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Case Remanded for New Trial Due to Prejudicial Closing Statements by Opposing Counsel

A Florida appellate court recently affirmed the denial of Domino’s Pizza’s request for a directed verdict on its vicarious liability for the actions of its franchisee’s employee, but remanded the case for a new trial as a result of the opposing counsel’s improper closing argument. Domino’s Pizza, LLC v. Wiederhold, 2018 WL 2165224 (Fla. Dist. Ct. App. May 11, 2018). The plaintiff sued Domino’s on a vicarious liability theory after a franchisee’s delivery driver cut off the plaintiff’s husband in traffic, which resulted in a serious accident, and contributed to the husband’s death a year later. At trial, the jury rendered a verdict against Domino’s, finding that the franchisee was Domino’s agent at the time of the accident. Domino’s filed a renewed motion for a directed verdict on the grounds that it was not vicariously liable because it did not exercise control over the franchisee’s day-to-day operations, and also sought a new trial in light of comments made by the plaintiff’s counsel during her closing argument. The trial court denied both requests.

On appeal, Domino’s argued that it was not vicariously liable as a matter of law for the franchisee’s actions because the only control it exercised was mere “brand maintenance activities.” The appellate court held that the question of whether there was an agency relationship between Domino’s and the franchisee was properly presented to the jury as a question of fact because there was evidence supporting both sides. However, the court found that opposing counsel’s closing arguments were extremely prejudicial to Domino’s and that the trial court failed to correct several improper statements, including opposing counsel’s characterization of Domino’s business and legal strategies as a “greedy charade,” her attempt to invoke the “golden rule” by asking the jury to imagine itself in the plaintiff’s shoes, and her encouragement of the jury to “send a message” to Domino’s with the amount of its damages award. The court noted that while only some of opposing counsel’s arguments were properly objected to during the trial, when taken together the comments were not designed to prompt a logical analysis of the evidence in light of the governing law.

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The Franchise Memorandum is a collection of postings on summaries of recent legal developments of interest to franchisors brought to you by Lathrop GPM LLP. 

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