosion that be¨gan in the early 1960s. The Oregon Supreme Court in particular has re¨pudiated old rules of proximate cause and other limitations on negligence liability to remote parties. In 1987, for example, Chief Justice Hans Linde (now retired), ruling that a school could be liable to a 15-year-old student who was abducted just outside the school entrance and raped, held broadly that no matter how remote the relationship be¨tween plaintiff and defendant, or how indirect the chain of causation, juries should generally have wide leeway in deciding whether a defendant "unrea¨sonably created a foreseeable risk" to the public at large.
In three motions before and after the trial seeking to dismiss the case, McDonald’s, represented by Donald McClain of Portland’s two-lawyer McClain & Rayburn, contended that because of the special nature of the employer-employee relationship, the company could not be held liable even if it had been negligent in scheduling Theurer’s work. (Neither McClain nor an official McDonald’s spokesperson would consent to be interviewed about any aspect of the case while the appeal is pending; at press time no briefs had been filed.)
McClain’s motions, resting on recitation of old case law with little policy analysis, were summarily rejected (without written opinions) first by Judge Gerald Pullen and later by Judge Haas, who once did plaintiffs personal injury work himself.
McDonald’s never made a settle¨ment offer, according to Neuberger. Did this suggest they were over¨confident? "I have no idea what their thinking was," Neuberger responds.
A GRUELING SCHEDULE
The five-day trial began Monday, March 25. Most jurors say the case was well-lawyered on both sides, with the 38-year-old Neuberger smoothly shaping the facts to appeal to the jurors’ sympathies, and the 55-year-old McClain appropriately businesslike and matter-of-fact. (While some ju¨rors lavish praise on Neuberger, two who ended up voting against McDon¨ald’s say they nonetheless preferred McClain’s soft-spoken courtroom style. One of the two, Pat Weiler, criticizes Neuberger for "working on the sympathy angle.")
Neuberger says his strategy was as simple as his theory of liability: "The old truism is, don’t talk about policy, talk about facts," he says. "This case more than any other I’ve had shows that old truism still holds." The most salient facts, which Neuberger re¨duced to a chart and drummed into the jurors’ consciousness, were the hours kept by Matt Theurer in his last days, from Sunday, April 3, to Tuesday, April 5, 1988:
Sunday: Working at McDonald’s, 6 to 11:30 p.m.; home after midnight.
Monday-Tuesday: Up at 6:30 A.M.; spent morning with younger brother and friend; school; working at McDonald’s, 3:30 to 7:30 P.M., returning at midnight to work until 8:21 A.M. on Tuesday.
Tuesday was another school day, but Theurer never got there. By about 8:40 A.M., he was dead.
This schedule, Neuberger stresses, should have "raised red flags" among the managers. It left Theurer with no sleep in the last 26 hours of his life, and only seven hours of sleep in his last 48 hours, as he shuttled from work to home to school to work.
There was testimony from Bernhard Thoensen, the investigating of¨ficer, that Theurer had apparently fallen asleep at the wheel, minutes af¨ter telling the manager, Brian Parish, he was tired. Two expert witnesses, a physician and an occupational safety expert, reinforced Thoensen’s common-sense deduction.
Theurer’s brother, his former girlfriend and her mother, and a school counselor all testified that they had all been concerned, for months before the accident, about his chronic fatigue from juggling work at McDonald’s with school.
One message this sent to the jury was that Parish and other managers at McDonald’s should have noticed this too, especially given the evidence indicating that they were aware Theurer drove 19 miles to and from his home town of Estacada. The same witnesses also gave the jurors a feel for Matt Theurer the person, a small-town, middle-class youth who planned to join the military.
"He sounded like really a nice, outgoing, friendly boy who had a great future ahead of him," recalls juror Claudia Dockter, "and it was just tragic what happened." Faverty and his wife, who had to quit her job to care for him full time for four months after he came home in a wheelchair, tugged at the jurors’ sympathies just by being there.
"He just looked like an honest, hardworking guy," recalls juror Tom Berguin. "His work record was great. …You had his neighbors there tell¨ing what a great guy he was… His wife was there, [they were] just like a normal couple. He presented himself fine. He had a good sense of humor… I really wanted to help this guy. He had a lot of pain.”
Faverty told of spending 17 days in the hospital and more than four months at home before he could walk or do any work. The accident had left him with severe leg, hip, and ankle injuries. He was disabled from doing any work requiring strong legs, including the new business as a farrier (a shoer of horses) that he had started a few months before. (Faverty now works as an order-writer for wholesalers of hardware and other merchandise.)
The most damaging witness against Mc…
High school senior Matthew Theurer punched out at & 8:21 A.M. on Tuesday, April 5, 1988, after spending thenight cleaning deep-fat fryers at a McDonald’s in Portland, Ore- gon. He had volunteered for the A all-nighter between two school days. But now he was tired, Theurer told the manager, who granted him relief from his shift later that day.
Then the 18-year-old got into the red 1982 Nissan Sentra that his McDon¨ald’s earnings had paid for and headed for his home town of Estacada, 19 miles away.
A few miles down Highway 224, Frederic Faverty was en route to a job trimming the shoes on a horse when he no¨ticed the red car coming toward him, taking a curve wide. It drifted over the double line-and came straight at him. Faverty swung right, too late.
The head-on crash demolished Theurer’s light compact and flipped Faverty’s tan 1979 Chevrolet Suburban truck onto its side. The 40-year-old Faverty was badly hurt, with extensive leg, hip, and ankle injuries.
Matt Theurer died on impact. The in¨vestigating officer reported that Theurer had apparently fallen asleep at the wheel.
Almost three years later, on March 29 of this year, a Multnomah County circuit court jury concluded that the accident was the fault of McDonald’s. Finding after a five-day trial that the company had negligently worked Theurer such long hours that he was a hazard on the road, the jury awarded Faverty $400,000 in damages, by a 9-to-3 vote.
Less than a week later Theurer’s mother filed a $10 million wrongful death suit against McDonald’s, seeking punitive damages for wanton disregard of the safety of her son and society at large. Her case has not yet gone to trial.
All this quickly raised alarms among employer groups: Yet another crazy jury verdict, less spectacular than some, per¨haps, but menacing to employers everywhere. "It’s like putting someone’s boss in the position of being their parents and de¨ciding when they should go home to bed," Mona Zeiberg, senior labor counsel for the U.S. Chamber of Commerce, told The Wall Street Journal The next thing, added John Sullivan, president of the Association for California Tort Reform, will be a law suit blaming an employer for "an em¨ployee who leaves work mad and then causes an accident."
Michael Lowery, a corporate attorney for McDonald’s-which is appealing the verdict-said in a letter in response to questions about the case that "the potential consequence… is that an employer would be required to check the physical condition of every employee before the employee leaves work and make a deter¨mination as to whether the employee may pose a danger to himself or others… [This] establishes an insuperable burden upon all employers."
That’s a bit overheated. But the Faverty verdict, if upheld on appeal, will represent a new high-water mark in employer liability for havoc wrought by off-duty employees. A review of the case, including interviews with 11 of the jurors, shows how tort liability tends to expand-in tiny increments, each understandable in context-toward any deep pocket with an indirect connection to someone else’s injury.
The most obvious risk here is to fast-food chains like McDonald’s, as well as small Mom-and-Pop establishments, that employ lots of teenagers, often at night. The broad theory of negligence in the Faverty case could also, however, reach thousands of other employers-hospitals, law firms, re¨tailers, factories, newspapers, construction companies, and more-whose employees sometimes drive home after working themselves to the point of exhaustion.
Whether Faverty V. McDonald’s repre¨sents the march of progress or liability run amok is debatable. But it cannot be dis¨missed as an example of jurors gone mad-or of a lawyer blowing his case, for that matter. Rather, the case represents law gone squishy in a quest to provide a remedy for every wrong. It extends a decades-old trend in which liability-limiting black letter rules are disappearing into the widening maw of common law negligence theory.
The result is that judges are asking juries to make ever more subjective judgments of law about individual suffering and corporate responsibility, with no mandate to consider the social costs of imposing liability.
Faverty filed his lawsuit in January 1990, 21 months after the accident. He was represented by Robert Neuberger, a 38-year-old associate with Portland’s Pozzi Wilson Atchison O’Leary & Conboy.
While Neuberger declines to discuss his consultations with his client, it’s clear enough from the record why any good plaintiffs lawyer would have seen McDonald’s as a logical target.
Theurer had only $25,000 in automobile liability coverage, the minimum required by state law. And Faverty had no medical or disability insurance. While he collected the $25,000, it did not come close to covering his more than $50,000 in past and projected medical expenses, let alone lost income, permanent impairment, and pain and suffering. Neuberger says he did not consider suing Theurer’s family; it would have made little sense, since Theurer’s fa¨ther was dead, and his mother, Helen Jean Krushwitz, had little money and would have had an obvious claim on the jury’s sympathy.
That left McDonald’s. And the restaurant where Theurer had worked, in a southeastern suburb of Portland, was owned and operated by McDonald’s Corporation, not just a local franchisee. Pockets don’t come much deeper.
Neuberger made no claim that Theurer was acting "within the scope of his employment at the time of the ac¨cident, or that McDonald’s was liable for Theurer’s negligence under the usual principle of vicarious liability for the on-the-job torts of employees. The lawyer dropped his initial claims that McDonald’s had violated Oregon labor laws and had been negligent in failing to stop Theurer from driving away that morning.
The latter claim, Neuberger feared, might prompt a ruling by Judge Harl Haas, the trial judge, or an appellate court that McDonald’s had no right, and thus no duty, to tell Theurer what he could do on his own time.
Neuberger decided instead to let the idea that McDonald’s should have dissuaded Theurer from driving emerge during the trial without nam¨ing it as a cause of action. "I could get to the same place without having to take a risk,” he explains.
So, as Neuberger conceived and presented it, Faverty’s was a classi¨cally simple negligence claim, just like those finding taverns and social hosts liable for serving liquor to drunks who then get into accidents.
As he sums up his argument: "McDonald’s failed to exercise reasonable care by scheduling this young Mr. Theurer to work more hours than was reasonable under the circumstances. What in the world are they doing scheduling a high school kid on a school night to work this kind of shift?" It was just another case of failing to take due care to prevent a foreseeable danger.
"I don’t give myself a lot of credit," the lawyer adds. "I just kind of did what was obvious." Obvious, but nonetheless bold: As McDonald’s has stressed in seeking dismissal of the case, and will stress on appeal, no case in Oregon or in the United States, at least none that Neuberger was able to find, had held an employer liable for an employee’s off-duty accident on facts like these.
A suit like Faverty’s would have been dismissed out of hand 25 years ago by virtually any court in the United States. Under common law tort and agency doctrine, employers were liable only for the on-the-job torts of employees. They were not re¨sponsible for employees’ actions go¨ing to and coming from work, because they had no right-and thus no duty-to control them. Nor did they have any general duty to make sure employees got adequate rest, beyond complying with labor laws. Period. Any unreasonableness on the part of McDonald’s in scheduling Theurer’s work would have been irrelevant.
Even now the Faverty verdict is highly unusual. The closest parallels Neuberger could find to the Faverty case involved employer conduct worse than anything McDonald’s had done. A few decisions involved em¨ployers who provided liquor to em-ployees at company parties. The only case involving fatigue from overwork was a 1983 decision by the West Virgina Supreme Court of Appeals that an employer could be held liable for a tired worker’s accident driving home, but only in the most extraordinary circumstances. In that case, the employer had forced a 19-year-old employee to clear track for 27 hours straight after a train derailment, even though the employee repeatedly complained of fatigue and said he wanted to go home. Then the em¨ployer had taken him to his car to start a 50-mile drive home.
While Neuberger lacked a prece¨dent directly on point, he did have some solid building blocks, supplied by the tort liability explosion that be¨gan in the early 1960s. The Oregon Supreme Court in particular has re¨pudiated old rules of proximate cause and other limitations on negligence liability to remote parties. In 1987, for example, Chief Justice Hans Linde (now retired), ruling that a school could be liable to a 15-year-old student who was abducted just outside the school entrance and raped, held broadly that no matter how remote the relationship be¨tween plaintiff and defendant, or how indirect the chain of causation, juries should generally have wide leeway in deciding whether a defendant "unrea¨sonably created a foreseeable risk" to the public at large.
In three motions before and after the trial seeking to dismiss the case, McDonald’s, represented by Donald McClain of Portland’s two-lawyer McClain & Rayburn, contended that because of the special nature of the employer-employee relationship, the company could not be held liable even if it had been negligent in scheduling Theurer’s work. (Neither McClain nor an official McDonald’s spokesperson would consent to be interviewed about any aspect of the case while the appeal is pending; at press time no briefs had been filed.)
McClain’s motions, resting on recitation of old case law with little policy analysis, were summarily rejected (without written opinions) first by Judge Gerald Pullen and later by Judge Haas, who once did plaintiffs personal injury work himself.
McDonald’s never made a settle¨ment offer, according to Neuberger. Did this suggest they were over¨confident? "I have no idea what their thinking was," Neuberger responds.
A GRUELING SCHEDULE
The five-day trial began Monday, March 25. Most jurors say the case was well-lawyered on both sides, with the 38-year-old Neuberger smoothly shaping the facts to appeal to the jurors’ sympathies, and the 55-year-old McClain appropriately businesslike and matter-of-fact. (While some ju¨rors lavish praise on Neuberger, two who ended up voting against McDon¨ald’s say they nonetheless preferred McClain’s soft-spoken courtroom style. One of the two, Pat Weiler, criticizes Neuberger for "working on the sympathy angle.")
Neuberger says his strategy was as simple as his theory of liability: "The old truism is, don’t talk about policy, talk about facts," he says. "This case more than any other I’ve had shows that old truism still holds." The most salient facts, which Neuberger re¨duced to a chart and drummed into the jurors’ consciousness, were the hours kept by Matt Theurer in his last days, from Sunday, April 3, to Tuesday, April 5, 1988:
Sunday: Working at McDonald’s, 6 to 11:30 p.m.; home after midnight.
Monday-Tuesday: Up at 6:30 A.M.; spent morning with younger brother and friend; school; working at McDonald’s, 3:30 to 7:30 P.M., returning at midnight to work until 8:21 A.M. on Tuesday.
Tuesday was another school day, but Theurer never got there. By about 8:40 A.M., he was dead.
This schedule, Neuberger stresses, should have "raised red flags" among the managers. It left Theurer with no sleep in the last 26 hours of his life, and only seven hours of sleep in his last 48 hours, as he shuttled from work to home to school to work.
There was testimony from Bernhard Thoensen, the investigating of¨ficer, that Theurer had apparently fallen asleep at the wheel, minutes af¨ter telling the manager, Brian Parish, he was tired. Two expert witnesses, a physician and an occupational safety expert, reinforced Thoensen’s common-sense deduction.
Theurer’s brother, his former girlfriend and her mother, and a school counselor all testified that they had all been concerned, for months before the accident, about his chronic fatigue from juggling work at McDonald’s with school.
One message this sent to the jury was that Parish and other managers at McDonald’s should have noticed this too, especially given the evidence indicating that they were aware Theurer drove 19 miles to and from his home town of Estacada. The same witnesses also gave the jurors a feel for Matt Theurer the person, a small-town, middle-class youth who planned to join the military.
"He sounded like really a nice, outgoing, friendly boy who had a great future ahead of him," recalls juror Claudia Dockter, "and it was just tragic what happened." Faverty and his wife, who had to quit her job to care for him full time for four months after he came home in a wheelchair, tugged at the jurors’ sympathies just by being there.
"He just looked like an honest, hardworking guy," recalls juror Tom Berguin. "His work record was great. …You had his neighbors there tell¨ing what a great guy he was… His wife was there, [they were] just like a normal couple. He presented himself fine. He had a good sense of humor… I really wanted to help this guy. He had a lot of pain.”
Faverty told of spending 17 days in the hospital and more than four months at home before he could walk or do any work. The accident had left him with severe leg, hip, and ankle injuries. He was disabled from doing any work requiring strong legs, including the new business as a farrier (a shoer of horses) that he had started a few months before. (Faverty now works as an order-writer for wholesalers of hardware and other merchandise.)
The most damaging witness against McDonald’s may have been Dennis Dowrey, who had worked with Theur¨er on his last shift and recalled him looking "very, very tired" by about 5 A.M. that Tuesday. Taking the stand in a Navy uniform, Dowrey testified that he, Theurer, and other students were often so "exhausted" from working a grueling schedule of late shifts at McDonald’s that they would fall asleep in class.
Dowrey added that he had repeat¨edly nodded off at the wheel on the same road on which Theurer had died, on one occasion running his car into a ravine. He said that the supervisers at McDonald’s were well aware of all this, and knew that most of the stu-dents drove their own cars to work.
While there was no evidence that Theurer or Dowrey had been pressured to volunteer for the special all-night cleaning shift, Dowrey testified that "it’s hard to get more hours" unless you take whatever shifts are offered; he said Theurer had wanted to work as many hours as he could to pay for his car. Theurer was paid his usual wages -estimated by Neuberger at less than $5 an hour-for the all-night shift.
McClain sought to discredit Dowrey as a liar with a "gigantic chip on his shoulders against McDonald’s." But the damage was done. Dowrey had painted a picture of a company indifferent to the strains on its teenage workers. He had also, in Neuberger’s view, bolstered the suspicion that "there have got to be a lot of other incidents like this one, with as many restaurants -as McDonald’s has; we were just never able to find them.”
Neuberger also made McDonald’s look bad through the testimony of its own manager, Parish, who had to admit that it was not a great idea to schedule a high school student to work all night between two school days, and that there was no reason the special cleaning de¨tail could not have been done over a weekend.
Parish acknowledged (in deposition testimony that Neuberger used at the trial) that the company’s "Crew Members’ Handbook" for the Northwest region barred scheduling "split shifts," meaning more than one shift a day, and that it was not Parish’s normal practice to schedule students to work all night on school nights. Why not? asked Neuber¨ger. "Well, so people can get their rest," Parish responded.
Parish was technically correct in insisting that Theurer had not actually worked a split shift because he began work at midnight. But that sounded lame; several jurors say they con¨cluded that the restaurant had negli¨gently violated the spirit if not the let-ter of its own policies.
SCATTERSHOT DEFENSE
The defense case was somewhat scattershot-perhaps unavoidably, given the hand McClain had been dealt.
McClain first tried to cast doubt on the theory that Theurer had fallen asleep at the wheel. His expert witness, R. Curtis Graeber, a psychologist and accident investigator, said Theurer’s route just before the accident was so full of turns, traffic lights, and other stimuli as to make the falling-asleep theory improbable. McClain used Graeber and other witnesses to sug¨gest that maybe the accident happened because Theurer had the sun in his eyes, or maybe he was trying to pass and just didn’t see Faverty’s tan truck, or maybe one of his tires blew out.
None of these theories was very convincing, however. And when Neuberger elicited that Graeber was charging McDonald’s $2,500 a day, it raised some jurors’ eyebrows. "It was like he was being paid to play a role rather than to give an honest answer,” says juror Jacqueline Mouser.
Still less convincing was McClain’s effort to show that Faverty had been speeding, and thus contributorily negligent. Not one juror bought it.
The heart of the defense, though, was that even if Theurer did fall asleep at the wheel, McDonald’s was not his parent and was not responsible: Here was a legal adult who had a right to decide for himself when he was fit to work; who had volunteered for the allnight shift, with no pressure to do so; who had assured his managers he would take a nap first; and who had not appeared unusually tired to them.
Gary Quinsland, an assistant manager,, said Theurer had been the first to volunteer when he asked a group of employees three or four days before the special all-night cleaning detail whether anyone wanted to work the extra time. And Parish, the manager, recalled Theurer saying he would take a nap at a co-workers place nearby during his four-and-a-half hours of free time between shifts. Instead of napping, as it turned out, Theurer went out on a date that evening before coming in at midnight for the cleaning detail.
The closing arguments focused on the value judgments at the core of the case. "This kid should have been home and in bed by eleven o’clock," Neuberger contended. "And that is where McDonald’s blew it, because they should have known and they’re the ones that kept him up… They pushed Matt Theurer over the edge. . . . . . . . They didn’t have to make this kid work on an all-night shift on a school night. Common sense should have told them that. Common decency should have told them that."
Summing up, he went for the hearts of the jury: "You write the epitaph that goes on Matt Theurer’s tomb¨stone. You decide."
McClain countered: "We had a right to assume that Matt would take a nap. Assuming that, are we wrong in having him or allowing him to volunteer for a late shift?… In an employee-employ¨er relationship, eighteen means adult. …An employer cannot take over the private life of an employee… We have sixty, seventy employees; we can’t know exactly what all of them are up to… The great issue in this case is, is McDonald’s responsible for Matt Theurer’s life?"
The defense lawyer suggested that Theurer himself, his mother and his school were all more responsible than McDonald’s for his fatigue. "The real question," he added, "is, are we responsible because we’re working people late shifts and they’re in high school? That’s the real issue and it’s kind of a social issue, not really a le¨gal issue in this case."
In instructing the jury, however, Judge Haas gave no support to the no¨tion that the jury’s job was to resolve any broad "social issue." He also denied a defense request that he instruct the jury to compare the responsibility of McDonald’s with that of the dead youth, his mother, and his school, because they were not parties to the case.
Judge Haas’s instructions on the elements of negligence liability were simple, unvarnished, and apparently well-grounded in Oregon law, which gives jurors broad latitude in negligence cases, even when the defendant’s alleged fault is relatively minor. But eight jurors say they were highly significant-perhaps decisive-in funneling those who began on the fence toward a verdict for the plain¨tiff.
The jurors, who were given an audiotape of the instructions, replayed the crucial passage in the jury room: "First, was the defendant, McDon¨ald’s, negligent in working Matt Theurer more hours than was reason¨able under the circumstances existing when the defendant knew or in the exercise of reasonable care should have known that Matt Theurer would operate a motor vehicle and be a haz¨ard to himself and others? And fur¨ther, do you also find that that conduct was a substantially contributing factor in producing plaintiffs injuries?"
He went on to say, "You need not find that the conduct of the defendant was the only cause of the damage in this case." The judge gave a standard defi¨nition of negligence as violating the duty of "ordinary prudence" to avoid "reasonably foreseeable" harms.
Judge Haas gave the jurors a ver¨dict form with four questions: Was McDonald’s negligent and was its negligence a cause of damage to Faverty? Was Faverty negligent? If so, what was the percentage of negligence as between McDonald’s and Faverty? And what" are Faverty’s damages? Given the unanimous view on the jury that Faverty had not been negligent, everything rode on the first question.
Here was a clearly marked route that seemed to cut right through the general concerns stressed by McClain about whether it is fair to single out an employer for blame when an em¨ployee doesn’t get enough rest.
It also left those jurors who were inclined to assign some responsibility to Theurer’s family (and several say they were so inclined) with no legal basis for doing so, or for reducing any damage award against McDonald’s on the basis that it was not solely responsible.
PHILOSOPHY IN THE JURY ROOM
The eight women and four men of the jury deliberated from 12:25 to 3:10 p.m., taking lunch in the jury room. While it was a generally congenial group, there were strong disagreements, leading to sharp and emotional exchanges. These disputes, interviews with 11 of the jurors indicate, were rooted less in differing views of the evidence (although there were some) than in differing philosophies about in¨dividual and corporate responsibility for the cruel workings of fate.
The juror with the most prior jury experience, 51-year-old John Lorett, was named foreman. Then the group took an informal vote to see where everyone stood. It showed an even split, with six for upholding Faverty’s claim and six leaning against, or at least unpersuaded.
In discussions, deep divisions emerged between three or four jurors who were amazed that anyone would think the accident was the employer’s responsibility, and an equal number at the other extreme who were sure that the company had been negligent. Irma Wilson, for one, was full of anger at McDonald’s for scheduling a high school kid to work all night between school days. "I just don’t think McDonald’s should be able to get away with that kind of crap," she says. "They’re just absolutely using these high school kids for all they can get out of them."
That left the conflicted moderates, who felt that McDonald’s had overworked Theurer but were queasy about blaming his employer alone for his fatigue rather than assigning some responsibility to Theurer himself, or his mother, or his school.
The strongest advocates for the defense-none of whom thought McDonald’s entirely blameless-were Thomas Berguin, Diana Debray, Pat Weiler, and Edra Nohr. "I kind of agreed with the McDonald’s view that the employer shouldn’t get involved in the personal lives of its employees," recalls Berguin, a 30-year-old war¨ranty manager at Landa Corporation in Portland. Berguin says he felt that McDonald’s "could have used a little better judgment" than to let Theurer work that all-night shift. But was it the employer’s business to make sure he looked after himself, or carried out his plan to take a nap earlier that evening? "I asked myself, where is this kid’s mother?… Why is it up to McDonald’s?"
While he wanted to help Faverty, the case offended the libertarian in Berguin, the same side of him that bridles at Oregon’s mandatory seatbelt law even though he believes in wear¨ing seatbelts. "I’ve done that kind of thing at work, come in at eight in the morning and stay until eight-thirty in the evening, and I don’t expect my employer to be checking on me," he says. "And now am I going to have my employer telling me I can’t work overtime? Where is it going to stop? …Is it their job to know wnat I do in my off hours?"
Debray, 28 years old, who does the books for her father’s automotive radiator repair company, says she saw the case from the perspective of "a family that owns its own business." She says she urged the other jurors that "you need to draw a line" to pro¨tect employers from runaway liability. "I didn’t think McDonald’s used good judgment in doing their scheduling," adds Dtbray, "[but] I don’t think that makes them responsible for every¨thing that happens."
Weiler, a 52-year-old electronics technician at a Veterans Administration hospital, says he thought "the whole thing was bordering on the ri¨diculous." There’s nothing unusual about an employee working long hours and driving home "barely on the edge of consciousness," he says. "I know I’ve done it. I’m sure you have too."
Scoffing at the notion of some ju¨rors that McDonald’s was "something akin to a slave labor camp," Weiler stresses that Theurer was a legal adult who made his own choices: He vol¨unteered to work long hours because he wanted the extra money, and he decided to go "out with his girlfriend boogying" after telling management he would nap between shifts.
MOTHERS GET ON MCDONALD’S CASE
"My way of thinking," says Edra Nohr, a 44-year-old self-described laborer who declines to identify her employer, "is that if [employers] are going to be punished for that, they’re going to dictate what all us employees can do on our off time… It’s just going to put Big Brother more in our pocket." As a mother of two grown sons, says Nohr, she knows that "a young man that age is going to run himself down," one way or another. That’s not his employer’s fault, she says; that’s just life.
Other mothers on the jury didn’t see it that way. Jacqueline Mouser, Irma Wilson, and Claudia Dockter, who were among the most pro-Faverty jurors from the outset, agreed with Nohr that teenagers will run them¨selves down. But they contended that this places a special responsibility on employers-especially those like McDonald’s that hire lots of teenagers-not to work them too hard.
All three of these women were unimpressed by the company’s argument that it was entitled to treat any¨one past his eighteenth birthday as an adult, and to assume that Theurer would take a nap just because he said he would. And all three faulted Par¨ish, the restaurant manager, for letting Theurer drive away that morning. Neuberger’s strategy had worked: He had planted this theory of negligence in the jurors’ minds without risking a legal ruling on whether McDonald’s had any duty to stop Theurer from driving.
"Somebody should have asked, ‘Are you too tired to drive your car?’" fumes Wilson, a 64-year-old assembler at an automobile parts factory. Wilson says she hopes the verdict will teach McDonald’s and other employers to "stop working people this kind of hours."
"They kept saying that [because] he was eighteen, he was an adult, but that just wasn’t true," adds Dockter, a 40-year-old executive secretary at Blue Cross and Blue Shield of Oregon. "He did volunteer to work that shift, from what we understood. But they knew he was a high school student, they knew he was going right from there to school-I just don’t think that absolves them."
Other jurors wavered. Because most agreed that the cause of the ac¨cident was Theurer’s falling asleep at the wheel, the jury proceeded to the central question of whether McDonald’s had been negligent; in causing Theurer’s fatigue by overworking him. More jurors moved to the Faver¨ty camp-especially after the deliber¨ations came to focus on the judge’s instructions and verdict form, and somebody thought of replaying the tape.
Juror Teri Killaby, a 27-year-old registered nurse, says that at first, "I was divided in my own mind," and that she can’t recall for sure how she voted in the jury’s initial tally. "A lot of us didn’t like the idea that an em¨ployer could be liable for getting his employees to and from work," she recalls.
But that idea began to seem unavoidable. "The way the judge gave us the questions, it was like we didn’t really have a choice," says Killaby. "We all reviewed that over and over, and we even had to listen to the tape again, and I think that’s what changed a lot of people’s minds.”
More people became convinced that, as Killaby puts it, "McDonald’s [was] responsible in some way for breaking their own scheduling poli¨cies, so we all felt that yes, McDon¨ald’s shouldn’t have done that, and they were negligent in that respect. And [that] yes, they had some part in causing the deceased to fall asleep at the wheel."
Because the company employed so many high school students, Killaby and others argued, it needed to "hold some responsibility in their scheduling practices… and not schedule them on a school night all night and expect them to function."
Killaby pressed these points during the deliberations, becoming a leader (by several accounts) in urging fellow jurors to hold McDonald’s liable.
Asked what would have happened if the judge had simply instructed the jurors to do what they thought right, Killaby says with a laugh, "We’d probably still be in there, because there were some pretty headstrong people." Then she adds that it could "have gone the other way," and ended in a verdict for McDonald’s.
Other jurors also indicated they began with the conviction that employers simply weren’t responsible for making sure their employees got enough rest, but saw the issues differently when the judge focused them on the reasonableness of McDonald’s conduct under the circumstances.
"I thought at first that there was just no way McDonald’s could be lia¨ble," says John Lorett, the foreman. But the evidence convinced him that "there was no doubt that McDonald’s was working him more hours than they should have, especially on a school night." That fit right into the judge’s definition of negligence, Lor¨ett says.
The judge’s instructions helped break the logjam, say several jurors, including Alvin Loshbaugh, a 66-year-old retired glazier, Dockter, Mouser, Debray, Berguin, and Pat Weiler, who says, "It really seemed to me like he had put us in a funnel, so that we were extremely limited in what we could do." No one admitted to switching sides as a direct result of hearing the tape; Killaby and Berguin, however, both recall that Weiler and Lorett seemed to have done so.
Pat Weiler denies this, and insists that he held out for McDonald’s to the end. Yet according to the official record, Weiler definitely voted against McDonald’s when the jury was polled in court for the verdict. Only three jurors dissented in that vote, accord¨ing to the court reporter’s notes: Tom Berguin, Diana Debray, and Edra Nohr.
Although Berguin voted no, he admits now that the deliberations had moderated his views: "When we first heard what the case was about," he recalls, "I said to myself, ‘Man, people will sue over anything.’ " But by the end, he says, "I could see how people could think the other way."
The judge’s instructions had a lot to do with this change, Berguin says. "The way it was worded, it was really hard to say no… Were they [McDonald’s] at fault at all, any little bit?… Yeah, they should have known this kid’s schedule, they should have told him, ‘No thanks, Matt, don’t work.’
"I started seeing how these guys could say yes to [finding McDonald’s liable]," Berguin concludes, "but I still didn’t think it was right."
In the jury room, Berguin tried driving his concerns home with hypotheticals: Suppose we all stay here and deliberate until 10 P.M., and then one of us has an accident driving home, he asked pro-plaintiff jurors. Would that be the Multnomah County circuit court’s fault?
"That didn’t sway anyone," he recalls. "I got this impression that they were just stuck on this antiemployer thing, big employer versus the individual… The whole feeling I came away with is that the plaintiff, if he seems like a good guy, an average Joe …he’s got a good chance because those jurors are just like him, kind of pulling for him. They sympathize more with the plaintiff.”
Verna Misenhimer, a 49-year-old teacher’s aide, says she initially sided with McDonald’s, in part because she would have told her own son not to work all night on a school night and "I wanted to know more about the parental involvement here.
"My first feeling," says Misenhimer, "was, ‘Well, here’s an 18-year-old boy, why should McDonald’s be responsible for him?’… But by the end I thought, ‘Well, why not?’…It was important that he was a student. Perhaps because I am a mother, I thought that if he was my son I would appreciate it if they’d said he shouldn’t work this shift. Somebody’s got to take responsibility.
"You’d have to be a robot not to feel some emotion about the situa¨tion," Misenhimer adds. The more she thought about it, she says, the more it seemed to her that it had been "almost like letting a drunk go out on the road," and that "these companies should not let a person out to drive an automobile home with that lack of sleep."
After all, who else was there to blame for this, tragedy? Theurer’s mother was not a party to the case. Faverty was innocent of any contributory negligence. "Bad luck" was not listed as an option on the verdict form or in the judge’s instructions. In the face of Faverty’s suffering, the argu¨ments and hypotheticals raised by the defense and repeated by some jurors in the jury room seemed like harsh abstractions.
Irma Wilson, the 64-year-old fac¨tory worker, says she became espe¨cially incensed at the "cold-blooded" attitude of Diana Debray, who sat next to her. "Of course, she worked for a company over some other women," says Wilson. "I’ve never met such a hard person,"
Their exchanges became nasty. "I wanted to gag her," recalls Debray with a laugh. "She would interrupt you every time you started to say something, and I wanted to bonk her head. She was one of the little people who works for a big company who [thinks] that big companies are responsible for you totally, and big companies have a lot of money, so why shouldn’t you take some?"
"I WOULD HAVE GIVEN HIM A MILLION DOLLARS"
Once nine jurors (the minimum required by Oregon law) had agreed to find McDonald’s negligent, things moved swiftly.
Nobody thought Faverty had been at fault. That left the issue of dam¨ages. The $400,000 award (later re¨duced to $375,000 in light of Faver¨ty’s receipt of $25,000 from Theurer’s insurer) included $170,000 in eco¨nomic damages for Faverty’s medical expenses and lost earnings, and $230,000 for noneconomic damages, mainly pain and suffering.
While Faverty had documented some $53,000 in past and future med¨ical expenses, the rest of his damages were not quantifiable with precision. The $400,000 figure was a quick, rough compromise between jurors who wanted much more-"I would have given him a million dollars," says Irma Wilson-and those who doubted he should get anything at all.
According to Berguin, who participated in the discussion of damages al¨though he opposed liability, the total was increased by $100,000 or so after someone speculated that Faverty would probably have to pay his lawyer a contingent fee of at least 30 percent. (Neuberger declines to discuss his fee; he says Faverty will not comment while the appeal is pending.)
STAGE TWO: THE MOTHER SUES
McDonald’s moved in May for judgment notwithstanding the verdict or a new trial, raising arguments much like those in its earlier motions, with no more success. At press time the company was appealing to the Oregon Court of Appeals, the state’s intermediate appellate court.
Meanwhile, McDonald’s also faces the $10 million wrongful death suit by Theurer’s mother, Helen Jean Krushwitz, which has not yet gone to trial.
McDonald’s has moved to dismiss the Krushwitz suit as barred by the state workers’ compensation law. The company is being represented by Ronald Stephensen of Portland’s Bullivant, Houser, Bailey, Pendergrass & Hoffman. I. Franklin Hunsaker of the same firm is handling the Faverty ap¨peal for McDonald’s.
If the case does go to trial, McDonald’s should have a much better shot at winning than it did against Faverty. Theurer obviously had the primary responsibility for making sure he could drive safely, and was obviously negligent himself if he fell asleep at the wheel. This would bar any recov¨ery by Mrs. Krushwitz under Oregon law unless the jury can somehow find that McDonald’s was even more neg¨ligent than the dead youth. In addition, Theurer’s mother arguably had at least as much responsibility as his employer for letting her son tire himself out.
Whether such considerations would overcome a jury’s natural sympathy for a bereaved mother is uncertain. But some jurors who voted for Faver¨ty criticized the mother’s lawsuit, about which they had read in the local newspaper.
"We thought there were several people involved who were at fault, and the family was one of them," says Killaby. "But according to the judge, we just had to decide whether McDonald’s had any part of the responsibili¨ty." The mother should lose her case, Killaby concludes.
"It bothered me when I read in the paper the dollar amount the mother was going after," says Verna Misen¨himer. "It won’t ever bring back her son… and I did not feel that was fair to McDonald’s.”
LOCO PARENTIS GONE LOCO
While Mrs. Krushwitz’s suit against McDonald’s seems especially weak, Faverty’s was and is more compelling. Given the jury’s marching orders, the verdict for Faverty makes reasonably good sense.
But should cases like this one be sent to juries in the first place? I think not, unless the evidence shows the employer recklessly required the employee to work a grueling schedule, or was guilty of other misconduct more egregious than mere negligence.
For the Faverty case as precedent has the potential for imposing on all employers a vague, open-ended legal duty-over and above the mandates of state and federal labor laws-not to let their employees work too hard, espe¨cially when they are as young as Theurer was. Although common sense may tell us that an 18-year-old is not fully an adult, the law should draw lines that people can depend on, not leave employers guessing. And employers should be able to assume that someone old enough to vote, fight in a war, and have the legal rights of an adult is old enough to look after himself.
Foisting an in loco parentis burden on employers would mean having to keep track of employees’ work habits, off-the-job activities, means of commuting, and personal susceptibility to fatigue. It would also mean having to make sure they don’t burn the midnight oil too often at the office, and telling those who are eager for extra money that they can’t work any more overtime because they might get tired.
That is simply unreasonable; the traditional importance in our society of individual independence, privacy, and autonomy argues against any such legal duty. "To impose that kind of responsibility on an employer is to intervene into a whole lot of decisionmaking that we allow people to do," says Professor Aaron Twerski of Brooklyn Law School, who adds that the Faverty case "exceeds anything I’ve ever heard of."
If the impact of this case could be limited to compensating Fred Faverty and putting national restaurant chains on notice that it’s legally risky to have teenage students work all-night shifts between school days, it would be a welcome development.
But that’s not the way litigation usually works. The broader message of the Faverty precedent is that any company whose employee hurts someone else, or himself, while off duty could be vulnerable to a negligence suit if the injuries can be traced in some way to fatigue from working long hours, or from combining work with night school, or from working two jobs, or other work-related causes. Every law firm where people put in 16-hour days or all-night draft¨ing sessions should take notice.
Other hypotheticals suggest themselves. What about an employee who shows up at work drunk, is told to leave, and has an accident driving away? What about an employee who boasts to his supervisor that he is go¨ing to go home and beat up his wife, and then does?
Perhaps the common sense of juries will prevent plaintiffs lawyers from carrying this sort of liability to extremes. Perhaps not.
But because jurors are neither instructed nor qualified to weigh their natural sympathies for injured plain¨tiffs against the social costs of impos¨ing liability, an open-ended negligence instruction tends to load the dice against the corporate defendant.
That’s why the very threat of being hit with claims like Faverty’s, and put through the costs and uncertainties of a jury trial, places excessive burdens on employers, on society, and on our fundamental notions of individual autonomy.