Opinion
No. CV07-5011963S
March 5, 2008
MEMORANDUM OF DECISION
The matter presently before the court arises out of a July 26, 2005 motor vehicle accident. The plaintiff, Ferdinand Oquendo, executor for the estate of Edward Cirillo, alleges that Mr. Cirillo died when the brakes on his car failed and his vehicle crashed into the rear of a pickup truck.
The Amended Complaint, dated August 6, 2007, is comprised of three counts. The first and second counts were brought against the defendant GVL, Inc. dba Meineke Car Care Center, #66 (hereinafter "Meineke 66"), the Meineke franchise in North Haven, Connecticut, where Mr. Cirillo had historically taken his vehicle for repairs, and where he had brake work and repairs done on his vehicle on July 9, 2005. The third count is directed to the defendant Meineke Car Care Center, Inc., the franchisor (hereinafter "Meineke") and is based in negligence.
On August 20, 2007, Meineke filed a motion to strike the count of negligence directed against it, on the basis that it owed no duty to the plaintiff under the facts alleged. The plaintiff filed a memorandum of law in opposition to the motion. The matter was argued at the short calendar on February 11, 2008.
Meineke, in its motion to strike, moves to strike the second count of the complaint; the parties agreed at oral argument that the motion should be directed to the third count of the amended complaint, which is the only count directed against this defendant. As such, the court will address its ruling to the third count of the amended complaint.
DISCUSSION
"The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Peter-Michael, Inc. v. Sea Shell Associates, 244 Conn. 269, 270, 709 A.2d 558 (1998). The role of the trial court in ruling on a motion to strike is "to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [pleading party has] stated a legally sufficient cause of action." (Internal quotation marks omitted.) CT Page 3794 Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378, 698 A.2d 859 (1997). "In ruling on a motion to strike, the court is limited to the facts alleged in the complaint." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., supra, 240 Conn. 580. A "speaking" motion to strike (one imparting facts outside the pleadings) will not be granted. Doe v. Marselle, 38 Conn.App. 360, 364, 660 A.2d 871 (1995), rev'd on other grounds, 236 Conn. 845, 675 A.2d 835 (1996); see also Rowe v. Godou, 209 Conn. 273, 278, 550 A.2d 1073 (1988). "Where the legal grounds for . . . a motion [to strike] are dependent upon underlying facts not alleged in the plaintiff's pleadings, the defendant must await the evidence which may be adduced at trial, and the motion should be denied." Liljedahl Bros., Inc. v. Grigsby, 215 Conn. 345, 348, 576 A.2d 149 (1990). Nevertheless, not "every argument in a motion to strike is rendered defective by the moving party's allegation of some fact not contained in the pleadings, regardless of whether that fact is relevant for each argument in the motion." Id., 348-49.
In its memorandum of law in support of its motion to strike, Meineke states that the allegations against it are only that "it failed to ensure that its local franchisee knew what it was doing when it came to brake repair." Meineke argues that it owes no duty to the plaintiff's decedent, and that the plaintiff's cause of action must fail. Meineke points out that Connecticut courts have routinely refused to allow claims against franchisors for the negligent acts of its franchisees, where the claim is that the franchisor is liable for the actions of the franchisee based upon theories of agency or vicarious liability. Meineke urges the court to disallow the plaintiff's attempted "end run" by rejecting the plaintiff's allegations that Meineke is directly negligent to the plaintiff because it failed to ensure that its franchisee knew what it was doing.
The plaintiff argues that the count of the complaint directed against Meineke alleges independent grounds of negligence against Meineke as well as vicarious liability for the acts of its franchisee. The plaintiff contends that the terms of the franchise agreement may very well vest sufficient control with Meineke for a finding of liability against it, and that Meineke's motion improperly calls upon this court to make factual findings.
The plaintiff alleges in the amended complaint that Meineke is the franchisor for car care centers in Connecticut and nationwide. The plaintiff further alleges that Mr. Cirillo's injuries, losses and death were caused by the negligence of Meineke, its agents, servants, and/or employees, as follows:
a. In that they failed to ensure that its franchisee possessed the requisite qualifications competently to operate a Meineke franchise which offered brake repair services;
b. In that it failed to ensure that its franchisee hired mechanics with the requisite qualifications competently to operate a Meineke franchise which offered brake repair services;
c. In that it failed to monitor its Meineke franchise at a time of transition from primarily muffler services to a time of offering a broader spectrum of services including brake services and to ensure that the franchise was competently equipped and had personnel qualified to the tasks; and/or
d. In that failed to conduct adequate inspection of its franchisee to ensure that its employees were competent to offer brake services.
The basic issue is whether Meineke, a franchisor, owed a duty of care to a customer of its franchisee.
The existence of a duty of care is a prerequisite to a finding of negligence. The essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury. The existence of a duty is a question of law and only if such a duty is found to exist does the trier of fact then determine whether the defendant [breached] that duty in the particular situation at hand. If a court determines, as a matter of law, that a defendant owes no duty to a plaintiff, the plaintiff cannot recover in negligence from the defendant. Duty is a legal conclusion about relationships between individuals, made after the fact, and imperative to a negligence cause of action. The nature of the duty, and the specific persons to whom it is owed, are determined by the circumstances surrounding the conduct of the individual . . .
Gomes v. Commercial Union Ins., 258 Conn. 603, 614-15 (2001) (citations omitted; internal quotation marks omitted).
"A duty to use care may arise from a contract, from a statute, or from circumstances under which a reasonable person, knowing what he knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result from his act or failure to act." (Citations omitted; internal quotation marks omitted.) Sevigny v. Dibble Hollow Condominium, 76 Conn.App. 306, 318 (2003).
Meineke cites Angelo v. Southland Corp., judicial district of New Haven, Docket No. 0404853185 (October 5, 2005) (Corradino, J.) [40 Conn. L. Rptr. 94], Ward v. McDonald's Restaurant, Superior Court, judicial district of New Haven, Docket No. 010457008 (October 29, 2002) (Arnold, J.) [33 Conn. L. Rptr. 354], and Curcurato v. Southland Corp., Superior Court, judicial district of Waterbury, Docket No. 980143960 (November 10, 1998) (Vertefeuille, J.), for the proposition that Connecticut courts have routinely disallowed claims against franchisors for acts or omissions based upon theories of agency or vicarious liability. These cases, however, were all premises liability cases where the focus, properly, was on whether the franchisor was in possession and control of the premises; additionally, and importantly, all three cases involved motions for summary judgments and examinations of supporting documentation by the various courts.
It is well-established in Connecticut that liability for injuries caused by defective premises is based upon possession and control, rather than on title. E.g. Farlow v. Andrews Corp., 154 Conn. 220, 225 (1966). The Angelo case, a slip and fall at a 7-Eleven, involved a franchisor who was an out-of-possession landlord; the court, which reviewed documents including the lease agreement and franchise agreement, approached the issue in terms of lessor/lessee law in granting the franchisor/landlord's motion for summary judgment. The Curcurato and Ward cases also involved slip and falls; those courts also reviewed the supporting documentation submitted by the parties before concluding that the franchisor was not in possession or control of the premises. See also Wunder v. Mobil Oil Corp., Superior Court, judicial district of New London, Docket No. 000120525 (October 24, 2002) (McLachlan, J.) (denying franchisor's motion for summary judgment in case claiming negligent security at premises; held, issue of fact as to whether franchisor exercised control over security at the premises so as to owe legal duty to plaintiff's decedent, an employee of the franchisee); Jackson v. Exxon Mobil Oil Corp., Superior Court, judicial district of New Haven, Docket No. 010455046 (March 26, 2002) (Robinson, R., J.) (denying franchisor's motion to strike where complaint alleged that the plaintiff, a customer, was assaulted; the court noted that the issue raised, whether the franchisor owed a duty of care to its franchisee's customer, could not be appropriately decided on a motion to strike); Hobart v. McDonald's Restaurant of CT, Superior Court, judicial district of New Haven, Docket No. 980263193 (July 19, 1999) (Beach, J.) (granting franchisor's motion for summary judgment where plaintiff, a customer of franchisee, slipped and fell on garbage on the floor; the court, after examining the affidavits and lease agreement, found that franchisor had no possession or control of the premises, and that there was no involvement of any directives from the franchisor with respect to garbage on the floor); Garnett v. McDonald's Corp., Superior Court, judicial district of New Haven, Docket No. 920330016 (October 15, 1993) (Zoarski, J.) (denying franchisor's motion for summary in slip and fall case; the court reviewed the franchisee agreement, operator's lease, and affidavit, and accepted the argument of the plaintiff, a patron of the franchisee, that the franchisee was required to follow the "McDonald's System" with respect to practices regarding cleanliness and mopping the floor); Posta v. McDonald's Corp., Superior Court, judicial district of Fairfield at Bridgeport, Docket No. 900275577 (February 18, 1992) (Lewis, J.) [6 Conn. L. Rptr. 617] (denying franchisor's motion for summary judgment in case involving slip and fall on sidewalk; the court stated that "The relationship between . . . a franchisor and franchisee should be analyzed in the context of a factual hearing, and does not lend itself to disposition by way of summary judgment").
The premises liability cases cited above properly focus on possession and control of the physical premises in the context of the franchisor/franchisee relationship, and are illustrative of the necessity for the court to evaluate the evidence in order to arrive at a factual determination as to the level of control retained by a franchisor over a franchisee. They do not stand for the broad proposition that claims against franchisors based upon agency or vicarious liability theories are generally disallowed. While this court agrees that typically, a franchise is not a principal-agent relationship, the issue is whether a particular franchisor in a given case has exercised such control over its franchise that it rises to the level of a principal-agent relationship, such that the franchisor owes a duty to a customer of its franchisee. This evaluation requires a court to examine both the relationship between the parties to the franchise agreement as well as the degree of control retained by the franchisor, not limited to possession and control of the physical premises.
Although beyond the scope of this motion to strike, facts considered by courts in determining whether there is an agency relationship between a franchisor and franchisee include the control or right to control day-to-day details such as hiring, firing, wages, benefits, promotions, and training of the employees, prices charged to customers, financial methods and record-keeping, local and national advertising, inventory control, required insurance, maintenance standards, hours and days of operation, settlement of claims, forms and stationery, suppliers, portion sizes, location and decor, sharing profits, and requiring payments to a national advertising fund. See "Franchisor Liability to Third Parties," 49 Mo. L.R 309 (1984).
Courts of other jurisdictions have held that an agency relationship exists within the framework of a franchise agreement. E.g. Nichols v. Arthur Murray, Inc., 248 Cal.App.2d 610, 615, 56 Cal.Rptr. 728, 732 (1967). Other courts, in the absence of an actual agency relationship, have held a franchisor liable under an apparent authority theory. E.g. Drexel v. Union Prescription Centers, 582 F.2d 781, 795 (3d Cir. 1978). Courts of other jurisdictions have also held that even in the absence of an agency relationship between a franchisor and franchisee, a franchisor could be liable to a customer of the franchisee on a breach of warranty theory. Hayward v. Holiday Inns, Inc., 459 F.Sup. 634 (1978, E.D.Va.).
Generally, a franchise contract requires that the franchisee must maintain certain quality or service standards, so as to preserve the reputation of the trade name or trademark, and federal law requires that the franchisor exercise some control to avoid abandonment of the mark. See "Tort Liability of a Non Manufacturing Franchisor for Acts of its Franchisee," 79 U. CIN. L.R. 720 (1979). The determination of the extent of the control and right to control retained by Meineke, and whether the control extended beyond that necessary to protect its trade name and trademark, is a question of fact that simply cannot be resolved on a motion to strike.
Meineke cites Snowberger v. Americo Henriques, Superior Court, judicial district of Waterbury, Docket No. 010167144 (Sept. 18, 2002) (McWeeny, J.), a case involving numerous defendants where the allegations were that migrating gasoline resulted in a fatal explosion, in support of its claim that Connecticut courts refuse to allow claims against franchisors based upon theories of agency or vicarious liability. While the Snowberger court did grant summary judgment in favor of the franchisor, it did so only after a careful review of the franchise agreement and thorough analysis of the alleged agency relationship, including the ability of the franchisor to control the work of the franchisee; the court noted that "the evidence with respect to the franchise agreement, ownership and control of the operation is undisputed."
Meineke also relies on McLaughlin v. Chicken Delight, Inc., 164 Conn. 317 (1973), which involved a trial to the court. The plaintiff alleged that the motor vehicle which struck and killed his decedent was owned and operated by the defendant franchisor.
The trial court considered all the evidence bearing on the finding of an agency relationship, including the franchise agreement, and found in favor of the franchisor on the issue. The Connecticut Supreme Court holding, that the trial court's findings supported its conclusion that the plaintiff failed to establish an agency relationship, noted that "an essential factor in an agency relationship is the right of the principal to direct and control the performance of the work by the agent." CT Page 3799 Id. (Citations omitted).
Mantie v. Lynn Coda-Klein, Superior Court, judicial district of Tolland, Docket No. 9558009 (September 29, 1997) (Sullivan, J.), is similar to the present case. In Mantie, the court denied the franchisor's motion to strike, which claimed no duty ran from the franchisor to the plaintiff's decedent, who allegedly died as a result of the defective condition of the driveway entrance into the hotel. The complaint alleged that the franchisor had reserved for itself certain prerogatives, including the right to approve or disapprove the site plans for the construction, and had nonetheless allowed the franchisee to commence operations without approving the plans. The court explained:
The focal issue of this question is whether this defendant did or did not exercise such a degree of control over the premises, through the franchise agreement with the defendant the Inn at Manchester, Inc., so as to exercise legal control over the construction of the driveway entrance. The plaintiff alleges such a degree of control over this construction, and the ability to withhold franchise granting in the event of failure to comply, so as to arguably set forth a cause of action against this defendant. As to whether the plaintiff will prevail on his claim is problematical. Suffice it to state that the complaint set forth a colorable claim of duty owed to the plaintiff. Hence the motion to strike the sixth count of the complaint cannot be granted, and is denied.
Id.
In the present case, as in Mantie, the plaintiff has alleged sufficient facts to give rise to a duty owed to the plaintiff. Here, the plaintiff alleged, inter alia, the right of Meineke to control its franchisee by conducting inspections to ensure that the employees were competent to offer brake services, overseeing the franchisee's hiring of competent mechanics, monitoring the franchise when it transitioned from primarily offering muffler services to a broader range of services, and ensuring that the franchise was competently equipped and had qualified personnel. The plaintiff further alleges in his claim against Meineke that Mr. Cirillo's injuries, losses, and death were caused by Meineke, its agents, servants, and/or employees. The plaintiff has sufficiently pled control and the right of control on the part of Meineke and an agency relationship such that the amended complaint sufficiently sets forth a direct claim of negligence as well as a claim based on an agency relationship. Whether the claim can withstand evidentiary scrutiny is not for this court to decide; for purposes of the motion to strike, the plaintiff has sufficiently pled a cause of action in negligence against Meineke.
The court recognizes that the mere rights of a franchisor to inspect or supervise may or may not ultimately give rise to a duty owed to a patron of the franchisee. Those rights, coupled with the right of a franchisor to make recommendations, may or may not give rise to such a duty. Carried one step further, those rights, with the added rights to demand compliance with any recommendations, and the right to terminate the franchise agreement should the franchisor fail to comply, may or may not give rise to such a duty. Arguably, a situation where the franchisor has the power necessary to make changes in the franchise operation so as to minimize the risk of injury may very well give rise to a duty owed by the franchisor to the customer of its franchisee. In the present case, however, it is impossible, and inappropriate at this stage, to determine whether Meineke's relationship with Meineke #66 was such that it had a reasonable opportunity to reduce the risk of a foreseeable injury giving rise to a duty owed to this plaintiff.
Accordingly, Meineke's motion to strike is denied.