N.Y. judge finds franchisor cannot be held liable for franchisee's alleged negligence
(Tuesday, January 02, 2007) - A franchisor cannot be held liable for the alleged negligence of a franchisee merely because they have a relationship, a Suffolk County, N.Y., judge has ruled in dismissing a claim against 7-Eleven lodged by a customer splashed with hot coffee.
Supreme Court Justice Robert W. Doyle granted summary judgment dismissing a suit against the company by Eugene Nickola, who alleges he was injured during an altercation between another customer and an employee of a Greenport 7-Eleven.
In Nickola v. 7-Eleven, 03-13494, Doyle explained that in determining whether a franchisor may be held vicariously liable for the acts of its franchisee, the most important factor to consider is the degree of control the franchisor maintains over the daily operations of the franchisee. Here, the judge found, 7-Eleven exercised no control over the activities that led to Nickola's injury.
"Thus, in the absence of a principal/agent relationship, or proof that the franchisor exercised a high degree of control over the franchisee, there is no basis for holding the franchisor responsible for the franchisee's misconduct," Doyle said.
The judge permitted claims filed by Nickola against Farroq Baig, owner of the 7-Eleven franchise, and Mirzra Mahmud, the employee involved in the altercation, to proceed. Jury selection is scheduled to begin on Jan. 10.
Nickola was present on May 22, 2002, when Mahmud began struggling with a customer for possession of a coffee pot. Nickola was standing shoulder to shoulder with the customer but was not involved in the dispute.
In his examination before trial, Nickola testified that Mahmud wrenched the pot away and threw the coffee at the customer, but the liquid missed its target and instead hit Nickola on his head, neck and shoulder.
Shahnawaz Baig, manager of the store, testified that the coffee was brewing when the customer picked up the pot. He said that Mahmud intervened and, in the ensuing struggle, both the employee and Nickola were splashed.
Nickola, and his wife are seeking compensation for his personal injuries.
In its motion for summary judgment, 7-Eleven argued that there is no evidence of negligence on its part and that the existence of a franchisee/franchisor relationship is insufficient to impose vicarious liability on 7-Eleven for the acts of an individual employed by an independent franchisee.
In an affidavit, Anthony Bravata, the loss prevention manager for 7-Eleven, testified that Farroq Baig made all the decisions related to the daily operations of the franchise.
Bravata said that although he was responsible for providing security training, the franchises were not mandated to follow his training recommendations. He added that 7-Eleven did not train Mahmud and had no records of any improper behavior involving him.
Justice Doyle said 7-Eleven met its burden for summary judgment by showing that it had neither hired Mahmud nor maintained the right to direct and control his work.
Nickola did not oppose 7-Eleven's motion.
Charles M. Schnepp Jr. of Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger in Uniondale, N.Y., represented 7-Eleven, Baig and Mahmud. He said Justice Doyle's decision made "absolute sense," and he believes his other clients will be acquitted as well.
Glen Faber of Faber & Troy in Woodbury, N.Y., represented Nickola. He could not be reached for comment.