1. If the pursuing patron were actually an off-duty employee of Chili’s, how would that impact your agency analysis?

2. When the pursuing patron called the Chili’s employee with a description of the pursuit and that employee in turn called the police, wasn’t that an act of consent by Chili’s?

3. What facts could you change in this case that would change the result?

Bosse was part of a group of four teenagers ordering and eating a meal at the Chili’s restaurant in Dedham, Massachusetts. The tab for the meal came to $56, but the group fled from the restaurant without paying and drove off. A regular patron of the restaurant saw them leave without paying and followed them in his own car. The teenagers saw the patron following them, so they stopped their car and confronted him in a parking lot at a nearby retail center. The pursuing patron yelled that he had seen them skip out on their bill at Chili’s and that they would not get away with it. The patron’s car was unmarked; it bore no Chili’s insignia. He wore civilian clothing  and no  uniform or other insignia of employment at Chili’s. 

The teenagers then fled the lot, and a high-speed chase ensued through residential side streets. During the chase, the patron used his cell phone to call a Chili’s employee and provided him with a description of the teenagers’ car and the path of the chase. The Chili’s employee then related this information to a 911 dispatcher. In the course of the high-speed chase, the teenagers collided with a cement wall and were injured. The pursuing patron left the crash scene area and was never identified. 

Bosse sued the restaurant owner, Brinker Restaurant Corp. doing business as Chili’s Grill and Bar, for damages related to the crash. Bosse argued that the actions of the parties resulted in the Chili’s patron being converted to an agent of Chili’s, that he conducted his chase as an agent of the restaurant, and that the restaurant should be liable for the consequences of his negligent or reckless pursuit. Brinker filed a motion for summary judgment on the grounds that no genuine issue of fact existed regarding the lack of an agency relationship through express acts or implication.

The Massachusetts Superior Court granted Brinker’s motion for a summary judgment. The court held that an agency relationship requires three elements: (1) consent, (2) right of control, and (3) agent’s con-duct that benefits the principal in some way. In this case, the court ruled that the evidence was insufficient to create a genuine issue whether Chili’s authorized the patron to act as a posse to conduct a chase. No information indicates any preliminary communication between the patron and restaurant employees. The events were spontaneous and fast-breaking. No member of Chili’s house staff joined in the pursuit, and, in fact, Chili’s had an unwritten but express policy forbidding staff to pursue a tab-dodger out of the building. The court concluded that Chili’s had no chance or desire to control the patron and that any benefit Chili’s received was minimal at best.

“For these reasons no genuine issue of material fact emerges upon a claim of an agency relationship. The information generated by discovery does not permit an inference that Chili’s consented to such a relationship; that it had the right of control necessary for such a relationship; or that it possessed a genuine interest or benefit in such a relationship. The burden of the plaintiffs is to establish at least a genuine question of the presence of all three elements. If the evidence had failed to materialize upon any one of those elements, the deficiency would be fatal to the lawsuit. The evidence appears to have failed to materialize upon all three of the elements. Consequently, the plaintiffs enjoy no reasonable expectation of proving an agency relationship. Full summary judgment is appropriate.”