Mary DiFederico v. Marriott International, Inc. , 677 F. App'x 830 ( 2017 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-2179
MARY DIFEDERICO, individually and as personal representative of
the estate of Albert DiFederico; NICHOLAS DIFEDERICO, individually;
ERIK DIFEDERICO, individually; GREG DIFEDERICO, individually,
Plaintiffs - Appellants,
v.
MARRIOTT INTERNATIONAL, INC.,
Defendant – Appellee.
Appeal from the United States District Court for the District of Maryland, at Greenbelt.
Roger W. Titus, Senior District Judge. (8:11-cv-01508-RWT)
Argued: October 27, 2016 Decided: February 2, 2017
Before GREGORY, Chief Judge, and DUNCAN and THACKER, Circuit Judges.
Affirmed by unpublished opinion. Chief Judge Gregory wrote the opinion, in which
Judge Duncan and Judge Thacker joined.
ARGUED: Matthew Paul Leto, HALL, LAMB & HALL, PA, Miami, Florida, for
Appellants. Paul K. Leary, Jr., COZEN O’CONNOR, Philadelphia, Pennsylvania, for
Appellee. ON BRIEF: Andrew C. Hall, HALL, LAMB & HALL, PA, Miami, Florida,
for Appellants.
Unpublished opinions are not binding precedent in this circuit.
GREGORY, Chief Judge:
On September 20, 2008, Mr. Albert DiFederico was tragically killed when
terrorists attacked the Marriott Islamabad, in which he was staying. We now must
answer whether the district court erred in finding that Marriott International, the hotel’s
franchisor, was not liable for Mr. DiFederico’s death. We find that the district court did
not err, and therefore affirm.
I.
A.
The Marriott Islamabad (“the Islamabad”) is a franchisee of Marriott International
(“Marriott”). It is owned and operated by Hashwani, Inc., a Pakistani company. On
September 20, 2008, a truck carrying 1,320 lbs of explosives turned into the Islamabad’s
driveway and crashed into the hotel’s fortified gate barrier, called a Delta barrier. The
barrier stopped the truck from moving any closer to the hotel. Thirteen seconds later, the
truck driver attempted to detonate the explosives.
The detonator partially malfunctioned. It did not detonate the explosives in the
back of the truck, but it started a fire in the front of the truck. Security guards responded
to the truck like an automobile fire, seemingly unaware that the back of the truck carried
explosives. But the hotel did not notify guests of the fire. The security guards attempted
to put out the fire using fire extinguishers, but were unsuccessful.
Several minutes after the attempted detonation, the truck exploded. At the time,
there were more than 1,500 people in the hotel. The explosion set fire to the fourth floor
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of the hotel and damaged the main water line used in the hotel’s sprinkler system.
Mr. DiFederico, a guest on the Islamabad’s fourth floor, died due to either the initial
explosion or the subsequent fire. Overall, fifty-six individuals died in the attack, and 265
individuals were injured.
Mr. DiFederico’s family brought a wrongful death and survival suit against
Marriott. They did not name Hashwani as a defendant. The district court originally
dismissed the case as forum non conveniens, and the Fourth Circuit reversed and
remanded that decision. DiFederico v. Marriott Int’l, Inc., 714 F.3d 796 (4th Cir. 2013).
Plaintiffs amended their complaint twice before settling on a theory of liability.
They argued that Marriott, as franchisor, exercised sufficient control over the Islamabad’s
security protocols to render it liable for Mr. DiFederico’s death. The district court denied
Marriott’s motion to dismiss, and discovery occurred. After discovery, Marriott filed a
motion to dismiss, or in the alternative, for summary judgment.
The district court granted summary judgment in favor of Marriott. In doing so, it
found that Marriott did not exercise sufficient control over the Islamabad’s security
operations to warrant liability. It also found that Marriott was not liable under an agency
by estoppel or apparent agency theory.
Plaintiffs timely appealed. They argue solely that Marriott exercised sufficient
control over the Islamabad’s security procedures--the instrumentality that led to
Mr. DiFederico’s death. See Appellant Br. 30, 38.
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B.
To determine whether Marriott is liable for Mr. DiFederico’s death, we must
examine what control Marriott exerted over the Islamabad’s security. We first review
Marriott’s relationship with franchisees generally, and then review its relationship with
the Islamabad specifically.
1.
Under the Marriott brand, there are hotels that are owned and managed by the
Marriott; hotels that are managed, but not owned, by the Marriott; and hotels that are
neither managed nor owned by the Marriott, but retain a franchise license to use the
Marriott name. In order to maintain a license to use the Marriott name, franchised hotels
must adhere to a set of standards that Marriott establishes. For example, a franchised
hotel must meet Marriott’s Crisis Management Standards (“Standards”). The Standards
delineate the minimum security standards a franchised hotel must meet based on its level
of threat risk.
Marriott also has a Crisis Management Plan (“Plan”) that it requires managed
hotels to meet. Unlike the Standards, however, franchised hotels need not adhere to the
Plan. Instead, the Plan is “distributed to franchised hotels . . . because the contents of this
manual may help the franchised hotels in developing or improving their Local Crisis
Management Plan, even though some of the information in the Plan, such as the
directions concerning who to contact within Marriott International, are not applicable to
hotels that Marriott International does not manage.” J.A. 376.
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Similarly, Marriott-managed hotels operating internationally must meet Marriott’s
International Lodging Crisis Plan (“International Plan”). Franchised hotels receive the
International Plan, but do not need to meet its requirements.
Marriott audits its franchised hotels twice a year to ensure the Standards are met.
But Marriott takes no further steps to ensure that the franchised hotels are safe. The audit
report itself is a one-page, double-sided, yes/no checklist with a short space for
comments, confirming that the relevant security requirements, depending on the hotel’s
threat condition, are met: for example, whether there is a current, local crisis
management plan on file; whether anyone is taking photographs of the hotel; whether the
roof access is locked. Marriott does not even have to review or approve a franchised
hotel’s local crisis management plan. It just needs to know that the hotel has one.
Marriott requires franchised hotels to send its employees to mandatory Marriott
training programs. These programs cover topics like hospitality, management skills, and
conflict resolution. But Marriott provides franchised hotels with no training programs on
security protocols or threat assessment.
2.
The Islamabad is a franchisee of Marriott. As a franchisee, the Islamabad has to
meet Marriott’s Standards. Hashwani, the company that owns and manages the
Islamabad, also received Marriott’s Plan and International Plan, but it did not need to
implement those plans. Hashwani is otherwise responsible for hiring, training, and
managing the Islamabad’s security staff.
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At the time of the bombing, the Islamabad was categorized as Threat Condition
Red. Under the Standards, Hashwani had to “establish a comprehensive written local
Crisis Management Plan” that addressed foreseeable natural and man-made disasters, and
regularly review its plan with its local crisis management team and employees.
Hashwani also had to establish certain security measures at the Islamabad--for example,
inspect its public restrooms at least hourly; refuse to store luggage; use metal detectors to
screen all individuals entering the hotel; and require identification for all vehicles
entering the hotel property. Marriott audited the Islamabad one month before the attack
and found the Islamabad to be one-hundred percent compliant with its Standards.
II.
This court reviews a grant of summary judgment de novo. Roe v. Doe, 28 F.3d
404, 406 (4th Cir. 1994). Summary judgment is appropriate if, upon considering all of
the evidence, “the court finds that the moving party is entitled to judgment as a matter of
law.” Id. When evaluating the evidence, “[t]his court must draw all reasonable
inferences in favor of the appellant.” Id. at 407.
A.
In Maryland, the principle of lex loci delicti applies to all tort claims. Wells v.
Liddy, 186 F.3d 505, 521 (4th Cir. 1999). As a result, a court must apply the law of “the
state where the last event necessary to make an actor liable for an alleged tort takes
place.” DiFederico v. Marriott Int’l, Inc., 714 F.3d 796, 807 (4th Cir. 2013). Because
the last event occurred in Islamabad, Pakistan, we must apply Pakistani law.
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Pakistani law allows liability for franchisors when the franchise agreement
contains an express agency relationship or when the franchisor committed the injury-
causing act by controlling the instrumentalities of the injury. See The Fatal Accidents
Act, Act No. 13 of 1855 (Pak.) (party that committed wrongful act or neglect, causing
death of person, liable for damages). The district court found, and the parties did not
dispute, that Pakistani law on this point was “consistent with those of the forum state,
Maryland.” DiFederico, 130 F. Supp. 3d at 992. Because neither party contested this
finding, any objection to the use of Maryland law as identical to Pakistani law on this
point is waived. As a result, we continue to rely on Maryland law to illustrate the
Pakistani tort claim at issue. 1
B.
Whether a franchisor controlled the instrumentalities of an injury is a highly fact-
intensive question. No prior case can be perfectly on point, yet many may be analogous.
We briefly review two. Although they arise from different states, both cases address the
same question present in Maryland law. Cf. Stenlund v. Marriott Int’l, Inc., 172 F. Supp.
3d 874, 884-86 (D. Md. 2016) (citing out-of-jurisdiction cases to illustrate application of
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Maryland law also recognizes liability for a franchiser when it creates a “master-
servant” relationship by exercising sufficient control over its franchisee’s day-to-day
operations. Plaintiffs do not argue on appeal that Marriott exercised sufficient control to
render Hashwani its agent, and such a claim may not be possible under Pakistani law.
See Marriott Supp. Mem. Ex. A, Affidavit of Ahsan Zahir Rizvi, ECF No. 135-1, at 2-3
(asserting that Pakistani law only recognizes liability under agency theory when contract
agreement expressly creates agency relationship). For these reasons, we focus only on
whether Marriott controlled the instrumentalities that led to Mr. DiFederico’s death.
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Maryland law when examining whether franchisor controlled instrumentality that caused
injury).
In Allen v. Choice Hotels International, Inc., a district court in South Carolina
found that a franchisor was not liable for a fire that occurred at its franchised hotel,
because the franchisor did not control its franchisee’s decision to install, or not install,
certain fire extinguishing equipment. 409 F. Supp. 2d 672 (D.S.C. 2006). The franchisor
required “smoke and fire detection, fire extinguishing equipment, emergency exits, and
emergency lighting that meet or exceed prevailing federal, state or local codes.” Id. at
677. It also recommended an emergency power generator and sprinkler system. Id. But
even then, “[t]he fact that [the franchisor] required such upgrades and could have
required [the franchisees] to retrofit the hotel with sprinklers does not create a duty for
[the franchisor] to require sprinklers as a protection against fire.” Id. at 676.
Conversely, in Toppel v. Marriot International, Inc., a district court in New York
found that material questions of fact existed over the degree to which Marriott controlled
the instrumentalities that led to a guest’s injuries. No. 03 Civ. 3042, 2008 WL 2854302(S.D.N.Y. July 22, 2008). The plaintiff alleged that the hotel’s inadequate lighting,
selection of carpeting that made it difficult to distinguish between the floor and stairs, and
hotel menu placement caused her to fall down the stairs when she moved towards the
menu to read it. Id. at *1. According to the franchise agreement, Marriott had already
required the franchisee, upon acquisition, to increase the lighting and replace the carpet in
the area where the plaintiff fell. Id. at *2. The agreement also indicated that the
franchisee needed Marriott’s approval for any signage it hung. Id. at *9. And Marriott
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employees inspecting the franchisee had to inspect the menus at restaurants and the
lighting, signage, and carpeting in hallways. Id. at *10. Taking all of these facts
together, the district court found that there were questions of material fact about whether
Marriott controlled the instrumentalities that caused the plaintiff’s harm. Id.
The facts here demonstrate that Marriott lacked sufficient control over the
instrumentality leading to Mr. DiFederico’s death--namely, the Islamabad’s security
protocols. As discussed above, Marriott did require Hashwani to comply with certain
standards in order to ensure that the Islamabad provided similar services as other
Marriott-branded hotels. See J.A. 1031-56. The Islamabad’s management, for example,
had to attend Marriott’s training on leadership skills and hotel management. And the
Islamabad, like all franchised hotels, had to comply with the Standards. The hotel had to
develop its own, local crisis management plan, and was audited twice a year for
compliance with the Standards.
But that was the extent to which Marriott controlled the hotel’s security
procedures. Marriott did not hire any of the Islamabad’s security employees. It did not
provide any security training, either mandatory or optional, to the Islamabad’s
employees. J.A. 291; 990-92; 1008-09, 1017-20. Contrary to Plaintiffs’ assertions, it did
not develop or carry out a specific security plan for the Islamabad. It did not even review
the Islamabad’s local crisis management plan. J.A. 987. Mr. Orlob, the Marriott’s Vice
President for Security, did not know if the Islamabad had an evacuation plan at all. J.A.
472. Marriott’s regional security director knew of no individualized security advice or
training provided to the hotel. J.A. 291. Marriott’s vice president for the region in which
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the Islamabad was located had never even visited the hotel before the attack. J.A. 1004.
And Plaintiffs do not argue that either adherence to or failure to meet any of the
Standards’ required protocols caused Mr. DiFederico’s death. 2
The Islamabad’s relationship to Marriott is much closer to the franchisor-
franchisee relationship in Allen than the one in Toppel. Like Allen, Marriott required
particular minimum security standards. In Allen, the requirements were particular fire
extinguishing equipment; here, the requirements were particular security measures based
on the Islamabad’s threat condition. And like in Allen, Marriott made specific non-
mandatory recommendations. The franchisor in Allen recommended, but did not require,
a sprinkler system; Marriott gave the Islamabad its Plan and International Plan as
guidance, but did not require adherence. Thus, also like Allen, Marriott did not
voluntarily undertake a duty to establish the Islamabad’s security measures, “but merely
guarded its trademark by assuring uniform appearance and operation of hotels operating
under the [Marriott] mark.” 409 F. Supp. 2d at 677.
Conversely, in Toppel, Marriott required its franchisee to modify the carpeting and
lighting in the area where the plaintiff was injured; had the right to approve or deny any
signage the franchisee hung; and regularly inspected the very lights and carpets that
allegedly caused the plaintiff’s injury. Here, Marriott required only minimal standards; it
2
For example, the Standards require hotels under Threat Condition Red, like the
Islamabad, to inspect all vehicles entering the hotel driveway. But Plaintiffs do not allege
that this requirement, or failure to meet this requirement, caused Mr. DiFederico’s
injuries. And given that the truck drove straight into the hotel’s gate barrier from the
street, no security officer had the chance or obligation to inspect the vehicle before the
attack.
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did not establish any comprehensive security plan for the Islamabad or any required
security responses to fire hazards or bomb threats. In fact, Marriott explicitly required
that Hashwani independently develop its own security plan, and had no review or
approval procedure for the plan. It only inspected whether or not a plan was in place.
“[C]ourts have granted summary judgment in favor of the franchisor where the agreement
specifically provides that the franchisee is to perform the activities or control the
instrumentalities in question.” Toppel, 2008 WL 2854302 at *5. And here, unlike in
Toppel, the franchisee--not Marriott--had control over the security procedures and
training of employees involved in the bomb detonation and fire that killed
Mr. DiFederico.
Plaintiffs highlight three pieces of evidence that allegedly raise a question of
material fact about whether Marriott exercised sufficient control over the Islamabad’s
security protocols. But closer review demonstrates that the evidence raises no such
questions of material fact.
First, Plaintiffs point to the International Plan, which states that a hotel should not
sound the fire alarm after a bomb. See J.A. 666. But according to both the International
Plan itself and the depositions of employees, that plan is not mandatory for franchised
hotels. And Plaintiffs’ own expert states that there is no evidence that the Islamabad was
following the International Plan’s recommendations. J.A. 1227. Plaintiffs correctly note
that the plan states that some of its elements “are the minimum standards” required for
Marriott franchisees. But the plan also immediately directs franchisees to the Standards
for all mandatory requirements. The entire International Plan cannot be rendered
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mandatory for franchisees merely because some of its recommendations match the
Standards’ requirements.
Plaintiffs next rely on testimony Mr. Orlob gave to the United States House
Committee on Homeland Security. In that testimony, Mr. Orlob explained Marriott’s
Standards, and discussed the attack on the Islamabad. He stated that the hotel was
operating at Threat Condition Red, that the hotel was using a Delta barrier, and that
without those measures, far more people would have died. J.A. 1064-66. He concluded,
“Our security measures saved hundreds of lives.” But he never stated that Marriott
required the Delta barrier Hashwani used or exercised any control over Hashwani’s
security protocols beyond the Standards. Despite Plaintiffs’ arguments, a single “our”
alone cannot demonstrate that Marriott controlled Hashwani’s security procedures,
management, or training in any way.
Plaintiffs lastly rely on an email sent by Mr. Yin, Marriott’s Senior Director for
Global Safety and Security for Asia Pacific. The email allegedly “described a detailed
site review at the Marriott Islamabad, clearly demonstrating that Marriott’s role was not
merely limited to providing a threat condition plan, but included an active role in
ensuring that the localized security plan was implemented correctly.” Appellant Br. 32.
But that email, sent five months after the terrorist attack and in preparation for the
Islamabad’s reopening, makes no indication that Marriott exercised a similar level of
control before the bombing.
One final note: Marriott’s biannual audits to ensure compliance with the
Standards also do not give it sufficient control over the Islamabad’s security protocols.
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The audit looks for only those protocols necessary under the Standards, such as roof
access and hourly inspections of public restrooms. Such limited auditing cannot give
Marriott control over the instrumentalities that led to Mr. DiFederico’s death. See
Stenlund, 172 F. Supp. 3d at 884-85 (annual audits of casino attached to Marriott hotel
for “guest experience, service delivery, integrity of games, maintenance and cleanliness,”
conducted by Marriott subsidiary, did not give Marriott control over cord draped over
casino stairs).
III.
Mr. DiFederico’s death was tragic. But ultimately, Hashwani--not the Marriott--
had control over how Hashwani’s employees would respond to the fire or bombing that
killed Mr. DiFederico. Marriott never trained the Islamabad’s employees on how to
respond to such a situation; it never established a plan for such a situation; it never even
reviewed the plan that Hashwani developed. As a matter of law, Marriott did not control
the instrumentalities that led to Mr. DiFederico’s death.
For these reasons, the district court’s judgment is
AFFIRMED.
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