Lind v. Domino's Pizza LLC

• Decision Date: 29 July 2015
• Docket Number: No. 14–P–928.,14–P–928.
• Parties: Michael A. LIND, coadministrator, & another v. DOMINO'S PIZZA LLC & another.
• Court: Appeals Court of Massachusetts

87 Mass.App.Ct. 650

37 N.E.3d 1

Michael A. LIND, coadministrator¹ & another²

v.DOMINO'S PIZZA LLC & another.³

No. 14–P–928.

Appeals Court of Massachusetts, Hampden.

Argued March 12, 2015.

Decided July 29, 2015.

John J. Egan, Springfield, for the plaintiffs.

Paul G. Boylan, Boston (Kevin G. Kenneally, Boston, & John F. Burke, Jr., Springfield, with him) for the defendants.

Present: GRAINGER, MEADE, & FECTEAU, JJ.

Opinion

FECTEAU

, J.

Plaintiffs Michael Lind and Lisa Bishop, coadministrators of the estate of their son, Corey M. Lind (Corey), appeal from separate and final judgments entered in the Superior Court resolving all claims in favor of the defendants Domino's Pizza LLC and Domino's Pizza, Inc., in connection with the plaintiffs' wrongful death action filed pursuant to G.L. c. 229, § 2

.⁴ The

plaintiffs challenge as error the reconsideration and partial allowance by the judge, on the eve of trial, of the defendants' motion for summary judgment.⁵ The plaintiffs also challenge rulings made by the judge during trial excluding certain testimony and declining to give a particular jury instruction. Finally, the plaintiffs contend the judge erred in denying their motions for reconsideration and a new trial. We affirm.

Background. The relevant facts are largely undisputed. In June, 2003, David Jenks, the president of Springfield Pie, Inc. (Springfield Pie), entered into a “Standard Franchise Agreement” (franchise agreement) with Domino's Pizza LLC,⁶ providing that Springfield Pie, the franchisee, would operate a Domino's Pizza Store at 624 Boston Road in Springfield (Boston Road store or store). The franchise agreement generally provided that Springfield Pie would be bound by basic operational standards as set forth by Domino's, but would otherwise exercise control over the day-to-day operations of the store.

Springfield Pie hired Corey as a delivery driver in 2007 to work in the Boston Road store. At about 2:30 a.m. on December 8, 2007, a Saturday, a man named “Alex,” later identified as Alex Morales, telephoned the Boston Road store and reached Cassandra, the wife of the store's manager, Carl Johnson. Morales placed an order, and provided his telephone number and requested a delivery to 104 Arnold Avenue in Springfield. Around 2:50 a.m. , Corey left to make the delivery at that address, but he returned a few minutes later because the address was not valid. Cassandra telephoned Morales and told him that the delivery driver could not find the address. Morales said he was farther down Arnold Avenue toward Christopher Drive. Cassandra relayed this information to Johnson, who, believing that Christopher Drive ran parallel to Arnold Avenue (not perpendicular, as Morales had indicated), decided to telephone Morales himself. Johnson asked Morales exactly where he was; Morales gave a different, more specific address and claimed that he was in a house. Johnson asked Morales to leave the front porch light on and wait in the doorway for the delivery driver; Morales agreed and Johnson ended the call.

Johnson explained to Corey where the house was located, and showed him the location on the store map. Corey left the store to make the delivery to Morales and a second, separate order after that. Around 3:34 a.m. , Morales telephoned the store and said he had not yet received his food. Johnson explained to him that the driver (Corey) did not have a cellular telephone, but that Johnson would make sure that Morales received his order. Johnson left the store to look for Corey, but was unable to find him after searching for about an hour. In the meantime, Johnson telephoned the store and spoke to Cassandra, who told him that Morales had telephoned the store at 3:44 a.m. and said that he no longer wanted the order delivered.

It was eventually discovered that Morales had kidnapped, robbed, and murdered Corey after Corey attempted to deliver the order to him. Morales, who confessed to police in varying stages, was convicted of murder in the first degree, armed robbery, and kidnapping, and those convictions were affirmed by the Supreme Judicial Court. See Commonwealth v. Morales, 461 Mass. 765, 965 N.E.2d 177 (2012)

.⁷

1. Summary judgment ruling. “The standard of review of a grant of summary judgment is whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law.” Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120, 571 N.E.2d 357 (1991)

. See Mass.R.Civ.P. 56(c), as amended, 436 Mass. 1404 (2002). The moving party bears the burden of demonstrating affirmatively the absence of a triable issue and entitlement to judgment as a matter of law. Pederson v. Time, Inc., 404 Mass. 14, 16–17, 532 N.E.2d 1211 (1989). In determining whether a genuine issue of material fact exists, the judge must draw all inferences from the underlying facts in the light most favorable to the party opposing the motion. Attorney Gen. v. Bailey, 386 Mass. 367, 371, 436 N.E.2d 139 (1982). An appellate court reviewing summary judgment must examine its allowance de novo and based on same record as the motion judge. Fortenbacher v. Commonwealth, 72 Mass.App.Ct. 82, 85, 888 N.E.2d 377 (2008).

“We note at the outset that the trial judge had the authority to reconsider the motion for summary judgment sua sponte.”

Riley v. Presnell, 409 Mass. 239, 242, 565 N.E.2d 780 (1991)

. Although judges “should ... hesitate to undo the work of another judge,” Peterson v. Hopson, 306 Mass. 597, 603, 29 N.E.2d 140 (1940), we do not agree with the plaintiffs that it was error for the trial judge, sua sponte, to reconsider Domino's summary judgment motion after it had been denied by another judge. Although this practice might not follow recommended procedures, see Superior Court Rule 9D, “there is no lack of power” to do so, and, until final judgment is entered, a judge is free to do so. Peterson v. Hopson, supra. See Dolan v. Von Zweck, 19 Mass.App.Ct. 1032, 1034, 477 N.E.2d 200 (1985) (“An order merely denying a motion for summary judgment ... does not amount to a final judgment and may be modified or changed at any time prior to final judgment”). Here, there was additional evidence entered in the record following the initial November 8, 2012, denial of the motion, and before the May, 2013, partial allowance of the motion. Moreover, this is not a case where the judge's reconsideration of a motion previously denied “further exacerbated” a party's predicament by, for example, forcing it to alter entirely its defense on the eve of trial without the benefit of a requested continuance. See Barbosa v. Hopper Feeds, Inc., 404 Mass. 610, 622, 537 N.E.2d 99 (1989). We turn now to the merits of each claim pleaded by the plaintiffs and dismissed on summary judgment.

a. Vicarious liability. The parties agree that the controlling decision where a plaintiff seeks to hold a franchisor vicariously liable for an alleged tort of its franchisee is Depianti v. Jan–Pro Franchising Intl., Inc., 465 Mass. 607, 990 N.E.2d 1054 (2013)

(Depianti ).⁸ In Depianti, the Supreme Judicial Court noted that the usual rules of agency do not transfer easily to the franchisor-franchisee context because, although franchisors are required under the Lanham Act, 15 U.S.C. § 1064(5)(A) (2006), to maintain baseline controls and standards relating to their trademarks, Federal rules concerning trademark protection were “not intended to ‘create a [F]ederal law of agency.’ ” Id. at 615, 990 N.E.2d 1054, quoting from Oberlin v. Marlin Am. Corp., 596 F.2d 1322, 1327 (7th Cir.1979). The mere fact that franchisors set baseline standards and regulations that franchisees must follow in an effort to protect the franchisor's trademarks and

comply with Federal law, does not mean that franchisors have undertaken an agency relationship with the franchisee such that vicarious liability should apply. See ibid. Ultimately, the Supreme Judicial Court, referencing with approval the analysis of Kerl v. Dennis Rasmussen, Inc., 273 Wis.2d 106, 682 N.W.2d 328 (2004)

(Kerl ), held that “a franchisor is vicariously liable for the conduct of its franchisee only where the franchisor controls or has a right to control the specific policy or practice resulting in harm to the plaintiff.” Depianti, supra at 617, 990 N.E.2d 1054. The specific policy or practice should “be understood broadly, as the particular practice of the franchisee that led to the plaintiff's injury.” Id. at 617 n. 11, 990 N.E.2d 1054.

Other jurisdictions have applied similar tests and, in doing so, have consistently ruled that, as matter of law, franchisors are not vicariously liable for the alleged torts of their franchisees. See, e.g., Wendy Hong Wu v. Dunkin' Donuts, Inc., 105 F.Supp.2d 83, 88 (E.D.N.Y.2000)

(determining as matter of law that franchisor not vicariously liable for franchisee's security deficiencies because franchise agreement did not give franchisor “considerable control ... over the specific instrumentality at issue”); Kerl, supra at 131–134, 682 N.W.2d 328

(restaurant franchisor not vicariously liable for franchisee's negligent supervision of employees where franchisor had no control or right of control over daily hiring and supervision of franchisee's employees). But see Butler v. McDonald's Corp., 110 F.Supp.2d 62, 67–68 (D.R.I.2000) (denying franchisor's summary judgment motion because franchisor required franchisees to conform to comprehensive system, inspected franchisee premises and operations frequently, took profits, and had a right to terminate agreement in event of franchisee breach).⁹

Applying the Depianti test here, we conclude that the plaintiffs failed to establish a genuine issue of fact whether Domino's

either controlled or had the right to control the specific policy or practice that resulted in harm to Corey. We note initially that the “specific policy or practice resulting in harm to the plaintiff” is difficult to ascertain...