Hersh v. CKE Rest. Holdings, Inc.

571 F.Supp.3d 1046

Ahmad HERSH, et al., Plaintiffs,

v.CKE RESTAURANT HOLDINGS, INC., et al., Defendants.

Case No. 4:17-cv-02043-AGF

United States District Court, E.D. Missouri, Eastern Division.

Signed November 12, 2021

Ahmad Zaher, Mohamed J. Zaher, Mark Alan Linton, Advanta Law Firm PLC, Southfield, MI, for Plaintiff Ahmad Hersh.

Mohamed J. Zaher, Mark Alan Linton, Advanta Law Firm PLC, Southfield, MI, for Plaintiff Muna Omer.

Glenn E. Davis, Charles N. Insler, Hepler Broom LLC, St. Louis, MO, for Defendants CKE Restaurant Holdings, Inc., Hardee's Restaurants, LLC, Hardee's Food Systems, LLC.

MEMORANDUM AND ORDER DETERMINING CHOICE OF LAW

AUDREY G. FLEISSIG, UNITED STATES DISTRICT JUDGE

This lawsuit stems from the tragic death of Plaintiffs’ minor child, I.E. Hersh, at a Hardee's restaurant in Amman, Jordan. The child died after he touched an exposed, electrified wire while playing on the restaurant's indoor playground. The restaurant was owned by Tourism Projects and International Restaurants Company ("Tourism Projects"), a Hardee's franchisee in Jordan.

Plaintiffs filed suit in this Court against Defendants CKE Restaurants Holding, Inc., the parent holding company for Hardee's franchised restaurant brands; Hardee's Food Systems, LLC, the licensor for Hardee's franchise restaurants; and Hardee's Restaurants, LLC, the franchisor for Hardee's restaurants. Invoking the Court's diversity jurisdiction, Plaintiffs assert three claims: "wrongful death – negligence" based on theories of respondeat superior and negligent supervision (Count I), "wrongful death – negligence – apparent agency" based on a theory of the restaurant's apparent authority to act on behalf of Defendants (Count II), and "wrongful death – strict liability for breach of warranty" based on Defendants placing a defective and unreasonably dangerous product (the playground equipment) into the stream of commerce (Count III). In all three counts, Plaintiffs allege that the play structure on which their child was playing was defective and that the Defendants designed the defective structure or otherwise breached their duty to properly inspect the structure and discover and remedy the defect.¹

Because the alleged conduct giving rise to the claims in this case took place in both Jordan and Missouri, the Court ordered Plaintiffs to file a motion for determination of the choice of law.² Plaintiffs contend that no actual conflict exists between the substantive law of Missouri and the substantive law of Jordan and, therefore, Missouri law should apply to all issues. Defendants contend that numerous conflicts exist between Missouri and Jordanian law, and that under Missouri's "most-significant-relationship" test, the law of Jordan applies to all issues.

For the reasons stated below, this Court finds that with respect to Count I, no conflict exists between the laws of Missouri and Jordan as to the issues of whether a cause of action for wrongful death exists, whether a decedent's parents are the proper parties to bring such an action, the elements of a wrongful death claim based on negligence, or the elements of vicarious liability based on theories of respondeat superior or negligent supervision. Nor have the parties advised the Court of any conflict relating to compensatory damages under Count I. However, a conflict exists regarding punitive damages under Count I, and applying the most-significant-relationship test to this issue, the Court finds that Missouri law permitting punitive damages controls.

With respect to Counts II and III, a conflict exists between the laws of Missouri and Jordan regarding whether apparent authority or strict products liability are grounds for tort liability. Applying the most-significant-relationship test to these issues, the Court finds that Jordanian law controls. As Jordanian law does not recognize apparent authority or strict products liability as grounds for tort liability, Counts II and III may be subject to dismissal or judgment as a matter of law on an appropriate motion.

LEGAL STANDARD

A federal court exercising its diversity jurisdiction applies the choice-of-law rules of the state in which it sits. Prudential Ins. Co. of Am. v. Kamrath , 475 F.3d 920, 924 (8th Cir. 2007). "Before applying the forum state's choice-of-law rules, however, a trial court must first determine whether a conflict exists." Id. Here, that question involves a determination of foreign law, which is a legal question that can be based on any relevant source, "whether or not submitted by a party and whether or not admissible under the Federal Rules of Evidence." United States v. Matya , 541 F.2d 741, 746 n.10 (8th Cir. 1976) (citing Fed. R. Civ. P. 44.1 ). If no conflict exists, a choice-of-law analysis is not necessary. Kamrath , 475 F.3d at 924.

If a conflict exists, Missouri follows the most-significant-relationship test as set forth in the Restatement (Second) of Conflict of Laws (hereafter "Restatement"). See Winter v. Novartis Pharms. Corp. , 739 F.3d 405, 410 (8th Cir. 2014) (discussing Missouri law); Kennedy v. Dixon , 439 S.W.2d 173, 184 (Mo. 1969). Specifically, in tort actions, "[t]he rights and liabilities of the parties with respect to an issue ... are determined by the local law of the state which, with respect to that issue, has the most significant relationship to the occurrence and the parties under the principles stated in § 6."³ Restatement (Second) of Conflict of Laws § 145 (Am. Law Inst. 1971).

The most-significant-relationship test requires consideration of four factors: the place where the injury occurred; the place where the conduct causing the injury occurred; the domicile, residence, nationality, place of incorporation and place of business of the parties; and the place where the relationship, if any, between the parties is centered. Restatement § 145. The analysis is to be conducted "issue by issue," Thompson v. Crawford , 833 S.W.2d 868, 870 (Mo. 1992), evaluating the factors set forth above "according to their relative importance with respect to the particular issue." Restatement § 145.

Count I ("Wrongful Death – Negligence")

a. Existence of a Wrongful Death Action and Proper Person to Bring Suit

In addressing the choice of law for Count I, both sides address whether a conflict exists between the laws of Missouri and Jordan as to the rules applicable to personal injury claims in general, rather than a wrongful death claim in particular. But wrongful death claims in Missouri and elsewhere are distinct from common-law tort claims and are strictly a creature of statute. See Nelson v. Hall , 684 S.W.2d 350, 354 (Mo. Ct. App. 1984) ("An action for wrongful death, therefore, accrues—if at all—only by a legislative enactment, and then as a new and different cause than that for the injury from which death resulted."). The parties have not addressed whether a conflict exists as to the existence of a cause of action for wrongful death or the proper person to bring such a suit.

Nevertheless, there does not appear to be a conflict between the laws of Missouri and Jordan as to these issues. Missouri undisputedly recognizes a cause of action for wrongful death and provides that a decedent's parents are proper parties to bring suit. See Mo. Rev. Stat. §§ 537.080 - 537.095 (Missouri wrongful death statute).

Defendants’ brief indicates that the same is true in Jordan. Defendants have attached to their brief the declaration of Bashar Malkawi, a Global Professor of Practice in Law at the University of Arizona, who earned his law degree and also taught legal courses in Jordan. Malkawi states that Jordanian courts have awarded compensation to parents or other relatives due to the death of a child and cites to Jordanian caselaw in support of this proposition. See ECF No. 174-1 at ¶¶ 46-48. Malkawi also states that the damages awarded in such a lawsuit may include compensation for the parents’ pain and suffering due to the loss of the child. Id. Because no conflict exists, the Court need not engage in a choice-of-law analysis as to these issues.

b. Liability

Plaintiffs also contend that there is no conflict regarding liability for wrongful death based on negligence. Plaintiffs cite to the declaration of Jordanian attorney Yazid Salah, who explains that such claims are governed by Articles 256 and 274 of the Jordanian Civil Code and require proof of a breach of legal duty, proximate cause, and injury, the same elements required by Missouri common law. ECF No. 170 at 5-8.

Defendants concede that "Jordan recognizes a cause of action for negligence," and Defendants do not dispute that the basic elements for such a cause of action (breach of duty, causation, and injury) are substantially equivalent to Missouri common law. ECF No. 174 at 4. Defendants’ proffered expert, Malkawi, further indicates that Jordanian law, like Missouri law, recognizes vicarious liability based on respondeat superior or a principal's actual authority over its agent, as well as negligent supervision. See ECF No. 174-1 at ¶¶ 34-35, 38. The parties have not advised the Court of any conflict as to the elements required to establish vicarious liability in this regard. Therefore, the Court will also assume that there is no conflict between Missouri and Jordanian law with respect to the issue of Defendants’ liability under Count I.

c. Damages Recoverable

Defendants assert, however, that substantive differences exist with respect to the type of damages recoverable in the two jurisdictions. Specifically, Defendants assert that contrary to Missouri law, Jordanian law allows for diyat or "blood money" damages. Defendants also assert that Jordanian law does not provide for punitive damages in tort, while Missouri law does.

i. Diyat or "blood money"

With respect to diyat or "blood money," Defendants’ expert, Malkawi, states that diyat "is one avenue through which the offender and the victim or the heir can resolve the dispute concerning wrongful death for instance." ECF No. 174-1 ¶ 52....