가맹계약상 가맹본부의 대위책임에 관한 판례연구

This study considers cases held as to the vicarious liability of the franchisor. Kerl v. Dennis Rasmussen, Inc. showed the complete explanation of why the franchise is not based on ‘respondeat superior theory’ and adopted the instrumentality test that the franchisor may be held vicariously liable for the tortious conduct of its franchisee only if the franchisor has control or a right of control over the daily operation of the specific aspect of the franchisee's business that is alleged to have caused the harm. Another case is Patterson v. Domino’s that is the functional equivalent of the instrumentality test by focusing on the control over ‘relevant’ day-to-day aspects of the workplace behavior of the franchisee's employees exercised by the franchisor. Although two cases are different point of view, they allocate vicarious liability to the franchisor who is in a position to control or have a right to control the employee’s behavior of the franchisee. The instrumentality test might reduce the likelihood to impose vicarious liability on the franchisor. It attributes that the franchisee is better situated to properly supervise or control his employees. Thus, the contracting parties acknowledge and agree that the franchisee is not an agent but an independent contractor and this agreement is not be construed to create a master-servant relationship. Moreover, the agreement should state that the franchisee has the sole duty to train or supervise his employees and to instruct them about problems of safety, security and proper performance.