This section contains the nature of the case and procedural background.

P seeks damages from D for injuries that she suffered when she bit into a heart-shaped sapphire stone while eating a Big Mac sandwich. 3K owned and operated the restaurant under a License Agreement from D that required it to operate in a manner consistent with the 'McDonald's System.' The Agreement described that system as including proprietary rights in trade names, service marks and trademarks, as well as 'designs and color schemes for restaurant buildings, signs, equipment layouts, formulas and specifications for certain food products, methods of inventory and operation control, bookkeeping and accounting, and manuals covering business practices and policies.' The Agreement described the way in which 3K was to operate the restaurant in considerable detail. It required 3K to keep the restaurant open during the hours that defendant prescribed, including maintaining adequate supplies and employing adequate personnel to operate at maximum capacity and efficiency during those hours. 3K also had to keep the restaurant similar in appearance to all other McDonald's restaurants. 3K's employees had to wear McDonald's uniforms, to have a neat and clean appearance, and to provide competent and courteous service. 3K could use only containers and other packaging that bore McDonald's trademarks. D periodically sends field consultants to the restaurant to inspect its operations. The Agreement provided that 3K was not an agent of D for any purpose and that 3K was an independent contractor and was responsible for all obligations and liabilities, including claims based on injury, illness, or death, directly or indirectly resulting from the operation of the restaurant. P went to the restaurant under the assumption that D owned, controlled, and managed it. Nothing disclosed to her that any entity other than D was involved in its operation. The trial court granted summary judgment to D on the ground that it did not own or operate the restaurant; rather, the owner and operator was a non-party, 3K Restaurants (3K), that held a franchise from D. P appealed. P asserts two theories of vicarious liability, actual agency, and apparent agency.

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