Pizza delivery, franchising, vicarious liability, and malicious prosecution: PAPA JOHN’S INTERNATIONAL V. MCCOY (SC 1/24/2008)

PAPA JOHN’S INTERNATIONAL V. MCCOY
TORTS:
MALICIOUS PROSECUTION; DEFAMATION; FRANCHISING; VICARIOUS LIABILITY
2005-SC-000614-DG.pdf
PUBLISHED: REVERSING
OPINION BY MINTON; SCOTT CONCURS IN PART, DISSENTS IN PART BY SEP. OPINION; LAMBERT DISSENTS BY SEP. OPINION AND JOINS SCOTT AS TO DISSENT REGARDING RWT’S LIABILITY
DATE RENDERED: 01/24/2008

The Supreme Court reverses the CA, concluding that the circuit court properly granted SJ dismissing a malicious prosecution claim against a franchisee in this bizarre pizza delivery case.

Appellee, a business owner, was working late in February of 2000, and called a Papa John’s pizza franchisee to order pizzas delivered to his home and office. In his order he took time to inquire as to how the store placed the pepperoni on the pizza and whether the driver could make the two deliveries and receive payment at his office. The store agreed. Appellee and the driver tell different versions of the delivery. Appellee claims the driver hung around his office, apparently inquiring about work, and appellee allowed the driver to watch a hunting video in his office, which he admitted contained beer and a rifle. Driver claims appellee asked him to come to his office for payment and there told driver that appellee was having suicidal thoughts, was drinking and pointed the gun at driver. Eventually the driver slipped out when appellee’s back was turned. Upon hearing driver’s story and seeing that he was upset, another franchise employee called the police. The police investigated and other Papa John’s employees recounted that appellee was either rude, difficult, disoriented or highly irritated. Appellee was arrested for unlawful imprisonment in the first degree. The local newspaper published a story about the incident. Two months later the county attorney dismissed the case on appellee’s motion.

In this case of first impression, the S.Ct. concludes that the acts complained of here occurred within an independent course of conduct that could not have been intended by the driver to serve any purpose of the employer, so the circuit court properly granted summary judgment dismissing the malicious prosecution claim against franchisee. The S.Ct. also adopts a rule in which the franchisor is vicariously liable for the tortious conduct of the franchisee when it, in fact, has control or right of control over the daily operation of the specific aspect of the franchisee’s business that is alleged to have caused the harm. Papa John’s had no control over the driver’s alleged intentional, tortious conduct in this case, so it cannot be held vicariously liable.

JOHN  E. HAMLET

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