Opinion
CV166064293S
03-15-2018
Welansa ASRAT v. NIRMALA, LLC, et al.
UNPUBLISHED OPINION
Wilson, J.
FACTS
On August 16, 2016, the plaintiff, Welansa Asrat, filed a three-count complaint (original complaint) against the defendants Nirmala, LLC (Nirmala), Baymont Franchise Systems, Inc. (Baymont), and Wyndham Worldwide Corporation (Wyndham). Counts two and three are directed at the defendants Baymont and Wyndham (defendants). The plaintiff alleges that, while staying as a guest at the Baymont Inn & Suites in Branford (premises), " the plaintiff was caused to walk across a hallway carpet that was soaking wet when she, suddenly and without warning, was caused to fall due to the dangerous condition of the floor, resulting in the injuries and losses hereinafter set forth." Orig. Compl. Count 2 ¶ 4; Count 3 ¶ 5. The original complaint further alleges that the defendants were negligent " [i]n that they failed to keep the premises reasonably safe for persons lawfully using said premises," and makes numerous allegations specific to the hallway carpet and floor. Orig. Compl. Count 2 ¶ 5; Count 3 ¶ 6. The plaintiff alleges that Wyndham is the parent company of Baymont, and that the defendants possessed, controlled, owned, and/or maintained the premises.
On September 12, 2017, the defendants, Baymont and Wyndam filed the present motion for summary judgment on counts two and three of the plaintiff’s original complaint. The defendants argue that they do not owe the plaintiff a duty of care because there are no genuine issues of material fact that neither defendant owns, operates, manages, maintains, possesses, supervises, or has day-to-day control over the premises. The plaintiff filed an objection to the defendants’ motion for summary judgment on October 27, 2017, and argued for the first time that the plaintiff in fact fell on a concrete walkway just outside of the hotel, and that the defendants’ " System Standards" contributed to the plaintiff’s fall. Specifically, the plaintiff argues that " the walkway where the plaintiff fell in this case was painted using an exterior paint that contributed to her fall ... Further discovery, including a scheduled site inspection, could reveal that paint was used that was not in accordance with acceptable industry standards. The movants should be estopped from denying control and all responsibility when the impetus for the very defect, which contributed to the plaintiff’s fall began with their directive." Pl.’s Obj. to Mot. Sum. J., p. 9. The motion for summary judgment was heard at short calendar on November 20, 2017, at which time the plaintiff notified the court and defendants’ counsel of her intention to file a request for leave to amend her complaint. On December 4, 2017, the plaintiff filed the request for leave to amend her complaint along with a supporting memorandum of law. The proposed amended complaint adds that the plaintiff was caused to fall " upon exiting the interior of the hotel to the parking lot due to the dangerous and slippery condition of the wet carpet and concrete walkway outside the building ..." and further alleges that the defendants were negligent " [i]n that they failed to keep all walking surfaces, and in particular the concrete walkway outside the hotel, reasonably safe and slip resistant under foreseeable conditions." Pl.’s Proposed Am. Compl. Count 2 ¶¶ 4-5; Count 3 ¶¶ 5-6. The defendants filed an objection to the request for leave to amend on December 15, 2017. The plaintiff’s request for leave to amend and the defendants’ motion for summary judgment were both heard at short calendar on January 2, 2018.
The court, in a separate Memorandum of Decision dated March 15, 2018, sustained the defendant’s objection to the plaintiff’s request for leave to amend (# 132).
DISCUSSION
I
SUMMARY JUDGMENT
" Summary judgment is a method of resolving litigation when pleadings, affidavits, and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law ... The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried ... However, since litigants ordinarily have a constitutional right to have issues of fact decided by a jury ... the moving party for summary judgment is held to a strict standard ... of demonstrating his entitlement to summary judgment." (Citation omitted; footnote omitted; internal quotation marks omitted.) Grenier v. Commissioner of Transportation, 306 Conn. 523, 534-35, 51 A.3d 367 (2012).
" A genuine issue of material fact must be one which the party opposing the motion is entitled to litigate under his pleadings and the mere existence of a factual dispute apart from the pleadings is not enough to preclude summary judgment ... The facts at issue [in the context of summary judgment ] are those alleged in the pleadings ... The purpose of the complaint is to limit the issues to be decided at the trial of a case and is calculated to prevent surprise." (Emphasis in original; internal quotation marks omitted.) Straw Pond Associates, LLC v. Fitzpatrick, Mariano & Santos, P.C., 167 Conn.App. 691, 728-29, 145 A.3d 292, cert. denied, 323 Conn. 930, 150 A.3d 231 (2016).
" [T]he issue of whether a defendant owes a duty of care is an appropriate matter for summary judgment because the question is one of law." (Internal quotation marks omitted.) Mozeleski v. Thomas, 76 Conn.App. 287, 290, 818 A.2d 893, cert. denied, 264 Conn. 904, 823 A.2d 1221 (2003). " The existence of a duty is a question of law and only if such a duty is found to exist does the trier of fact then determine whether the defendant violated that duty in the particular situation at hand." (Internal quotation marks omitted.) Sic v. Nunan, 307 Conn. 399, 407, 54 A.3d 553 (2012).
A
Agency Relationship
The defendants argue that they do not owe the plaintiff a duty of care because the premises are owned and operated by Nirmala. The defendants argue that Baymont is merely a licensor of the Baymont trademarks and service marks, and Nirmala is an independent contractor pursuant to the franchise agreement with Baymont. Further, the defendants argue that Wyndham is the corporate parent and has no relationship, contractual or otherwise, with either Nirmala or the plaintiff. In support of her objection to the motion for summary judgment, the plaintiff argues that an agency relationship exists because the defendants retain substantial control over the operations of the premises, as evidenced by certain provisions in the franchise agreement. In particular, the plaintiff argues that the franchise agreement covers " (1) required improvements to meet the brand standard and continued compliance; (2) operational standards; (3) mandatory and remedial training, and (4) regular inspections." Pl.’s Obj. to Mot. Sum. J., p. 3.
Specifically, the defendant argues that Baymont entered into a franchise agreement with Branford Hospitality. Branford Hospitality thereafter entered into an Assignment and Assumption Agreement with Nirmala, and Nirmala assumed all of the rights and obligations of Branford Hospitality under the franchise agreement.
" Liability for an injury due to defective premises does not depend on title, but on possession and control." Farlow v. Andrews Corp., 154 Conn. 220, 225, 224 A.2d 546 (1966). " Thus, the dispositive issue in deciding whether a duty exists is whether the [defendant] has any right to possession and control of the property ... Retention of control is essentially a matter of intention to be determined in the light of all the significant circumstances ... The word control has no legal or technical meaning distinct from that given in its popular acceptation ... and refers to the power or authority to manage, superintend, direct or oversee." (Internal quotation marks omitted.) Sweeney v. Friends of Hammonasset, 140 Conn.App. 40, 50, 58 A.3d 293 (2013).
A discussion of control " is often seen in the context of a principal/agency relationship, in which there is an issue of whether the principal has the right to direct and control the work of the agent ..." (Internal quotation marks omitted.) Linke v. Heritage New London, LLC, Superior Court, judicial district of New London, Docket No. CV-11-6009956-S (March 21, 2013, Devine, J.) . " Nevertheless, courts have consistently distinguished between a ‘franchisor/franchisee’ relationship and a ‘principal/agency’ relationship ..." Id. " [A]bsent exceptional circumstances ... a franchisee is an independent contractor of the franchisor and ... the franchisor is not liable as an agent for the torts committed by a franchisee ... This rule is true even if the franchisor has the authority to dictate certain actions of the franchisee in order to protect its brand or trademarks and reserves the right to inspect the premises ... An essential factor in an agency relationship is the right of the principal to direct and control the performance of the work by the agent ... Thus, in the franchisor-franchisee context, [t]his evaluation requires a court to examine both the relationship between the parties to the franchise agreement as well as the degree of control retained by the franchisor, not limited to possession and control of the physical premises." (Citations omitted; emphasis altered; internal quotation marks omitted.) Id. ; see also Angelo v. Southland Corp., Superior Court, judicial district of New Haven, Docket No. CV-04-04853185-S (October 5, 2005, Corradino, J.) (40 Conn.L.Rptr. 94, 96) (in landlord-tenant context, " [i]f the language of the lease definitively establishes that the landlord did not reserve control of that portion of the premises which is claimed to have been defective and caused injury, then the defendant landlord is entitled to prevail on the motion" ).
A number of Superior Court cases emphasize that a franchisor’s authority to protect its brand or trademarks and inspect the premises does not amount to control over the premises. See e.g., Linke v. Heritage New London, LLC, supra, Superior Court, Docket No. CV-11-6009956-S (" Although there are certain provisions in the agreement ... that implicate the licensor’s responsibilities in regard to consultation, maintenance of standards, and the use of a manual, these provisions are standard reservations of rights which are common in the franchisor/franchisee context for the purpose of safeguarding the franchisor’s brand and trademark This notion similarly applies to ... the right to inspect the premises." [Emphasis added.] ); Angelo v. Southland Corp., supra, 40 Conn.L.Rptr. 97 (" it has been held that the mere right of the lessor-franchisor to enter the premises for inspection and to make repairs, hardly establishes the requisite control" ); Ward v. McDonald’s Restaurant of Connecticut, Inc., Superior Court, judicial district of New Haven, Docket No. CV-01-0457008-S (October 29, 2002, Arnold, J.) (33 Conn.L.Rptr. 354, 355) (" [t]he right to inspect provision ... does not raise a genuine issue of material fact as to whether [the franchisor] had control over the premises" ); Hobart v. McDonald’s Restaurant of Connecticut, Superior Court, judicial district of New Haven at Meriden, Docket No. CV-98-0263193-S (July 19, 1999, Beach, J.) (Provisions in the franchise agreement relating to the franchisor’s " right to enter and inspect the premises" were " standard reservations of rights which are common in the commercial leasing context. Their primary function is to give the franchisor some ability to intervene, should it seem necessary to uphold the franchise’s standards" ). Following these cases, there is no genuine issue of material fact that the defendants, Baymont and Wyndham do not have possession or control over the alleged defects that caused the plaintiff’s injuries.
Although various Superior Court decisions have held that the franchisor’s authority to protect its brand and inspect the premises does not alone create an agency relationship, these decisions are less clear as to the issue of mandatory training. There is some support, however, that franchisor provided training does not amount to the control necessary to create an agency relationship in lieu of a franchisor-franchisee relationship. See Aspilaire v. Jan Dough, LLC, Superior Court, judicial district of Middlesex, Docket No. CV-10-6003229-S (January 5, 2012, Aurigemma, J.) (53 Conn.L.Rptr. 364). In Aspilaire v. Jan Dough, LLC, the plaintiff submitted a copy of the training manual that the franchisor provided to its franchisees; id., 365; however, the court held that " [t]he manuals referred to by the plaintiff in which [the franchisor] requires or suggests practices to its franchisees do not give [the franchisor] control of any part of the premises on which the plaintiff fell." (Emphasis in original.) Id., 367. Moreover, management training is one of the factors that courts will consider when determining whether a franchise relationship has been created under the Connecticut Franchise Act. See Hartford Electric Supply Co. v. Allen-Bradley Co., 250 Conn. 334, 350, 736 A.2d 824, 834 (1999) (" There is no precise formula as to how many or which factors create the level of control indicative of a franchise, pursuant to the franchise act ... Many federal courts have cited the Appellate Session of the Superior Court in Consumers Petroleum of Connecticut, Inc. v. Duhan, 38 [Conn.Sup.] 495, 452 A.2d 123 (1982), for its list of factors establishing substantial prescription of a marketing plan or system, pursuant to [General Statutes] § 42-133e(b). That court considered whether the franchisor had control over: (1) hours and days of operation; (2) advertising; (3) lighting; (4) employee uniforms; (5) prices; (6) trading stamps; (7) hiring; (8) sales quotas; and (9) management training ." [Citations omitted; emphasis added.] )
Moreover, the Superior Court has declined to find an agency relationship when a franchise agreement specifically states that no agency relationship is created, or when it expressly delineates which party will be liable for injuries arising from the operation of the premises. In Linke, the court stated there was no genuine issue of material fact as to whether the defendant owed a legal duty to the plaintiff. See Linke v. Heritage New London, LLC, supra, Superior Court, Docket No. CV-11-6009956-S. The court reviewed " the licensing agreement which specifically states that the licensee must at all times retain and exercise direct management control over the Hotel’s business ... Moreover, the agreement further states that there is no agency relationship between the licensor and the licensee. Specifically in clause thirteen (13), the agreement states: ‘Licensee is an independent contractor ... Licensor and Licensee expressly acknowledge that the relationship intended by them is a business relationship based entirely on and circumscribed by the express provision of this License and that no partnership, joint venture, agency, fiduciary or employment relationship is intended or created by reason of this License. Furthermore, the agreement particularly provides for an indemnity clause, which is set forth in clause nine (9), that extends to any and all claims in which the licensee would indemnify the licensor.’ " (Emphasis altered; internal quotation marks omitted.) Id. Accordingly, the court held that " the agreement demonstrates the existence of a ‘franchisor/franchisee’ relationship between [the parties]." Id.
Similarly, in Aspilaire v. Jan Dough, LLC, Superior Court, judicial district of Middlesex, Docket No. CV-10-6003229-S (January 5, 2012, Aurigemma, J.) (53 Conn.L.Rptr. 364, 367) the court reviewed language in the franchise agreement stating that " the franchisee agrees to operate and maintain the store in accordance with system standards which may regulate cleaning and sanitation." As in Linke, the franchise agreement in Aspilaire stated that the franchisor " will not be obligated for any damages to any person or property directly or indirectly arising out of the operation of the [store] ..." (Internal quotation marks omitted.) Id. Further, in Pascarella v. McDonald’s Corp., Superior Court, judicial district of New Haven at Meriden, Docket No. CV-05-5000063-S (February 8, 2007, Taylor, J.) the court noted " that the franchise and lease agreements require the franchisees to maintain general liability, insurance on the business premises ... Therefore, the assignment of liability to the franchisee is appropriate under the facts of this case and it is consistent with their legal status as the persons in possession and control of the premises."
In the present matter, the franchise agreement between Baymont and Branford Hospitality, LLC (and Nirmala, as the assignee) contains clear provisions relating to control, operation, and liability of the premises. Section 16.1 of the franchise agreement specifically states, " [y]ou are an independent contractor. You are not our legal representative or agent ... No partnership, joint venture, agency, fiduciary or employment relationship is intended or created by reason of this Agreement. You will exercise full and complete control over and have full responsibility for your contracts, daily operations, labor relations, employment practices and policies, including, but not limited to, the recruitment, selection, hiring, disciplining, firing, compensation, work rules and schedules of your employees." Pl.’s Ex. A, Franchise Agreement, at 20. The insurance provision in the franchise agreement, section 3.8, states that the franchisee " will obtain and maintain during the Term of this Agreement the insurance coverage required under the System Standards Manual from insurers meeting the standards established in the Manual. Unless we instruct you otherwise, your liability insurance policies will name as additional insureds Baymont Franchise Systems, Inc., Wyndham Worldwide Corporation, Wyndham Hotel Group, LLC, and their current and former affiliates, successors and assigns as additional insureds." Pl.’s Ex. A, Franchise Agreement, at 5. Finally, section 8 of the franchise agreement contains an indemnity provision, which states that " [i]ndependent of your obligation to procure and maintain insurance, you will indemnify, defend and hold the Indemnities harmless, to the fullest extent permitted by law, from and against all Losses and Expenses, incurred by any Indemnitee for any investigation, claim, action, suit, demand, administrative or alternative dispute resolution proceeding, relating to or arising out of any transaction, occurrence or service at, or involving the operation of, the Facility ... or any act, error or omission (active or passive) of, you, any party associated or affiliated with you or any of the owners, officers, directors, employees, agents or contractors of you or your affiliates ..." Pl.’s Ex. A, Franchise Agreement, at 11. " Thus, the agreement establishes that the relationship between [the parties] is that of a ‘franchisor/franchisee,’ rather than a ‘principal/agent.’ " Linke v. Heritage New London, LLC, supra, Superior Court, Docket No. CV-11-6009956-S.
Of note, the defendants argue in their reply to the plaintiff’s objection that Wyndham is not a party to the franchise agreement. This is supported by the evidence the defendants submitted with their memorandum in support of the motion for summary judgment. See Fenimore Aff. ¶ 4 (" [Baymont], as licensor, and Branford Hospitality, LLC ... as licensee, entered into a franchise agreement" ); Fenimore Aff. ¶ 5 (Branford Hospitality and Nirmala " entered into an Assignment and Assumption Agreement, pursuant to which, Nirmala assumed all of the rights and obligations of Branford Hospitality under the Franchise Agreement" ); Giampietro Aff. ¶ 4 (" [Wyndham Worldwide Corporation] has no relationship, contractual or otherwise, with the owner/operator of the Facility, or the Plaintiff" ). The plaintiffs have not offered any evidence that Wyndham is a party to the franchise agreement; rather, the franchise agreement itself shows that Wyndham is not a party. See Pl.’s Ex. A, at 1 (identifying parties to " Assignment and Assumption Agreement" as Branford Hospitality, LLC, Nirmala, LLC, and Baymont Franchise Systems, Inc.) and Ex. A attached thereto (the " Baymont Franchise Systems, Inc. Franchise Agreement" identifies parties as Baymont Franchise Systems, Inc. and Branford Hospitality, LLC). Accordingly, there is no genuine issue of material fact that Wyndham is not a party to the franchise agreement.
B
Apparent Agency
In the plaintiff’s objection to the motion for summary judgment, the plaintiff argues for the first time that the defendants may be vicariously liable under an apparent agency theory. Pl.’s Obj. to Mot. Sum. J., pp. 9-10. Neither the plaintiff’s original nor proposed amended complaint contain allegations regarding apparent agency. Further, in her objection to the motion for summary judgment, the plaintiff does not articulate a clear standard regarding the law of apparent agency; rather, the plaintiff states only that " [w]here an agency relationship exists, the principal can be held vicariously liable [for] the actions of their agent." Pl.’s Obj. to Mot. Sum. J., p. 9. The plaintiff appears to be conflating the standards for agency and apparent agency, as " the doctrine of apparent agency creates an agency relationship that would not otherwise exist ." (Emphasis added.) Cefaratti v. Aranow, 321 Conn. 593, 601 n.6, 141 A.3d 752 (2016). Nevertheless, the plaintiff argues that her " reasonable and justifiable belief that she was staying at a Wyndham affiliate that demanded of its franchisees a baseline quality standard is evidence of an apparent agency relationship." Pl.’s Obj. to Mot. Sum. J., p. 10. The defendants did not address this issue in their reply brief.
The Supreme Court recently adopted " alternative standards for establishing apparent agency in tort cases. First, the plaintiff may establish apparent agency by proving that: (1) the principal held itself out as providing certain services; (2) the plaintiff selected the principal on the basis of its representations; and (3) the plaintiff relied on the principal to select the specific person who performed the services that resulted in the harm complained of by the plaintiff. Second, the plaintiff may establish apparent agency in a tort action by proving the traditional elements of the doctrine of apparent agency, as set forth in our cases involving contract claims, plus detrimental reliance. Specifically, the plaintiff may prevail by establishing that: (1) the principal held the apparent agent or employee out to the public as possessing the authority to engage in the conduct at issue, or knowingly permitted the apparent agent or employee to act as having such authority; (2) the plaintiff knew of these acts by the principal, and actually and reasonably believed that the agent or employee or apparent agent or employee possessed the necessary authority ... and (3) the plaintiff detrimentally relied on the principal’s acts, i.e., the plaintiff would not have dealt with the tortfeasor if the plaintiff had known that the tortfeasor was not the principal’s agent or employee. We emphasize that this standard is narrow, and we anticipate that it will be only in the rare tort action that the plaintiff will be able to establish the elements of apparent agency by proving detrimental reliance." (Citation omitted.) Cefaratti v. Aranow, supra, 321 Conn. 624-25.
In Cefaratti, the plaintiff claimed that the defendant hospital was responsible for the negligence of a surgeon during the plaintiff’s gastric bypass surgery. See Cefaratti v. Aranow, supra, 321 Conn. 596. The relevant facts include that the plaintiff knew of the surgeon who would ultimately perform her surgery; researched and determined that this surgeon " was considered to be the best gastric bypass surgeon in the state" ; was required to attend a seminar that the surgeon conducted at the defendant hospital; attended a number of informational sessions at the defendant hospital that were conducted by the surgeon’s staff; and received informational materials that were prepared by the defendant hospital. Id., 597-98. Further, the plaintiff " assumed that [the surgeon] was an employee of [the defendant hospital] because he had privileges there, and she relied on this belief when she chose to undergo surgery at [the defendant hospital]." Id., 598. Despite these facts, the Cefaratti court noted that " [t]here is no real dispute that the plaintiff in the present case cannot meet the first standard ..." Id., 625. As to the second standard regarding detrimental reliance, the court " emphasize[d] that, to meet this burden, the plaintiff must set forth facts and evidence capable of raising a reasonable inference that she would not have allowed [the surgeon] to perform the surgery if she had known that he was not [the hospital’s] agent or employee." Id., 625-26.
The plaintiff argues that an apparent agency exists because she signed an affidavit stating that she " was used to a certain acceptable quality standard set by Wyndham and other affiliated hotels," that she selected this facility based upon " [her] belief that Wyndham and/or Baymont brand had some supervision or control over the quality and standards of this facility," and that " the fact that Wyndham Hotels brand was associated with this facility led [her] to believe that it was part of the Wyndham group of hotels, and was comfortable, safe, and acceptable, consistent with [her] past experience staying at other Wyndham hotels and affiliates." Pl.’s Obj. to Mot. Sum. J., pp. 9-10. The plaintiff also appears to rely on a Google search of the subject premises, which " produces Wyndham Hotels website as the top search result." Pl.’s Obj. to Mot. Sum. J., p. 10 n.5.
In the present case, the plaintiff did not plead the issue of vicarious liability or apparent agency in her complaint. See Straw Pond Associates, LLC v. Fitzpatrick, Mariano & Santos, P.C, supra, 167 Conn.App. 728-29. (" The facts at issue [in the context of summary judgment ] are those alleged in the pleadings ... The purpose of the complaint is to limit the issues to be decided at the trial of a case and is calculated to prevent surprise." [Emphasis in original; internal quotation marks omitted.] ) In contrast to the present matter, the amended complaint filed in Cefaratti explicitly " alleged that [the defendant hospital] was both directly liable for its own negligence during the surgery and vicariously liable for [the defendant surgeon’s] negligence, because [the hospital] had held [the surgeon] out to the public as its agent or employee ." (Emphasis added.) Cefaratti v. Aranow, supra, 321 Conn. 596; see also Gagliano v. Advanced Specialty Care, P.C., 167 Conn.App. 826, 837 n.10, 145 A.3d 331, cert. granted, 323 Conn. 926, 150 A.3d 229 (2016) (" the plaintiffs’ operative complaint in the present case included an allegation that [the doctor] was an ‘apparent agent’ of the hospital" ).
Moreover, following Cefaratti, there is no genuine issue of material fact as to the issue of apparent agency. In support of their motion for summary judgment, the defendants submitted evidence that the franchisee was permitted to use the Baymont trademarks and service marks in connection with its operation of the premises; Fenimore Aff. ¶ 4; but that all guest lodging facilities are " independently owned and operated." Fenimore Aff. ¶ 7. Baymont does not participate in the management of the premises, and does not hire, supervise, or discharge employees or control any aspect of employment. Fenimore Aff. ¶ 12. Further, neither defendant controls, supervises, manages, maintains, or dictates the day-to-day activities necessary to carry on business operations. See Fenimore Aff. ¶ 13; Giampietro Aff. ¶ 6. Neither the plaintiff’s affidavit nor Google search raise a genuine issue of material fact as to whether the plaintiff relied on either defendant " to select the specific person who performed the services that resulted in the harm complained of by the plaintiff." Cefaratti v. Aranow, supra, 321 Conn. 624; see also Oquendo v. G.V.L., Inc., Superior Court, judicial district of New Haven, Docket No. CV-07-5011963-S (March 3, 2008, Bellis, J.) (45 Conn.L.Rptr. 171, 172) (pre-Cefaratti decision denying motion to strike when plaintiff alleged that franchisor " failed to ensure that its franchisee possessed the requisite qualifications competently to operate a Meineke franchise which offered brake repair services ... failed to ensure that its franchisee hired mechanics with the requisite qualifications competently to operate a Meineke franchise which offered brake repair services ... failed to monitor its Meineke franchise ... to ensure that the franchise was competently equipped and had personnel qualified to the tasks; and/or ... failed to conduct adequate inspection of its franchisee to ensure that its employees were competent to offer brake services" ).
C
Direct Liability
In the final part of the plaintiff’s objection to the motion for summary judgment, the plaintiff argues that the defendants are directly liable to the plaintiff because " Nirmala, LLC used an exterior paint to cover portions of the concrete walkway where [the plaintiff] slipped and fell. The trier of fact could reasonably infer that the walkway where the plaintiff fell was painted pursuant to the franchise agreement and the Schedule D punch list where it specifically mentions instruction to use exterior paint on concrete." Pl.’s Obj. to Mot. for Sum. J., p. 11. This ultimately led to the plaintiff’s request to amend her complaint to allege that she fell " upon exiting the hotel to the parking lot due to the dangerous and slippery condition of the wet carpet and concrete walkway outside the building ..." and that the defendants were negligent " [i]n that they failed to keep all walking surfaces, and in particular the concrete walkway outside the hotel, reasonably safe and slip resistant under foreseeable conditions." Pl.’s Proposed Am. Compl. Count 2 ¶¶ 4-5; Count 3 ¶¶ 5-6. There is no genuine issue of material fact that the defendants did not reserve or exert control over the premises. The plaintiff’s proposed amended complaint would not have altered this outcome. See Miller v. Fishman, 102 Conn.App. 286, 292, 925 A.2d 441 (2007) citing LaFlamme v. Dallessio, 65 Conn.App. 1, 7, 781 A.2d 482 (2001), rev’d on other grounds, 261 Conn. 247, 802 A.2d 63 (2002) (distinguishing between two cases because in LaFlamme, " the defendant’s motion for summary judgment did not rest on a failure of the operative complaint that could be remedied through a proper amendment" ).
See footnote 1,
As previously noted, " absent exceptional circumstances ... a franchisee is an independent contractor of the franchisor and ... the franchisor is not liable as an agent for the torts committed by a franchisee ... An essential factor in an agency relationship is the right of the principal to direct and control the performance of the work by the agent ..." Linke v. Heritage New London, LLC, supra, Superior Court, Docket No. CV-11-6009956-S. Further, although a franchise agreement may contain " certain provisions ... that implicate the licensor’s responsibilities in regard to consultation, maintenance of standards, and the use of a manual, these provisions are standard reservations of rights which are common in the franchisor/franchisee context for the purpose of safeguarding the franchisor’s brand and trademark." Id.
A franchisor may be found to have a duty, however, where the franchisor’s system standards themselves are the alleged defect. See Garnett v. McDonald’s Corp., Superior Court, judicial district of New Haven, Docket No. CV-92-0330019-S (October 14, 1993, Zoarski, J.). In Garnett, the plaintiff alleged that he slipped and fell on a floor that had just been washed, and that he " was injured as a direct result of negligent cleaning practices." Id. Because these allegedly negligent cleaning practices were imposed by the franchisor, the court held that there was " a question of fact for the jury to determine the extent to which [the franchisor] is responsible for the cleaning procedure followed by the employees on the date of the accident." Id. Of note, in Garnett, the franchise agreement did " not explicitly provide whether [the franchisor] or [the franchisee] retained exclusive possession or control of the premises or whether [the franchisor] was absolved from liability if an accident occurred on the premises." Id.
The present matter is distinguishable from Garnett for two reasons. First, although exclusive possession or control was at issue in Garnett, there is no such ambiguity here. As stated previously, in the present matter, the franchise agreement has clear provisions stating that the franchisee was an independent contractor, and not an agent, who exercised complete control over the premises. See Pl’s Ex. A, Franchise Agreement, at 20. Second, the agreement included both an insurance provision and an indemnity provision which spread liability to the franchisee. See Pl’s Ex. A, Franchise Agreement, at 5, 11.
Further, there is no genuine issue of material fact that the defendants’ system standards themselves are not the alleged defect. Here, the plaintiff is arguing for the first time that the defendants provided a " directive" to Nirmala to use a particular kind of paint on the concrete walkway. The plaintiff argues that " the franchisee, Nirmala, LLC, used an exterior paint to cover portions of the concrete walkway where [the plaintiff] slipped and fell. The trier of fact could reasonably infer that the walkway where the plaintiff fell was painted pursuant to the franchise agreement and the Schedule D punch list where it specifically mentions instruction to use exterior paint on concrete." Pl.’s Obj. to Mot. Sum. J., pp. 10-11. The plaintiff further argues that " further discovery, including a scheduled site inspection, could reveal that paint was used that was not in accordance with acceptable industry standards." Pl.’s Obj. to Mot. Sum. J., pp. 10-11.
Schedule D is an addendum to the franchise agreement originally entered into by Baymont and Branford Hospitality. It applied only to " pre-opening improvements" ; See Pl.’s Ex. A, Franchise Agreement ¶ 3.1, at p. 2; and in particular to franchisees who were " converting an existing guest lodging facility to a Baymont Facility." See Pl.’s Ex. A, Franchise Agreement Schedule D, at p. 39. The plaintiff emphasizes language in the Schedule D punch list which states that the franchisee will " [p]ressure wash walkways and concrete sun deck to eliminate stains and discoloration. If condition cannot be restored painting with a commercial grade non-skid paint will be required." Pl.’s Ex. A, Schedule D Punch List, at 3. There was no directive that the franchisee must use a particular type of paint. Further, the required completion date for this punch list item was April 30, 2009, over six years before the date of the plaintiff’s alleged fall, and one year before Branford Hospitality assigned its rights to Nirmala. There is no requirement in the punch list for continued painting after the initial, April 30, 2009 completion date. Requiring the use of a " commercial grade, non-skid paint" over six years before the alleged fall does not amount to the defendants retaining control over the premises.
Instead, the present matter is more closely analogous to Angelo v. Southland Corp., supra, 40 Conn.L.Rptr. 94. In Angelo, the court reviewed the franchise agreement and found that " the parties did not contemplate reservation of control in the franchisor to ensure safe maintenance and operation of the store on a day-to-day basis to do what the franchisee had failed to do regarding safe operation." Id., 97-98. Although the agreement referenced an operations manual that included comments about store cleaning, maintenance, and " generic, common sense advice ... about how and when to strip, wax, and maintain floors and also the need to clean up spills and the use of warning signs to customers about floor conditions," such language did not suggest that the franchisor " would directly oversee, manage, or direct day-to-date maintenance of the store ..." Id., 98. The Schedule D language in the present matter is less detailed than the franchise agreement at issue in Angelo, because Schedule D involved a one-time instruction to use non-skid paint while converting the existing hotel into a Baymont Facility. Further, following Angelo, the defendants’ alleged " directive" to use commercial grade, non-skid paint is more akin to " generic, common sense advice" rather than evidence of control.
CONCLUSION
For the foregoing reasons, the defendants Baymont’s and Wyndham’s motion for summary judgment is granted in its entirety.
supra .