Page:Pelman v. McDonald's Corporation (S.D.N.Y. 2003).pdf/11

 have eaten at other outlets than the ones named in the Complaint.

With regard to the claims under the Consumer Protection Act, as discussed infra, plaintiffs fail to cite any specific advertisements or public statements that may be considered “deceptive” on the part of any of the defendants, including the outlets. In addition, while the Complaint does cite to specific omissions on the part of all defendants—namely the failure to include nutritional labeling at points of purchase —it does not claim that the outlets had any particular knowledge in their possession and not in the public’s possession that would require them to post such information. Therefore, the plaintiffs have not stated a claim against the outlets under the Consumer Protection Act.

Plaintiffs also cannot state the negligence claims against the outlets. First, plaintiffs have failed to establish that any of the defendants have produced a product that was so unhealthy as to be outside a reasonablereasonable’s [sic] consumer’s expectations. A larger problem is raised here with regard to probable cause than that pointed out later in the discussion of McDonalds’ motion to dismiss. Normally, a products liability action that is brought against retailers, distributors and manufacturers is premised on an injury that results from the use of a single item that was purchased from a particular retailer and distributor. Here, however, the claim is premised on an over-consumption of products specified and provided by the national defendant, McDonalds Corp. In order to establish proximate cause, the injury of over-consumption must somehow be tied to the outlets. Presumably, that would require, in addition to alleging the facts discussed infra, some allegation that plaintiffs ate primarily at the particular outlet. In the absence of such allegations, a claim against the outlets cannot stand.


 * B. McDonalds of New York

The inclusion of McDonalds of New York is more logical than the inclusion of two of the many of McDonalds outlets in New York State. Plaintiffs nonetheless fail to state a claim for similar reasons discussed above.

First, with regard to the Consumer Protection Act, there is no allegation of any specific advertisements or public statements arising from McDonalds of New York. Further, there is no allegation that McDonalds of New York had in its possession any particular knowledge that consumers did not have that would require it to promulgate information about the nutritional contents of the products. Therefore, the deceptive practices claim cannot stand against McDonalds of New York.

Second, the negligence claims fail for the same reasons discussed above an in greater detail below. There is no allegation that McDonalds of New York has produced or distributed a product that is so dangerous that its danger is outside the reasonable understanding of a consumer. Further, the proximate cause issues discussed below also inhibit this claim. It should be noted that the proximate cause