Orlando, FL— Attorneys debated whether Domino’s Pizza is responsible for the actions of a franchisee’s delivery driver accused of causing a 2011 crash that ultimately killed a former Central Florida fire chief, as retrial in the case opened Wednesday. Wiederhold v. Domino’s Pizza, et al., 2011-CA-001589.
Richard Wiederhold was left a quadriplegic when his pickup truck overturned on Florida’s State Road 50 after swerving to avoid a car driven by Jeffrey Kidd, a driver for a Domino’s franchise owned by Fischler Enterprises. Wiederhold, 62, a former Brevard County fire chief and a firefighter for more than 30 years, died about a year after the wreck, from complications stemming from his paralysis.
During Wednesday’s openings, Avera & Smith’s Mark Avera, representing Wiederhold’s widow, Yvonne, told jurors Kidd was delivering pizzas for Domino’s when he pulled dangerously in front of Wiederhold, who was traveling in his truck with Yvonne. Wiederhold, Avera said, tried to avoid hitting Kidd’s car, swerved into a median and back across the roadway before his truck overturned.
Avera told jurors Yvonne Wiederhold believed Kidd was so close when he pulled into their path that “Mrs. Wiederhold does not know how Mr. Wiederhold avoided hitting Mr. Kidd.”
And Domino's is responsible for Kidd's actions, Avera told jurors, because the company maintained a right of control over the Fischler franchise that rendered the business an agent of the corporation. Avera said both the franchise owner and store manager at the time of the crash would testify that Domino’s controlled nearly all aspects of their daily operations. “They will give you examples of how Domino’s Pizza corporate store controls them on a day-to-day basis,” Avera said.
But the defense counters that the Fischler franchise was an independent business and not an agent of Domino’s. During Wednesday’s openings, Rissman Barrett’s Christine Zharova argued that requirements of the franchise agreement were drafted to protect the company’s brand and ensure a consistent standard. By contrast, Zharova said, Fischler’s franchise had control over budgeting, taxes, and similar operational responsibilities. “Domino’s has to impose certain control over all franchises,” Zharova said. “But that type of control is very different from the right to control and actually controlling day-to-day operations.”
Zharova also contended that Wiederhold, rather than Kidd, actually caused the accident. On Wednesday, Zhaorova told jurors evidence would show Kidd pulled safely into the travel lane, but Wiederhold was speeding and did not brake to avoid hitting Kidd. “Mr. Wiederhold… would have had enough time to… avoid the accident and slow down if he was traveling the speed limit,” Zharova said.
This is the second time the case has come before a jury. In a 2016 trial covered gavel-to-gavel by CVN, jurors found Kidd 90 percent responsible for the crash, concluded Domino’s was vicariously responsible, and awarded $10.1 million to Wiederhold’s widow. Last year, however, the state’s Fifth District Court of Appeal reversed the decision and ordered a new trial, concluding several comments made during plaintiff’s closing argument were improper, and finding the trial court erred in refusing to admit evidence of all medical expenses paid on Wiederhold’s behalf.
Closings could come as soon as Friday.
Email Arlin Crisco at firstname.lastname@example.org.
Yvonne Wiederhold is represented by Avera & Smith’s Mark Avera, Benjamin Steinberg, and Alexandria Avera.
Domino’s Pizza is represented by Christine Zharova and Richard Womble of Rissman, Barrett, Hurt, Donahue, McClain & Mangan, P.A.
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