Issue: Given the Fact that Plaintiff and His Co-Workers Uniformly Testified as to Their Reliance on the Horn Warning System, Did the District Court Err as a Matter of Law in Failing to Hold Defendants Liable for the Negligent Performance of its Undertaking, Which Increased the Risk of Harm to Plaintiff.
| Area of Law: | Construction Law, Personal Injury & Negligence |
| Keywords: | Negligent performance of activity; Liability; Horn warning system |
| Jurisdiction: | Federal |
| Cited Cases: | None |
| Cited Statutes: | Restatement of Torts § 324A |
| Date: | 07/01/2001 |
The well‑recognized theory of recovery is derived from the Restatement of Torts § 324A, concerning liability to third persons for the negligent performance of an undertaking. Section 324A states that
One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if
(a) his failure to exercise reasonable care increases the risk of such harm, or
(b) he has undertaken to perform a duty owed by the other to the third person, or
(c) the harm is suffered because of reliance of the other or the third person upon the undertaking.
Restatement (Second) of Torts § 324A (1965).
Several of the illustrations to § 324A are applicable to this question. For instance, where “A Company employs B as superintendent of building construction work . . . to inspect a scaffold . . . [,] B negligently fails to inspect the scaffold, and as a result of its defective condition, which would have been discovered by proper inspection, the scaffold collapses. . . [,] B is subject to liability to C [for injury.” Restatement (Second) of Torts § 324A, cmt. d, illus. 3 (1965). Cf. Haag v. Bongers, 589 N.W.2d 318, at 333-34 (Neb. 1999) (liability for negligent performance of activity).
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