Vandemark v. McDonald's Corp. - 153 N.H. 753, 904 A.2d 627 (2006)

Rule:

Absent a showing of control over security measures employed by a franchisee, a franchiser cannot be vicariously liable for the security breach.

Facts:

Plaintiff custodian, who worked for a franchisee when the restaurant was closed, was attacked while taking a break outside the restaurant. Plaintiff sued defendant franchiser alleging claims for negligence and vicarious liability. The trial court granted the defendant’s motion for summary judgment. Plaintiff appealed, arguing that the defendant voluntarily assumed a duty to ensure that a management company would follow the franchiser's security measures designed to protect employees by adopting a quality, service, and cleanliness play book published by the franchiser. The plaintiff also argued that the trial court erred in failing to find the existence of an agency relationship between the franchiser and the management company.

Issue:

1. Did the defendant voluntarily assume a duty to ensure that a management company would follow the franchiser's security measures? 
2. Did the trial court err in failing to find the existence of an agency relationship between the franchiser and the management company? 

Answer:

1) No. 2) No.

Conclusion:

The supreme court found no error, noting that, inter alia, the franchiser did not assume a duty to ensure that the management company would follow the franchiser's security measures and that the custodian failed to submit evidence that the franchiser knew, or should have known, that the restaurant was "shrouded by darkness" during the nighttime hours. Anent the second issue, the court held that the relevant documents expressly provided that there was no such agency relationship. The decision of the trial court was affirmed.