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Need to brief this case, it can be found on page 572 of the text (Business: ITS LEGAL, ETHICAL, AND GLOBAL ENVIRONMENT. ELEVENTH EDITION, BY MARIANNE M. JENNINGS. Here are the judicial opinion and the dissenting opinion:

FREDERIC M. FAVERTY, Respondent, v. McDONALD’S RESTAURANTS OF OREGON, INC., an Oregon corporation, Appellant.892 P.2d 703 (Ct. App. Or. 1995)Matt Theurer was an 18-year-old high school senior with many extracurricular activities, including being a member of the National Guard. Mr. Theurer was employed by a McDonald’s restaurant (defendant) in Portland, Oregon, on a part-time basis. While his employer called Mr. Theurer an enthusiastic worker, his friends and family felt that he was doing too much and getting too little sleep. McDonald’s employed many high school students on a part-time basis, and their restaurants closed at 11:00 PM, with cleanup and other procedures taking up another hour until midnight. McDonald’s informal policy did not permit high school students to work more than one midnight shift per week or allow split shifts. Split shifts forced students to work in the morning and then in the evening. McDonald’s felt the commuting time between the shifts prevented “people from getting their rest.” Despite these policies, high school employees frequently complained about being tired, and at least two of McDonald’s employees had accidents while driving home after working the closing shift until midnight. A few times each year, McDonald’s scheduled special cleanup projects at the restaurant that required employees to work after the midnight closing until 5 AM. Student workers were to be used for cleanup shifts only on weekends or during spring break. However, for one scheduled cleanup project, there were not enough regular employees, and the manager asked for volunteers for a midnight to 5 AM cleanup shift. Mr. Theurer volunteered; the manager knew that Mr. Theurer had to drive about 20 minutes to and from work. During the week of the scheduled special cleanup, Mr. Theurer had worked five nights. One night he worked until midnight, another until 11:30 PM, two until 9 PM, and another until 11:00 PM. On Monday, April 4, 1988, Mr. Theurer worked his regular shift from 3:30 until 7:30 PM, followed by a cleanup shift beginning at midnight until 5:00 AM on April 5, and then worked another shift from 5:00 AM until 8:21 AM. During that shift, Mr. Theurer told his manager that he was tired and asked to be excused from his next regular shift. The manager excused him, and Mr. Theurer began his drive home. Mr. Theurer was driving 45 miles per hour on a two-lane road when he became drowsy or fell asleep, crossed the dividing line into oncoming traffic, crashed into the van of Frederic Faverty (plaintiff), and was killed. Mr. Faverty was seriously injured. Mr. Faverty settled his claims with Mr. Theurer’s estate and then filed suit against McDonald’s. The jury found for Mr. Faverty, and McDonald’s appealed.

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JUDICIAL OPINION: Landau, JudgeDefendant argues that it was Theurer’s employer and, because of that relationship, it was subject to a limited duty to both Theurer and plaintiff, as a matter of law.According to defendant, there is no evidence that it knew or should have known that Theurer was so exhausted or fatigued that is should have foreseen that working him three shifts in one 24-hour period would create a foreseeable risk of harm to motorists such as plaintiff. Plaintiff argues that defendants failed to preserve that argument and that, in any event, the evidence is sufficient to support the trial court’s ruling.There is evidence that defendant controlled all work assignments. Therefore, defendants knew or had reason to know of the number of hours Theurer had been working. There is also evidence that defendant ordinarily did not use high school students to work after midnight, and when it did, it tried to limit that late shift to once a week. Defendant also has a policy of not working it employees two shifty in one day. According to at least one of the defendant’s managers, those policies were adopted and enforced out of concern that employees not become overly tired on the job. In fact, defendant was aware that at least two of its employees had recently had automobile accidents as a result of falling asleep while driving home after working late shifts. There is evidence that, during and after his late-night shift, Theurer was visibly fatigued, and that defendant’s managers were on site and saw Theurer throughout that shift. It is undisputed that defendant knew that Theurer was a high school student and that most of the high school students who worked there drove to work in their own cars. On the basis of that evidence, a reasonable jury could conclude that defendant knew or should have known that working Theurer so many hours would impair his ability to drive home safely.Defendant and the dissent insist that, because Theurer “volunteered” to work so many hours, the evidence simply is insufficient to establish defendant’s negligence as a matter of law. The evidence shows that defendant – not its employees – generally controlled all work assignments and that defendant penalized its employees for not working as assigned.Second, even indulging the assumption that Theurer volunteered for his all-night shift, the evidence still is sufficient to support the jury’s verdict. Defendant’s managers knew that Theurer already had been scheduled to work more than its own policies permitted. Moreover, they saw him in a visibly fatigued state and continued to work him as scheduled. In that regard, defendant was much like a bartender who served alcoholic beverages to a visibly intoxicated person who then caused an automobile accident that harmed another. No one required the intoxicated person to have the extra drink. He or she asked for the drink and “volunteered” to pay for it. Nevertheless, the courts have held that, because the bartender saw the driver in a visibly intoxicated state, and it JUDICIAL OPINION: Landau, JudgeDefendant argues that it was Theurer’s employer and, because of that relationship, it was subject to a limited duty to both Theurer and plaintiff, as a matter of law.According to defendant, there is no evidence that it knew or should have known that Theurer was so exhausted or fatigued that is should have foreseen that working him three shifts in one 24-hour period would create a foreseeable risk of harm to motorists such as plaintiff. Plaintiff argues that defendants failed to preserve that argument and that, in any event, the evidence is sufficient to support the trial court’s ruling.There is evidence that defendant controlled all work assignments. Therefore, defendants knew or had reason to know of the number of hours Theurer had been working. There is also evidence that defendant ordinarily did not use high school students to work after midnight, and when it did, it tried to limit that late shift to once a week. Defendant also has a policy of not working it employees two shifty in one day. According to at least one of the defendant’s managers, those policies were adopted and enforced out of concern that employees not become overly tired on the job. In fact, defendant was aware that at least two of its employees had recently had automobile accidents as a result of falling asleep while driving home after working late shifts. There is evidence that, during and after his late-night shift, Theurer was visibly fatigued, and that defendant’s managers were on site and saw Theurer throughout that shift. It is undisputed that defendant knew that Theurer was a high school student and that most of the high school students who worked there drove to work in their own cars. On the basis of that evidence, a reasonable jury could conclude that defendant knew or should have known that working Theurer so many hours would impair his ability to drive home safely.Defendant and the dissent insist that, because Theurer “volunteered” to work so many hours, the evidence simply is insufficient to establish defendant’s negligence as a matter of law. The evidence shows that defendant – not its employees – generally controlled all work assignments and that defendant penalized its employees for not working as assigned.Second, even indulging the assumption that Theurer volunteered for his all-night shift, the evidence still is sufficient to support the jury’s verdict. Defendant’s managers knew that Theurer already had been scheduled to work more than its own policies permitted. Moreover, they saw him in a visibly fatigued state and continued to work him as scheduled. In that regard, defendant was much like a bartender who served alcoholic beverages to a visibly intoxicated person who then caused an automobile accident that harmed another. No one required the intoxicated person to have the extra drink. He or she asked for the drink and “volunteered” to pay for it. Nevertheless, the courts have held that, because the bartender saw the driver in a visibly intoxicated state, and it

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is reasonably foreseeable that the customer will drive when he or she leaves, the bartender is liable for the consequences of the automobile accident.Finally, defendant itself conceded at trial that, if it had allowed Theurer to “volunteer” to work around the clock three full days, the “court can almost say as a matter of law, allowing someone to work that long without any rest of sleep might very well constitute affirmative misconduct by an employer, but [it] may be a matter of degrees….” Defendant, the dissent, and the amic curiae, the National Council of Chain Restaurants and the Defense Research Institute, Inc., implore us to reverse the trial court’s judgment on the public policy ground that the result is “patently unreasonable,” “shocking,” “farfetched,” and “goes beyond the commonsense application of tort law.” However, that argument was not made to the trial court, and we will not consider it for the first time on appeal.AFFIRMED.DISSENTING OPINION: Edmonds, Judge, dissenting. The majority need have gone no further than defendant’s motion for a directed verdict in deciding this case. Defendant is entitled to a directed verdict as a matter of law because of certain uncontroverted facts. First, Theurer was not a minor, but an adult at the time of the accident. He was 18 years old and serving in the National Guard. Defendant did not owe any special responsibility to him because he also attended high school. The fact that he was a student working part time and had over-extended himself physically is if no import to defendant’s liability. No rule of negligence requires an employer to inquire into the private lives of its adult employees to determine if, on a given occasion, the employee is not getting enough sleep. Second, Theurer volunteered to work the cleanup shift. He was not sought out by defendant and “required” to work on April 5, 1988. Third, Theurer never asked to be relieved from working the shift either before the shift started or during it; nor is there any evidence that defendant refused such a request.Fourth, Theurer was not on defendant’s business premises and was on his own time when he drove home from work that morning. Theurer was not acting on defendant’s behalf, nor did defendant have actual control of or the right to control Theurer’s driving conduct or where he went after he got off work. Moreover, no omission or affirmative act by defendant prevented Theurer from choosing to have someone pick him up after work, or to take a nap in his car before driving home, or some other preventive measure . . . .

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In effect, the opinion says to Oregon employers, “Do not schedule your employees in a manner that will cause fatigue, because if you do, you risk liability for negligence in the event that your employee acts in a negligent manner off-premises and after work.” That is no the law of this state and it cannot be unreasonable conduct for an employer to accept an offer from an adult employee, made days in advance of the shift, to work overtime, insofar as the safety of motorists is concerned after the employee gets off work. Because the majority opinion extends the duty of care owed to the general public by employers in the scheduling of their employee’s work shifts to beyond a reasonable boundary, I dissent.