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Cram v. Burger King Corp.

United States District Court, D. New Hampshire

August 29, 2019

Elizabeth Cram and John Cram
v.
Burger King Corporation, et al.

          ORDER

          Landy McCafferty United States District Judge

         Elizabeth Cram tripped and fell while at a Burger King restaurant in Claremont, New Hampshire. She and her husband John Cram sued defendants, Burger King Corporation (“Burger King”), the lessor of the Burger King restaurant where Elizabeth was injured, Northeast Foods, LLC d/b/a Northeast Fast Foods (“Northeast Foods”), the lessee of the restaurant, and Shoukat Dhanani, the managing member of Northeast Foods, alleging claims sounding in negligence and seeking damages arising out of Elizabeth's fall.[1] Burger King and Dhanani move for summary judgment on all plaintiffs' claims against them.[2] Doc. no. 19. Plaintiffs object. Plaintiffs also move for an order compelling Dhanani to appear for a deposition in New Hampshire or Massachusetts. Doc. no. 30. For the following reasons, the court grants defendants' motion for summary judgment and denies plaintiffs' motion to compel without prejudice.[3]

         STANDARD OF REVIEW

         A movant is entitled to summary judgment if it “shows that there is no genuine dispute as to any material fact and [that it] is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). In reviewing the record, the court construes all facts and reasonable inferences in the light most favorable to the nonmovant. Kelley v. Corr. Med. Servs., Inc., 707 F.3d 108, 115 (1st Cir. 2013).

         BACKGROUND

         The following facts are drawn from the summary judgment record and are construed in the light most favorable to plaintiffs. In January 2018, plaintiffs ate at the Burger King restaurant in Claremont, New Hampshire. After eating, Elizabeth intended to use the women's restroom. As Elizabeth opened the door to the restroom, her right foot got caught in the rungs of a child's highchair that had been improperly placed next to the entrance door to the restroom. When Elizabeth's foot got caught, she took an overextended step with her left leg to prevent herself from falling on the floor. As she stepped with her left leg, she felt pain in that leg and fell against the bathroom wall.

         Immobilized, Elizabeth waited until her husband, John, came looking for her in the women's restroom. After being helped up by John, Elizabeth completed an incident report with the onsite restaurant manager. Shortly thereafter, Elizabeth sought medical care at Valley Regional Hospital in Claremont. She was diagnosed with a “nearly full tear” of her left Achilles tendon. Doc. no. 21-1 at 3.

         The Burger King restaurant where Elizabeth's injury occurred is located at 324 Washington Street in Claremont, New Hampshire (“the subject restaurant”). At all times relevant to this suit, Burger King owned the subject restaurant and the land upon which it sits. Burger King is a corporation engaged in the business of operating and granting franchises of Burger King restaurants.

         At all times relevant to this suit, Burger King leased the subject restaurant to Northeast Foods, which operated the subject restaurant as Burger King's franchisee. Northeast Foods is a limited liability company formed for the purpose of operating franchised Burger King restaurants. It is the franchisee of numerous Burger King restaurants throughout New England. Dhanani is the managing member of Northeast Foods.

         Northeast Foods's relationship with Burger King is governed by the lease and the Franchise Agreement, both of which Dhanani signed on Northeast Foods's behalf. Doc. nos. 19-9, 19-10.[4] Under the lease, Northeast Foods agreed to be responsible for maintaining the subject restaurant “in good order and condition” and making all necessary repairs and using all reasonable precaution “to prevent waste, damage or injury.” Doc. no. 19-10 at 15. The lease also states that Burger King is not liable “for any . . . injury occurring on the Premises” and that Northeast Foods would indemnify Burger King from liabilities and lawsuits arising out of the condition, maintenance, or repair of the premises, and any injury occurring on the premises. Id. at 14, 23.

         The Franchise Agreement provides Northeast Foods the right to operate the subject restaurant in exchange for the payment of royalties to Burger King. The Franchise Agreement makes clear that Northeast Foods as franchisee is “an independent contractor and is not an agent, partner, joint venture, joint employer, or employee of [Burger King], and no fiduciary relationship between the parties exists.” Doc. no. 19-9 at 9. As such, Northeast Foods is responsible for hiring and training its own employees, purchasing insurance, and maintaining and repairing the subject restaurant. In the Franchise Agreement, Northeast Foods also promised to indemnify Burger King from any losses or liabilities arising out of possession and operation of the subject restaurant, including claims of injury. Id. at 10.

         Despite Northeast Foods's status as an independent contractor, the Franchise Agreement requires it, as franchisee, to comply with certain standards and policies to ensure uniformity of operation among Burger King restaurants. To ensure compliance with these standards, Burger King maintains the right to enter and inspect the subject restaurant. Burger King also retains the right to terminate the Franchise Agreement if Northeast Foods engages in conduct constituting a “default, ” including failing to comply with any terms of the Franchise Agreement or any other agreement between the parties regarding the subject restaurant. Doc. no. 21-8 at 7.

         In May 2018, following Elizabeth's fall, plaintiffs brought this suit, asserting claims of negligence against all defendants, negligence under a theory of vicarious liability against Burger King, and loss of consortium against all defendants.

         DISCUSSION

         Burger King and Dhanani move for summary judgment on all plaintiffs' claims asserted against them. Northeast Foods does not join in the motion for summary judgment, and has not, at this time, moved for summary judgment. The court addresses the claims alleged against Burger King and Dhanani below.

         I. Claims against Burger King

         Plaintiffs assert three claims against Burger King: (A) negligence; (B) vicarious liability for the negligent conduct of its agents; and (C) loss of consortium. The court addresses each in turn.

         A. Negligence

         To prevail on a negligence claim, a plaintiff “must show: (1) the defendants owed [her] a duty; (2) the defendants breached this duty; and (3) the breach proximately caused [her] injuries.” Macie v. Helms, 156 N.H. 222, 224 (2007). Defendants argue that Burger King, as the franchisor and owner of the subject restaurant, did not breach any duty owed to Elizabeth, a patron of the subject restaurant. In response, plaintiffs assert that Burger King owed Elizabeth, as a patron of the subject restaurant, a “non-delegable duty” to ensure that the highchairs were stored in a safe location, and that Burger King breached that duty. In other words, plaintiffs claim that Burger King-based purely on its status as the owner and lessor of the restaurant-owed Elizabeth a duty to make sure the subject restaurant was free from hazards.

         New Hampshire law does not impose such an absolute duty on landowners and landlords, particularly where, as here, the premises are controlled by another entity. See Sargent v. Ross, 113 N.H. 388, 397-98 (1973); see also Lussier v. New Meditrust Co., LLC, No. CIV. 00-074-B, 2001 WL 821534, at *2-3 (D.N.H. July 10, 2001). Rather, under New Hampshire law, courts consider several factors to determine whether a landlord is liable in negligence for injuries suffered by a third party while using a leased premises. See Sargent, 113 N.H. at 398; Lussier, 2001 WL 821534, at *2-3.

         Historically, New Hampshire law protected landlords from liability for injuries arising on the leased premises unless the injury resulted from: “(1) a hidden danger in the premises of which the landlord but not the tenant [was] aware, (2) premises leased for public use, (3) premises retained under the landlord's control, such as common stairways, or (4) premises negligently repaired by the landlord.” Sargent, 113 N.H. at 392. But in Sargent, the New Hampshire Supreme Court abolished this rule protecting landlords and held that “landlords as other persons must exercise reasonable care not to subject others to an unreasonable risk of harm.” Id. at 397. The Court explained that the factors listed above “which formerly had to be established as a prerequisite to even considering the negligence of a landlord” are no longer a prerequisite for landlord liability. Id. at 398. Instead, those same factors are now considered in determining whether the landlord exercised reasonable care under all the circumstances. Id.

         Lussier provides an instructive application of these factors. In Lussier, one of the plaintiffs slipped and fell on steps at a rehabilitations center. Lussier, 2001 WL 821534, at *1. The plaintiffs brought suit against the defendant, who owned the property and leased it to the rehabilitation center, asserting negligence and loss of consortium claims. Id.

         The district court granted the defendant's motion for summary judgment as to the negligence claim. Id. at *3. The court noted that the defendant had leased the property to the rehabilitation center, which had “assumed the primary duty under the lease to maintain the property in a reasonably safe condition.” Id. The court further found that the defendant was not involved in the facility's maintenance, did not have “actual notice” of the rehabilitation center's failure to maintain the steps in a safe condition, and that the defendant relinquished possession of the facility before the problem with the steps developed. Id.

         Lussier is on all fours with this case. Burger King leased the subject restaurant to Northeast Foods, which assumed the primary duty under the lease to maintain the subject restaurant in good order and condition and to take reasonable precaution to prevent injury. There is no evidence in the record that Burger King was involved in the maintenance of the subject restaurant or that Burger King had any notice of Northeast Foods's placement of the highchairs. And the allegedly negligent ...


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