Vicarious Liability

The Hotel Clerk, The Dog, The Bumptious Guest, and the Cousin

The relationship between franchisors and franchisees is a close one, but that doesn't put franchisors on the hook for everything their franchisees do.

So, at any rate, says the California Court of Appeal in the case of the hotel clerk, the bumptious guest, the dog, and the cousin, which is broadly applicable in other states with laws on the books similar to the California Unruh Civil Rights Act.

The case began as the clerk helped a customer at the service desk of a franchised Hilton Hotel in the Golden State. Suddenly, a big, unleashed dog came through the door and began roaming about the lobby rudely sniffing guests. Two men followed, one of them wearing only swimming trunks and smelling strongly of alcohol.

The man in swimming trunks barged up to the service desk, elbowing others aside and demanding accommodations. The dog, he insisted, was a service dog, and the second man, his cousin, was disabled.

The clerk, however, saw nothing on the animal to indicate that it was a service dog - no service harness, for instance - and asked the man to leash it. The man refused, and when the clerk declined to accommodate the man and his entourage, he grew irate and muttered obscenities. He left, taking the dog and the cousin with him, but the man's lawyer soon slapped the hotel, a franchise operation, with a lawsuit alleging negligence and violations of the Unruh Civil Rights Act.

The lawsuit named the franchisor, too, of course, on grounds that the relationship between the franchisor and the franchisee constituted an "agency" relationship making the franchisor vicariously responsible for injuries suffered by hotel guests like the man in swimming trunks.

No deal, according to the California Court of Appeal. The man in swimming trunks presented no evidence showing that he had chosen to walk into the hotel in question knowing that it was a franchise operation, the court said, much less that the franchisor controlled the actions of the franchisee in hiring, training, and supervising the clerk.

There was, in short, no agency relationship between the franchisor and franchisee, the court ruled, and no vicarious liability. The man in swimming trunks had no case - good news for franchisors everywhere.