Wendy Hong Wu v. Dunkin' Donuts, Inc.

• Citation: 105 F.Supp.2d 83
• Decision Date: 14 June 2000
• Docket Number: No. 98-CV-3020 ARR.,98-CV-3020 ARR.
• Parties: WENDY HONG WU a/k/a Hong Wu and Arthur Lin, Plaintiffs, v. DUNKIN' DONUTS, INC., Turnway Donuts, Inc., Rick Yuan, Jessie Pan, and York Kissena Realty, Inc., Defendants.
• Court: U.S. District Court — Eastern District of New York

105 F.Supp.2d 83

WENDY HONG WU a/k/a Hong Wu and Arthur Lin, Plaintiffs, v. DUNKIN' DONUTS, INC., Turnway Donuts, Inc., Rick Yuan, Jessie Pan, and York Kissena Realty, Inc., Defendants.

No. 98-CV-3020 ARR.

United States District Court, E.D. New York.

June 14, 2000.

Madeline Lee Bryer, P.C., New York, NY, for Plaintiffs.

Christopher Kendric, Ahmuty, Demers & McManus, Albertson, NY, for Dunkin' Donuts.

Alice Spitz, Molod, Spitz, Desantis & Stark, P.C., New York, NY, for York Kissena.

Robert H. Goldberg, Goldberg & Carlton, P.C., New York, NY, for Turnway Donuts, Rick Yuan, and Jessie Phan.

OPINION AND ORDER

ROSS, District Judge.

This case addresses whether a franchisor may be held liable under New York law for an attack by third parties on an employee of its franchisee. In the early morning hours of May 25, 1999, Wendy Hong Wu was working alone at a twenty-four hour donut store owned by defendant Turnway Donuts, Inc. ("Turnway"), under a franchise agreement with defendant Dunkin' Donuts, Inc. ("Dunkin' Donuts" or "DD"). Two teenagers entered the store, gained access to the employee area behind the counter, and brutally attacked and raped Ms. Wu. Ms. Wu and her husband, Arthur Lin, allege, among other things, that the attack resulted in part from the vicarious and direct negligence of Dunkin' Donuts.¹ Dunkin' Donuts moves for summary judgment. There is no evidence in the record of this case that Dunkin' Donuts exercised actual control over the security measures taken by its franchisee Turnway or that Ms. Wu relied on any preventive actions taken by Dunkin' Donuts. The issue, then, is whether under New York law a franchisor's making of recommendations concerning security matters to its franchisees renders the franchisor legally responsible for ensuring the safety of its franchisees' employees. For the reasons stated below, the court concludes that it does not.

BACKGROUND

Except as otherwise indicated, the following facts are undisputed.

Plaintiffs Wendy Hong Wu and Arthur Lin reside in the state of Maine.

Dunkin' Donuts is a corporation incorporated in the state of Delaware and authorized to do business in and by the State of New York. Turnway is a New York corporation.

On April 23, 1992, Turnway entered into a franchise agreement with DD to operate a donut store at 59 Kissena Boulevard in Queens, New York.² Turnway renovated the premises, which had previously housed a furniture store, to facilitate the production and sale of donuts. Between 1992 and 1994, the donut store was robbed at least three times. At some point prior to the incident involving Ms. Wu, Jen Chuan Yin, the then-manager of the store, and Sam Yuan, part owner of the store, arranged for the installation of an alarm system and a plexiglass partition with a locked door between the employee area and the customer area. Turnway also installed in the employee area a phone that did not require money to place a "911" call and a video security camera. At some later point, Turnway removed the customer restroom because the employees found it difficult to keep the restroom clean. According to Mr. Yin, Mr. Yuan, and other Turnway employees involved in making these decisions, Turnway did not seek prior approval from DD for these alterations.

In 1994, DD retained Rolland Trayte as a security consultant for the corporation. Mr. Trayte reviewed materials that had been gathered on crimes in Dunkin' Donuts stores and offered several suggestions to company executives. Beginning in November 1994, DD included a series of articles on safety and security matters written by Mr. Trayte in Common Grounds, an internal newsletter that DD distributed to its franchisees, including Turnway.

In April 1995, Turnway placed an advertisement announcing a job opening at the Kissena Boulevard store in The World Journal, a Chinese-language newspaper. Ms. Wu replied to the advertisement and interviewed with Jessie Phan, the assistant manager of the store. Ms. Phan hired and trained Ms. Wu. At this time, Ms. Wu's English was quite limited and Ms. Phan spoke to Ms. Wu in Chinese. Ms. Wu usually worked the overnight shift, usually alone. A few weeks after Ms. Wu began, the store was robbed a fourth time. The robbery occurred during a night that Ms. Wu was not working. According to various Turnway employees, Ms. Wu was told about this robbery and was warned not to open either the back door that led to the street or the interior door that separated the employee area from the customer area. According to Ms. Wu, she was never told about this robbery. She also asserts that she never received training in crime prevention techniques or in handling emergencies.

On May 24, 1995, Ms. Wu was working a double shift beginning at 4:00 p.m. and continuing until 7:00 a.m. the next morning. At about 1:00 a.m. on May 25, two young males entered the store. One vomited on the floor. The other asked Ms. Wu for a mop. Ms. Wu opened the locked door that separated the employee area from the customer area and handed the young man a mop. After cleaning up the mess, the young man knocked again on the glass door and Ms. Wu opened the door to retrieve the mop. The two men brutally attacked Ms. Wu, repeatedly raping her and slashing her with a knife. Ms. Wu did not attempt to sound the alarm system or to use the free phone to call 911. According to an unsigned, unsworn letter from a security expert retained by the plaintiffs, the alarm system was not working and there was no video-tape in the security camera at the time the attack occurred.

This action followed. Ms. Wu claims that the defendants breached their duty to provide reasonable security and to protect those lawfully on the property from foreseeable criminal activity (first cause of action); made material misrepresentations to Ms. Wu concerning the safety of the store in general and the night shift in particular (second cause of action); intentionally caused emotional distress through these actions (third cause of action); and deprived Mr. Lin of his wife's company, comfort, society, and companionship (fourth cause of action). See Amended Complaint, attached as Exh. B to Affidavit of Christopher Kendric in Support of DD's Motion for Summary Judgment ("Kendric Aff.").

DISCUSSION

1. The Standard for Summary Judgment

In ruling on a motion for summary judgment, judgment "shall be rendered forthwith 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 the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). "[T]he burden is upon the moving party to demonstrate that no genuine issue respecting any material fact exists," Gallo v. Prudential Residential Services, L.P., 22 F.3d 1219, 1223 (2d Cir. 1994), but "the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). "On summary judgment the inferences to be drawn from the underlying facts ... must be viewed in the light most favorable to the party opposing the motion," United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962), but the non-moving party "must do more than show there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). In making the necessary showing, "[c]onclusory allegations [by the non-moving party] will not suffice to create a genuine issue." Delaware & Hudson Ry. Co. v. Consolidated Rail Corp., 902 F.2d 174, 178 (2d Cir.1990). A "genuine" issue is one that could be decided in favor of the non-moving party based on the evidence by a reasonable jury. Liberty Lobby, at 248, 106 S.Ct. at 2510. The role of the court in deciding a motion for summary judgment is not to decide issues of fact, but only to determine whether or not they exist. Rattner v. Netburn, 930 F.2d 204, 209 (2d Cir.1991).

II. Negligent Provision of Security

Plaintiffs assert three different rationales for their claim that Dunkin' Donuts is liable for failing to provide adequate security to Ms. Wu: first, that Dunkin' Donuts is vicariously liable for Turnway's allegedly negligent provision of security second, that DD is directly liable under an assumed duty theory; and third, that DD owes Ms. Wu a special and non-delegable duty by virtue of DD's requirement that the donut store remain open 24 hours a day.

A. Vicarious Liability

Plaintiffs claim that DD should be held vicariously liable for Turnway's allegedly negligent provision of security. In deciding whether a franchisor may be held vicariously liable for acts of its franchisees, courts determine whether the franchisor controls the day-to-day operations of the franchisee, and more specifically whether the franchisor exercises a considerable degree of control over the instrumentality at issue in a given case. See, e.g., Schoenwandt v. Jamfro Corp., 261 A.D.2d 117, 689 N.Y.S.2d 461 (1999) (summary judgment appropriate where relationship is "merely franchisor-franchisee" and there is no showing that franchisor "exercised complete domination and control of [franchisee's] daily operations or [that] such control resulted in plaintiff's injury"); see also Helmchen v. White Hen Pantry, 685 N.E.2d 180, 182 (Ind.Ct.App.1997) (reviewing case law from several jurisdictions raising similar issues and concluding the relevant inquiry is "whether there is a genuine issue of material fact as to the extent the [franchisor] controlled security measures at its convenience stores").

New York courts have granted summary judgment in favor of franchisors of restaurants and convenience stores in several recent cases in...