Kerl v. Rasmussen

682 N.W.2d 328 (2004)

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Nature of the Case

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Facts

The relationship between Arby's and D is governed by a 1985 licensing agreement pursuant to which D is authorized to use Arby's trade name in the operation of a restaurant franchise. D has a license to use Arby's trademarks, service marks, and trade names in accordance with Arby's Operating Standards Manual. The agreement requires a designated officer or shareholder of the licensee to attend an Arby's management training seminar. As to personnel generally, the agreement provides: 'LICENSEE shall hire, train, maintain and properly supervise sufficient, qualified and courteous personnel for the efficient operations of the Licensed Business.' D hired Harvey Pierce to work at its restaurant. Pierce was a work-release inmate at the Dane County Jail. D hired Harvey Pierce to work at its restaurant. Pierce was a work-release inmate at the Dane County Jail. In the mid-afternoon of June 11, 1999, Pierce walked off the job without permission. He crossed the street to the Walmart store parking lot, where he lay in wait for Robin Kerl, his former girlfriend, and David Jones, her fiancé, both Walmart employees. When Kerl and Jones emerged from the building, Pierce shot them both in the head. He then shot himself. Jones and Pierce died of their injuries. Kerl survived but sustained serious injuries and is permanently disabled. Ps sued D and Arby’s. Ps alleged that Arby's is vicariously liable, as D's franchisor, for D's negligent supervision of Pierce. The circuit court granted summary judgment in favor of Arby's, concluding that there was no basis for vicarious liability. The court of appeals affirmed. The court of appeals surveyed case law from other jurisdictions and concluded that the prevailing standard for franchisor vicarious liability focuses on whether the franchisor controls the 'specific instrumentality' which allegedly caused the harm, or whether the franchisor has a right of control over the alleged negligent activity. The court held that to impose vicarious liability the franchisor must have a right of control or actual control over the alleged negligent activity. Neither the franchise agreement nor the franchise operating manual gave Arby's control or the right to control D's employees, the court of appeals affirmed. Ps appealed.