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Hong Wu v. Dunkin' Donuts, Inc.

United States District Court for the Eastern District of New York

June 9, 2000, Decided

98-CV-3020 (ARR)

Opinion

 [*84] OPINION AND ORDER

ROSS, United States District Judge:

This case addresses whether a franchisor may be held liable under New York law for an attack by third parties on an employee of its franchisee. In the early morning hours of May 25, 1999, Wendy Hong Wu was working alone at a twenty-four hour donut store owned by defendant Turnway Donuts, Inc. ("Turnway"), under a franchise agreement with defendant Dunkin' Donuts, Inc. ("Dunkin' Donuts" or [**2]  "DD"). Two teenagers entered the store, gained access to the employee area behind the counter, and brutally attacked and raped Ms. Wu. Ms. Wu and her husband, Arthur Lin, allege, among other things, that the attack resulted in part from the vicarious and direct negligence of Dunkin' Donuts. 1 Dunkin' Donuts moves for summary  [*85]  judgment. There is no evidence in the record of this case that Dunkin' Donuts exercised actual control over the security measures taken by its franchisee Turnway or that Ms. Wu relied on any preventive actions taken by Dunkin' Donuts. The issue, then, is whether under New York law a franchisor's making of recommendations concerning security matters to its franchisees renders the franchisor legally responsible for ensuring the safety of its franchisees' employees. For the reasons stated below, the court concludes that it does not.

 [**3] BACKGROUND

Except as otherwise indicated, the following facts are undisputed.

Plaintiffs Wendy Hong Wu and Arthur Lin reside in the state of Maine.

Dunkin' Donuts is a corporation incorporated in the state of Delaware and authorized to do business in and by the State of New York. Turnway is a New York corporation.

On April 23, 1992, Turnway entered into a franchise agreement with DD to operate a donut store at 59 Kissena Boulevard in Queens, New York. 2 Turnway renovated the premises, which had previously housed a furniture store, to facilitate the production and sale of donuts. Between 1992 and 1994, the donut store was robbed at least three times. At some point prior to the incident involving Ms. Wu, Jen Chuan Yin, the then-manager of the store, and Sam Yuan, part owner of the store, arranged for the installation of an alarm system and a plexiglass partition with a locked door between the employee area and the customer area. Turnway also installed in the employee area a phone that did not require money to place a "911" call and a video security camera. At some later point, Turnway removed the customer restroom because the employees found it difficult to keep the restroom [**4]  clean. According to Mr. Yin, Mr. Yuan, and other Turnway employees involved in making these decisions, Turnway did not seek prior approval from DD for these alterations.

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105 F. Supp. 2d 83 *; 2000 U.S. Dist. LEXIS 10537 **

WENDY HONG WU a/k/a HONG WU and ARTHUR LIN, Plaintiffs, -against- DUNKIN' DONUTS, INC., TURNWAY DONUTS, INC., RICK YUAN, JESSIE PAN, and YORK KISSENA REALTY, INC., Defendants.

Disposition:  [**1]  Defendant Dunkin' Donuts motion for summary judgment against plaintiffs GRANTED. Defendant York Kissena's motion for summary judgment against plaintiffs granted. Defendants Turnway and York Kissena's motions for summary judgment against Dunkin' Donuts' on its cross-claim dismissed as moot. Action dismissed.

CORE TERMS

franchisees, franchisor, Donuts, summary judgment, advertisement, employees, cases, franchise agreement, security measures, courts, manual, training, plaintiffs', customer, summary judgment motion, grant summary judgment, no evidence, install, suggestions, robberies, Grounds, give rise, partition, premises, vicariously liable, legal duty, hiring, alarm system, recommendations, alterations

Civil Procedure, Discovery, Methods of Discovery, General Overview, Summary Judgment, Entitlement as Matter of Law, Genuine Disputes, Materiality of Facts, Supporting Materials, Opposing Materials, Burdens of Proof, Business & Corporate Law, Distributorships & Franchises, Causes of Action, Agency Relationships, Torts, Vicarious Liability, Franchisees & Franchisors, Termination, Duty, Affirmative Duty to Act, Voluntary Assumption of Duty, Elements, Strict Liability, Abnormally Dangerous Activities, Fraud & Misrepresentation, Negligent Misrepresentation, Elements, Contributory Negligence, Limits on Application, Intentional Torts, Types of Special Relationships, Causation, Intentional Torts, Intentional Infliction of Emotional Distress, Family Law, Marital Duties & Rights, Loss of Consortium, Types of Losses, Loss of Consortium