United States District Court, W.D. Oklahoma
SHAWN F. BYRNE, and AMANDA E. BYRNE, Plaintiffs,
TACO BELL OF AMERICA, LLC, a Delaware corporation, and TACO BELL OF AMERICA, INC., Defendants.
L.RUSSELL UNITED STATES DISTRICT JUDGE
the Court is Defendants' Motion to Dismiss. Doc. 8.
Plaintiffs responded, Doc. 9, and Defendants replied. Doc 10.
For the reasons that follow, the Motion is GRANTED IN PART
and DENIED IN PART.
Shawn E. Byrne, a police officer with the Oklahoma City
Police Department for the past 15 years, has sued Taco Bell
on the basis that several of its employees contaminated his
food before serving it to him. Doc. 1, at 2. Following an
evening volunteer stint at a church event on February 10,
2017, Mr. Byrne stopped by a Taco Bell drive-through in
Oklahoma City to order a steak quesadilla and soda.
Id. Moments after driving away and biting into his
food, Mr. Byrne's mouth and eyes began burning-pain he
compared to being pepper sprayed in the face and mouth. A
visit to the doctor the next morning revealed serious burns
in his throat. Id. at 3.
Byrne, who was wearing his police uniform, apparently saw the
Taco Bell employees laughing before handing him his food. A
later investigation by the Oklahoma City Police Department
suggested foul play. Video footage showed the employees, two
of whom are allegedly convicted felons, place Mr. Byrne's
food in packaging that had fallen on the floor; one employee
admitted to putting chipotle sauce rather than quesadilla
sauce on the food; and the leftover quesadilla tested
positive for traces of cologne. Id. at 3-4.
than two weeks after the incident, Mr. Byrne underwent
surgery for appendicitis-appendicitis that the doctor said
was likely caused by the burn incident given appendicitis is
rare for someone of Mr. Byrne's age. Id. at 4.
This allegedly came at a inopportune time for Mr. Byrne. His
wife, Plaintiff Amanda Byrne, was nearly due with their
child. Because he could not work, Mr. Byrne was forced to
take more than 127 hours of sick leave and missed 68 hours of
extra jobs. Id. And unsurprisingly, this apparently
compelled Ms. Byrne to assume extra duties in caring for her
husband and caused her serious emotional stress. Id.
Byrne now brings three claims against Taco Bell: products
liability, negligence, and intentional infliction of
emotional distress. Ms. Bryne has joined him in his IIED
claim. Taco Bell has moved to dismiss all claims.
Federal Rule of Civil Procedure 8(a)(2), a pleading must
contain a ‘short and plain statement of the claim
showing that the pleader is entitled to relief.'”
Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009).
“The pleading standard Rule 8 announces does not
require ‘detailed factual allegations, ' but it
demands more than an unadorned,
Id. at 678 (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007)). To survive a motion
to dismiss, a pleading must offer more than “labels and
conclusions” and “a formulaic recitation of the
elements of a cause of action.” Twombly, 550
U.S. at 555. There must be “sufficient factual matter,
[which if] accepted as true . . . state[s] a claim to relief
that is plausible on its face.” Iqbal, 556
U.S. at 678 (quoting Twombly, 550 U.S. at 570). A
plausible claim is one that “pleads factual content
that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.”
Id. A plaintiff must “nudge [her] claims
across the line from conceivable to plausible . . . .”
Twombly, 550 U.S. at 570. Further, the Court
“must accept all the well-pleaded allegations of the
complaint . . . and must construe them in the light most
favorable to the [non-moving party].” Thomas v.
Kaven, 765 F.3d 1183, 1190 (10th Cir. 2014).
Court first takes up the Byrnes' claims for intentional
infliction of emotional distress. “[A]s a general rule,
it is not within the scope of an employee's employment to
commit an intentional tort upon a third person. Schovanec
v. Archdiocese of Oklahoma City, 188 P.3d 158,
176 (Okla. 2008), as corrected (July 2, 2008). As a
result, employers such as Taco Bell typically are not liable
for the intentional torts of their employees. The exception
to this general rule is when the conduct is
‘fairly and naturally incident to the business',
and is done ‘while the servant was engaged upon the
master's business and [is] done, although mistakenly or
ill advisedly, with a view to further the master's
interest, or from some impulse of emotion which naturally
grew out of or was incident to the attempt to perform the
Rodebush By & Through Rodebush v. Oklahoma Nursing
Homes, Ltd., 867 P.2d 1241, 1245 (Okla. 1993) (citing
Russell-Locke Super-Service Inc. v. Vaughn, 40 P.2d
1090, 1094 (Okla. 1935)).
party addresses the problem with Mr. Byrne trying to recover
from Taco Bell for its employee's intentional torts. But
in any event, those claims, at least as pled, cannot proceed.
It is far from clear how, if the Taco Bell employees did in
fact contaminate Mr. Bryne's food with pepper sauce and
cologne, that was done in order to further Taco Bell's
interest. “[S]erving food or drink which injures a
customer in no way promote[s] or facilitate[s] [an
employer's] business activities.” Thomas v.
Speedway Superamerica, LLC, 2006-Ohio-5068, 2006 WL
2788522, *4 (Ohio Ct. App. 2006) (holding that gas station
attendee's contaminating a customer's beverage with
germicide and deodorant cleaner was not within employee's
scope of employment); see also Livingston v.
Griffin, 2007 WL 2437433, at *2-3 (N.D.N.Y. Aug. 22,
2007) (finding that even though “the service of food
itself would clearly fall within” correctional
officers' scope of employment, their “knowing,
deliberate, and intentional service of food adulterated with
drugs” was not).
Bell also asks the Court to dismiss Mr. Byrne's claim for
“product liability.” Doc. 1, at 1. As an initial
matter, it appears that plaintiffs may sue under Oklahoma law
for injuries resulting from food-borne illnesses under a
theory of negligence, strict liability, or breach of
warranty. See, e.g., Averitt v. Southland Motor Inn of
Oklahoma, 720 F.2d 1178, 1180 (10th Cir. 1983)
(recognizing plaintiff's assertion of all three claims);
see also Griffin v. Asbury, 165 P.2d 822, 825 (Okla.
1945) (noting that a person “seeking damages from a
food manufacturer for injuries caused by eating unfit food is
not compelled to elect between implied warranty and
negligence as a ground for recovery”); see
also Cause of Action for Personal Injury or Illness
Caused by Foodborne Pathogens, 59 Causes of Action 2d 433
(explaining that most states recognize three separate causes
of action). Taco Bell argues that Mr. Byrne has failed to
state a claim because it is unclear from the complaint that
the product was in any way defective when it left the
possession of the store. The Court respectfully disagrees.
Mr. Byrne alleged that severe pain resulted upon eating his
food only moments after leaving the drive-through. Doc. 1, at
3. The Oklahoma City Police Department's official
investigation uncovered traces of cologne on the quesadilla
and that an employee had intentionally added chipotle sauce
to the food. These facts, when viewed in the light most
favorable to the plaintiff, obviously allege the food was
Taco Bell moves to dismiss the negligence claim on the ground
that Mr. Byrne has failed to plead any causal connection
between his injuries and the actions of Taco Bell. Under
Oklahoma law, an injured person may recover from a food
supplier in negligence for injuries sustained by consuming
tainted or unadulterated foods. See, e.g., Day v. Waffle
House, Inc., 743 P.2d 1111, 1113 (Okla.Civ.App. 1987)
(collecting cases). Under a negligence theory, Mr. Byrne
simply needs to “establish the traditional elements of
the existence of a duty to the injured party, a breach of
that duty, and damages proximately flowing therefrom.”
Court finds that Mr. Byrne has stated a claim for negligence.
To be clear, much of Mr. Byrne's complaint suggests that
the Taco Bell employees acted intentionally. He alleges that
the employees contaminated his food after seeing him in his
police uniform. If the employees acted intentionally, Mr.
Bryne cannot hold Taco Bell liable under a negligence theory:
prevailing under the doctrine of respondeat superior would
entail Mr. Byrne proving that the employees "act[ed]
within the scope of employment in furtherance of assigned
duties." N.H. v. Presbyterian Church (U.S.A.),998 P.2d 592, 598 (Okla. 1999). For the reasons previously
explained, intentionally adulterating food does not fall
within the employees' scope of employment. That said,
viewing the facts in the light most favorable to the