UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-1409
ELSIE MARIE ALLEN, as Personal Representative
of the Estate of Donna Lea Swaim; KEITH
BARFIELD, as Personal Representative of the
Estate of Allison Barfield; WILLIAM E.
HARRELL, JR.; NICHOLAS R. WILKERSON,
Plaintiffs - Appellants,
versus
CHOICE HOTELS INTERNATIONAL, INCORPORATED,
Defendant - Appellee,
and
GREENVILLE HOTEL PARTNERS, INCORPORATED; R.G.
HOSPITALITY, LLC; RONALD GEDDA; R.G.
PROPERTIES, LLC,
Defendants.
Appeal from the United States District Court for the District of
South Carolina, at Greenville. Henry M. Herlong, Jr., District
Judge. (6:04-cv-02327-HMH)
Argued: March 20, 2008 Decided: May 1, 2008
Before WILLIAMS, Chief Judge, and NIEMEYER and DUNCAN, Circuit
Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Robert Paul Foster, FOSTER LAW FIRM, L.L.P., Greenville,
South Carolina; Laurel Payne Landon, KILPATRICK & STOCKTON, L.L.P.,
Augusta, Georgia, for Appellants. James Thomas Hewitt,
LEATHERWOOD, WALKER, TODD & MANN, Greenville, South Carolina, for
Appellee. ON BRIEF: Raymond G. Chadwick, Jr., KILPATRICK &
STOCKTON, L.L.P., Augusta, Georgia, for Appellants. John R.
Crockett, III, Jeremiah A. Byrne, FROST, BROWN, TODD, L.L.C.,
Louisville, Kentucky; Stanley T. Case, BUTLER, MEANS, EVINS &
BROWNE, P.A., Spartanburg, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
This case arises out of a fire at a Comfort Inn and Suites
(the “Comfort Inn”) which killed six hotel guests and injured
twelve others. Appellants, guests who were injured in the fire and
personal representatives of those who perished, brought wrongful
death and personal injury claims against Ron Gedda (“Gedda”) and
his company, R.G. Hospitality, LLC (“RGH”) (together “RGH/Gedda”),
the hotel owners/franchisees, and Choice Hotels International, Inc.
(“Choice”), the hotel franchisor. As relevant here, the district
court granted summary judgment to Choice, concluding that, as
franchisor, Choice was neither directly nor vicariously liable for
the alleged negligent acts. Appellants only appeal the district
court’s ruling as to Choice’s direct liability. Appellants also
request that this court certify the issue of franchisor liability
to the South Carolina Supreme Court.
Because this case does not present a novel question of law
that justifies certification, and because we agree that Choice
breached no duty of care on these facts, we affirm.
I.
In January 2004, six hotel guests were killed and twelve
others were injured in a fire at the Comfort Inn and Suites in
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Greenville, South Carolina.1 Following the fire, Appellants filed
suit against Choice on theories that Choice was vicariously liable
for the acts of the franchisee RGH/Gedda based on actual and
apparent agency, and directly liable for alleged negligent acts of
its own. Specifically, they allege that Choice is directly liable
to Appellants because it failed to require RGH/Gedda to retrofit
the hotel with sprinklers.
Choice filed motions for summary judgment on the negligence
claims, arguing that it was not liable on the Appellants’ theories
of negligence for either direct liability or vicarious liability.
The district court granted Choice’s motion, finding that Choice was
not directly liable because it had no duty to retrofit the hotel
with sprinklers, nor was Choice vicariously liable because
Appellants failed to show that RGH/Gedda were either Choice’s
actual or apparent agents.
Appellants twice moved for reconsideration and requested
certification of particular questions to the Supreme Court of South
Carolina. The district court denied these requests. In yet
another motion to reconsider, Appellants submitted an order from
the South Carolina Court of Common Pleas for Greenville County
(“State Court Order”), denying Choice’s motion for summary judgment
in a number of related cases arising from the same incident. The
1
A federal jury convicted Eric Preston Hans for igniting the
fire that caused the injuries and deaths at the hotel. United
States v. Hans, 6:05-cr-01227 (D.S.C. Nov. 16, 2005).
4
state court found that the question of whether Choice owed the
plaintiffs a duty of care presented a mixed question of law and
fact to be resolved by the fact finder. Nonetheless, the district
court held that the State Court Order did not alter the district
court’s analysis with respect to the relationship between Choice
and its franchisees and that the district court was not bound by a
state trial court’s decisions on a matter of law. The district
court again denied Appellants’ motion to reconsider. Appellants
timely filed this appeal.
II.
A.
Appellants maintain that certification is appropriate due to
the absence of controlling South Carolina precedent on franchisor
liability and because this case presents a novel issue of South
Carolina law.2 This court has held that “[o]nly if the available
state law is clearly insufficient should the court certify the
issue to the state court.” Roe v. Doe, 28 F.3d 404, 407 (4th Cir.
1994). In addition, there is no need to certify an unresolved
question of state law to state court where the “state of the law
2
Appellants also argue that this court should reconsider
certification in light of pending cases arising out of the same
incident. Appellants cite to no authority, nor have we found any,
requiring certification where a case arising from the incident is
pending in state court. In any event, the pending cases have all
been settled or dismissed, with the exception of one case that is
in pre-discovery.
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[is clear] in every other jurisdiction that has addressed the
issue.” Powell v. U.S. Fidelity and Guaranty Co., 88 F.3d 271, 273
(4th Cir. 1996). As demonstrated by the district court, there is
sufficient South Carolina case law to resolve the issue before us,
and where the South Carolina case law is lacking, other
jurisdictions that have directly addressed this issue provide
appropriate instruction.
We note as well that the circumstances of Appellants’ request
render it somewhat suspect. Appellants elected to bring suit in
federal court, and pursued the alternative of certification only
after receiving an adverse decision by the district court.
Certification requests that bear a resemblance to forum shopping
are generally discouraged. See National Bank of Washington v.
Pearson, 863 F.2d 322, 327 (4th Cir. 1988) (finding certification
inappropriate after removal to federal court following an adverse
ruling in state court); see also Powell, 88 F.3d at 273 (finding
certification inappropriate where plaintiffs, who sought
certification, had initially filed suit in state court but then
elected to take non-suit and re-file in federal court). For these
reasons, we decline to certify the issue presented by this case to
the Supreme Court of South Carolina.
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B.
We review de novo the district court’s grant of summary
judgment, Long v. Dunlop Sport Group Ams., Inc., 506 F.3d 299, 301
(4th Cir. 2007). Fed. R. Civ. P. 56(c). Because this is a
negligence claim based on diversity jurisdiction, we apply South
Carolina law. See Roe, 28 F.3d at 407 (“Federal courts in
diversity cases apply the law of the forum state.”).
To prevail on a negligence claim in South Carolina, Appellants
must show that (1) Choice owed them a duty of care; (2) Choice
breached its duty by a negligent act or omission; (3) Choice’s
breach was the proximate cause of their injuries; and (4) they
suffered injury or damages. Dorrell v. South Carolina Dep’t of
Transp., 605 S.E.2d 12, 15 (S.C. 2004). “Whether the law
recognizes a particular duty is an issue of law to be determined by
the court.” Jackson v. Swordfish Inv., L.L.C., 620 S.E.2d 54, 56
(S.C. 2005). The district court granted summary judgment to Choice
because Appellants failed to establish the first element--that
Choice owed them a duty--and we agree.
Appellants assert three bases for finding that Choice owed a
duty to Comfort Inn guests that it breached by failing to require
RGH/Gedda to retrofit the hotel facility with a sprinkler system
before opening the facility.3 We consider each in turn.
3
Appellants offered no evidence to show that the hotel, at any
time, failed to comply with all applicable fire codes and
specifically acknowledged as much at oral argument. Furthermore,
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1.
Appellants first argue that Choice owed a duty of care to
hotel guests because Choice operated the Comfort Inn and controlled
its life safety systems as evinced by the Franchise Agreement and
Comfort Inn Rules and Regulations Instructions (“Rules and
Regulations”). See, e.g., Wise v. Kentucky Fried Chicken Corp.,
555 F. Supp. 991, 995-96 (D.N.H. 1983) (holding that the defendant
franchisor owed a duty to a franchisee’s injured employee because
the defendant retained the authority to select, approve, and
recommend the cooking equipment responsible for the employee’s
injury). Therefore, we turn to the Franchise Agreement, the Rules
and Regulations and Choice’s interaction with the Comfort Inn
pursuant to the Franchise Agreement to determine whether Choice
exercised sufficient control over the Comfort Inn to establish such
a duty.
Under both the Franchise Agreement and the Rules and
Regulations, RGH/Gedda (1) owned the building, land, and hotel
equipment; (2) held the operating licenses and permits; (3) hired,
fired, supervised, and disciplined the franchisee’s employees; (4)
determined employee wages and room rates; (5) provided training for
employees, and (6) provided insurance for the hotel. Furthermore,
although asserting that sprinklers are rapidly becoming standard in
the hospitality industry, Appellants have apprised us of no
authority to support their assertion that a hotel franchisor has a
duty to require a hotel, which complies with the relevant fire
codes, to retrofit the building with sprinklers.
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the Franchise Agreement specifically states that RGH/Gedda is
“solely responsible for exercising ordinary business control over
the Hotel.” J.A. 117.
Choice’s Rules and Regulations required RGH/Gedda to have life
safety systems, which included smoke and fire detection, fire
extinguishing equipment, emergency exits, and emergency lighting
that “meet or exceed prevailing federal, state or local codes.”
J.A. 444. The Rules and Regulations also recommended an emergency
power generator and sprinkler system. Gedda testified, however,
that Choice did not participate in the selection of fire or safety
equipment installed at the hotel, and that RGH/Gedda did not need
Choice’s approval to make any changes to safety and security
systems at the hotel; nor did Choice have a role in RGH/Gedda’s
decision regarding whether or not to install fire sprinklers.
The mere terms of the Franchise Agreement do not establish
that Choice exerted sufficient control over the operations of the
hotel to create a duty. See Kerl v. Dennis Rasmussen, Inc., 682
N.W.2d 328, 338 (Wis. 2004) (“[T]he clear trend in the case law in
other jurisdictions is that the quality and operational standards
and inspection rights contained in a franchise agreement do not
establish a franchisor’s control or right of control over the
franchisee sufficient to ground a claim for vicarious
9
liability.”).4 And, the Rules and Regulations simply ensure
uniformity at all Comfort Inn franchise locations. See Hayman v.
Ramada Inn, Inc. 357 S.E.2d 394, 397 (N.C. Ct. App. 1987). At
best, taken together, the Franchise Agreement and Rules and
Regulations show that RGH/Gedda operated and controlled the Comfort
Inn under general guidelines intended to foster consistency
throughout the Choice system. Therefore, Appellants have failed to
establish that Choice owed a duty to Comfort Inn guests under this
theory.
2.
The second basis for finding a duty, Appellants argue, is that
Choice owed a common law duty of care to foreseeable persons.
Citing to the South Carolina Supreme Court’s decision in Dorrell,
Appellants argue that since their injuries were foreseeable, Choice
owed a duty to prevent the injuries and that it breached that duty
by not requiring the installation of sprinklers. A review of the
facts of Dorrell, however, reflects the extent to which the
decision is inapposite. The defendant was a contractor hired by
the South Carlina Department of Transportation to pave a shoulder
on a road. 605 S.E.2d at 13-14. When a driver was injured as a
result of the paving job, the contractor argued that he owed no
4
Like the vicarious liability analysis, the “[d]irect
liability cases [also] look to the franchisor’s actual control or
retained right of control to determine the presence of a duty for
purposes of evaluating whether the franchisor was itself
negligent.” Kerl, 682 N.W.2d at 334 n. 3.
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legal duty to the injured driver because the shoulder was paved
pursuant to his contract with the Department of Transportation.
Id. at 13-14. The South Carolina Supreme Court stated that a
“tortfeasor’s liability exists independently of the contract and
rests upon the tortfeasor’s duty to exercise due care,” and the
“common law duty of due care includes the duty to avoid damage or
injury to foreseeable plaintiffs.” Id. at 15.
Appellants attempt to analogize the paving contractor’s
building of an unsafe shoulder to Choice’s failure to require
installation of an automatic sprinkler system. Such a comparison
ignores the fact that while the contractor in Dorrell created the
risk by building the shoulder in such a way that a driver could be
injured, Choice did not create a risk or in any way make injury to
the hotel guests more likely. Therefore, we cannot agree with
Appellants that Dorrell compels the conclusion that Choice owed a
duty to Comfort Inn guests.
3.
The third purported basis for a duty also arises under common
law. South Carolina common law recognizes a separate duty to use
due care where an act is voluntarily undertaken for the benefit of
a third party. See Russel v. City of Columbia, 406 S.E.2d 338, 339
(S.C. 1991) (“[E]ven where there is no duty to act but an act is
voluntarily undertaken, the actor assumes the duty to use due
care.”). Appellants argue that Choice voluntarily undertook to
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regulate the life safety systems and address a security problem at
the hotel for the benefit of hotel guests.5 See generally Decker
v. Domino’s Pizza, Inc., 644 N.E.2d 515 (Ill. App. Ct. 1994)
(holding that a convenience store franchisor owed a duty of
reasonable care to a franchisee’s employee who was injured during
a robbery attempt because the franchisor had voluntarily undertaken
to establish a security program to deter robberies and protect
store employees from harm in the event of a robbery); Papastathis
v. Beall, 723 P.2d 97 (Ariz. Ct. App. 1986) (holding that a
convenience store franchisor owed a duty of reasonable care to a
store customer who was injured when a soda can fell from a
defective rack because the franchisor had undertaken to perform the
service of inspecting, endorsing, and recommending the rack).
Despite Appellants’ argument to the contrary, the fact that
Choice required RGH/Gedda to install fire safety systems and made
recommendations in its Rules and Regulations that RGH/Gedda install
sprinklers does not establish that Choice voluntarily undertook to
control or regulate the life safety systems. See Wendy Hong Wu v.
Dunkin’ Donuts, Inc., 105 F. Supp. 2d 83, 93-94 (E.D.N.Y. 2000)
(“[S]imply providing a list of suggested-but not required-security
5
The security problem refers to a disabled third floor door
lock that the arsonist used to enter the building to start the
fire. Appellants presented evidence that a Choice representative
assured a hotel guest who called to report the malfunctioning lock
that Choice would address the issue. However, it is undisputed
that when a complaint is received, Choice procedure is to forward
it to the franchisee to address.
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items does not support . . . contention that [franchisor] retained
or assumed control of the security of its franchisees.”).
Similarly, requiring renovations to the hotel and accepting and
forwarding hotel-guest complaints to the franchisee does not
indicate that Choice voluntarily undertook to regulate safety
systems or make repairs to the hotel. Helmchen v. White Hen
Pantry, Inc., 685 N.E.2d 180, 182 (Ind. Ct. App. 1997) (requiring
a showing of control over a franchisee’s security measures beyond
merely offering recommendations about security and imposing
standards related to appearance and services to establish a
franchisor’s liability). Instead, Choice merely guarded its
trademark by assuring uniform appearance and operations of hotels
operating under the Comfort Inn mark. See Helmchen, 685 N.E.2d at
182 (“These mandatory procedures are intended to assure uniformity
of operation and appearance, and to protect . . . trademark and the
good will associated with it.”); Raines v. Shoney’s Inc., 909 F.
Supp. 1070, 1078 (E.D. Tenn. 1995) (“The protection of its
trademark and service mark is a necessary duty of a franchisor; to
interfere with this duty would unfairly impose liability on the
basis of a necessary duty.”).
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III.
For the foregoing reasons, Appellants have failed to establish
that Choice owed a duty to hotel guests at the Comfort Inn. The
order of the district court is therefore
AFFIRMED.
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