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April 10, 1997


The opinion of the court was delivered by: JOYNER


 APRIL 10, 1997

 In this diversity action, Plaintiffs Nina S. Jones and her husband Ronnie J. Jones seek compensatory and punitive damages for injuries allegedly sustained when Mrs. Jones slipped and fell in the parking lot of a McDonald's restaurant. Before the Court is Defendants' Motion for Partial Summary Judgment on the Issue of Punitive Damages. For the following reasons, the Motion is granted.


 This lawsuit concerns an alleged slip and fall on November 25, 1995 at a McDonald's restaurant in Gap, Pennsylvania (the "Restaurant"). *fn1" Plaintiffs claim that Mrs. Jones injured her left foot, ankle and knee when she slipped on oil and grease while walking across the exit lane of the "drive-thru." Defendants are the Restaurant's franchisees, Stephen J. Arnold and the AGA Corporation (collectively "AGA"), *fn2" and its franchisor, the McDonald's Corporation ("McDonald's"). Plaintiffs' original Complaint sought compensatory damages and damages for loss of consortium for Defendants' alleged negligence. On December 31, 1996, Plaintiffs moved for leave to amend a claim for punitive damages, which leave was granted on January 23, 1997. Defendants now move for summary judgment on this claim.

 The facts relevant to the instant Motion, viewed in the light most favorable to Plaintiffs and with every reasonable inference drawn in their favor, are as follows. McDonald's, which requires AGA to offer "drive-thru" service at the Restaurant, designed the Restaurant such that patrons must cross the exit lane of the drive-thru when walking from their cars to the entrance. Arnold Dep. at 27-28; Expert Report of Richard T. Hughes, P.E. at unnumbered page 4. Grease and oil accumulate in the drive-thru lane. Weimer Dep. at 14-16; Schultz Dep. at 38. Grease and oil also accumulate in the area of the parking lot where, pursuant to McDonald's policy, patrons are directed to park their cars when their drive-thru orders are not immediately ready. Weimer Dep. at 28. This area extends from one to three car lengths in front of the second drive-thru window. Martin Dep. at 6; Schultz Dep. at 37. On a given day, as many as thirty (30) percent of the 600 to 750 cars that use the drive-thru service at the Restaurant each day may be required to wait in this location. Schultz Dep. at 37; Kellon Dep. at 6.

 McDonald's supplies its franchisees with a Maintenance Manual ("Manual") which contains instructions on how to "degrease" the parking lot. Pls.' Opp. to Mot. Ex. 1. The instructions are to apply a cleaning solution to the affected area, allow the solution to soak for at least three hours, and then rinse the solution off the pavement with water. Manual at 9-28 to 9-30. McDonald's instructs franchisees to do this on a regular basis, but only when the temperature is above 40 degrees F. Id. at 9-29 to 9-30. Cold temperatures reduce the power of the cleaning solvent, and the solution and the water used to rinse it can freeze. Id. at 9-30; Gregg Dep. at 10; Schultz Dep. at 53. During cold weather, franchisees are instructed to "take advantage of brief periods above freezing" and "scrub with a stiff brush ... instead of allowing the cleaner to soak for the recommended minimum of three hours." Manual at 9-30.

 AGA follows these instructions. AGA degreases the parking lot on no less than a weekly basis during the warmer months of the year. Gregg Dep. at 9; Schultz Dep. at 52-53. During the colder months, however, the lot is degreased less frequently, and only when the weather permits. Gregg Dep. at 11; Schultz Dep. at 54. During the months of November through February, pursuant to the Manual, AGA's employees sweep the lot on days when "it warms up in the afternoon." Gregg Dep. at 11. AGA continues to offer drive-thru service, however, during these periods of cold weather.

 Mrs. Jones slipped and fell during one of these "cold" months in the part of the parking lot where drive-thru patrons wait when their orders are not immediately ready. Plaintiffs therefore claim that her injuries resulted from Defendants' allegedly outrageous, reckless decision to continue to offer drive-thru service while not regularly degreasing the parking lot.


 Summary judgment is appropriate where the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, reveal no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). Our responsibility is not to resolve disputed issues of fact, but to determine whether there exist any factual issues to be tried. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-49, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). The presence of "a mere scintilla of evidence" in the nonmovant's favor will not avoid summary judgment. Williams v. Borough of West Chester, 891 F.2d 458, 460 (3d Cir. 1989)(citing Anderson, 477 U.S. at 249). Rather, we will grant summary judgment unless "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248.

 In making this determination, all of the facts must be viewed in the light most favorable to the non-moving party and all reasonable inferences must be drawn in favor of the non-moving party. Id. at 256. Once the moving party has met the initial burden of demonstrating the absence of a genuine issue of material fact, the non-moving party must establish the existence of each element of its case. J.F. Feeser, Inc. v. Serv-A-Portion, Inc., 909 F.2d 1524, 1531 (3d Cir. 1990)(citing Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986)).

 Defendants move for summary judgment on the grounds that there is no evidence suggesting that they possessed the requisite state of mind for punitive damages. Rather, the evidence demonstrates that the parking lot was degreased no less than weekly most of the year and, during the colder months, as often as the weather permitted. Further, nothing in the record before the Court indicates that a single AGA or McDonald's employee was ...

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