Submitted by Gene Howington, Guest Blogger
In Atlanta, Georgia, Tiffany Denise Allen is charged with simple battery, simple assault and disorderly conduct. While these charges may not be unusual in themselves, the circumstances surrounding them are. Allen was a manger of a local McDonald’s restaurant. She was off duty but on the premises when Jennifer Schwenker entered the McDonald’s in suburban Marietta with her autistic twins and service dog on July 12. Apparently upset that Mrs. Schwenker brought her service dog into the restaurant, surveillance tapes show Allen proceeded to follow her around the store and out into the parking lot where Allen punched the woman in the face. The recordings show other McDonald’s employees trying to restrain Allen. The operators of the local franchise, J.M. and Jan Owens, are cooperating with police. They told the Associated Press that “At our McDonald’s restaurant, we respect and value our customers. Their safety and well-being is always a top priority [. . .] We strive to comply with all applicable laws, including the Americans with Disabilities Act. It is our policy to make our restaurants accessible to all customers, including those with disabilities and special needs, whether or not they need the assistance of service animals.” McDonald’s says Allen is no longer in their employ. Clearly McDonald’s and the Owens’ have done the right thing in response so far, but the scenario does raise some questions.
This event would make an interesting Torts exam question. What is the tort liability of McDonald’s and the operators for the on-site but off-duty actions of their employee? Would that liability be exacerbated if it is shown Allen was not properly trained on the ADA or mitigated if it is shown that she was? Should the fact that Mrs. Schwenker is disabled be a factor in determining tort damages?
It also raises broader questions. Is there anyone (other than perhaps children) who can legitimately claim in this day and age that they didn’t know the use of service animals is protected by law? Do you think that an attack on a disabled person (a protected class) should be considered an aggravating circumstance in determining sentencing for the criminal charges?
~Submitted by Gene Howington, Guest Blogger