Idaho SC favors burger giant in negligence case

Jessica M. Karmasek Mar. 7, 2012, 8:57am


BOISE, Idaho (Legal Newsline) - The Idaho Supreme Court last week ruled in favor of fast food giant Burger King in a negligence action against the company.

The Court, in its opinion Friday, agreed with the state's Fifth Judicial District Court, which found that plaintiff Alesha Ketterling had failed to timely serve HB Boys LC and that Burger King had no liability for the woman's injuries.

Ketterling, in her lawsuit filed November 2008, alleged she slipped on snow in the parking lot of a Burger King restaurant in Burley, Idaho, on Dec. 22, 2006.

BDSB of Western Idaho LC, an Idaho limited liability company, has the contractual right to operate the restaurant under a franchise agreement with Burger King. HB Boys manages the Burley Burger King under a contract with BDSB.

Ketterling alleged her fall aggravated an existing knee injury, and that Burger King's failure to make the premises safe was negligent and entitled her to damages.

The Court, in its 11-page ruling, said Ketterling failed to point to any evidence in the record that would "cast doubt" on the findings of the district court.

"Even if the person described in her briefing as manager of the Burley Burger King had notice of her injury on Dec. 22, 2006, and even if an insurance agent representing that operating entity dealt with Ketterling following the accident, that would not be sufficient to impart 'notice of the institution of the action' to HB Boys," Justice Jim Jones wrote for the Court. "Nor was Ketterling's contact with Moore, the claims representative, sufficient to give notice of the lawsuit.

"The action was instituted on Nov. 5, 2008, and there is nothing in the record to indicate that either Burger King Corporation or HB Boys learned of the institution of the lawsuit until Jan. 30, 2009, well over a month after the 'period provided by law for commencing the action' had expired."

The Court noted that the plaintiff also failed to exercise "reasonable diligence" in figuring out who to sue.

"Ketterling's search of the Secretary of State's records was reasonable, but she clearly could have done more. There is no indication in the record that she visited the restaurant prior to the end of the limitations period to find out who was responsible for operation of the establishment," Jones wrote.

"Like the situation in a criminal investigation, where some of the best clues are found at the scene of the crime, often evidence relevant to a personal injury action can be found at the scene of the accident."

As to whether Burger King should be held liable, the Court said general franchise operating requirements are usually not enough to establish control or a right of control giving rise to liability.

"Here, Ketterling relies exclusively on Burger King's franchise operations manual to argue that Burger King had a right of control," Jones wrote.

"The record before the Court does not include a copy of the operations manual, but the district court determined that the operations manual instructed franchisees to clear snow and ice from the premises as soon as possible. The manual also instructed franchisees to shovel snow from walks, apply ice melt, display caution signage and replace ice melt when needed.

"But the court noted the manual indicates that the franchisee is 'an independent owner and operator of the restaurant' who is 'responsible for day-to-day operation of his/her business.'"

Since Ketterling cited nothing in the record to contradict the district court's decision, the Court said it accepted the finding.

From Legal Newsline: Reach Jessica Karmasek by email at

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