Who is liable when a consumer sues a company?

Question

Recently, a vegan customer sued Burger King because a plant-based burger he bought at a Burger King franchise was cooked on a grill also used for cooking meat.

This got me thinking: who would usually be liable for this sort of case?

Would it be...

• the franchisor (Burger King),
• the franchisee (the actual restaurant owner), or
• the employee

I'm interested in not only the answer in Florida, where this occurred, but in other places around the world too.

---

My question is not entirely specific to this example: I'm asking in general. If, for example, an employee cooked a vegan patty on a meat grill even though it shouldn't have been done, as per company rules, would they be liable , or the franchisee, or the franchisor?

Answer 1

Under US law, the question of whether a franchisor is legally responsible for damages caused by a franchisee generally depends on how much control the franchisor exerts over franchisees. If the franchisor exerts "enough" control, it is liable; if the franchisee is independent "enough", it is liable.

Courts use the law of principals and agents to determine who is liable. Because principals control agents, principals are generally liable for any damages caused by their agents. Thus, if the franchisor "controls" the franchisee, the franchisee is considered an agent of the franchisor, and the franchisor is liable for any damages she causes. If the franchisee is not an agent, the franchisor is not liable.

Whether someone is a principal or agent is often a matter of fact, of their actual relationship. That is especially true with franchises. Most franchise contracts explicitly say that the franchisee is not an agent of the franchisor. In these cases, courts look at the actual relationship to decide whether the franchisee is in fact an agent. The general rule is that a franchisee is an agent if the franchisor exercises "day-to-day" control over it. States differ as to what constitutes day-to-day control, so who is liable for what depends on which state it happened in.

Courts have also looked to see if the franchisor does things that create the appearance of control over franchisees. This appears to be the basis for the Vegan Whopper case. In its ads, Burger King said the Impossible Whopper was "100% Whopper, 0% Beef." For this to be true, Burger King had to have enough control over franchisees to make sure they kept the Impossible meat free. In other words, for the ad to be true, franchisees had to be agents, in which case, BK was liable.

For more details, see this article on Franchisor Liability for Franchisee Actions.

PS Thanks for asking an interesting question.

Answer 2

In this specific case he is saying Burger King did not inform people how the burger was prepared and that the ad was therefore deceiving, so he is suing Burger King the corporation because they were the ones who wronged him.

There is no one size fits all thing here. If whatever you want to sue over was done by the corporation you sue them, if whatever you want to sue over was done by an individual store you sue that store.

Answer 3

Any, all or none

Putting aside the merits of the case, what are the legal basis on which an action could be bought?

Contract law

The customer only has a contract with the franchisee so any action under contract law, including breach of contract and misrepresentation, can only be brought against the franchisee.

Negligence Tort

All three are potentially liable for negligence depending on who did what.

It appears that cooking the vegan burger on the same salamander as the meat is standard operating procedure.

If so, the employee is just following the lawful and reasonable directions of their employer and was not negligent. In addition, many jurisdictions have statutes protecting employees for negligent acts and omissions in the course of their employment. In such jurisdictions, even if the employee did something wrong, they can’t be sued.

As between the franchisee and franchisor, if there is negligence, it’s possible that one or the other was not negligent at all but, more likely, they were both negligent. The common law position is that make joint tortfeasors are jointly and severely liable but some jurisdictions have legislation implementing proportional liability.

Misleading and deceptive conduct

It’s a pretty standard feature of consumer protection law that businesses cannot make false and deceptive statements.

In this situation it would appear that both the franchisee and franchisor made such statements so both could be sued. The employee probably didn’t.