Thursday, April 2, 2009

Burger King forced to pay on bogus lawsuit

Of course I regret this young man or anyone else getting injured, but it is bad for our country when we allow parents to sue a fast food restaurant for an injury in the play area.

$20 million settlement

The bright, welcoming playground at a fast food restaurant is a magnet for kids and a draw for parents. But behind the colorful fa├žade of the child-friendly wonderland lurks a potential danger zone. Momlogic has learned a Burger King franchise in Southern California has reached a $20 million, out-of-court settlement with a child who was severely injured in one of their playgrounds.
In August of 2005, then 8-year-old Jacob Buckett, his father and 3-year-old sister went to lunch at a Burger King in Temecula, Calif. In a matter of seconds, Jacob climbed up the horizontal support poles of the play structure and suddenly lost his grip. He came crashing down, cracking his head on the tile floor. His father Kevin recalls that the horrific noise sounded "as if you took a bowling ball and dropped it about ten feet on the floor." Jacob suffered a traumatic brain injury which put him in a coma for two months, in the hospital for six months and has left him with permanent, lifelong impairments.
The Buckett family claims the franchise owner and its parent company Burger King knew the jungle gym was dangerous but never bothered to fix the problem. They argued the playground had significant safety risks such as a lack of "no-climb netting" around the structural poles and not enough floor padding. They say the restaurant owner knew about the potential hazards because of prior accidents.
In addition, they said the restaurant's franchise owner, The Breckenridge Group, failed to safeguard the poles that were used by
children daily as monkey bars. The restaurant never posted warning signs and refused to retrofit the structure. Even after Jacob's near-death experience, the playground remained unchanged... three years later.
On his behalf, Jacob's parents sued the franchise owner and parent company, arguing Burger King was liable under the principles of "ostensible agency." That means parents reasonably relied on the franchisor and its specific restaurant branding to ensure a safe product. The family's attorney, Christopher Aitken, said, "Most families, like the Bucketts, do not come into fast food restaurants with any playground safety expertise. They rely on the restaurant, through their branding and safety programs, to ensure a safe product for their children to play," Burger King ultimately settled with the Bucketts for $20 million.
These commercial structures, known as "soft-contained playgrounds," like those at Burger King and other fast food
restaurants, are not necessarily more dangerous than any public playground. According to the Center for Disease Control and Prevention, ERs treat more than 200,000 children every year for playground-related injuries.
Today, Jacob Buckett is 12 years old, with the maturity level of a child half his age. The brain damage left him with partial paralysis and severe emotional and cognitive problems. He gets frustrated easily and often has temper tantrums. "Before the accident, he would talk all the time about getting married and having children," said his mother, Julie, who now wonders, "Will he ever have the mental ability to even take care of himself?"
Jacob's condition has devastated his family -- especially his father, Kevin, who witnessed the accident. "There are times when it's just so overwhelming, the weight is just too much to bear." The family hopes shedding light on this issue will put the fast food restaurant industry on notice. "We are pleased to see that after the Buckett incident, the fast food chain finally started implementing an inspection system for such playgrounds to make sure they are safe for
families," said Aitken.
The multi-million dollar settlement will pay for Jacob's enormous medical bills, 24-hour attendant care and ongoing rehabilitation therapies.

Major fast food chains like Burger King, McDonald's and Chuck E. Cheese's all have playgrounds.
The enticing play zones lure children while restaurants rake in billions of dollars in additional profit. But children could pay the ultimate price if they're not careful playing at some of these playgrounds.
Fast food restaurants argue they're not responsible for safety because they hire independent companies to build the play structures, despite spending big money to market and brand the equipment. In a written statement to momlogic, Burger King spokeswoman Denise Wilson wrote: "Burger King Corp. has stringent playground safety and cleanliness procedures for all its BURGER KING® restaurants. An independent, third party company annually inspects playgrounds at both company and franchised restaurants."
The Bucketts' attorney argued Burger King provided no oversight or inspections to ensure its franchisee restaurants followed playground safety standards. "The fast food chains certainly stand to profit for the rise of sales that such playgrounds provide. It is this lack of third party safety inspections, or oversight, that can cause major injuries such that befell young Jacob Buckett," said Aitken.

Burger King insists its restaurants complied with the national standards set by the ASTM (American Society for Testing and Materials) for soft-contained playgrounds and use "only approved playground manufacturers can provide equipment and repairs to BURGER KING® restaurants."
In addition, the fast food giant blamed Jacob's father for not properly supervising his child on the playground. The Bucketts' attorney proved his point with a video surveillance tape that showed children misusing the playground on a regular basis.
Each restaurant chain is responsible for self-policing its playground safety. The Consumer Product Safety Commission has a list of set guidelines and regulations, but there isn't enough staff to enforce the rules.
"The government doesn't seem to pay as much attention to children as they do adults," said Donna J. Thompson, Ph.D., Executive Director for the National Program for Playground Safety. "If something is going to kill or badly injure a child, the inspector should tell the owner and they should shut the place down until it's fixed." A restaurant's franchise owner is the one responsible for hiring an outside inspector to periodically check the equipment.
The CPSC has taken action against fast food restaurants that violate safety codes. In 1999, the agency fined McDonald's $4 million in an effort to improve reporting and the structural integrity of its soft playgrounds. "CPSC is empowered to act when there's a violation of a voluntary standard. The agency has the ability to investigate when there is an incident brought to our attention," said CPSC spokesman Scott Wolfson. But in the case of Jacob Buckett, the restaurant did not have an inspection system to detect safety issues and any effort to upgrade the playground fell through the cracks.

The playgrounds at fast food restaurants are often as much as a draw for kids as the french fries and cheeseburgers.
While the padded structures may seem like the perfect place to let your child play, these parks can pose a serious risk of injury and even death. Parents may assume these soft-contained playlands are safe and that the restaurant assumes responsibility if a child is hurt. But this is not always the case.
Bottom line: don't expect anyone to be watching your kids. "If there are signs indicating the restaurant is not responsible for injuries, then it's up to the adults to supervise the kids," said Donna J. Thompson, Ph.D., the Executive Director for the National Program for Playground Safety.
Jake's dad Kevin tells momlogic, "No words at this time could adequately convey our thoughts. Though we are concerned with playground safety, our primary concern is for Jake's recovery and the stability of our family. This settlement is merely the end of the beginning of a very long marathon. It has been three and a half years since Jake's injury and the fight for his future has really just begun. Though we are bone-weary from this struggle, our faith in God carries us and we will not stop until every last stone has been turned over. Jake's resources and the love and support of many will be used to that end. Though set back by his injury, Jake touches everyone he meets with his faith, his strength, his compassion and his irrepressible joy. Those qualities were there before and are still there todayWe pray for the day when Jake can enjoy the quality of life that many take for granted, that he will become independent, the he will meet the girl of his dreams and raise a family of his own. We also pray for his mom and sisters, whose hearts, though broken by this tragedy, will again rise from the ashes so they can again see the light of day and experience the joy they so richly deserve. Finally, we pray for those who struggles mirror ours. There are many thousands in the same boat who need hope, who want a future. For Jake's sake and theirs, we hope it happens."

We need tort reform. This type of lawsuit not only drives up the prices of good/services for everyone because ultimately it is "us" as consumers who pay these damages; but also it forces business owners to withdraw interesting opportunities for fear of lawsuits.
This has happened in many areas including now having fewer diving boards available at swimming pools. Many schools prohibit fun games and athletic activities based on past successful lawsuits.

I don't doubt I would pursue the same legal avenues available to me in today's environment. I wouldn't stand on some principle to my economic detriment versus others. However, I do advocate that we demand personal accountability throughout our lives. Others should only be held responsible if they did something (un)worthy.

In the above scenario here are examples where I think a large settlement would be appropriate:

-if one of the store's employees lubricated the "monkey bars" to make them extra dangerous as a practical joke.

-if the store failed to clean the area for a month and a child contracted a disease because of that.

But if a parent allows their child to use a play area as it was intended, and there is an injury, that is called "life".

It is often brutal.

But let's not make it worse.

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