499 A.2d 999 (N.H. 1985), 84-288, Collectramatic, Inc. v. Kentucky Fried Chicken Corp.

Docket Nº:84-288.
Citation:499 A.2d 999, 127 N.H. 318
Attorney:Kearns, Colliander, Donahue & Tucker P.A., of Exeter (David S. Brown on the brief and orally), for the plaintiff. Upton, Sanders & Smith, of Concord (Gilbert Upton on the brief and orally), for the defendant.
Case Date:October 24, 1985
Court:Supreme Court of New Hampshire

Page 999

499 A.2d 999 (N.H. 1985)

127 N.H. 318




No. 84-288.

Supreme Court of New Hampshire.

October 24, 1985

[127 N.H. 319] Kearns, Colliander, Donahue & Tucker P.A., Exeter (David S. Brown, on brief and orally), for plaintiff.

Upton, Sanders & Smith, Concord (Gilbert Upton, on brief and orally), for defendant.


The plaintiff appeals the dismissal by the Superior Court (Dalianis, J.) of its third-party action for implied indemnity and/or contribution. We affirm.

On April 11, 1980, Joseph Wise was injured when hot grease spilled onto him while he was cleaning a Collectramatic Model 720 pressure fryer in the course of his employment at a Kentucky Fried Chicken restaurant in Salem. He sued the current third-party plaintiff, Collectramatic, Inc., manufacturer of the fryer, for his injuries. While that action was pending, Collectramatic brought this third-party action against defendant, Kentucky Fried Chicken Corp. (KFCC), the franchisor of all Kentucky Fried Chicken restaurants. Wise, the injured employee, was employed by the franchise holder of the Kentucky Fried Chicken restaurant where he worked, not by KFCC, the franchisor. Since this third-party action was brought, Wise's suit against Collectramatic has been settled. Thus, at issue here is KFCC's liability to Collectramatic for the amount of the settlement.

Collectramatic alleges that a special relationship existed between it and KFCC. A very high percentage of its Model 720 pressure fryers were in use at KFCC franchises. When Collectramatic became aware that the Model 720 had been involved in many personal injury accidents because of the model's bottom-mount collector, it [127 N.H. 320] issued advisories to KFCC regarding proper use of the product. It also provided users a special collector removal tool to remedy the problem and advised KFCC of this fact, and it eventually made a design change, going to a drop-in collector instead of the bottom-mount. Users of the Model 720 could obtain the drop-in collector free of charge, and KFCC and users of the Model 720 were so advised. All of the above occurred well before the injury to Wise. The pressure fryer involved in his injury had not been fitted with the design change.

Page 1000

Furthermore, Collectramatic argues that KFCC was in a better position to require franchisees to use the...

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