Bender v. Hilton Domestic Operating Company, Inc., No. 2:2019cv00271 - Document 57 (M.D. Ala. 2021)
Court Description: OPINION. Signed by Honorable Judge Myron H. Thompson on 4/14/2021. (cwl, )
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Bender v. Hilton Domestic Operating Company, Inc. Doc. 57 Case 2:19-cv-00271-MHT-SMD Document 57 Filed 04/14/21 Page 1 of 16 IN THE DISTRICT COURT OF THE UNITED STATES FOR THE MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION AMY BENDER, ) ) ) ) ) ) ) ) ) ) Plaintiff, v. HILTON DOMESTIC OPERATING COMPANY INC., Defendant. CIVIL ACTION NO. 2:19cv271-MHT (WO) OPINION Plaintiff Amy Bender brings this lawsuit against defendant Hilton Domestic Operating Company Inc. (hereinafter “Hilton Domestic”), alleging that, while visiting Montgomery, Alabama, she tripped over a camouflaged cord in the lobby of a DoubleTree by Hilton Hotel (hereinafter sustained injuries “Montgomery to her knees. DoubleTree”) Bender and asserts a claim for negligence and a claim for recklessness and wantonness, both under jurisdiction based on Alabama diversity law. of Removal citizenship is proper pursuant to 28 U.S.C. §§ 1332 and 1441. Dockets.Justia.com Case 2:19-cv-00271-MHT-SMD Document 57 Filed 04/14/21 Page 2 of 16 Hilton Domestic has moved for summary judgment on both of the claims. For the reasons that follow, the motion will be granted, and judgment will be entered in favor of Hilton Domestic. I. Summary shows that SUMMARY-JUDGMENT STANDARD judgment is appropriate there no genuine is “if the dispute as movant to any material fact and the movant is entitled to judgment as a matter of law.” whether a genuine Fed. R. Civ. P. 56(a). factual dispute To determine exists, the court must view the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in favor of that party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). However, “conclusory supporting evidence, summary judgment.” assertions,” “are without insufficient to admissible withstand Holifield v. Reno, 115 F.3d 1555, 1564 n.6 (11th Cir. 1997), abrogated on other grounds by Lewis v. City of Union City, 918 F.3d 1213 (11th 2 Case 2:19-cv-00271-MHT-SMD Document 57 Filed 04/14/21 Page 3 of 16 Cir. 2019). In general, summary judgment is appropriate when “the record taken as a whole could not lead a rational trier of fact to find for the Matsushita, 475 U.S. at 587. non-moving party.” II. BACKGROUND The parties agree on the pertinent facts regarding the incident at issue. Hilton number of Franchise Domestic hotel The that the parent franchisors, LLC. franchisees is company allow the corporation including provides franchisees times, the Montgomery these franchised hotels. Montgomery Downtown a DoubleTree licenses to use Hilton brand name and marks for their hotels. relevant of DoubleTree was to the At all among It is owned and operated by Hotels, LLC (hereinafter “Montgomery Downtown Hotels”), pursuant to a Franchise License Agreement. contracted with Montgomery Ascent Downtown Hospitality Hotels has Management (hereinafter “Ascent Hospitality”) to handle management 3 Case 2:19-cv-00271-MHT-SMD Document 57 Filed 04/14/21 Page 4 of 16 of the Montgomery DoubleTree. On May 13, 2017, Bender was visiting Montgomery to attend her son’s graduation ceremony. the Montgomery DoubleTree. The She stayed at incident at issue occurred when she left the lobby bar area of the hotel to go collect a pair of sunglasses she had forgotten. While walking toward the exit, she tripped over a lamp cord that was in her path and fell. A member of the hotel staff witnessed her fall, assisted her, and then generated a report of the incident. Bender alleges that Hilton Domestic was both negligent and reckless and wanton in making layout and design decisions that created the hazard over which she tripped. Hilton Domestic has moved for summary judgment, emphasizing that as the franchisor it neither owned nor operated the Montgomery DoubleTree and did not control the design or layout of the lobby. The company argues that Bender has failed to state facts sufficient to establish that it owed any duties to her or any other invitee of the hotel. 4 Case 2:19-cv-00271-MHT-SMD Document 57 Filed 04/14/21 Page 5 of 16 III. Bender has DISCUSSION disclaimed any agency theory of liability and somewhat quixotically chosen to proceed only on a direct-liability theory. The Alabama Supreme Court has never explicitly recognized the existence of a cause of action for direct liability of a franchisor. Compare Kennedy v. W. Sizzlin Corp., 857 So. 2d 71, 80 (Ala. 2003) (Moore, C.J., concurring in part and dissenting in part) (“The so-called ‘direct-negligence’ claims alleged are claims that Alabama courts have never recognized.”) with Bolin v. Superior Well Servs., Inc., No. 7:08cv1100, 2010 WL 11474092 (N.D. Ala. June 25, 2010) least (Blackburn, implicitly C.J.) recognize (reading the Kennedy to existence direct-negligence claims for franchisors). at of Assuming, however, that such a cause of action exists in Alabama law, the court finds that Bender has not provided any evidence to show that Hilton Domestic owed a duty to her as a guest at one of its franchise locations. 5 Case 2:19-cv-00271-MHT-SMD Document 57 Filed 04/14/21 Page 6 of 16 Duty of care is a required element for a claim of See either negligence or recklessness and wantonness. Bryan v. Ala. Power Co., 20 So. 3d 108, 115-16 (Ala. 2009). Whether a duty exists is “a question of law to be determined by the court.” Wal-Mart Stores, Inc. v. Smitherman, 872 So. 2d 833, 837 (Ala. 2003) (cleaned up). While Alabama courts have not defined the circumstances under which a franchisor owes a duty to customers of its franchisee, it is generally accepted in other courts and in the academic literature that the central issue franchisor is the exercised extent over the of control that the franchisee. See Jay Hewitt, Franchisor Direct Liability, 30 Franchise L.J. 35, 37 (2010) (“Direct liability cases look at the franchisor’s control over the franchisee to determine if the franchisor also owes a duty to [guests, invitees, customers, and members of the public].”); see also Kerl v. Dennis Rasmussen, Inc., 682 N.W.2d 328, 334 from n.3 (Wis. various 2004) (listing jurisdictions 6 direct liability that “look to cases the Case 2:19-cv-00271-MHT-SMD Document 57 Filed 04/14/21 Page 7 of 16 franchisor’s control to purposes of actual control determine the evaluating itself negligent”). a franchisor theory is is based or retained presence whether of the right a of duty for franchisor was And, since the question of whether vicariously on an liable under indistinguishable an agency question of control, the court can look to cases discussing the requisite amount of control required for liability to attach in that context to determine what control is necessary for direct liability. H. King, Franchisors Limiting Jr., for the Vicarious Torts of their level of See Joseph Liability Franchisees, of 62 Wash. & Lee L. Rev. 417, 427 n.36 (2005) (“The line separating claims involving an undertaking of responsibilities by the franchisor sufficient to create a duty for the purposes of direct liability from claims based on franchisor control sufficient to support vicarious liability under an actual agency theory may be indiscernible, if a line exists at all.”); see also Allen v. Choice Hotels Int’l, Inc., 276 F. App’x 339, 7 Case 2:19-cv-00271-MHT-SMD Document 57 Filed 04/14/21 Page 8 of 16 343 n.4 (4th Cir. 2008) (describing both vicarious- and direct-liability franchisor’s control); (Minn. analyses actual control Sutherland 1997) as v. (applying turning or retained Barton, the same on 570 the right N.W.2d 1, of 5-7 retention-of-control analysis to decide both direct liability and vicarious liability). The Alabama Supreme Court has held that a franchise agreement strict alone, even compliance a detailed from the one that franchisee, establish the requisite level of control. demands does not See Kennedy, 857 So. 2d at 77; see also Kerl, 682 N.W.2d at 338 (describing “the clear trend in the case law ... that the quality and operational standards and inspection rights contained in a franchise agreement do not establish a franchisor’s control or right of control over the specify franchisee”). minimum business, and Indeed, standards monitor for the the franchisors operation operations to “may of the ensure compliance with these standards,” without assuming a 8 Case 2:19-cv-00271-MHT-SMD Document 57 Filed 04/14/21 Page 9 of 16 duty. 2006 Franklin v. Chick-fil-A, Inc., No. 2:03cv3348, WL 8436867, (Clemon, C.J.). under Alabama at *2 (N.D. Ala. May 22, 2006) To owe a duty to franchise customers law, the franchisor daily operations” of the franchise. must control “the Id. A few courts in other jurisdictions have found that a franchisor owed a duty where it did not control the daily operations of the franchisee but did control “the particular instrumentality or caused the plaintiff’s injury.” design feature that Plunkett v. Crossroads of Lynchburg, Inc., No. 6:14cv28, 2015 WL 82935, at *3 (W.D. Va. Jan. 7, 2015) (Ballou, M.J.) (listing cases). For duty to attach under this theory, the plaintiff must prove that the “franchisor controlled the selection of the product which caused the injury or mandated a means or method which caused the injury.” Id. The level of control required is high; it “must consist of something more than a general right to make suggestions or recommendations or to order work stopped or resumed.” Whitten v. Ky. Fried Chicken Corp., 570 9 Case 2:19-cv-00271-MHT-SMD Document 57 Filed 04/14/21 Page 10 of 16 N.E. 2d 1353, 1356 (Ind. Ct. App. 1991); see also Wise v. Ky. Fried Chicken Corp., 555 F. Supp. 991, 995 (D.N.H. 1983) (Devine, C.J.) (finding that a franchisor exercised the requisite level of control over equipment where it operated system for recommending, and maintaining quality control” for that equipment). The selecting, “a approving, sophisticated testing, fact that the franchise agreement required a certain design feature or set standards related to it is not enough to establish the requisite level of control. See Allen, 276 F. App’x at 342-43. There is no genuine dispute that Hilton Domestic lacked control over the day-to-day operations of the Montgomery DoubleTree. hotel a was franchise The that operated by Hilton Domestic. Montgomery Downtown Hotels, parties was the hotel Hotels, not by were Hilton hired with by Domestic, 10 neither that the owned nor Instead, it was owned by contracted to Ascent Hospitality. staffed agree daily management The employees who Montgomery and Hilton Downtown Domestic Case 2:19-cv-00271-MHT-SMD Document 57 Filed 04/14/21 Page 11 of 16 exercised no supervisory authority over them. Bender accepts the evidence that Hilton Domestic did not engage in daily management of the Montgomery DoubleTree. is However, she argues that Hilton Domestic nevertheless liable because it controlled the instrumentality of her injury by mandating standards for the design and layout of the lobby space. Even if Alabama were to recognize this form of liability, it would be inapplicable here based on the undisputed evidence in the record. To support her theory, Bender relies on the franchise agreement and the Product Improvement Plan. These documents obligated Montgomery Downtown Hotels to refurbish the lobby space of the Montgomery DoubleTree and set standards decorated. They for how further the required hotel should that be Montgomery Downtown Hotels submit its designs to Hilton Domestic for review and approval. But courts in Alabama have made clear that the existence and enforcement of strict and detailed design requirements 11 in a franchise Case 2:19-cv-00271-MHT-SMD Document 57 Filed 04/14/21 Page 12 of 16 agreement, without more, do not establish a level of control sufficient for a franchisor to owe a duty. See Kennedy, 857 So. 2d at 77 (holding that a franchisor’s reservation of the “right to supervise” a franchisee “to determine performance if required that by person a conforms contract ... to the does not, itself, establish control”); Wood v. Shell Oil Co., 495 So. 2d 1034, 1037 (Ala. 1986) (even when an agreement specifies “in some detail” how the franchisee must act and gives the franchisor the right to approve certain aspects of the operation, it does not prove that the franchisor exercised the requisite level of control for liability); see also Allen, 276 F. App’x at 342-43. Bender’s conclusory assertions that Hilton Domestic controlled the entirety of the refurbishment process and created the hazard by exercising complete and exclusive control over the layout of the hotel, without anything in the record to support them, do nothing to bolster her insufficient argument. The language of the franchise 12 agreement itself Case 2:19-cv-00271-MHT-SMD Document 57 Filed 04/14/21 Page 13 of 16 reinforces the conclusion that Hilton Domestic controlled neither the daily operations of the hotel nor the design Bender’s feature argument discretion in that that caused the furnishing the Bender’s franchisee hotel is injury. lacked any inaccurate. While Hilton Domestic required that Montgomery Downtown Hotels complete renovations, provided standards those renovations should review approve and meet, and plans reserved for the the new right design, to the language of the agreement gave the franchisee a variety of options in specifications. manager for meeting Hilton Domestic’s general For example, as Brian Hass, regional Ascent Hospitality, testified, the requirement that the hotel provide “ample lighting” in the lobby area could be met by any configuration of lamps and selected. overhead lighting that the franchisee Hass Deposition (Doc. 56-1) at 73. At no point does the agreement mention granular details like the location of outlets or the placement of furniture. Indeed, Hass testified that what Hilton 13 Case 2:19-cv-00271-MHT-SMD Document 57 Filed 04/14/21 Page 14 of 16 Domestic reviewed and approved were merely “specs,” or broad indications of how the Montgomery DoubleTree would be furnished that did not specifically show the physical placement of outlets or fixtures, id. at 50, or of furniture, see id. at 71. that Hilton Domestic’s recommendations placed, those hotel, outlets to brand where standards ultimate including and some were the decisions decisions layout of Montgomery Downtown Hotels. Domestic, standards outlets merely contained should guidance, not Hass emphasized, about about the design of the the location of furniture, were made See id. at 71. did not “care furniture placement and things of that nature.” 28. be See id. at 68-69. mandatory. The as While Hass did note by Hilton about Id. at Indeed, despite the requirements of the franchise agreement, Hass testified that Hilton Domestic neither reviewed Downtown Hotels’ design for the lobby before it was renovated. See id. at 62. nor approved Montgomery The company merely reviewed and accepted the 14 Case 2:19-cv-00271-MHT-SMD Document 57 Filed 04/14/21 Page 15 of 16 design after the fact. See id. Montgomery Downtown Hotels also changed the layout of the lobby numerous times after the original renovation without Hilton Domestic’s approval. Hass testified that employees would “rearrange the lobby all the time” without notifying Hilton Domestic. Id. And the guests themselves would move the lamps “all the Id. at 40. time,” further altering the layout. the Montgomery DoubleTree was open, Hass Once explained, Montgomery Downtown Hotels felt free to organize the lobby however wanted, without See id. at 28. Domestic. decision it making on the consulting Hilton This sort of independent part of the franchisee is inconsistent with the centralized management required to establish a duty. (finding no duty See Allen, 276 F. App’x at 343 where the franchisor did not participate in the selection of the equipment and the franchisee could make changes without the franchisor’s approval). Based on the uncontroverted evidence in the record, 15 Case 2:19-cv-00271-MHT-SMD Document 57 Filed 04/14/21 Page 16 of 16 Hilton Domestic did not exercise sufficient control over either the day-to-day operations of the Montgomery DoubleTree or the exact design of the hotel’s lobby space to establish a duty. Bender’s allegations cannot prove otherwise. unsupported Therefore, Bender has failed to establish a triable issue of fact, and the court Hilton will Domestic. grant An summary judgment appropriate in judgment favor of will be entered. DONE, this the 14th day of April, 2021. /s/ Myron H. Thompson UNITED STATES DISTRICT JUDGE 16
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