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?
Source: Yahoo
~Submitted by Gene Howington, Guest Blogger
I guess that’s what prosecutorial discretion is for, at some point someone needs to sit people down and find out where their train went off the tracks on that particular day. The fact remains for me though that if it started with snark abut a service dog, it shouldn’t have started at all.
Thanks for the updated information, Lottakatz.
It’s a muddled case and all may not be as it seems. article linked below states that during the verbal altercation Mrs. Schwenker at one point dropped her drink and some of it spilled on Ms. Allen but if you go to the video the drink seems to be in her hand before and after it gets on Ms. Allen and is described as being ‘sloshed’. Hmmmm. Mrs. Schwenker is not disabled but her twin sons are. The dog is for their assistance. It looks from the video like at least one of her sons as well as the dog is on a lead- who knows what was said or how bad of a day was being had by all. Sad situation.
http://www.11alive.com/news/article/198601/3/MARIETTA-McDonalds-manager-fired-after-striking-customer.
Video:
http://thautcast.com/drupal5/category/tags/jennifer-schwenker
I can imagine a litigant trying to sue the franchise – vice the individual – for the same reason that offended people still try suing blog owners rather than posters: deeper pockets.
i’m in a protected class?
i feel so special.
I also feel that being disabled in no way should be a mitigating factor in the tort damages.
The article did not say what the dog was needed for, so lets say it was for someone with diabetes. Is it worse for them to get assaulted, then a healthy 22 year old mother of 2 children, a 38 year old 200 lb construction worker who has to feed a family of 7, or a 60 year old town mayor in a city of 3,000 residents?
The act is the crime not the position of the victim in our society.
“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?” (Gene)
Yes … and McDonalds should do a Tylenol
I am with this both ways to be honest.
The individual is the primary culprit here (off duty manager); however Micky D’s could be at partial fault.
If they did not train her, they must accept some of the responsibility for her actions while being a manager, and even though off duty, acting in such a capacity.
If they trained her on this matter, did they test her, and did she pass such a test? If she passed then it is all on her, if not then they again are partially responsible.
As for anyone not knowing the laws on service animals it does not matter.
One thing to remember is that “Ignorance of the law is no excuse”, unless you are a government employ such as a cop, politician, code enforcer, prosecutor, etc then being ignorant is allowed as an excuse.
Well said Metro. Any estabishment has a duty to protect its customers and when the manager of a restaurant is beating up disabled or handicapped customers over the use of a service dog, then that establishment could be liablle for that manager’s actions.
erykah… I understand your feelings on this and to a point I might agree except this woman was the manger of the McDonalds…as management I feel she left the door open to a lawsuit by Ms Schwenker…this was not a fry cook who went crazy …..it was the management of the restaurant…
This is what angers me about our “sue everybody” culture. McDonald’s is not responsible for this woman’s actions. She is. I do not care about how she was or was not trained regarding the disabled. Anybody with good damn sense should know that you do not act like this. Unlike what happened at the other McDonalds when the Black girls were beating the hell out of a white girl while the employees stood by doing nothing, these employees at least tried to help this woman. The woman was also fired and will now face criminal charges. That should be the end of it.
I am so sorry for what happened to this woman and her children. I have a multiple disabled child and it frightens me when i hear stories like this. I do not think that this woman can or should expect anything more. As for the attacker, I hope they throw the book at her.
Yes…