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Dunkin’ Donuts cannot be held liable for an attack on an employee at one of its franchises in Queens an Eastern District judge in New York has ruled. Judge Allyne R. Ross found that security recommendations that Dunkin’ Donuts gives to local franchisees is not enough to establish vicarious liability in the case of Wu v. Dunkin’ Donuts Inc., 98-CV-3020. On May 24, 1995, Wendy Hong Wu was attacked while working the late shift at a 24-hour Dunkin’ Donuts, which operated under a franchise agreement by Turnway Donuts. Two teenagers entered the store and, after persuading Wu to open a locked door that separated the employee area of the store from the customer area, repeatedly raped and slashed her. Wu and her husband sued Dunkin’ Donuts, Turnway and Turnway’s management, claiming that the attack was the result of the vicarious and direct negligence of the franchisor and franchisee. Wu later stipulated to discontinue her suit against Turnway and its management because her claims were barred under the Workers’ Compensation Law. A suit against the store’s landlord was also dismissed by the court in an earlier ruling. On Dunkin’ Donuts’ motion for summary judgment, Ross said there was no evidence that the company “exercised actual control over the security measures taken by its franchisee Turnway or that Wu relied on any preventative actions taken by Dunkin’ Donuts.” SUGGESTIONS MADE So the issue, she said, was whether any recommendation made by Dunkin’ Donuts “renders the franchisor legally responsible for ensuring the safety of franchisees’ employees.” After at least three robberies at the store between 1992 and 1994, Turnway’s management hired Rolland Trayte as a security consultant. Trayte had gathered information on, and made suggestions about, crimes committed at Dunkin’ Donuts franchises. Beginning in late 1994, Dunkin’ Donuts published a series of articles authored by Trayte on security and safety in the internal newsletter it distributed to franchisees, called Common Grounds. Ross said that New York courts recently have found that a lack of sufficient control over day-to-day operations by the franchisor prevents it from being found vicariously liable. While some courts have denied summary judgment in cases where there have been material issues as to the amount of control exercised by the franchisor, Ross said those decisions have included, at most, a brief and unhelpful description of the underlying facts. Ross looked to other jurisdictions, finding that they typically have made the distinction between “recommendations” on security and “requirements.” A QUESTION OF CONTROL Having concluded that other courts construe franchisor liability narrowly, Ross examined the relationship between Dunkin’ Donuts and Turnway. “Although the control that DD exercises under the franchise agreement is considerable, it is primarily designed to maintain uniform appearance among its franchisees and uniform quality among their products and services to protect and enhance the value of the DD trademark,” she said. “Turnway remains solely responsible for hiring, firing, and training its employees and for making all day-to-day decisions necessary to run the business.” And merely because Dunkin’ Donuts required that the store be open 24 hours-a-day, she said, “that provision does not, however, mandate specific security measures or otherwise control or limit Turnway’s response to this increased risk.” “Plaintiffs have provided no competent evidentiary support for their assertion that DD ‘required’ that Turnway install a working alarm system or take other security measures,” she said. “To the contrary, the undisputed evidence in the record demonstrates that DD merely made security equipment available for purchase and suggested that alarm systems and other burglary prevention techniques were important.” There was also a public policy concern supporting the ruling, she said that Dunkin’ Donuts “expressed a laudable desire to assist its franchisees in protecting their employees and customers.” “Imposing liability on the basis of such advice could discourage franchisors such as DD from taking steps to promote an awareness of security issues among franchisees.” Madeline Lee Bryer represented Wu. Turnway Donuts was represented by Robert H. Goldberg, of Goldberg & Carlton. Christopher Kendric, of Ahmuty, Demers & McManus, represented Dunkin’ Donuts.

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