Carrick v. Franchise Associates, Inc., 94-637

• Decision Date: 27 October 1995
• Docket Number: No. 94-637,94-637
• Citation: 671 A.2d 1243,164 Vt. 418
• Parties: Sandra M. CARRICK v. FRANCHISE ASSOCIATES, INC., Howard Johnson Company, and Prime Hospitality Corporation.
• Court: Vermont Supreme Court

Page 1243

671 A.2d 1243

164 Vt. 418

Sandra M. CARRICK v. FRANCHISE ASSOCIATES, INC., Howard Johnson Company, and Prime Hospitality Corporation.

No. 94-637.

Supreme Court of Vermont.

Oct. 27, 1995.

Motion for Reargument Denied Dec. 11, 1995.

Richard S. Bloomer of Lorentz, Bloomer & Harnett, P.C., Rutland, for plaintiff-appellant.

Douglas D. Le Brun of Dinse, Erdmann & Clapp, Burlington, for defendants-appellees.

Before GIBSON, DOOLEY, MORSE and JOHNSON, JJ., and MALONEY, Superior Judge, Specially Assigned.

GIBSON, Justice.

Plaintiff Sandra Carrick appeals from an order of the Rutland Superior Court granting summary judgment to defendants on plaintiff's claims of franchisor liability under the Dram Shop Act, 7 V.S.A. §§ 501-507. We affirm.

The facts are not in dispute. On the evening of January 16, 1991, Shawn C. Forrest was a customer at the Plug & Feather Lounge in Rutland. Over the course of approximately four hours, employees of the Plug & Feather served Mr. Forrest eight mixed drinks, which he consumed. Mr. Forrest then left the Plug & Feather and, while driving south on Route 7 at a high rate of speed, ran a red light and collided with a vehicle driven by plaintiff's decedent, Michael Carrick. Mr. Carrick died of the injuries he received in the crash.

The Plug & Feather is located within the Howard Johnson Restaurant in Rutland. The building housing the restaurant and lounge bears the orange-tile roof and other trademarks and trade dress of defendant Howard Johnson Company (HJC) and is located next door to a Howard Johnson Motor Lodge. The Motor Lodge operates under a license from defendant Prime Hospitality Corporation (Prime). The property on which the restaurant and lounge are located is leased to Brown & Currier, Inc., which operates the restaurant and lounge under a franchise agreement with defendant Franchise Associates, Inc. (FAI). A separate trademark agreement between FAI and HJC allows FAI to license the use of the Howard Johnson name and trademarks.

Plaintiff brought suit in Rutland Superior Court against HJC, FAI and Prime, alleging that each had violated Vermont's Dram Shop Act by failing to take reasonable steps to prevent Brown & Currier, as operators of the Plug & Feather, from overserving alcohol to Mr. Forrest. ¹ Defendants moved for summary judgment on the ground that plaintiff had failed to show that defendants, as franchisors, had sold or furnished alcoholic beverages to Mr. Forrest, as required by 7 V.S.A. § 501(a). The court granted summary judgment in defendants' favor, and the present appeal followed.

A motion for summary judgment should be granted only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law." V.R.C.P. 56(c)(3); Ross v. Times Mirror, Inc., 164 Vt. 13, ---- - ----, 665 A.2d 580, 582-83 (1995). The sole issue on appeal is whether defendants, as franchisors of the "Howard Johnson" name and trademarks, can be held liable under the "furnishing" provision of the Dram Shop Act, which states:

A spouse, child, guardian, employer or other person who is injured in person, property or means of support by an intoxicated person, or in consequence of the intoxication of any person, shall have a right of action in his or her own name, jointly or severally, against any person or persons who have caused in whole or in part such intoxication by selling or furnishing intoxicating liquor....

7 V.S.A. § 501(a) (emphasis added).

Our previous decisions have defined "furnishing" to include "supplying" in a manner other than by selling. State v. McDermott, 108 Vt. 58, 60, 182 A. 191, 192 (1936); see also Estate of Kelley v. Moguls, Inc., 160 Vt. 531, 535, 632 A.2d 360, 363 (1993) (using terms "furnishing alcohol" and "supplying alcohol" interchangeably). Defendants argue that a person "furnishing" alcohol must actually possess and directly provide an alcoholic beverage to a consumer. We agree that the word "furnishing," as used in our Dram Shop Act, connotes possession or control of the alcoholic beverage by the furnisher. See Bennett v. Letterly, 74 Cal.App.3d 901, 141 Cal.Rptr. 682, 684 (1977) ("[t]he word 'furnish' implies some type of affirmative action on the part of the furnisher"); see also Lather v. Berg, 519 N.E.2d 755, 761 (Ind.Ct.App.1988) (under Indiana's Dram Shop Act, liability for "furnishing" alcoholic beverages is limited to "supplier [who] was 'the active means by and through which the liquor [was] placed in the custody and control of persons whom the statute was enacted to protect' ") (quoting Banks v. State, 123 N.E. 691, 693 (Ind.1919)). In the instant case, there is no allegation that defendants ever had possession of the alcoholic beverages that were served to Mr. Forrest by the Plug & Feather. To avoid summary judgment, therefore, the record must show that defendants had control over the service of alcoholic...