Another Public Nuisance COVID Suit: Why is the McDonald's Case Different?

Michael C. Duff

May 21, 2020

A recent, interesting lawsuit filed against McDonald's, in Cook County, Illinois, suffers from few of the deficiencies that I have identified in prior postings about public nuisance cases related to COVID-19 (see here and here). The named employee-plaintiffs allege "negligence" in what might look at first blush like a drop-dead workers' compensation case. This time, however, there is a wrinkle: The negligence action is pursued against both franchisor-McDonalds (McDonald's USA) and certain of McDonald's franchise restaurants (McDonald's Restaurant of Illinois, Inc., Lexi Management LLC, and DAK4, LLC). One may be the employer (subject to workers' compensation liability), and the others may not (and therefore be liable in tort). Because you cannot know in advance how the question will come out, you allege negligence with respect to each defendant. This is perfectly sensible.

It will be politically difficult for McDonald's USA to argue that it is a joint employer with its franchisees (and therefore protected by exclusivity) because it has been making the opposite argument at the National Labor Relations Board for years. It may be that under Illinois law McDonald's will be able to walk this tightrope. After all, non-employers may be employers under different statutes in the same way that workers (bewilderingly) may be an employee or not depending on the definition embedded in a particular statute. But leaving the merits of the tort allegations to one side, I doubt McDonald's USA's workers' compensation exclusive remedy argument would be easy.

What I really want to emphasize here are the distinctions between this McDonald's public nuisance case and the now-dismissed Smithfield Foods case. Here the case has been filed in state court — very deliberately, I suspect — and not in federal court. Here a state court judge may have a good deal more sympathy with, and for, local nuisance laws (in-state defendants may also assist in fending off prompt removal to federal court). While the doctrine of primary jurisdiction (possessed by a federal agency) can apply to wrest a state court of its otherwise proper jurisdiction — it has happened in federal and environmental and labor law contexts, for example — there may be unclear questions of important state law that could give a federal court — under various abstention doctrines — pause before depriving the state court of jurisdiction.

On the merits, the most important allegation for me (space prevents going through the complaint at length) is: "McDonald's decision to remain open while simultaneously failing to comply with minimum basic health and safety standards at its restaurants, including guidance from the CDC and other public health standards necessary to stop the spread of COVID-19, is causing, or is reasonably certain to cause, further spread of the disease to Plaintiffs, their family members, McDonald's other employees, and the general public." Hence, the "publicness" of a public nuisance.

Tellingly, the complaint seeks only injunctive relief. The motivation for that limitation is probably to diminish standing problems since the state law remedy in nuisance is abatement, in its essence a very injunctive-like, traditional state law remedy applicable to the community. (Some have asked me whether in the cases I previously criticized, the objective might have been to obtain an injunction, but ordinarily, one must be able to show the likelihood of success on the merits of some underlying cognizable claim to obtain an injunction). This case really frames the state "police power" tension interestingly. We will see what happens.

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