Establishing a franchisor's right of control over a franchisee is crucial to proving vicarious liability in a personal injury case. And at trial over a retired fire chief’s fatal crash with a Domino’s Pizza delivery driver, Mark Avera adeptly countered a defense argument on the purpose behind the pizza giant's franchise restrictions to prove that right of control and win a 7-figure verdict.
Richard Wiederhold died from complications stemming from a 2011 crash that occurred as he tried to avoid hitting a Domino’s Pizza delivery driver’s car. The delivery driver was an employee of a Central Florida-area Domino’s franchise. Key to the 2019 retrial in the case was whether Domino’s Pizza, as a franchisor, was responsible for any negligence of one of the franchisee’s drivers.
The defense contended that various restrictions it imposed on the franchise and its employees did not rise to the level of control that would render it liable for the crash. Instead, Domino’s claimed, the restrictions merely protected the company’s brand and property.
In closings, however, Avera, of Avera & Smith, countered that the argument was irrelevant.
Avera noted a litany of limitations Domino’s placed on the franchise, including dictating the appearance of the franchise drivers and delivery vehicles, food prep, and more.
“I don’t suggest for a moment that Domino’s should not have a right of control over all these things,” Avera said. “It doesn’t matter why they have a right of control: you won’t see an instruction on the law that says, ‘Well, if the right of control is for brand, then they get a pass.’ You’re not going to see that because that’s not the law.”
Avera then argued Domino’s executive Joseph Devereaux’s testimony only highlighted the company’s control, regardless of the intent behind it. “Mr. Devereaux at one point actually admitted that ‘we have these “controls’” — his words — ‘in place because we want to protect our brand, and our reputation.’” Avera said.
But Avera continued, despite that acknowledgement, Devereaux ultimately maintained they had no right of control over the franchise. “With all of that evidence in front of him, with common sense staring him in the face about whether they have a right of control or not, Mr. Devereaux looked at all of you and [said, ‘We have no right of control.’
“Of course they have a right of control,” Avera said.
Avera's argument helped jurors find the pizza company liable for the crash and award Wiederhold’s widow $8.97 million. The verdict, and another blockbuster award in a Florida crash case, earned Avera CVN's distinction as Florida Plaintiff's Attorney of 2019.
Email Arlin Crisco at acrisco@cvn.com.
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