191 So. 3d 707
La. Ct. App.2016Background
- Plaintiff Thomas Nearhood was injured when the weighted bar of a Precor Smith machine at an Anytime Fitness franchised location fell on him; he sued the gym operator (Fitness Partners), the franchisor (Anytime Fitness, Inc.), and the manufacturer (Precor).
- Prior summary judgment rulings: trial court granted summary judgment for Fitness Partners and Precor; those grants were affirmed on appeal in separate matters.
- Anytime Fitness moved for summary judgment arguing it lacked day-to-day control over the franchisee and therefore had no custody/garde of the equipment; it produced the franchise agreement and an affidavit from its VP of Operations supporting lack of control.
- Nearhood argued (1) discovery was inadequate and (2) Anytime Fitness exerted sufficient control (e.g., equipment standards, electronic access system) to be liable as franchisor for a dangerous instrumentality.
- The trial court granted Anytime Fitness’s motion; on appeal the court reviewed adequacy of discovery for abuse of discretion and summary judgment de novo, and affirmed the grant.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Adequacy of discovery before hearing | Nearhood: discovery was incomplete; Anytime Fitness joined late; more discovery might show franchisor orchestration | Anytime: extensive discovery already occurred; motion filed >1.5 years after suit; no motion to continue was filed | No abuse of discretion; discovery was adequate and summary judgment was not delayed improperly |
| Franchisor liability (custody/garde of equipment) | Nearhood: Anytime Fitness exerted control via standards, vendor lists, electronic access, and could require safety steps | Anytime: franchise agreement and affidavit show franchisee controls day-to-day operations and equipment choice; franchisor lacks right to direct daily management | Held for Anytime Fitness: no day-to-day control shown; franchisor lacked custody/garde of the machine |
| Burden shift under La. Code Civ.P. art. 966(C)(2) | Nearhood: evidence would show franchisor responsibility | Anytime: established absence of control, shifting burden to Nearhood to provide factual support | Nearhood failed to produce sufficient factual support; summary judgment appropriate |
Key Cases Cited
- Riggs v. Opelousas General Hospital Trust Authority, 997 So.2d 814 (La. App. 3 Cir.) (elements for liability involving custody or control of a dangerous thing)
- Evans v. Bordelon, 161 So.3d 674 (La. App. 3 Cir.) (appellate review of summary judgment is de novo)
- Dupree v. City of New Orleans, 765 So.2d 1002 (La. 2000) (factors for determining custody/garde: right of direction/control and benefit)
- Espinosa v. Accor North America, Inc., 174 So.3d 123 (La. App. 4 Cir.) (franchisor without day-to-day control not liable)
- Chambers-Johnson v. Applebee’s Restaurant, 101 So.3d 473 (La. App. 5 Cir.) (franchisor liability requires more than system-wide standards)
- Taylor v. Holiday Inn, Inc., 596 So.2d 735 (La. App. 5 Cir.) (franchisor remedies limited to notice/cure or termination indicate lack of daily control)
- Madison v. State, Department of Public Safety & Corrections, 164 So.3d 381 (La. App. 3 Cir.) (summary judgment need not be delayed for further discovery absent probable injustice)
- Gunter v. Jefferson Davis Parish, 84 So.3d 705 (La. App. 3 Cir.) (adequate discovery standards for summary judgment)