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NOTICE: This opinion is subject to motions for rehearing under Rule 22 as well as formal revision before publication in the New Hampshire Reports. Readers are requested to notify the Reporter, Supreme Court of New Hampshire, One Noble Drive, Concord, New Hampshire 03301, of any editorial errors in order that corrections may be made before the opinion goes to press. Errors may be reported by E-mail at the following address: reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 a.m. on the morning of their release. The direct address of the court's home page is: http://www.courts.state.nh.us/supreme. THE SUPREME COURT OF NEW HAMPSHIRE ___________________________ Merrimack No. 2005-412 DANA VANDEMARK v. MCDONALD'S CORPORATION Argued: March 8, 2006 Opinion Issued: July 21, 2006 Douglas, Leonard & Garvey, P.C., of Concord (Charles G. Douglas, III and Benjamin T. King on the brief, and Mr. King orally), for the plaintiff. Nelson, Kinder, Mosseau & Saturley, P.C., of Manchester (John C. Kissinger, Jr. and Catherine B. Cosgrove on the brief, and Mr. Kissinger orally), for the defendant. DALIANIS, J. The plaintiff, Dana VanDeMark, appeals an order of the Superior Court (McGuire, J.) granting summary judgment for the defendant, McDonald's Corporation. We affirm. I. Background

The following facts were found by the trial court or appear on the record. In or around December 1989, the defendant and Colley/McCoy Management Company, LLC (Colley/McCoy) entered into a series of agreements to establish

a franchise for a McDonald's restaurant on Fisherville Road in Concord, including a franchise letter agreement, a license agreement, and an operator's lease. The defendant is the franchiser and owner of the building in which Colley/McCoy, as franchisee, operates the restaurant. The license agreement provided, in relevant part: Licensee not an Agent of Licensor. Licensee shall have no authority, expressed or implied, to act as agent of Licensor, McDonald's . . . . Licensee is, and shall remain, an independent contractor responsible for all obligations and liabilities of, and for all loss or damage to, the Restaurant and its business . . . . The operator's lease also provided: No Agency Created: Lessee shall have no authority, express or implied, to act as agent of Lessor, or any of its affiliates for any purpose. Lessee is, and shall remain, an independent contractor responsible for all obligations and liabilities of, and for all loss or damage to, the Restaurant and its business . . . . Colley/McCoy operates as a separate entity, independent of McDonald's Corporation. It is responsible for the cost of purchasing equipment for the restaurant, and paying for the fixtures, food products, advertising, maintenance, utilities, and insurance. It hires and trains its own employees. The license agreement provided that the defendant could hold Colley/McCoy in "Material Breach" and terminate the agreement if Colley/McCoy failed, among other things, to "maintain and operate the Restaurant in a good, clean, wholesome manner and in compliance with the standards prescribed by the McDonald's System." In its role as franchiser of McDonald's restaurants, the defendant published an operations and training (O & T) manual, which addressed a number of issues related to the operations of McDonald's restaurants, including safety and security procedures. However, the O & T manual provided: McOpCo employees should consider the rules and regulations contained in this chapter as company policy. Independent owner/operators are encouraged to adopt appropriate policies for their restaurant. A "McOpCo" is a restaurant that is owned and operated by the defendant itself. The defendant employed field consultants to monitor McDonald's restaurants. In early 2001, Christine Perrault assumed the role as field

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consultant for the Colley/McCoy restaurant. In January 2002, the defendant published a "Quality, Service, Cleanliness (QSC) Play Book" for field consultants to use in evaluating its restaurants and recommending improvements. On June 25, 2002, Perrault conducted a "restaurant systems review" of the restaurant and found deficiencies concerning shift management, food safety, and production. She requested that Colley/McCoy develop an "action plan" to rectify such deficiencies. Perrault also found several deficiencies in the restaurant's execution of the "Safety and Security" system. She did not request the development of any action plan in response to these deficiencies. The plaintiff began working at the restaurant in the late 1990's as an overnight custodian. His shift was from midnight until 8:00 a.m. The restaurant was closed during that time and the plaintiff worked alone. On February 6, 2003, at approximately 3:00 a.m., two intruders attacked the plaintiff while he was taking a break outside of the restaurant. One of the intruders carried a baseball bat and ordered the plaintiff inside the building. Once inside, the intruders tied up the plaintiff and beat him with another pipelike instrument. The intruders demanded that the plaintiff give them the combination to the safe. When he insisted that he did not know it, they beat him again until he lost consciousness. When the plaintiff awoke, he was face down on the restaurant floor. He remained motionless until the intruders left. At that point, he managed to untie himself and make his way to the restaurant's panic button. After pressing the button, the plaintiff lost consciousness again. He alleges that the panic button was broken and did not alert the Concord police. At approximately 4:45 a.m., an employee reporting for work found the plaintiff unconscious and dialed 911. The plaintiff was transported to Concord Hospital where he was treated for multiple injuries. The plaintiff brought claims for negligence and vicarious liability against the defendant as a result of injuries he suffered as an employee of Colley/McCoy. The trial court granted the defendant's motion for summary judgment concerning both claims, finding that: (1) no genuine issues of material fact exist; (2) the defendant did not assume a duty to ensure that Colley/McCoy would follow its security measures designed to protect employees; and (3) the defendant did not retain sufficient control over Colley/McCoy's security policy so as to subject it to vicarious liability. On appeal, the plaintiff argues that the trial court erred in granting summary judgment on his negligence and vicarious liability claims by: (1) ignoring evidence in the record that the defendant assumed and breached duties to provide adequate security at the restaurant; and (2) ignoring evidence in the record that Colley/McCoy was an agent of the defendant.

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II.

Standard of Review

When reviewing a trial court's grant of summary judgment, we consider the affidavits and other evidence, and all inferences properly drawn from them, in the light most favorable to the non-moving party. Sintros v. Hamon, 148 N.H. 478, 480 (2002). If our review of the evidence does not reveal any genuine issue of material fact, and if the moving party is entitled to judgment as a matter of law, we will affirm the trial court's decision. Id. An issue of fact is "material" for purposes of summary judgment if it affects the outcome of the litigation under the applicable substantive law. Sandford v. Town of Wolfeboro, 143 N.H. 481, 484 (1999). III. Negligence

We first review whether the trial court erred in granting the defendant summary judgment on the plaintiff's negligence claim. The trial court concluded that the defendant "did not assume a duty to ensure that Colley/McCoy would follow several of its security measures designed to protect employees." To prevail on his negligence claim against the defendant, the plaintiff had to show that: (1) the defendant owed him a duty; (2) the defendant breached this duty; and (3) the breach proximately caused his injuries. See Dupont v. Aavid Thermal Technologies, 147 N.H. 706, 709 (2002). The plaintiff argues that the defendant "voluntarily assumed such a duty by adopting the `QSC Play Book,' a year before [the plaintiff] suffered his attack." Whether the defendant owed the plaintiff a duty is a question of law. Id. We have not addressed what constitutes a franchiser's voluntary assumption of a duty to ensure the safety of a franchisee's employees. We have, however, addressed a similar issue concerning a landlord's voluntary assumption of a duty to protect tenants from criminal attack. See Walls v. Oxford Management Co., 137 N.H. 653, 658 (1993). As a general principle, landlords have no duty to protect others from criminal attack. Id. We recognized in Walls, however, that consistent with the Restatement (Second) of Torts

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