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Appeals Court of Massachusetts Upholds Finding That Franchisor is Not Liable for Wrongful Death of Franchisee's Employee

A Massachusetts state appellate court has affirmed a trial court holding that Domino's Pizza LLC was not liable when a pizza delivery driver was robbed, kidnapped, and killed while making an early morning delivery. Lind v. Domino's Pizza LLC, 87 Mass. App. Ct. 650 (Mass. App. July 29, 2015). The plaintiffs—the parents and co-administrators of the victim's estate—brought a wrongful death action against Domino's on theories of vicarious liability, negligence, and negligent supervision and training.

Observing that courts have "consistently" determined that franchisors are not vicariously liable for franchisees' torts, the appellate court held that a franchisor may only be liable if it controls or has the right to control the specific policy or practice resulting in harm. The court concluded Domino's did not control the policy or practice that gave rise to the harm, based on these facts: (1) the franchisee kept his store open two hours later than Domino's required; (2) Domino's gave franchisees discretion regarding whether to deliver to suspicious callers; (3) Domino's required stores to have caller identification or create a "security callback" system to follow-up on late night, suspicious, or first-time callers; and (4) the store manager's affidavit stated that the franchisee established the process by which the victim was sent to make the delivery. The appellate court added that Domino's requirement that drivers wear a uniform and have a lighted sign on the delivery vehicle was to protect Domino's trademarks, and did not establish control. Further, the court noted that the franchise agreement explicitly disclaimed any agency relationship between Domino's and the franchisee.

The court also noted that, although Domino's had implemented some policies to ensure the safety of drivers during the delivery process—such as prohibiting drivers from carrying weapons or cash over twenty dollars, or requiring that they not resist during a robbery attempt—there was an insufficient causal link between the policies and the harm to the victim. Finally, the court held Domino's could not be liable for negligence because it did not exercise sufficient control over the store's daily operations to owe the victim a duty of protection.

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