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Easterling v. Burger King Corp.

Court of Appeals of South Carolina

May 18, 2016

Thomas Easterling, Appellant,
Burger King Corporation and Capital Restaurant Group, LLC, Respondents. Appellate Case No. 2014-000338

          Heard November 10, 2015

         Appeal From Charleston County Kristi Lea Harrington, Circuit Court Judge

          William Mullins McLeod, Jr. and David Ellis Roberts, both of McLeod Law Group, LLC, of Charleston, for Appellant.

          John L. McDonald, Jr. and Christina Rae Fargnoli, both of Clawson & Staubes, LLC, of Charleston, for Respondents.

          WILLIAMS, J.

         Thomas Easterling appeals the circuit court's grant of summary judgment in favor of Burger King Corporation and Capital Restaurant Group, LLC (collectively "Burger King"), arguing the court erred in failing to (1) find Burger King breached its duty to take reasonable action to protect him against a foreseeable risk of physical harm; (2) find Burger King had notice of and created an unreasonable and dangerous condition on its premises; (3) find Burger King breached its duty of care by deviating from its own internal policies; and (4) properly rule upon the arguments presented and vacate the grant of summary judgment in light of his Rule 59(e), SCRCP, motion. We affirm.


         This case stems from an attack on Easterling that occurred in the drive-through and parking lot of a Burger King restaurant located at 945 Folly Road in Charleston, South Carolina.

         At approximately 10:00 P.M. on July 8, 2008, Easterling was waiting to place his order at Burger King when Gary Eastwood, who was in a truck directly behind him in line, rear-ended Easterling. Easterling explained he did not engage Eastwood, whom he had never seen before, after the initial contact because he "thought it was just an accident." According to Easterling, he "just wanted to get [his] food and go home." Easterling further conceded he did not report the initial accident to anyone at Burger King when he placed his order.

         After Easterling placed his order and entered the drive-through lane, however, Eastwood began "pushing the accelerator but keeping his foot on the brake, so the tires were spinning. It was making loud screeching noises, and smoke was going everywhere." As Easterling moved forward in the drive-through lane to pick up his food, Eastwood began spinning his tires again and then rear-ended Easterling a second time. Easterling described this impact as a "hard hit, " stating it "jarred [his] entire upper body back" when Eastwood rear-ended him again. According to Easterling, at this point, "[t]he people inside Burger King were looking out the window to see what was going on."

         Following the second impact, Easterling stepped out of his vehicle to assess the damage. While Easterling was assessing the damage, Eastwood exited his vehicle and approached Easterling in a "very aggressive" fashion. Eastwood lunged at Easterling, put his shoulder in Easterling's stomach, and grabbed Easterling around the waist. At some point during the altercation, Easterling hit the curb, tripped, and fell backward down the embankment. Easterling stated he must have bumped his head when he hit the ground because he was "knocked unconscious." When Easterling regained consciousness, Eastwood was on top of him and proceeded to violently bite his nose off.

         Easterling confirmed that Eastwood attacked him approximately two minutes after getting out of his vehicle. Further, Easterling agreed the attack was "totally unexpected" and "happened so quickly that . . . there was really no time to make a run inside the restaurant." According to Easterling, he "had no idea what [Eastwood] was going to do" when Eastwood exited his vehicle. Regarding the time frame of the incident, Easterling stated the following:

Q: And Tommy, from the time that you got into the drive-through line until . . . the customer that helped you -- picked [Eastwood] up off of you, how long a time period are we talking about that expired? Do you have any --
A: Like I said, that's a notoriously slow drive-through. To me, it felt like an eternity, but being four cars in front of me, I would say from the time that the guy helped me up, I would say eight minutes.
Q: And . . . from the time of the second impact, and when you got out to go check the damage to your car, what kind of time elapsed there where he charged you and basically tackled you and bit your nose off?
A: Just a matter of a few minutes.

(emphasis omitted).

         Kimberly Jones, the manager of Burger King, worked the drive-through window at the time of the incident and recalled taking Easterling's and Eastwood's orders that evening. Jones testified that, when a car pulls up to the drive-through speaker box, she can hear everything going on inside and outside of the car through her headset. Jones, however, heard no honking, tire screeching, or yelling while Easterling and Eastwood were in the drive-through line waiting on their food.

         Jones was unaware of Eastwood's behavior until the car in front of Easterling pulled up to the drive-through window, at which point she heard a customer yelling and honking the horn. Further, Jones indicated she did not know Eastwood was the one causing the commotion until Easterling pulled up to the window. Jones testified as follows regarding the time frame:

Q: So from the time that you started serving -- or the time that you saw the car in front of [Easterling], where you kind of looked out the window and saw what was going on, how long do you think elapsed between then and the time [Easterling] got to your window?
A: From the time the car got in front of [Easterling]?
Q: Yeah.
A: Basically, maybe 10, 12 minutes. From the whole incident, or just [Easterling] getting to my window?
Q: [Easterling] getting to your window.
A: Maybe five minutes.

         Jones initially thought nothing of Eastwood blowing his horn and yelling. According to Jones, it was normal for people who were in a rush to honk in the drive-through because "they don't know once you get in there, you can't get out." Nevertheless, Jones then observed Eastwood rear-end Easterling's car. Jones stated Easterling jumped out of his car seconds after she saw Eastwood rear-end him and the ...

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