## Facts

- Burger King Corporation (BK) franchised a Burger King restaurant at Schofield Barracks, Hawaiʻi to the United States Army and Air Force Exchange Service (AAFES).
- No BK employees worked at the restaurant; AAFES staffed and ran it.
- On December 1, 2010, Clark Bartholomew’s wife bought a Triple Whopper meal from the Schofield Barracks Burger King and brought it home.
- While eating the sandwich, Bartholomew bit into a needle-shaped metal object that pierced his tongue.
- Two days later, Bartholomew suffered abdominal pain; medical evaluation found another needle-shaped metal object lodged in his small intestine. He was hospitalized and remained on bed rest until December 9, 2010.
- It was unclear how the metal objects entered the sandwich.
- The franchise agreement and related documents stated AAFES was an independent operator and disclaimed any agency, partnership, joint venture, or employment relationship between BK and AAFES.
- The agreement also stated BK had no control over the terms and conditions of AAFES employees’ employment.
- At the same time, the franchise documents required AAFES to comply strictly with the Burger King system, including BK’s food-handling, preparation, and quality-assurance requirements.
- BK retained the right to enter and inspect the restaurant.
- BK’s operations materials (including the “Mod Manual”) set detailed instructions for food storage, cooking, and sandwich assembly, and included procedures for responding to food tampering and food-related injuries.
- BK’s manuals specified required products, supplies, and equipment.
- AAFES was required to post signage stating the restaurant was independently owned and operated, but the record was unclear on whether such signage was actually posted.
- BK branding and logos were prominently displayed throughout the restaurant.
- Bartholomew and family members sued BK and others (including AAFES) asserting negligence and related claims arising from the contaminated sandwich.
- BK moved for summary judgment, arguing it was a “mere franchisor” and could not be liable because it lacked sufficient operational control and because the agreements disclaimed agency.

## Issues

1. Whether BK was entitled to summary judgment on plaintiffs’ negligence theories because, as franchisor, it did not retain or exercise enough control over restaurant operations connected to food safety and preparation.
2. Whether BK was entitled to summary judgment on vicarious-liability theories because the franchise documents disclaimed an agency relationship between BK and AAFES.
3. Whether the evidence (including BK’s brand presentation and unclear independent-ownership signage) created a triable issue that AAFES acted as BK’s apparent agent as to restaurant customers.

## Decision

- The court denied BK’s motion for summary judgment.
- The court found genuine disputes of material fact regarding the extent of BK’s retained control over operations relevant to the alleged harm, including food preparation, food safety, inspections, and required procedures set out in BK’s manuals.
- The court ruled that contractual disclaimers of agency were not conclusive at the summary-judgment stage where the record contained evidence that could support direct negligence and apparent-agency theories.
- The court concluded that a reasonable factfinder could determine that BK’s branding and related conduct could have led customers to believe the restaurant was operated by BK, supporting a potential apparent-agency theory.

## Legal Principles

- Summary judgment is proper only when there is no genuine dispute of material fact and the movant is entitled to judgment as a matter of law; the evidence is viewed in the light most favorable to the nonmoving party.
- In franchisor tort cases, liability turns on the degree of control the franchisor retains or exercises over the specific area of operations tied to the plaintiff’s injury; labels in a contract do not decide the question by themselves.
- A franchisor may face direct negligence liability when its retained rights and operational requirements can support a finding that it owed and breached a duty of care connected to customer safety.
- Under Hawaiʻi law, apparent agency may exist when the principal’s conduct leads a reasonable person to believe an agency relationship exists, the plaintiff relies on that appearance, and the plaintiff is injured as a result of that reliance.
- Prominent branding and the absence (or uncertain presence) of clear independent-operator disclosures can contribute to a fact dispute on apparent agency in a franchised-restaurant setting.

## Conclusion

The court denied Burger King’s summary-judgment motion because the record contained evidence that Burger King retained meaningful rights and set detailed operational requirements related to food preparation and safety, and because the restaurant’s branding and unclear independent-ownership disclosure created a jury question on apparent agency; as a result, Burger King was not entitled to judgment as a matter of law on direct or vicarious tort theories at this stage.


Bartholomew v. Burger King Corp., 15 F. Supp. 3d 1043 (2014)