¶ 31 (concurring). I agree with much of the analysis in the majority opinion, but write separately to address what I see as a problematic area of law.
¶ 32. In this case, Arby's did not even arguably have control over the DRI acts or omissions which plaintiffs contend were negligent. Arby's did not specify whether its franchisee, DRI, could hire work-release prisoners or specify how a threatening or possibly dangerous employee should be handled. As the majority states, "[n]othing in the agreement gives Arby's the right to directly supervise how DRI handles personnel issues." Majority at ¶ 26. And, plaintiffs proffered no evidence that Arby's in fact had or exercised such authority. Accordingly, I think it is a simple matter to conclude that Arby's had no liability in this case.
¶ 33. What I find troubling is the majority's unnecessary adoption of a test that purports to provide guidance as to when a franchisor may be held liable for the acts of a franchisee. The majority states: "[T]he decisive factor is whether the franchisor controls the daily operations of the franchisee such that it 'exercises a considerable degree of control over the instrumentality at issue.'" Majority at ¶ 19 (quoting Wendy Hong Wu v. Dunkin' Donuts, Inc., 105 F. Supp. 2d 83, 87 (E.D.N.Y. 2000)). Later, the majority states: "We con-*846elude that the standard for imposing vicarious liability on a franchisor for the negligent acts of a franchisee requires that the franchisor have a right of control or actual control over the alleged negligent activity." Majority at ¶ 30. But what does this mean?
¶ 34. If a franchisor exerts actual control over alleged negligent activity, it hardly seems necessary to apply a vicarious theory of liability. That leaves "a right of control. . . over the alleged negligent activity." Majority at ¶ 30. How does this apply in practice? For example, is a franchisor vicariously liable for a death resulting from food poisoning caused by a franchisee's failure to follow detailed cleanliness criteria imposed by the franchisor where the franchisor has the right to inspect to determine compliance and, if the criteria are not met, terminate the contract? Perhaps not, because the majority cites with approval cases that have declined to impose liability on a franchisor based on the franchisor's right to inspect, enforce standards, and terminate for noncompliance. Majority at ¶ 15. So what does that leave?
¶ 35. Apart from "apparent agency" cases (a theory that has no application here), when would a franchisor be vicariously liable for the negligent acts of a franchisee? This is not a question we need answer because this case can be decided on narrower grounds. What I find perplexing is that the majority does not rest its decision on narrower grounds and leave for another day an attempt at articulating a workable standard by which franchisors may be held vicariously liable for the acts of franchisees.
¶ 36. Accordingly, I do not join the majority decision, but I concur in the result.