Legal Memorandum: Voluntary Undertaking Theory of Liability

Issue: In Georgia, when may liability be assigned from the plaintiff to a volunteer actor on whom the plaintiff relied?

To show liability under Restatement (Second) of Torts § 324A(c), a plaintiff must show that another person suffered injuries as a result of the plaintiff’s reliance on a volunteer’s action.  Commentary to Restatement § 324A defines reliance as follows:

The actor is also subject to liability to a third person where harm is suffered because of the reliance of the other for who he undertakes to render the services, or of the third person himself, upon his undertaking.  This is true whether or not the negligence of the actor has created any new risk or increased an existing one.  Where reliance of the other, or of the third person, has induced him to forgo other remedies or precautions against such risk, the harm results from the negligence as fully as if the actor created the risk.

Winslett v. Twin City Fire Ins. Co., 141 Ga. App.143, 232 S.E.2d 638, 639 (1977) (quoting Restatement (Second) of Torts § 324A cmt. c). 

In Universal Underwriters Ins. Co. v. Smith, 253 Ga. 588, 322 S.E.2d 269 (1984), the Georgia Supreme Court addressed a certified question from the Eleventh Circuit Court of Appeals involving the proof necessary to show reliance in a negligent inspection case.  The tort involved in the case fell under the parameters of subparagraph (c) of Restatement § 324A.  The court cited to Moody v. Martin Motor Co., 76 Ga. App. 456, 46 S.E.2d 197 (1948), as […]