Page:Pelman v. McDonald's Corporation (S.D.N.Y. 2003).pdf/12

 issue discussed above—tying the injury to a particular outlet—is not as damaging against the claim against McDonalds of New York. However, plaintiffs must allege that they have eaten primarily, if not wholly, at McDonalds of New York outlets. In other words, a plaintiff who has lived for merely a year in New York State—and thus eaten at outlets run by McDonalds of New York only for one year—may have a difficult time in showing causation. The absence of explicit allegations to this effect provides a further ground for dismissal of the Complaint as against McDonalds of New York.


 * C. The Outlets and McDonalds of New York Are Akin to Retailers and Distributors of McDonalds Corp.’s Products

In addition, because the outlets and McDonalds of New York are akin to retailers and distributors of a manufacturer’s products, the negligence claims cannot attach to the outlets and McDonalds of New York for the following reasons.

Under New York law, a wholesaler, retailer or distributor can be held liable in negligence for the sale of a defective product or for failure to warn only if it fails to detect a dangerous condition that it could have discovered during the course of a normal inspection while the product was in its possession. E.g., Sideris v. Simon A. Rented Servs., 254 A.D.2d 408, 409, 678 N.Y.S.2d 771, 772 (2d Dep’t 1998) (holding rental service not liable for defective condition because satisfied duty to inspect) (citing Naples v. City of New York, 34 A.D.2d 577, 578, 309 N.Y.S.2d 663, 666 (2d Dep’t 1970)); Luckern v. Lyonsdale Energy Ltd. Partnership, 281 A.D.2d 884, 887, 722 N.Y.S.2d 632, 637 (4th Dep’t 2001) (failure to warn) (citing McLaughlin v. Mine Safety Appliances Co., 11 N.Y.2d 62, 70–71, 181 N.E.2d 430, 433, 226 N.Y.S.2d 407, 413 (1962)).

It is unclear whether the defects in question—high levels of cholesterol, fat, salt and sugar—were “discoverable” upon “inspection.” Given McDonalds’ common knowledge arguments with regard to the attributes, however, it may be assumed so. In any case, however, those attributes are later found insufficient as a matter of law to establish products liability. In order to state a claim against the outlets and McDonalds of New York, the plaintiffs must allege that they were in possession of information that the McDonalds Corp. products that they sold were more dangerous than a reasonable consumer would expect. Plaintiffs have failed to make such allegations.

This lawsuit is not the typical products liability case because, as referred to above, the issue is over-consumption of products created, manufactured and advertised at a national level. A McDonalds’ Big Mac is the same at every outlet in the Bronx, New York; the same at every outlet in the State of New York; and the same at every outlet throughout the United States. Clearly what is at issue in this lawsuit is the national menu and national policy of McDonalds Corp., and the plaintiffs’ real beef is with McDonalds Corp.

As a result, the motion to remand is denied.