Restat 2d of Torts, § 323

• Restatement of the Law, Second, Torts
• Division 2- Negligence
• Chapter 12- General Principles
• Topic 7- Duties of Affirmative Action
• Title B- Duty to Aid Others and Services Gratuitously Rendered or Undertaken
• § 323 Negligent Performance of Undertaking to Render Services

One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other's person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if

(a) his failure to exercise such care increases the risk of such harm, or

(b) the harm is suffered because of the other's reliance upon the undertaking.

Caveat:

The Institute expresses no opinion as to whether:

(1) the making of a contract, or a gratuitous promise, without in any way entering upon performance, is a sufficient undertaking to result in liability under the rule stated in this Section, or

(2) there may not be other situations in which one may be liable where he has entered upon performance, and cannot withdraw from his undertaking without leaving an unreasonable risk of serious harm to the other.

Comment:

a.  This Section applies to any undertaking to render services to another which the defendant should recognize as necessary for the protection of the other's person or things. It applies whether the harm to the other or his things results from the defendant's negligent conduct in the manner of his performance of the undertaking, or from his failure to exercise reasonable care to complete it or to protect the other when he discontinues it. It applies both to undertakings for a consideration, and to those which are gratuitous. As to whether a mere promise, without entering upon performance, is a sufficient undertaking within the rule stated in this Section, see Comment d below.

A special application of the rule stated, to one who takes charge of another who is helpless at the time, is stated in § 324. See also, as to undertakings by a servant, Restatement of Agency, Second, §§ 354 and 378.

b.  Skill and competence.  One who gratuitously gives transportation to another, or otherwise renders gratuitous services to him, is not subject to liability to him for his failure to have the competence or to exercise the skill normally required of persons doing such acts, if the other who accepts the services is aware, through information given by the actor or otherwise, of his incompetence. However, a contract to render services, or a gratuitous offer to render them, or even merely giving them at the other's request, may carry with it a profession or representation of some skill and competence; and if the actor realizes or should realize that his competence and skill are subnormal, he must exercise reasonable care to inform the other. If he does not do so, he is subject to liability for physical harm resulting from his deficiencies. There are situations in which it is socially desirable, and so legally permissible, to give gratuitous aid even though the person who gives it realizes that his lack of competence and skill creates some degree of risk, and the person receiving the aid is unconscious or otherwise incapable of deciding whether to accept or to reject the assistance. Thus one who finds another in some lonely place severely wounded, unconscious, and in urgent need of first aid treatment may, without fear of liability, do the best he can although he realizes that he has not that knowledge of the technique of first aid which is necessary to make it certain that his efforts will be beneficial rather than harmful. On the other hand, the actor's incompetence to deal with the situation may be so extreme as to make it unreasonable for him to attempt to give assistance.

c.  Termination of services.  The fact that the actor gratuitously starts in to aid another does not necessarily require him to continue his services. He is not required to continue them indefinitely, or even until he has done everything in his power to aid and protect the other. The actor may normally abandon his efforts at any time unless, by giving the aid, he has put the other in a worse position than he was in before the actor attempted to aid him. His motives in discontinuing the services are immaterial. It is not necessary for him to justify his failure to continue the services by proving a privilege to do so, based upon his private concerns which would suffer from the continuance of the service. He may without liability discontinue the services through mere caprice, or because of personal dislike or enmity toward the other.

Where, however, the actor's assistance has put the other in a worse position than he was in before, either because the actual danger of harm to the other has been increased by the partial performance, or because the other, in reliance uponthe undertaking, has been induced to forego other opportunities of obtaining assistance, the actor is not free to discontinue his services where a reasonable man would not do so. He will then be required to exercise reasonable care to terminate his services in such a manner that there is no unreasonable risk of harm to the other, or to continue them until they can be so terminated.

Illustration:

1. A, an employee of B Company, complains to the manager of the Company that she is ill, and asks that she be sent home. She is sent home in one of the Company's delivery wagons. The street leading to A's house is rough and unpaved, and although it is raining, the driver refuses to go further, and tells A to get out and walk the rest of the distance, as a result of which her illness is increased. B Company is subject to liability for the increase in A's illness caused by her exertion and her exposure to the rainy weather.

Comment on Caveat:

d.  Promise as an undertaking.  The Caveat leaves open the question whether a mere promise, without in any way entering upon performance, is an undertaking sufficient to make the promisor liable under the rule stated in this Section.

The early development of the law, and particularly of the forms of action of case and assumpsit, led to a distinction, as to tort liability, between "misfeasance" and "non-feasance." A defendant who actually entered upon the performance of his undertaking became liable, in an action on the case, for harm to the plaintiff which resulted from his negligent performance, whereas one who never commenced performance at all was not liable in such an action for his failure to do so. The mere breach of a promise, without more, was regarded as "non-feasance," for which any action must be in assumpsit, upon the contract and upon proof of a consideration for the promise, rather than on the case under any theory of tort liability.

This distinction has persisted to the present day, largely in cases involving questions of pleading. Decisions in a number of jurisdictions, holding that the breach of a promise can give rise only to a contract action, and does not result in liability in tort, have not been overruled. The modern law has, however, witnessed a considerable weakening and blurring of the distinction, in situations where the plaintiff's reliance upon the defendant's promise has resulted in harm to him. Through the development of the doctrine of "promissory estoppel" the contract rule itself has been considerably modified to permit, in many situations, the enforcement of a promise made without consideration. See Restatement of Contracts, § 90.

Where the plaintiff's reliance has led to his harm, the courts have tended to seize upon almost any trivial and technical conduct of the defendant, to find that he has commenced performance of his promise, and so has "entered upon" his undertaking. Thus the defendant is held liable where he has merely received a document, written a letter, appeared on the first day of a long employment, or accepted a general agency, although such acts themselves have played no part in inducing the plaintiff's reliance or in causing the harm to him.

There is no essential reason why the breach of a promise which has induced reliance and so caused harm should not be actionable in tort. This is true particularly where the harm is physical harm, to the person, land, or chattels of the plaintiff. The technicalities to which the courts have resorted in finding some commencement of performance indicate a development of the law toward such liability. In the absence of sufficient decisions, however, the question is left open.

e.  Other situations.  The Caveat also leaves open the question whether there may not be cases in which one who has entered on performance of his undertaking, and cannot withdraw from it without leaving an unreasonable risk of serious harm to another, may be subject to liability even though his conduct has induced no reliance and he has in no way increased the risk. Clear authority is lacking, but it is possible that a court may hold that one who has thrown rope to a drowning man, pulled him half way to shore, and then unreasonably abandoned the effort and left him to drown, is liable even though there were no other possible sources of aid, and the situation is made no worse than it was.

This Section has been changed from the first Restatement by rewording it in terms of an "undertaking" to render services, in order to leave open the Caveat, which has been added to the Section.

Clause (a) is supported by the following cases, among others:

Slater v. Illinois Central R. Co., 209 F. 480 (M.D. Tenn. 1911). Defendant's employees undertook to care for an injured trespasser, removed him to a place where he was deprived of the possibility of other aid, and then failed to look after him, as a result of which he died.

Walker v. Smith, 1 Wash. C.C. 152, 4 Dall. 389, 29 Fed. Cas. 54 (C.C. Pa.1804). Goods were sent to an agent to be delivered if paid for, and he delivered them without payment.

Short v. Skipwith, 1 Brock. 103, 22 Fed. Cas. 9 (C.C. Va. 1806). An agent, with funds of his principal in his hands, failed to obey instructions to convert them into certificates.

United States v. Lawter, 219 F.2d 559 (5 Cir. 1955). The government, without any obligation to do so, attempted to rescue plaintiff from a swamped boat with a helicopter, and did so negligently.

Stewart & Pratt v. Frazier, 5 Ala. 114 (1843). A note was sent to a gratuitous agent to be discounted, and he negligently remitted the proceeds.

Melbourne & Troy v. Louisville & N. R. Co., 88 Ala. 443, 6 So. 762 (1889). A carrier, under no duty to do so, undertook to deliver plaintiff's goods to a connecting carrier, and to notify it. It delivered, but did not notify.

Samonset v. Mesnager, 108 Cal. 354, 41 P. 337 (1895). A gratuitous agent to lend money made the loan without proper security.

Thomas v. Studio Amusements, 50 Cal. App. 2d 538, 123 P.2d 552 (1942). Plaintiff was injured by a fall at a skating rink. Defendant tried to give him first aid, and did so negligently.

Fellowes & Co. v. Gordon & Bennett, 8 B. Mon. (47 Ky.) 415 (1848). A note was sent to an agent for collection, with instructions to attach a steamboat. He accepted partial payment, and allowed the boat to depart without attachment.

Passano v. Acosta, 4 La. 26, 23 Am. Dec. 470 (1832). A note was sent to an agent for collection. He surrendered it for a new note.

Finer v. Nichols, 175 Mo. App. 525, 157 S.W. 1023 (1913). A landlord gratuitously made repairs, and made the premises more dangerous, as a result of which the tenant was injured. This is typical of many landlord cases.

Kaw Brick Co. v. Hogsett & Woodward, 73 Mo. App. 432 (1898). A broker gratuitously undertook to obtain insurance for the plaintiff, and negligently took it out with an insolvent company.

Vesel v. Jardine Mining Co., 110 Mont. 82, 100 P.2d 75, 127 A.L.R. 1093 (1940). Defendant employer gratuitously furnished medical aid to an employee, and was negligent in selecting a physician.

Tullgren v. Amoskeag Mfg. Co., 82 N.H. 268, 133 A. 4, 46 A.L.R. 380 (1926). The facts are stated as Illustration 1 under Comment c.

Walsh v. Hackensack Water Co., 13 N.J. Misc. 815, 181 A. 422 (1935). Defendant water company gratuitously removed a meter, and left the premises in dangerous condition.

Smedes v. President & Directors of the Bank of Utica, 20 Johns. R. (N.Y. Sup. Ct.) 372 (1823), affirmed, 3 Cow. 662 (N.Y.). A bank gratuitously accepted a note for collection, and failed to notify the indorsers when it was dishonored.

Zelenko v. Gimbel Bros., 158 Misc. 904, 287 N.Y. Supp. 134 (1935), affirmed, 247 App. Div. 867, 287 N.Y. Supp 136. Defendant department store undertook to aid a customer who was taken ill in the store, and removed her to a room where she was deprived of other assistance and left there, as a result of which she died.

Tarnogurski v. Rzepski, 252 Pa. 507, 97 A. 697 (1916). A landlord gratuitously promised to repair, turned off the water, and turned it on again before repairs were made, as a result of which the tenant's goods were damaged.

Colton v. Foulkes, 259 Wis. 142, 47 N.W.2d 901 (1951). Defendant, under contract, negligently repaired plaintiff's roof.

Nelson v. Chicago, M. & St. P. R. Co., 252 Wis. 585, 32 N.W.2d 340 (1948). Defendant's employee gratuitously attempted to help plaintiff in loading a bull onto a car, and so negligently handled a rope that plaintiff's hand was crushed.

Clause (b) is supported by the following cases, among others:

Indian Towing Co. v. United States, 350 U.S. 61, 76 S. Ct. 122, 100 L. Ed. 48 (1955). The government, without any obligation to do so, operated a lighthouse in a negligent manner, so that it failed and plaintiff's tug went aground.

Teague v. St. Louis Southwestern R. Co., 36 F.2d 217 (5 Cir. 1929), certiorari denied, 281 U.S. 733, 50 S. Ct. 248, 74 L. Ed. 1149. Defendant railroad provided a crossing watchman, and plaintiff was injured as a result of reliance on his expected action.

McGuigan v. Southern Pacific Co., 112 Cal. App. 2d 704, 247 P.2d 415 (1952). Defendant employer gratuitously undertook to examine an employee to determine whether he was physically fit for the work, and did so negligently, as a result of which he was injured.

Mallett v. Southern Pacific Co., 20 Cal. App. 2d 500, 68 P.2d 281 (1937). A railroad provided a crossing watchman, and plaintiff was injured in reliance on his expected action.

Dundon v. New York, N. H. & H. R. Co., 67 Conn. 266, 34 A. 1041 (1896). Similar to the case last cited.

Criswell v. Riley, 5 Ind. App. 496, 30 N.E. 1101, 32 N.E. 814 (1892). Defendant gratuitously agreed to obtain insurance for the plaintiff, and negligently failed to pay over the premium delivered to him, so that the insurance lapsed.

Maddock v. Riggs, 106 Kan. 808, 190 P. 12, 12 A.L.R. 216 (1920). Over a course of years defendant accepted insurance premiums from the plaintiff and remitted them to the insurance company. Having received a premium, he failed to remit it.

Moore v. Gholson, 34 Miss. 372 (1857). An agent received a claim for collection, and did not remit the proceeds.

Carr v. Maine Central R. Co., 78 N.H. 502, 102 A. 532, L.R.A. 1918E, 389 (1917). Defendant gratuitously received plaintiff's claim for a rebate, promised to send it to the Interstate Commerce Commission within a time limit, and did not do so.

Mistretta v. Alessi, 45 N.J. Super. 176, 131 A.2d 891 (1957). Defendant, under no duty to do so, negligently sanded a public walk which was icy.

Siegel v. Spear & Co., 195 App. Div. 845, 187 N.Y. Supp. 284 (1921), affirmed, 234 N.Y. 479, 138 N.E. 414, 26 A.L.R. 1205, 25 N.C.C.A. 242 (1923). Defendant bailee gratuitously received plaintiff's goods for storage, promised to obtain insurance on them, and did not do so.

McLeod v. Rawson, 215 Mass. 257, 102 N.E. 429, 46 L.R.A. N.S. 547 (1913). Plaintiff was employed as a nurse in defendant's house. Defendant promised to keep a light burning at night, did so for a while, then put it out.

O'Leary v. Erie R. Co., 169 N.Y. 289, 62 N.E. 346. Defendant had adopted a practice of setting brakes on grain cars going downgrade for the protection of plaintiff employee below. On one occasion defendant failed to do so.

Burns v. North Chicago Rolling-Mill Co., 65 Wis. 312, 27 N.W. 43 (1886). Defendant railroad provided a crossing watchman, and plaintiff was injured in reliance upon his expected action.

See also Shirley Cloak & Dress Co. v. Arnold, 92 Ga. App. 885, 90 S.E.2d 622 (1955); Thelen v. Spilman, 251 Minn. 89, 86 N.W.2d 700, 77 A.L.R.2d 1315 (1957); Haralson v. Jones Truck Lines, 223 Ark. 813, 270 S.W.2d 892, 48 A.L.R.2d 248 (1954); Petroleum Carrier Corp. v. Carter, 233 F.2d 402 (5 Cir. 1956); Sweet v. Ringwelski, 362 Mich. 138, 106 N.W.2d 742, 90 A.L.R.2d 1434 (1961).

ALR Annotations:

Duty and liability of one who voluntarily undertakes to care for injured person. 64 A.L.R.2d 1179.
Breach of assumed duty to inspect property as ground of liability for damage or injury to third person. 6 A.L.R.2d 284.
Liability for loss of property deposited by customer in place of business. 1 A.L.R.2d 802.

Digest System Key Numbers:

Negligence 1 et seq.