concurring with separate opinion.
I concur in the decision to reverse the grant of the defendants’ motion for summary judgment by the trial court, but write separately to discuss my reasons for doing so.
As I understand the majority opinion, it finds in §§ 324A and 414 of the Restatement (Second) of Torts direct authority for imposing a duty on the franchisor to exercise reasonable care for the safety of the employees of the franchisee.
I do not believe that § 324A has any application to this case. The franchisee has not requested or engaged the franchisor to render to it any service such as an inspection of its operations or equipment. Rather, the franchisor has reserved the right to make such inspections for its own benefit to promote uniform quality of the products sold by its franchisees.
Similarly, I do not believe that § 414 has any direct application to this case. That section addresses the situation where the employer of an independent contractor retains control of some part of the work to be done. The employer is then held to a duty to use reasonable care in exercising that control. Franchisees in general and this franchisee in particular are not employed by the franchisor. The relationship between the franchisor and the franchisee is not that of employer and independent contractor. I am aware of the provision in the agreement, "[t]he only relationship between the parties shall be that of independent contractors, and neither party shall be responsible for any act or omission of the other or any employee of the other.” The point of that provision is more to negate liability under the doctrine of respondeat superior than it is to give a precise legal description that is applicable for all purposes. The parties cannot contract away whatever liabilities they may have to third parties, no matter what they choose to call themselves or agree to between themselves. Robins Dry Dock & Repair Co. v. Navigazione L. Triestina (1933), 261 N.Y. 455, 463, 185 N.E. 698, 700.
I do believe that, by analogy, a principle can be derived from § 414 that is applicable to this case. I see that principle to be that one who by contract has the right to exercise control over the activities of another has a duty, when exercising such control, to use reasonable care for the protection of those who could be injured if such care is not used. I believe that the courts in Coty v. U.S. Slicing Machine Company (1978), 58 Ill.App.3d 237, 15 Ill.Dec. 687, 373 N.E.2d 1371; Wise v. Kentucky Fried Chicken Corp. (D.N.H.1983) 555 F.Supp. 991; and Clem v. Steveco, Inc. (1983), Ind.App., 450 N.E.2d 550, looked to the inde*1360pendent contractor principles by analogy and not for direct authority.
The terms of the franchise agreement raise sufficient questions as to the control retained by the franchisor, KFC Corporation, to require some factual showing by that defendant to which the plaintiff would need to respond to demonstrate a genuine issue of material fact. No party has done anything to show the trial court or this court any thing of a factual nature on the most important aspect of the case which is what the defendants actually did or did not do and what the defendants actually did or did not know, with the single exception that the defendant KFC Corporation did admit in its answer that it did exercise its right to enter and inspect. Defendant KFC Corporation has, in effect, shown us the agreement which at least suggests that some duty may exist'and then done nothing to show that the duty was discharged or did not exist. In such circumstances, summary judgment is not appropriate.