QUEENESTER MADISON, PERSONAL REPRESENTATIVE OF THE ESTATE OF TERRY MADISON, DECEASED, FOR THE BENEFIT OF QUEENESTER MADISON AND THE ESTATE OF TERRY MADISON, APPELLANT,
v.
HOLLYWOOD SUBS, INC., D/B/A MIAMI SUBS, A FLORIDA CORPORATION, AND MIAMI SUBS CORPORATION, A FLORIDA CORPORATION, APPELLEE
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A personal representative of a deceased man killed in a shooting at a Miami Subs restaurant sued the franchisor Miami Subs Corporation. The trial court dismissed the complaint, and the appellate court affirmed, holding that the franchisor was not liable because the franchise agreement established the franchisee as an independent contractor with sole control over day-to-day operations, not an agent of the franchisor.
The franchisor Miami Subs Corporation is not liable because the franchise agreement established the franchisee as an independent contractor with no agency relationship to the franchisor. The franchisor's control was limited to standardization of products and services, while day-to-day operations were solely the franchisee's responsibility, and the franchisor exercised no control over security measures.
[1] A franchisor is generally not liable for the torts of its franchisee when the franchise agreement establishes the franchisee as an independent contractor and reserves con…
[2] A franchisor's liability for a franchisee's actions may arise if the franchisor exercises control over the day-to-day operations of the business or if the claim is based…
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“The agreement provided that the franchisee is an independent contractor and not an agent for the franchisor.”
Establishes the fundamental basis for rejecting the agency theory of liability.
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Join FLexlaw to unlock all legal intelligenceThe appellant's decedent was shot and killed during an altercation while his vehicle was in the drive-through lane at a Miami Subs restaurant operated…
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PER CURIAM.
Appellant’s decedent was shot and killed as a result of an altercation which occurred while the vehicle in which he was a passenger was in the drive-through lane at a Miami Subs restaurant owned by a franchisee. The trial court dismissed plaintiffs complaint against Miami Subs, the franchisor, and we affirm.
The complaint alleged that the restaurant was operated by Hollywood Subs, the franchisee, and attached the franchise agreement with the franchisor, Miami Subs. The agreement provided that the franchisee is an independent contractor and not an agent for the franchisor. Plaintiff refers to the franchise agreement to establish control; however, the only control provided by the agreement was to insure uniformity in the standardization of products and services offered by the restaurant. The day to day operations were within the sole control of the franchisee. The theory of recovery against the franchisee was that there was inadequate security outside the restaurant and that the franchisee was acting as the agent of the franchisor. Plaintiff relies on Springtree Properties, Inc. v. Hammond, 692 So. 2d 164 (Fla. 1997), which involved an accident outside a Hardee’s restaurant in which a customer driving a car accidentally hit the gas and struck a patron who was coming out of the restaurant. That case, which permitted a claim against the franchisor to go forward, is distinguishable in that the theory of recovery was based on the defective design of the premises which had been determined by the franchisor and which the franchisee was required to implement.
This case is similar to Mobil Oil Corp. v. Bransford, 648 So. 2d 119 (Fla.1995), in which a customer was attacked and beaten by an employee of the franchisee. He sued the franchisor on the theory that there was an agency relationship; however, the franchisor exercised no control over the day to day operation of the business and the summary judgment in favor of the franchisor was affirmed.
In this case, the franchise agreement on which plaintiff relied to state a cause of action based on agency did not make the franchisor responsible for this type of incident. We accordingly affirm.
KLEIN, STEVENSON, JJ„ and KELLEY, GLENN D., Associate Judge, concur.
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McDONALD'S Rests. OF Fla., Inc. v. DOE, 87 So. 3d 791 (Fla. 2d DCA 2012)…“an agency relationship with a franchisee if, by contract or action or representation, the franchisor has directly or apparently participated in some substantial way in directing or managing acts of the franchisee”); Madison v. Hollywood Subs, Inc., 997 So. 2d 1270, 1271 (Fla. 4th DCA 2009) (holding that where day-to-day operations were within sole control of the franchisee no agency relationship existed with franchisor). “[I]t is the right of control, not actual control or descriptive labels employed by the p…
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Sabas Ferrer v. Jewelry Repair Enters., Inc. (Fla. 4th DCA 2021)…nchisor here had any actual or apparent control over the franchisee’s management, including the hiring and firing of the franchisee’s managers and employees, and any of their actions on behalf of the franchisee. See Madison v. Hollywood Subs, Inc., 997 So. 2d 1270, 1271 (Fla. 4th DCA 2009) (franchisee was not franchisor’s agent and thus franchisor could not be held liable to estate of customer who was shot and killed while a passenger in a car in a drive-through lane of franchisee’s restaurant); see also Mich…
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Est. of Miller Ex Rel. Miller v. Thrifty Rent-A-Car Sys., Inc., 637 F. Supp. 2d 1029 (M.D. Fla. 2009)…anted under Florida’s case law, re *1038 lying on the Florida Supreme Court’s decision in Mobil Oil Corp. v. Bransford, 648 So.2d 119 (Fla.1995) and the Fourth District Court of Appeal’s decision in Madison v. Hollywood Subs, Inc., 997 So.2d 1270 (Fla. 4th DCA 2009). (Doc. No. 184 at 15-18.) According to Thrifty, Bransford and Madison are indistinguishable from this case in that both cases rejected tort claims against a franchisor that were based solely on the appearance of an ag…1 / 2
Authorities Cited
- Mobil OIL Corp. v. Bransford, 648 So. 2d 119 (Fla. 1995)
- Springtree Props., Inc. v. Hammond, 692 So. 2d 164 (Fla. 1997)