Antitrust Law Daily Wrap Up, FRANCHISING & DISTRIBUTION—Mass. App.: Domino’s partially off the hook for death of franchisee’s delivery driver, (Aug 4, 2015)

By Greg Hammond, J.D.

Franchisor Domino’s Pizza was not liable, under theories of vicarious liability and negligence, for the wrongful death of a franchisee’s delivery driver. who was kidnapped, robbed, and murdered by a customer in Springfield, Massachusetts. The Massachusetts Appeals Court in Boston affirmed a lower court’s order granting summary judgment, finding that Domino’s had disclaimed an agency relationship with the franchisee and did not breach any duty owed to either the franchisee or the delivery driver (Lind v. Domino’s Pizza LLC, July 29, 2015, Fecteau, F.).

Corey Lind was a Domino’s delivery driver who worked at Springfield Pie, a Domino’s franchise. He was kidnapped, robbed, and murdered by a customer who called in an order at approximately 2:30 a.m. Lind’s parents, Michael Lind and Lisa Bishop, filed a wrongful death suit against Domino’s Pizza LLC and Domino’s Pizza, Inc. The trial court granted summary judgment in favor of Domino’s on general negligence, third-party beneficiary, negligent supervision, and vicarious liability claims, leaving only claims for breach of voluntarily assumed duty. The plaintiffs appealed.

Vicarious liability. With regard to the plaintiffs’ vicarious liability claim, the appeals court first determined that the plaintiffs failed to establish a genuine issue of fact regarding whether Domino’s either controlled or had the right to control the specific policy or practice that resulted in harm to Lind. Specifically, Domino’s disclaimed an agency relationship with Springfield Pie and left it exclusively in Springfield Pie’s hands to supervise, train, and direct employees as to delivery and safety issues, and to implement safety measures above the baseline standards imposed by Domino’s. There was no genuine issue of material fact in whether any policy or practice of Domino’s, including a weapon prohibition, was directly and causally related to the harm suffered by Lind. Moreover, to any extent that a policy or practice relating to delivery resulted in or caused Lind’s harm, it was one exclusively controlled by Springfield Pie, the court concluded. It found that the harm that ultimately occurred would not have occurred but for the decision by Springfield Pie to send Lind on the delivery in question, despite the possible danger inherent in such a delivery.

Negligence. Summary judgment was also properly granted with regard to the negligence claim because there was no genuine issue of material fact regarding whether Domino’s exercised control over the daily operations of Springfield Pie such that Domino’s, as a matter of law, had a duty to protect Lind from the harm that befell him. The baseline requirements imposed by Domino’s on franchisees were clearly intended for protection of the Domino’s trademark, the court determined, and the franchisees were wholly responsible for the day-to-day operations of their stores, including ensuring the safety of employees.

Third-party beneficiary. The plaintiffs’ claim that Lind was a third-party beneficiary of an agreement between Domino’s and the U.S. Department of Justice was also unavailing. The primary purpose of the agreement was to prevent racial discrimination when limiting deliveries to certain geographical areas, not employee safety.

Negligent supervision, training. Domino’s also was properly granted summary judgment over the plaintiffs’ negligent supervision and training claim. The court determined that since Domino’s did not retain any right to demand more specific and comprehensive safety rules to be followed by all franchisees, it had no duty, either under the franchise agreement or otherwise, to do so.

Trial issues. The plaintiffs also appealed the trial court’s exclusion of testimony from the Springfield Deputy Chief of Police concerning the relative danger of the city of Springfield in 2007, compared to the rest of the United States, and testimony from their expert security witness. The court determined that exclusion of the Deputy Chief’s testimony would not have addressed the type of specific crimes that occurred in this case, and the security witness was properly excluded because he could not provide legal conclusions on whether Domino’s security plans were negligent.

The trial court properly denied giving a jury instruction that: “A person has a right to protect himself from attack provided that no more force than is reasonably necessary for that purpose is used.” This instruction was inapplicable to the plaintiffs’ argument that Domino’s restricted Lind’s right to self-defense by preventing him from carrying a weapon. Moreover, the Domino’s policy in question prohibited resistance to a robbery; it did not restrict drivers from resisting in the event of violence against their person. The instruction was therefore not pertinent.

New trial. Finally, the lower court did not err in denying the plaintiffs’ motion for a new trial. The plaintiffs did not meet their heavy burden to show that the verdict was against the weight of evidence, the court concluded, because a jury could have found—based on the evidence—that Domino’s reasonably discharged any duty it voluntarily assumed to protect Lind from the foreseeable harm of a third party.

The case number is 14-P-928.

Attorneys: John J. Egan (Egan, Flanagan and Cohen, PC) for Michael A. Lind. Paul G. Boylan (LeClairRyan) for Domino's Pizza LLC and Domino’s Pizza, Inc.

Companies: Domino’s Pizza LLC; Domino’s Pizza, Inc.

Cases: FranchisingDistribution MassachusettsNews