ENDNOTES

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1 E.g., Florida, Virginia. See Mobil Oil v. Bransford, 648 So.2d 199 (1995); Godfrey v. Boddie-Noell Enterprises, Inc., t.a. Hardees of Norfolk, Bus. Franchise Guide (CCH) ¶10,546 (E.D. Va 1994)

2 See, e.g., Balderas v. Howe, 891 S.W.2d 871, Bus. Franchise Guide (CCH) ¶10,617 (Mo. Ct. App. 1995). (in tort action involving alleged negligent operation of an automobile by an employee of a franchisee, the trial court erred in granting summary judgment—the jury should have decided the issue); Greil v. Travelodge International, Inc., 541 N.E.2d 1288 (Ill.App.1989), appeal denied, 544 N.E.2d 110 (Ill. 1989) (because the franchisor had regularly inspected the premises for safety violations, it had been sufficiently involved in day to day operations of the franchise to raise questions of fact regarding actual agency.)

3 See Martin v. McDonald’s Corp., 572 N.E.2d 1073 (1st Dist. Ill.App. 1991), appeal den., 580 N.E.2d 117 (Ill. 1991). (because McDonald’s had assumed a duty to provide security, it had the obligation to perform the duty)

4 15 U.S.C. §1127.

5 See Oberlin v. Marlin American Corp., 596 F.2d 1322, 1327 (7th Cir. 1979).(court held that the purpose of the Lanham Act is "not to create a federal law of agency")

6 Cislaw v. The Southland Corporation, 4 Cal.App.4th 1284, 1295, 6 Cal. Rptr.2d 386 (1992). (franchisor’s interest in reputation permits it to exercise certain controls over the system without conferring agent status on a franchisee who is an independent contractor); Hoffnagle v. McDonald’s Corp., 522 N.W.2d 808, 814 (IA 1994) Bus. Franchise Guide (CCH) ¶10,570 (the franchisor was not liable under a direct liability theory for an assault on an employee of a franchisee where the franchisor did not "control the details of the restaurant’s day-to-day operation".)

7 Little v. Howard Johnson Company 183 Mich.App. 675, 455 N.W.2d 390, 393 (1990). (restaurant customer sued for slip-and-fall. Court held that the plaintiff did not present a triable issue concerning the franchisor’s right to control the day-to-day operations of the franchisee)

8 Drexel v. Union Prescription Ctrs., Inc., 582 F.2d 781 (3rd Cir. 1978); Balderas v. Howe, 891 S.W.2d 871, Bus. Franchise Guide (CCH) ¶10,616 (Mo. Ct. App. 1995). (plaintiff brought a wrongful death action against the franchisor after her husband died after taking an improperly filled prescription from the franchise. She suggested that Union had established a master-servant relationship with the franchisee. The court said that the right to hold franchisees to quality standards did not constitute the requisite control.)

9 Miller v. McDonald’s Corp., Bus. Franchise Guide (CCH), ¶11,248 Ore. Ct. App., (1997) (the court held that the franchisee might be the franchisor’s agent—the plaintiff did not have to show that the franchisor operated the locations that she had previously patronized to show reasonable reliance on the franchisor); Carrick v. Franchise Associates, 671 A.2d 1243, Bus. Franchise Guide (CCH) ¶10,794 (Vt. 1995). (franchisor was not found to be liable under Vermont’s Dram Shop Act for its franchisee’s failure to stop serving alcohol to a customer who was later in a fatal car crash because it lacked the requisite control.); Greil v. Travelodge International, Inc., 541 N.E.2d 1288 (Ill.App.1989), appeal denied, 544 N.E.2d 110 (Ill. 1989) (because the franchisor had regularly inspected the premises for safety violations, it had been sufficiently involved in day to day operations of the franchise to raise questions of fact regarding actual agency.)

10 Bus. Franchise Guide (CCH) ¶10,369 (Fla. App. 1993). (plaintiffs injured while helping victims of car accident caused by pizza delivery person)

11 Sprague v. Tesoro Alasta Petroleum Co., Bus. Franchise Guide (CCH) ¶10,496 (Alaska Super. Ct. 1994). (where a gasoline dealer was not acting in the distributor’s behalf, the distributor was not liable for gasoline leaks caused by the dealer)

12 Cardounel v. Shell Oil Co., Bus. Franchise Guide (CCH) ¶7,649 (Fla. Dist. Ct. App. 1981).(the franchisor was not liable for an assault by the franchise owner on a customer, absent evidence that the franchisor was on notice of the dangerous propensities of the franchisee.) See also Martin v. Southland Corp., Bus. Franchise Guide (CCH) ¶11,019 (Cal.App. 1996) (franchisor not liable for store clerk hacking a customer with a machete)

13 Giles v. Shell Oil Corp., 487 A.2d 610 (D.C.App. 1985).(the franchisor was not liable when the employee of the franchisee shot a customer , both because the attendant was not the franchisor’s employee and because the franchisor did not know of the attendant’s dangerous behavior and had no reason to know of same.) See also Martin v. Southland Corp., Bus. Franchise Guide (CCH) ¶11,019 (Cal.App. 1996) (franchisor not liable for store clerk criminally assaulted a customer with a machete)

14 McLaghlin v. Chicken Delight, Inc., 321 A.2d 456, 460 (Conn. 1973) (the employee of a franchisee was acting within the scope of his employment when the truck he was driving hit and killed a person, but the franchisor was not liable because the plaintiff failed to establish an agency relationship between the franchisee and the franchisor); Williams v. Hall, 288 Ill.App.3d 917, 681 N.E.2d 1037, 224 Ill.Dec. 416 (1st Dist. 1997). (Judgment n.o.v. entered for defendant pizzeria after injuries sustained when a pizza driver pursued men who grabbed pizzas because driver’s conduct was contrary to pizzeria’s policy on handling thefts.)

15 RESTATEMENT (SECOND) OF TORTS, §314A, cmt. d (1958).

16 See Godfrey v. Boddie-Noell Enterprises, Inc., t.a. Hardee’s of Norfolk, Bus. Franchise Guide (CCH) ¶10,546 (E.D. Va. 1994) (plaintiff shot while in the drive-through. The court rejected plaintiff’s argument that because the method of business was to stay open for twenty-four hours a day and because its clientele was known for its guns and drug activity, the franchise attracted or promoted a climate for assault crimes.)

17 See Smith, et al. v. Foodmaker, Inc., 928 S.W.2d 683, 687 (Tex. App. 1996). (because the franchisor had no control over security at the franchise, it was not liable for the death of the franchisee’s employee during a robbery attempt)

18 203 Cal. Rptr. 572 (Cal. Ct. App. 1984) (the franchisor had compiled statistics on the number of crimes at each 7-11 store); See also Holiday Inns v. Shelburne, 576 S.2d 322, 333 (Fla. Dist. App.), cause dismissed, 589 S.2d 291 (1991) (because the franchisor had assumed responsibility within a franchise, it could not escape liability for its negligence by failing to "keep abreast of its assumed duties".); See also Exxon Corp. v. Tidwell, 867 S.W.2d 19, 23 (Tex. 1993) (franchisor was not liable for gunshot wounds franchisee’s employee received during a robbery attempt because Exxon had no control over safety issues.); See also Gray v. McDonald’s Corporation, Bus. Franchise Guide (CCH) ¶10,491 (Tenn. Ct. App. 1993). (neither franchisee nor franchisor could be liable for the murder of a customer in the drive-through because they had no duty to provide security because they did not know or have reason to know that such criminal activity was occurring or about to occur on the premises.)

19 Bus. Franchise Guide (CCH) ¶10,817 (Mo. Ct. App. 1995); Bus. Franchise Guide (CCH) ¶10,935 (Mo. 1996).

20 Sprague v. Tesoro Alasta Petroleum Co., Bus. Franchise Guide (CCH) ¶10,496 (Ala. Sup. Ct. 1994). (see note 10)

21 648 So.2d 119, 121 (Fla. 1995) Bus. Franchise Guide (CCH) ¶10,605. (the franchisee used the franchisor’s marks and symbols at its gas station, and the court found that was not enough to create an assumption of agency where plaintiff was attacked by franchisee’s employee) See also Malmberg v. American Honda Motor Co., Bus. Franchise Guide (CCH) ¶10,551 (Ala. 1994). (Although the manufacturer did not exercise sufficient control over the dealership's operations for the dealership to be its actual agent, the dealership's use of the manufacturer's logos and signs, when coupled with the manufacturer's stated warranty policies and the dealership's claims that its representations were those of the manufacturer, raised a genuine issue of fact as to whether the dealership was an apparent agent of the manufacturer.)

22 O’Banner v. McDonald’s Corp., Bus. Franchise Guide (CCH) ¶10,946 (Ill. 1996). (plaintiff had sued for a slip and fall. The Illinois Supreme Court found that the doctrine of apparent agency is based on the principle of estoppel; if the franchisor creates the appearance that someone is its agent, it should not be permitted to deny the agency if an innocent third party reasonably relies on the apparent agency and is, thus, harmed. The court found that the record did not show reasonable reliance.)

23 See Flanagan v. Jim Beagles, Bus. Franchise Guide (CCH) ¶9,265 (Tenn. Ct. App. 1988). (because the plaintiff testified that he believed he was doing business with the franchisor, the directed verdict for the manufacturer was reversed.)

24 Cullen v. BMW of North American, Inc., 531 F.Supp. 555 (E.D.N.Y. 1982), reversing District Court 691 F.2d 1097 (2nd Cir. 1982), cert. denied 460 U.S. 1070, 103 S.Ct. 1525 (1983), Bus. Franchise Guide (CCH) ¶7,821. (a franchisee stole money which had been paid by a customer for a car. The court said the plaintiff’s testimony showed a belief that the BMW logo represented a particular quality of cars sold, not that the franchisee had the authority to act for the franchisor. Court found for plaintiff on other grounds.)

25 844 F.2d 156, Bus. Franchise Guide (CCH) ¶9,096 (4th Cir. 1998). (plaintiffs were beaten and robbed in their rooms. They testified that they had previously stayed at Holiday Inns, were familiar with the national advertising, and were very surprised to find out that, other than the franchise agreement, the franchisor was not involved in the running of that particular location.)

26 86 N.C.App. 274, 357 S.E.2d 394 (1987). (where the plaintiff did not make her own hotel reservation, she could not have relied on the reputation of the franchisor.)

27 Dalia v. Electronic Realty Associates, Inc., Bus. Franchise Guide (CCH) ¶10,419 (Fla. App. 1993). (the franchisor was found not to be liable, in part because the franchise agreement required the franchisee to hold itself out as an independently owned an operated business)

28 See Burkland v. Electronic Realty Associates, 744 P.2d 1142, Bus. Franchise Guide (CCH) ¶8,943 (Mont. 1987). (the court reversed summary judgment for the franchisor because the plaintiffs stated that they had relied on the franchisor’s reputation when they chose to do business with the franchisee)

29 Castro v. Brown’s Chicken & Pasta, Inc., No. 95 L 253 filed January 6, 1995, pending before Cook County, Illinois Law Division, Judge Michael Hogan presiding. (The estate of the franchisees has been brought in as a third party.)

30 The court adopted franchisor’s argument that the franchisor is not in an agency relationship with this franchisee; hence, it is not liable for the torts of its franchisee’s employees. Slates v. International House of Pancakes, Inc., 90 Ill.App.3d 716, 413 N.E.2d 457 (4th Dist. 1980).

31 See note 3.

32 Northwest v. Amalgamated Trust and Savings Bank, 143 Ill.Dec. 694, 554 N.E.2d 629 (Ill. App. 1st Dist. 1990).

33 See also, Decker v. Domino’s Pizza, 201 Ill.Dec. 959, 644 N.E.2d 515 (5th Dist. 1994).

34 See Hernandez v. Rapid Bus Company, 641 N.E.2d 886 (1st Dist. 1994).

35 239 Ill.App.3d 403, 606 N.E.3d 845 (Ill.App.2d Dist. 1992)

36 See note 3. 157 Ill.Dec. 609, 572 N.E.2d 1073 (Ill.App. 1st Dist. 1991)

37 Coty v. U.S. Slicing Machine Company, 53 Ill.App.3d 237, 15 Ill.Dec. 687, 373 N.E.2d 1371 (1978)

38 Balsamo, et. al. v. Stanley Green, Gregg R. Sibigtroth, Charles Keane, owner of the Subway Franchise located in Harry, Illinois, CNG Investment Group, Inc., an Illinois Corporation; Doctor’s Associates, Inc., a Florida Corporation, d/b/a Subway, Inc., No. 95 L 190 Circuit Court of the Nineteenth Judicial Circuit, McHenry, Illinois; Lebus, et. al. v. Stanley Green, Gregg R. Sibigtroth, Charles Keane, owner of the Subway Franchise located in Harry, Illinois, CNG Investment Group, Inc., an Illinois Corporation; Doctor’s Associates, Inc., a Florida Corporation, d/b/a Subway, Inc., No. 95 L 191 Circuit Court of the Nineteenth Judicial Circuit, McHenry, Illinois.

39 Specifically, the Complaints alleged that during the plaintiffs’ employment with the franchisees, the manager, Stanley Green, perpetrated a pattern and practice of forcing and attempting to force unwanted sexual attentions and relations with Plaintiffs, including, but not limited to, fondling Plaintiff’s breasts and sexual organs, kissing Plaintiffs, digital penetration of Plaintiffs’ vaginas, and requiring and forcing Plaintiffs to perform fellatio on him and attempting to force Plaintiffs to engage in sexual intercourse. At all times alleged, the Plaintiffs were minors, i.e., under the age of sixteen.

40 Greil v. Travelodge International, 186 Ill.App.3d 1061, 541 N.E.2d 1288 (1st Dist. 1989).

41 Id, at 541 N.E.2d 1295; Nichols v. Arthur Murray, Inc., 248 Cal.App.2d 610, 56 Cal.Rptr. 728 (4th Dist. 1967).

42 Greil, 541 N.E.2d 1295; Wood v. Holiday Inns, 508 F.2d 167 (5th Cir. 1975).

43 See e.g. Bonnfield v. Amoco Transmissions, 708 F. Supp. 867, 883-884 (N.D. Ill. 1989); Little Oil Company, Inc. v. Atlantic Richfield Company, 852 F.2d 441, 447 (9th Cir. 1988); In Re Whitefarm Equipment Company, Bus. Franchise Guide (CCH) ¶8,759 (N.D. Ill. 1986); Boat and Motor Mart v. Searay Boats, Inc., 825 F.2d 1285 (9th Cir. 1987).

44 See note 14.

45 Burgos-Oquendo v. Caribbean Golf Refining Corp., 741 F. Supp. 330 (D. P. R. 1990); Smith v. Foodmaker, Inc., Bus. Franchise Guide (CCH) ¶10,984 (Tex. App. 1996). (Franchisor not liable for the murder of a restaurant employee by a coworker during a robbery); Contra, Martin v. Southland Corp., Bus. Franchise Guide (CCH) ¶11,019 (Cal. App. 1996) (Court reversed finding of summary judgment for franchisor in action wherein franchisee’s employee criminally assaulted a customer with a machete).

46 Chevron, USA, Inc. v. Lesch, 570 A.2d 840 (Md 1990). (The evidence showed that the Plaintiff did not rely on the "Chevron" name, but rather, sought out a specific mechanic’s service.) See also Mobil Oil Corp. v. Bransford, 648 So.2d 1999 (1995)

47 Crinkley v. Holiday Inns, Inc., 844 F.2d 156 (4th Cir. 1988); Wood v. Holiday Inns, Inc., 508 F.2d 167 (5th Cir. 1975); Drummond v. Hilton Hotel Corp., 501 F.Supp. 29 (E.D. Pa. 1980).

48 Mary Mullen, widow of Kenneth Mullen, deceased, et. al., Plaintiffs, v. 71st & Kedzie, Inc., No. 93 L 09163, Circuit Court of Cook County, Illinois.

49 Ono v. Chicago Park District, 235 Ill.App.3d 383, 601 N.E.2d 1172 (1st Dist. 1992); Rowe v. State Bank of Lombard, 125 Ill.2d 203, 531 N.E.2d 1358, 1364 (Ill. 1988).

50 Rowe at 125 Ill.2d 216.

51 Bence v. Crawford Savings and Loan Ass’n, 80 Ill.App.3d 491, 400 N.E.2d 39 (1st Dist. 1980)

52 Davis v. Allhands, 268 Ill.App.3d 143, 643 N.E.2d 856 (4th Dist. 1994).

53 Id.

54 In Petrauskas v. Wexenthaller Realty Mgmt., 86 Ill.App.3d 820, 542 N.E.2d 902 (1st Dist. 1989), the plaintiff was raped in her apartment building and alleged that the defendant’s landlord failed to provide security because specific prior incidents made the attack against her reasonably foreseeable. The specific prior incidents alleged by the plaintiff included: (1) one month prior, a person was fatally shot across the street; (2) an unauthorized person was removed from the premises by the defendants; and (3) the defendant’s building was in a "high-crime area." The court affirmed the trial court holding that the defendant did not owe a duty to protect the plaintiff from the criminal acts of third persons noting that the assailant could just as well have been a fellow tenant rather than someone from the outside. See also Davis v. Allhands, 268 Ill.App.3d 143, 643 N.E.2d 856 (4th Dist. 1994). (Assault in tavern by a fellow patron with a reputation for aggressiveness and violence found to be insufficient to make the assault foreseeable based on four previous fights in the first 90 days that the tavern was open where other altercations did not involve the assailant or the plaintiff.)

55 Popp v. Cash Station, Inc., 244 Ill.App.3d 87, 613 N.E.2d 1150, 1152 (1st Dist. 1992).

56 Id at 1153-55.

57 Popp v. Cash Station, Inc., 244 Ill.App.3d 87, 613 N.E.2d 1150 (1st Dist. 1992).

58 Id.

59 Bence v. Crawford Savings and Loan Ass’n, 80 Ill.App.3d 491, 400 N.E.2d 39 (1st Dist. 1980)

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