Burns v. McDonald's Corp.
Burns v. McDonald's Corp.
Opinion of the Court
Viewed in the light most favorable to Burns, the undisputed material facts
Bums later went to his dentist, who informed him that he had a “small chip” on the artificial surface of a tooth restoration that the dentist had performed a month earlier. Burns admitted that on that earlier occasion, a piece of the same tooth at issue here had simply “come off” while he was eating. The same tooth broke again in December, 2006, and developed an abscess requiring a root canal and crown. In opposing summary judgment, Bums submitted an affidavit from his dentist stating that it was “reasonable to assume” that “some sort of traumatic injury” on October 20, 2006, might have caused the fracture that led to the December abscess and subsequent dental surgery.
The motion judge did not err in granting summary judgment in favor of McDonald’s. To prove his claim for breach of warranty under G. L. c. 106, § 2-314, and his related G. L. c. 93 A claim, Bums was required to prove that (1) his cheeseburger contained an injury-causing object of which McDonald’s was the source, and (2) a consumer would not reasonably have expected to find the object therein. See Webster v. Blue Ship Tea Room, Inc., 347 Mass. 421, 423-427 (1964); Phillips v. West Springfield, 405 Mass. 411, 412-413 (1989). To prove his negligence claim, Burns was required to show that the acts and omissions of McDonald’s, more likely than not, caused his injuries. See Glidden v. Maglio, 430 Mass. 694, 696 (2000); Borden v. Betty Gibson Assocs., Inc., 31 Mass. App. Ct. 51, 55 (1991).
We agree with the reasoning of the motion judge and the Appellate Division, which, in turn, applied the reasoning of an unpublished memorandum and order of this court pursuant to our rule 1:28, Cotter v. McDonald’s Restaurants of Mass., Inc., 71 Mass. App. Ct. 1125 (2008). Bums cannot make the necessary showings on the facts of record here. Burns provided no basis upon which a trier of fact could infer, without impermissible speculation, that the offending object originated in the cheeseburger that McDonald’s sold to him. Because Bums never saw the object, was unable to describe it in any detail, and could not determine what it was, Bums was ill-positioned to ask the jury to apply the reasonable expectations test. Compare Phillips v. West Springfield, supra at 414 (proper for trier of fact to apply the reasonable expectations test when plaintiff coughed up and clearly identified a one and one-half inch hooked turkey bone). Whether the alleged cause of injury was a foreign object in the cheeseburger, something inherent to the product such as gristle, or an object from within Bums’s own mouth such as a piece of filling or piece of Burns’s own tooth was entirely a matter of speculation. See Cotter v. McDonald’s Restaurants of Mass., Inc., supra. Nor could the speculative assertion
Absent any evidence that McDonald’s sold Bums a “defective, dangerous and unsafe food” in breach of any warranty, or that the acts or omissions of McDonald’s proximately caused his injuries, summary judgment was properly entered in favor of McDonald’s. See Lambert v. Fleet Natl. Bank, 449 Mass. 119, 122-123 (2007).
Decision and order of the Appellate Division affirmed.
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