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Wendy Hong Wu v. Dunkin' Donuts, Inc.
Citation: 4 F. App'x 82Docket: Nos. 00-7923, 00-9213
Court: Court of Appeals for the Second Circuit; February 19, 2001; Federal Appellate Court
The judgment of the United States District Court for the Eastern District of New York is affirmed in the case of Wendy Wu v. Dunkin’ Donuts, Inc. Wu appeals both the grant of summary judgment in favor of Dunkin’ Donuts (DD) and the denial of her motion for reconsideration. Wu was raped and beaten by assailants while working a graveyard shift at a Dunkin’ Donuts franchise operated by Turnway Donuts, Inc. She claims DD is vicariously liable for Turnway’s inadequate security measures. The district court granted summary judgment to DD, determining that Wu failed to show DD exercised sufficient control over the security of the shop, which is necessary for vicarious liability under New York law. The court also dismissed a derivative loss of consortium claim from Wu's husband, Arthur Lin. The appellate review of summary judgment is de novo, focusing on whether there are genuine issues of material fact. Wu contends that New York law requires only the retention of authority to control, rather than actual control, to establish liability. However, the appellate court found that Wu did not provide adequate evidence under either standard—"right to control" or "exercise of control"—to overcome DD’s motion for summary judgment. Additionally, the court rejected Wu’s argument that her graveyard shift constituted an "inherently dangerous" activity, stating that such activities must be dangerous despite all reasonable care, a standard not met in this case. The court cited examples of inherently dangerous activities and concluded that working a graveyard shift at a donut shop does not fall within those categories. Therefore, the district court’s judgment is affirmed.