                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 08-1914


FRANK SUTTON,

                Plaintiff – Appellant,

           v.

ROTH, L.L.C.; JOHN DOE; MCDONALD’S CORPORATION,

                Defendants – Appellees.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.    Claude M. Hilton, Senior
District Judge. (1:07-cv-00779-CMH-TRJ)


Argued:   October 28, 2009                 Decided:   January 21, 2010


Before KING, SHEDD, and DAVIS, Circuit Judges.


Vacated and remanded by unpublished opinion. Judge Shedd wrote
the majority opinion, in which Judge King joined.  Judge Davis
wrote a dissenting opinion.


ARGUED: Beverly G. Stephenson, B. G. STEPHENSON, LP, Fairfax,
Virginia, for Appellant. David Drake Hudgins, HUDGINS LAW FIRM,
Alexandria, Virginia, for Appellees.     ON BRIEF: Joseph J.
Jablonski, Jr., B. G. STEPHENSON, LP, Fairfax, Virginia, for
Appellant.


Unpublished opinions are not binding precedent in this circuit.
SHEDD, Circuit Judge:

       Frank Sutton appeals the district court’s orders granting

(1) judgment as a matter of law in favor of Roth, L.L.C. and

John    Doe   (collectively,      “Roth”)     and    (2)    summary     judgment       in

favor    of   McDonald’s       Corporation.    For    the    reasons       set   forth

below, we vacate both orders and remand this case for further

proceedings consistent with this opinion.



                                        I.

                                        A.

       We review both orders de novo, viewing the evidence in the

light most favorable to Sutton, the nonmoving party. Buckley v.

Mukasey, 538 F.3d 306, 321 (4th Cir. 2008). Around 1:30 a.m. on

August 8, 2005, Sutton, along with his wife, adult son, and a

work associate (Bill Giffon), stopped to refuel at the Daniel

Boone Truck Stop in Duffield, Virginia. While refueling, the

group    noticed    a   McDonald’s    restaurant       attached       to   the   truck

stop’s    convenience      store.     Roth    owns    this       restaurant      as    a

franchisee of McDonald’s Corporation.

       Because   their    vehicles    were    too    big    to   fit    through       the

restaurant’s drive-thru, Sutton and his entourage went inside

the restaurant/convenience store to order. When they entered,

Sutton    noticed       that    the   partition      between      the      McDonald’s

restaurant and the convenience store was closed. Sutton asked

                                        2
the convenience store clerks whether the McDonald’s restaurant

was still open, and they replied that it was. Sutton returned to

the partition and called for a McDonald’s employee, but no one

answered. The convenience store operators then informed Sutton

that     the   McDonald’s      employees        were      outside,       behind      the

restaurant.

        Sutton went outside and found two young women in McDonald’s

uniforms talking with two young men. Sutton asked them if the

restaurant     was   still    open,       and   they    replied       affirmatively.

Sutton walked back inside, and the two women met him at the

partition. Sutton placed and paid for his order. He then watched

the two women go into the restaurant. Shortly thereafter, the

women    returned    with    Sutton’s      change   and       his    order.    Sutton’s

group then went to a small table in the convenience store to

eat.

       When Sutton bit into his fried chicken sandwich, “grease

flew all over his mouth.” J.A. 250 (Testimony of Bill Giffon).

As   Sutton    described     it,   “the    grease      from    the    inside    of   the

chicken sandwich spread out all over my bottom lip, my top lip,

down onto my chin.” J.A. 192. Sutton immediately dropped his

sandwich, and his wife took ice out of her drink, put it into a

napkin, and began to dab his face. Almost instantly, blisters

appeared on Sutton’s lips.



                                           3
     After    tending       to   his    face,     Sutton    sought    out    the    two

McDonald’s employees to report the incident. Unable to find them

inside,    Sutton    went    back      outside,    where    he   found     them    again

talking with two young men. He told them what had happened and

showed them the blisters on his lips and chin. One of the women

responded, “This is what happens to the sandwiches when they

aren’t drained completely.” J.A. 12. After they finished eating,

Sutton and his entourage left the truck stop.

     The     next   morning      Sutton        discovered    that     some    of    the

blisters on his lips had bled onto his pillow. At this point, he

realized that his burns were worse than he initially thought.

Two days after the accident, he returned to the restaurant to

file an incident report with the manager on duty. Four days

after the accident, Sutton went to an urgent care facility for

medical attention; there he was told that the burns would heal

naturally over the next month.

     Sutton’s lips continued to bother him over the next few

months. Because sunlight and heat irritated his burns, Sutton’s

lips consistently bothered him during his work of refurbishing

and assembling outdoor amusement rides. Sutton declined specific

jobs if he knew the necessary work would aggravate his lips.

     Seven months after the accident Sutton sought additional

treatment    for    his   injuries.       Dr.   Donnelly,     an    ear,    nose,   and

throat     specialist,      treated       Sutton    with     lip     balm,    and    he

                                           4
instructed    Sutton      to    avoid    excessive          exposure        to    sunlight.

Sutton    visited   Dr.    Donnelly      on     a    regular        basis    for     ongoing

observation and treatment.

                                          B.

       Sutton sued Roth and McDonald’s Corporation for negligence

and breach of the warranty of merchantibility under Virginia

law, seeking $2,000,000 for lost wages, medical bills, and pain

and    suffering.     McDonald’s        Corporation          thereafter          moved     for

dismissal    and/or     summary       judgment,           arguing     that       under    its

franchise agreement Roth was not its agent. In support of this

motion,    McDonald’s     Corporation          relied      solely     on     an    attached

affidavit    authored      by    its     senior           counsel     David       Bartlett.

McDonald’s Corporation did not attach the franchise agreement to

the motion. In response, Sutton argued that the court should not

consider the McDonald’s Corporation’s affidavit because it was

replete with hearsay. In the alternative, Sutton argued that,

even if the court considered the affidavit, Sutton needed more

discovery     to oppose the motion, though he did not file an

affidavit under Federal Rules of Civil Procedure Rule 56(f).

Finally, Sutton argued that, even if the court did not grant him

more   discovery,     there     was     still       a     question     of     fact       about

apparent agency and his claim for a breach of the warranty of

merchantibility did not rely on an agency relationship between

McDonald’s    Corporation       and     Roth.       The    district     court        granted

                                          5
summary      judgment     for     McDonald’s            Corporation    because    it   found

that McDonald’s Corporation had demonstrated that there was no

agency relationship between Roth and McDonald’s Corporation and

Sutton       had    failed   to      rebut        McDonald’s    Corporation       with   any

contrary         evidence.      It        did    not     address     Sutton’s     alternate

arguments.          Following this motion, Sutton and Roth proceeded to

trial.

       Roth moved in limine to exclude its employee’s statement

that “This is what happens to the sandwiches when they aren’t

drained completely.” J.A. 12. Roth argued that the statement was

inadmissible         hearsay.        In    opposition,       Sutton     argued    that   the

statement          was   admissible             under    Federal      Rule   of   Evidence

801(d)(2)(D) because it constituted an admission by a party-

opponent’s agent. The district court granted the motion, finding

that       the   statement      was       inadmissible       under    Rule   801(d)(2)(C)

because there was no evidence that Roth’s employee had authority

to make binding admissions on Roth’s behalf. The court did not

address the statement’s admissibility under Rule 801(d)(2)(D).

       During trial, Sutton, Giffon, and Sutton’s wife testified. 1

At the close of Sutton’s case-in-chief, Roth moved for judgment

as a matter of law pursuant to Federal Rules of Civil Procedure


       1
       Sutton also introduced the deposition of Dr. Donnelly.
J.A. 255.



                                                  6
Rule 50. Roth argued that Sutton failed to present any evidence

of   a       standard    of   care,    which       is   a   necessary     element    to   a

products liability case under Virginia law. Sutton argued that

Virginia’s unwholesome foods jurisprudence controlled his claim

and, therefore, he need not introduce any standard of care. See

generally Bussey v. E.S.C. Rest., Inc., 620 S.E.2d 764, 767 (Va.

2005). The district court agreed with Roth.

             The   district   court    then    found        that   because   Sutton   had

failed to demonstrate any evidence of a standard of care, his

claim failed as a matter of law. The district court also found,

sua sponte, that Sutton was contributorily negligent by failing

to   “exercise        reasonable      care    to    see     that   [he   wasn’t]    eating

something too hot.” 2 J.A. 304. Consequently, the district court

entered judgment for Roth and dismissed the jury.

                                              C.

         On    appeal,    Sutton   first      argues        that   the   district    court

erred         in   excluding    Roth’s       employee’s        statement     about     the

consequences of failing to properly drain fried chicken. Second,

Sutton argues that the district court erred in granting Roth


         2
       We note that the defendants’ answer asserted that Sutton’s
claims were barred by contributory negligence. J.A. 16. However,
contributory negligence was not mentioned again until the
district court, without prompting or suggestion by either
litigant, relied on it as an alternative rationale for its order
granting judgment as a matter of law. J.A. 303-04.



                                              7
judgment as a matter of law because he presented a prima facie

case of negligence through Roth’s employee’s excluded statement

and   evidence      of    Sutton’s    injury.    In   the    alternative,       Sutton

argues that, even without the statement, he presented a prima

facie   case    of       negligence   under     Virginia’s        unwholesome    foods

jurisprudence. Finally, Sutton argues that the district court

erroneously granted summary judgment to McDonald’s Corporation

because it relied on an affidavit replete with hearsay, and that

it    failed   to    address     Sutton’s       request     for    more   discovery,

Sutton’s apparent agency argument, and Sutton’s breach of the

warranty of merchantibility claim.



                                         II.

        We first review the district court’s order granting Roth

judgment as a matter of law. Judgment as a matter of law is

appropriate only when a party has been fully heard on an issue

and   there    is    no    legally    sufficient      evidentiary      basis    for   a

reasonable jury to find for that party on that issue. Fed. R.

Civ. P. 50(a)(1).

                                         A.

      As noted, the district court granted Roth judgment as a

matter of law because it found that Sutton had failed to present

any evidence of a standard of care. Sutton argues that the court

erred because under Virginia’s unwholesome foods jurisprudence,

                                          8
a plaintiff need not present evidence of a standard of care. See

Bussey, 620 S.E.2d at 767.

     Under Virginia law, a plaintiff need not present evidence

of a standard of care in an unwholesome foods case. Id. However,

to trigger unwholesome foods law, a plaintiff must show “that

the food product contained foreign matter.” Harris-Teeter, Inc.

v. Burroughs, 399 S.E.2d 801, 802 (Va. 1991). Here, there is no

evidence    that   Sutton’s        fried    chicken     sandwich    contained     any

substance    foreign     to   fried    chicken. 3     Therefore,        the   district

court properly required Sutton to present evidence of a standard

of care, and we now must determine whether, under the law of

Virginia, Sutton presented evidence of a standard of care at

trial.

     Under     Virginia        law,        government      standards,         industry

standards,    or   the    reasonable         expectations     of    consumers      can

constitute    evidence        of   a   standard       of   care    in    a    products

liability case. Alevromagiros v. Hechinger Co., 993 F.2d 417,

420 (4th Cir. 1993) (applying Virginia law) (citing Sexton v.




     3
       Sutton argues that a sub-dermal, pocket of hot grease is
foreign to a fried chicken sandwich. Though Sutton is right that
hot grease is a foreign substance to chicken generally, hot
grease is necessary and expected (even desired) for fried
chicken. See Harris-Teeter, 399 S.E.2d at 802 (finding that a
plastic decoration on a child’s birthday cake was not a foreign
substance).



                                            9
Bell       Helmets,    Inc.,   926    F.2d       331,   337     (4th    Cir.   1991)).

Describing these different types of evidence, we have said that:

       While government and industry standards are readily
       identifiable for a given product at a given time, the
       reasonable   expectation of   purchasers  requires  a
       factual examination of what society demanded or
       expected from a product. This may be proved from
       evidence of actual industry practices, knowledge at
       the time of other injuries, knowledge of dangers, the
       existence of published literature, and from direct
       evidence of what reasonable purchasers considered
       defective at the time.

Sexton, 926 F.2d at 337. However, before we review the record to

determine whether Sutton presented any evidence of a standard of

care, we must determine whether the district court considered

all of Sutton’s admissible evidence.

                                            B.

       Sutton argues that the district court erred by excluding

Roth’s employee’s statement about the consequences of failing to

drain fried chicken sandwiches. 4 The district court excluded this

statement      under    Federal      Rule    of    Evidence      801(d)(2)(C),        but

Sutton       argues    (and    has    consistently         argued)      that    it     is

admissible under Rule 801(d)(2)(D).

       We review evidentiary rulings for an abuse of discretion.

Precision      Piping    and   Instruments,         Inc.   v.    E.I.    du    Pont   de


       4
       Sutton also argues that the district court erroneously
excluded an incident report. We do not reach this issue because
it is unnecessary to our holding.



                                            10
Nemours and Co., 951 F.2d 613, 619 (4th Cir. 1991). A district

court    abuses     its    discretion      “if    its   decision     is   guided   by

erroneous legal principles or rests upon a clearly erroneous

factual finding.” Brown v. Nucor Corp., 576 F.3d 149, 161 (4th

Cir.    2009)     (internal     quotation       marks   and   citations   omitted).

Evidentiary rulings are also “subject to harmless error review.”

United States v. Brooks, 111 F.3d 365, 371 (4th Cir. 1997).

        Under Rule 801(d)(2)(D), a statement is not hearsay if it

is offered against a party and is “a statement by the party’s

agent or servant concerning a matter within the scope of the

agency     or     employment,      made     during      the   existence     of     the

relationship.” To introduce a statement under 801(d)(2)(D) the

record     must     reveal      “independent       evidence     establishing       the

existence of the agency.” United States v. Portsmouth Paving

Corp., 694 F.2d 312, 321 (4th Cir. 1982).

        Here, the record reveals that the declarant was wearing a

McDonald’s uniform, helped fill Sutton’s order, and responded to

questions       about     McDonald’s      while     working     at   a    McDonald’s

restaurant. We hold that this is sufficient evidence of agency

for Rule 801(d)(2)(D). Therefore, regardless of the statement’s

inadmissibility         under    Rule     801(d)(2)(C),       this   statement      is

clearly admissible under Rule 801(d)(2)(D). The district court,

therefore, abused its discretion in excluding Roth’s employee’s

statement. We further find this error to be harmful because, as

                                           11
discussed      below,      this    statement     constitutes    evidence      of    a

standard of care.

                                           C.

       After   reviewing        all   of   Sutton’s   admissible      evidence,    we

find that Sutton presented sufficient evidence of a standard of

care   in    the    form   of     reasonable    consumer    expectation.      First,

Roth’s      employee’s     statement       constitutes     evidence    of    “actual

industry practice[].” Alevromagiros, 993 F.2d at 420. Second,

Sutton’s companions’ reactions to his injury are evidence of

“what reasonable purchasers considered defective.” Id. at 421.

Sutton’s wife removed ice from her soda, put it in a napkin, and

tried to put it on Sutton’s chin. Giffon described the incident

by saying “grease flew all over his mouth.” J.A. 250 (emphasis

added). Sutton threw the sandwich down. The consumers did not

expect Sutton’s fried chicken sandwich to contain a hot pocket

of   grease,       and   Roth’s    employee’s    statement    serves    as    strong

corroboration for the reasonableness of this expectation. These

facts reveal “what society demand[s] or expect[s] from” a fast-

food, fried chicken sandwich. Sexton, 926 F.2d at 337. Under

Virginia law, this constitutes evidence of a standard of care.

The district court, therefore, erroneously granted judgment as a




                                           12
matter of law in favor of Roth. 5 For these reasons, the district

court’s decision must be reversed and remanded. Having found

that the district court erroneously granted Roth judgment as a

matter    of   law,   we    next    review    the    district   court’s       order

granting McDonald’s summary judgment.



                                      III.

         Though we review a grant of summary judgment de novo, we

review a district court’s refusal to allow discovery prior to

entering summary judgment for abuse of discretion. Harrods Ltd.

v. Sixty Internet Domain Names, 302 F.3d 214, 244 (4th Cir.

2002).

     Shortly    after      Sutton   filed     suit   and    before     the    court

entered a scheduling order for discovery, McDonald’s Corporation

moved for summary judgment and/or dismissal, arguing that it had

no agency relationship with Roth. McDonald’s Corporation relied

on an affidavit by its general counsel averring that McDonald’s

Corporation     had   no    control    over    Roth’s      franchise    and     its


     5
       Acting sua sponte, the district court also found that
Sutton was contributorily negligent for biting into the hot
sandwich. J.A. 303-04. Even if it were appropriate for the court
to raise this issue in the manner it did, it is not contributory
negligence as a matter of law to merely bite into food served
hot by a restaurant. Therefore, to the extent necessary, we
reject the district court’s alternative rationale for granting
Roth judgment as a matter of law.



                                       13
franchise       agreement.         However,     McDonald’s          Corporation       did    not

attach the franchise agreement to its motion.

       In response, Sutton argued that the district court should

not consider McDonald’s Corporation’s affidavit because it was

based on hearsay. Sutton also argued that, even if the court

considered       the    affidavit,        he    needed    more       discovery        to    rebut

McDonald’s factual allegations. Sutton explained that he needed

more discovery about the actual relationship between McDonald’s

Corporation and Roth in order to determine if Roth was indeed an

agent     of     McDonald’s         Corporation.         Sutton       also       specifically

requested       the    franchise       agreement.        However,          Sutton     did    not

attach     an    affidavit          asserting        contrary       facts        or   file    an

affidavit under Federal Rules of Civil Procedure Rule 56(f).

Finally, Sutton argued that, even if the court denied him more

discovery, summary judgment was improper because there was a

question of fact about apparent agency and that his warranty of

merchantibility            claim    against     McDonald’s          Corporation       did    not

rely on a theory of agency.

        In an opinion rendered six days after the scheduling order

provided       for    discovery      to    begin,     J.A.     7,    the    district        court

granted    summary         judgment    and      dismissed      McDonald’s         Corporation

because it found that McDonald’s Corporation had “affirmatively

shown that no agency relationship exist[ed] with [Roth]” and

that    Sutton       had    failed    to       assert    any    facts       to    rebut      this

                                                14
conclusion. J.A. 36. The district court did not address Sutton’s

other arguments. 6

      We     first    address      Sutton’s      request    for    more       discovery.

Generally,     a     district   court     should      decline     to    grant      summary

judgment where the non-moving party has not had the opportunity

to discover information necessary to oppose summary judgment.

Harrods     Ltd.,     302   F.3d    at   244     (quoting   Anderson          v.   Liberty

Lobby, Inc., 477 U.S. 242, 250 n.5 (1986)). Typically, a party

makes this argument via a Rule 56(f) affidavit. However, if the

nonmoving party’s filing “serve[s] as the functional equivalent

of [a Rule 56(f)] affidavit, and if the nonmoving party was not

lax   in    pursuing     discovery,      then    we   may   consider      whether      the

district court granted summary judgment prematurely, even though

the nonmovant did not record its concerns in the form of a Rule

56(f)      affidavit.”      Harrods      Ltd.,    302   F.3d      at    245    (internal

quotation marks and citations omitted).

      Here, Sutton’s memorandum in opposition to summary judgment

effectively served as a Rule 56(f) affidavit.                          At the time of


      6
        Sutton subsequently filed a motion to reconsider this
decision, noting that the court did not address his arguments
about the hearsay contained in the McDonald’s Corporation’s
affidavit, more discovery, apparent agency, or the warranty of
merchantibility. J.A. 41-50. At oral argument on this motion,
the   district  court   declined to  hear  argument  on  these
independent claims; rather it relied on the reasoning in its
initial order. J.A. 64.



                                           15
McDonald’s Corporation’s motion and Sutton’s response, the court

had    yet    to    enter    a     scheduling     order      for   discovery.      Sutton’s

filing    requested         more    discovery,      specifically          identified      what

discovery he needed, and sought discovery about a fact-intensive

issue, agency.            Further, there is no claim that Sutton failed to

pursue       discovery       diligently.        Therefore,         the     district      court

abused its discretion by failing to address Sutton’s request for

more discovery, and we must vacate the district court’s grant of

summary judgment in favor of McDonald’s Corporation.

       Further,          under   these    facts,        we   hold        that   Sutton     was

entitled to additional discovery under Rule 56(f) because he

sufficiently demonstrated why, at the time of the motion for

summary judgment, he could not have “present[ed] facts essential

to justify [his] opposition” without more discovery. Fed. R.

Civ. P. 56(f). In his brief, Sutton “particularly set out the

reasons      for    further        discovery”      by   explaining         what   facts     he

needed and why those facts were necessary. Nader v. Blair, 549

F.3d    953,       961    (4th     Cir.   2008).    Because        the     district      court

dismissed McDonald’s Corporation without any further discovery,

Sutton did not have the opportunity to seek discovery on the

issue of agency from McDonald’s Corporation. On remand, Sutton

is entitled to that opportunity.

       Further, we decline to address Sutton’s arguments related

to apparent agency or the warranty of merchantibility in the

                                             16
first    instance.     Though    we   can    address    arguments    for   summary

judgment that the district court ignored, O'Reilly v. Board of

Appeals of Montgomery County, Md., 942 F.2d 281, 284 (4th Cir.

1991),    in   light     of     our   holding,    the     district    court,   as

necessary,     should     consider      Sutton’s       arguments     related   to

apparent agency and the warranty of merchantibility in the first

instance. 7



                                            IV.

     Based on these findings, we vacate the district court’s

orders granting summary judgment to McDonald’s Corporation and

granting judgment as a matter of law in favor of Roth, and we

remand this case to the district court for further proceedings

consistent with this opinion.

                                                          VACATED AND REMANDED




     7
        Because we find that the district court abused its
discretion by failing to consider Sutton’s discovery request, we
need   not   reach  Sutton’s  argument   related  to  McDonald’s
Corporation’s affidavit. We do note, however, that the affidavit
is of questionable value because the affiant’s “personal
knowledge” is based on a review of files rather than direct,
personal knowledge of the underlying facts.



                                        17
DAVIS, Circuit Judge, dissenting:

      The majority vacates the district court’s orders granting

judgment as a matter of law in favor of Roth, L.L.C., and John

Doe   (collectively,   “Roth”)    and    summary     judgment   in    favor    of

McDonald’s   Corporation    and     remands      for    a   new      trial.    I

respectfully dissent because, in my view, the district court:

(1) did not abuse its discretion in excluding the unidentified

employee’s alleged statement as inadmissible hearsay, and, in

any event (2) properly entered judgment as a matter of law in

favor of Roth because Sutton failed to provide evidence of a

standard of care.



                                    I.

      The majority correctly analyzes the admissibility of the

employee’s   alleged   statement,       “This   is   what   happens    to     the

chicken sandwiches when they aren’t drained properly,” J.A. 12,

under Fed. R. Evid. 801(d)(2)(D). 1 Under Rule 801(d)(2)(D), a


      1
       It is unclear under which rule of evidence the district
court excluded the employee statement.      In their briefs and
during oral arguments, counsel referred to both Fed. R. Evid.
801(d)(2)(C) and 801(d)(2)(D).   It is clear, however, that the
employee   statement  does  not   fall   under  Fed.   R.  Evid.
801(d)(2)(C). Pursuant to Fed. R. Evid. 801(d)(2)(C), Sutton
would have had to show that the clerk was authorized by Roth to
make the alleged admission. Precision Piping & Instruments, Inc.
v. E.I. du Pont de Nemours & Co., 951 F.2d 613, 619 (4th Cir.
1991). There was no such authorization here.



                                    18
statement is not hearsay if the statement was made by an agent

regarding a matter within the scope of the agency. Indeed, the

agent “need not have the authority to make the statement at

issue, but rather the subject of the statement must relate to

the employee’s area of authority.” United States v. Brothers

Constr. Co., 219 F.3d 300, 311 (4th Cir. 2000).

       The   majority   accepts         Sutton’s       meager        proof,    that    the

declarant     “was    wearing      a     McDonald’s       uniform,          helped    fill

Sutton’s     order,   and    responded      to       questions       about    McDonald’s

while working at a McDonald’s restaurant,”                    Majority Op. at 11,

as sufficient to satisfy the alleged statement’s admissibility

under the rule. Respectfully, I take a contrary view, bearing in

mind   the   standard   of    review,      because      scope        of   employment    is

exactly what Rule 801(d)(2)(D) primarily concerns. See, e.g.,

Cline v. Roadway Express, Inc., 689 F.2d 481 (4th Cir. 1982);

Precision Piping & Instruments, Inc., 951 F.2d at 620. Indeed,

the    Eleventh   Circuit    has       cautioned      against    the      admission     of

statements under Rule 801(d)(2)(D) when there is insufficient

foundational      evidence   regarding         the    scope     of    the     declarant’s

employment:

       [A]lthough the necessary proof may certainly be
       circumstantial, there must be an adequate foundational
       showing . . . that the subject of the statement
       'concerned a matter' which was within [the] scope of
       the speaker's agency or employment. Merely showing
       that a statement was made by one who is identified
       generally as an agent or employee of the party,

                                          19
     without some further proof as to . . . the scope of
     his employment . . . establishes neither.

Wilkinson v. Carnival Cruise Lines, Inc., 920 F.2d 1560, 1566

(11th Cir. 1991) (quoting White Indus. v. Cessna Aircraft Co.,

611 F. Supp. 1049, 1064 (W.D. Mo. 1985)).

     Rule 801(d)(2)(D) requires an affirmative showing of the

declarant-employee’s area of authority. Here, the employee was

unidentified. She could have been hired to clean the facility,

work the cash register, take inventory, etc. Sutton presented no

evidence regarding the identity of the worker who prepared the

sandwich. Indeed, for all that appears, it is possible that the

declarant was not even on duty that night.

     Thus,    at    best,    it    is    unclear     whether     the   unidentified

employee had such duties as to empower her to speak about food

preparation   and    to     permit      any   such   statement    to   be   admitted

against   Roth     under    Rule     801(d)(2)(D).     In   short,     there   is   a

dearth of evidence regarding the declarant-employee’s area of

authority. (Of course, Sutton, his wife, and his son had it

fully within their power, on the morning of the incident, to

record the identities of the two young women present on behalf

of the restaurant; their failure to do so is regrettable, but

they must live with the consequences of their inaction.) The

district court committed no abuse of discretion in ruling on the

admissibility of the alleged statement.


                                          20
                                        II.

      The    majority     holds     that,       had    the    employee’s        alleged

statement been admitted, Sutton would have successfully made out

claims for traditional negligence and breach of implied warranty

of   merchantability      against       Roth.    I    respectfully       disagree.   As

explained above, the employee’s alleged statement was properly

excluded.    Even   if    the   alleged         statement    had    been      admitted,

however, Sutton would still have failed to establish the proper

standard of care and any breach thereof.

      In order to make out a prima facie case of negligence or

breach of warranty, a plaintiff must establish, inter alia, a

relevant standard of care and lack of fitness of the accused

product, respectively. See Didato v. Strehler, 554 S.E.2d 42, 47

(Va. 2001); Delk v. Columbia/HCA Healthcare Corp., 523 S.E.2d

826, 830 (Va. 2000). Sutton sought to avoid these requirements

by characterizing this case as an “unwholesome food case.” The

majority correctly rejects that characterization.

      Nevertheless, the majority relies on a case, never cited by

Sutton or discussed by the parties, for the proposition that

evidence     of   the    “reasonable      expectations        of    consumers”       may

constitute    evidence     of     the    standard      of    care   in    a    products

liability case under Virginia law. Alevromagiros v. Hechinger

Co., 993 F.2d 417, 420 (4th Cir. 1993). But the dicta from



                                          21
Alevromagiros on which the majority relies does not do the work

that the majority would have it do.

     First, it is unclear whether Alevromagiros states, even in

its dicta, a principle of Virginia law. 2 This is because that

case cites as support for its dicta another Fourth Circuit case

interpreting Kentucky law. See Sexton By and Through Sexton v.

Bell Helmets, Inc., 926 F.2d 331 (4th Cir. 1991). See 993 F.2d

at 420.

     Even more fundamentally, Sexton explained the operation of

the supposed “consumer expectations” test as follows:

     While government and industry standards are readily
     identifiable for a given product at a given time, the
     reasonable   expectation  of   purchasers requires  a
     factual examination of what society demanded or
     expected from a product. This may be proved from
     evidence of actual industry practices, knowledge at
     the time of other injuries, knowledge of dangers, the
     existence of published literature, and from direct
     evidence of what reasonable purchasers considered
     defective at the time. While society demands and
     expects a reasonably safe product, an examination of
     societal standards at any given point in time usually
     reveals an expectation that balances known risks and
     dangers against the feasibility and practicability of
     applying any given technology.




     2
       In Alevromagiros this court affirmed a directed verdict
for the defendant because there was no evidence of a violation
of an established standard of care. 993 F.2d at 421-22. The
plaintiff failed to present (1) expert testimony stating that
the allegedly defective ladder sold to the plaintiff failed to
conform to published industry standards and (2) evidence
regarding the reasonable expectations of consumers.



                               22
Id. at 337 (emphases added). Thus, as can be seen, even were it

assumed     that         a     “consumer        expectations”            test    applies       here,

Sutton’s burden of proof is not remotely satisfied merely by

testimony      from          himself     and    his    son       that    they    (together      with

their     dinner         companions)           thought       the    chicken       sandwich       was

“negligently prepared” or “defective.” Rather, the test is an

objective one, informed by societal standards. Id. Sutton never

undertook to offer such evidence because, again, his theory was

that this is an “unwholesome food” case.

     Consequently,                Sutton        presented           no     expert        testimony

establishing         a       standard     of    care    for       the    preparation      of    fast

foods. This failure was and is fatal to his case because, as a

matter    of    law,         however     “hot,”       the    sandwich       was,    it    was    not

“unwholesome” and in Virginia, “[e]xpert testimony is ordinarily

necessary       to       establish        the     appropriate            standard    of    care.”

Beverly Enterprises-Virginia, Inc. v. Nichols, 441 S.E.2d 1, 3

(Va. 1994), citing Raines v. Lutz, 341 S.E.2d 194, 196 (Va.

1986).    The    employee’s            alleged        statement         that,    “This    is    what

happens to the sandwiches when they aren’t drained completely,”

J.A. 12, does not establish the requisite standard of care, or

substitute for such evidence.

     This       case         is   most   analogous          to    Greene    v.     Boddie-Noelle

Enterprises, Inc., 966 F.Supp. 416, 417 (W.D.Va. 1997), in which

a customer sued a fast food restaurant after he suffered burns

                                                  23
from spilled hot coffee purchased at a drive-thru window. In

Greene, the plaintiff failed to offer evidence of the standard

of care and the defendant’s breach of that standard. Id. at 417.

Specifically,        the   plaintiff       did    not    offer      evidence    that       the

coffee was too hot or the coffee lid was unsecured, thereby

violating     industry       standards      for     safety.      Id.    The    fact     that

plaintiff was burned was not proof of the product's defect. Id.

at    419.    According      to    the     court,       “a    product    need     not       be

foolproof, or perfect.” Id.; see Austin v. W.H. Braum, Inc., 249

F. 3d 805, 805 (8th Cir. 2001) (ruling that the high temperature

at    which   hot    chocolate       was   served       did   not    render    the    drink

unreasonably        dangerous);      Holowaty      v.    McDonald’s      Corp.,       10    F.

Supp. 2d 1078, 1083 (D. Minn. 1998) (granting summary judgment

in favor of McDonald’s where no evidence existed that coffee

purchased was hotter than usual for commercially brewed coffee).

Similarly,     Sutton       failed    to    offer       evidence     establishing          any

relevant standard as to the amount, location, and temperature of

hot grease in a fried fast food chicken sandwich. Accordingly,

the    district     court    did     not   err    in     granting      the    motion       for

judgment at the close of the plaintiff’s case.



                                           III.

       In light of the above, I find it unnecessary to consider

whether the district court erred in granting summary judgment

                                            24
dismissing    defendant    McDonald’s    Corporation   from    the      case.

Plaintiff    failed   to   offer   sufficient   evidence      against    the

ostensible agent, Roth, and so his claims fail as a matter of

law as to the alleged principal, McDonald’s Corporation.



                                   IV.

     For the reasons stated above, I respectfully dissent.




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