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Court Watch

By Michael W. Tyler
October 02, 2013

The Instrumentality Test For Determining Franchisor Vicarious Liability

Franchisor vicarious liability for alleged franchisee wrongdoing has been widely litigated for many years. However, two recent cases provide a fresh look at this issue and help to clarify the rationale and application of the “instrumentality test” commonly used to determine franchisor vicarious liability.

In Depianti v. Jan-Pro Franchising, Intl, Inc., Bus. Franchise Guide (CCH) ' 15,069 (Mass. Sup. Jud. Ct. June 17, 2013), the Massachusetts Supreme Judicial Court held that a franchisor may be vicariously liable for the conduct of a franchisee only when the franchisor controls or has the right to control the specific policy or practice which has caused the harm to the complaining plaintiff. More specifically, the court adopted the instrumentality test as the applicable standard to determine franchisor various liability in Massachusetts.

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