California Civil Jury Instructions (CACI) (2017)

450c. Negligent Undertaking

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450C.Negligent Undertaking
[Name of plaintiff] claims that [name of defendant] is responsible for
[name of plaintiff]’s harm because [name of defendant] failed to exercise
reasonable care to protect [name of third person]. To establish this claim,
[name of plaintiff] must prove all of the following:
1. That [name of defendant], voluntarily or for a charge, rendered
services for the protection of [name of third person];
2. That these services were of a kind that [name of defendant]
should have recognized as needed for the protection of [name of
3. That [name of defendant] failed to exercise reasonable care in
rendering these services;
4. That [name of defendant]’s failure to exercise reasonable care was
a substantial factor in causing harm to [name of plaintiff]; and
5. [(a) That [name of defendant]’s failure to use reasonable care
added to the risk of harm;]
5. [or]
5. [(b) That [name of defendant]’s services were rendered to perform
a duty that [name of third person] owed to third persons
including [name of plaintiff];]
5. [or]
5. [(c) That [name of plaintiff] suffered harm because [[name of third
person]/ [or] [name of plaintiff]] relied on [name of defendant]’s
New June 2016
Directions for Use
This instruction presents the theory of liability known as the “negligent
undertaking” rule. (See Restatement Second of Torts, section 324A.) The elements
are stated in Paz v. State of California (2000) 22 Cal.4th 550, 553 [93 Cal.Rptr.2d
703, 994 P.2d 975].
In Paz, the court said that negligent undertaking is “sometimes referred to as the
‘Good Samaritan’ rule,” by which a person generally has no duty to come to the
aid of another and cannot be liable for doing so unless the person aiding’s acts
increased the risk to the person aided or the person aided relied on the person
aiding’s acts. (Paz, supra, 22 Cal.4th at p. 553; see CACI No. 450A, Good
Samaritan—Nonemergency.) It is perhaps more accurate to say that negligent
undertaking is another application of the Good Samaritan rule. CACI No. 450A is
for use in a case in which the person aided is the injured plaintiff. (See
Restatement 2d of Torts, § 323.) This instruction is for use in a case in which the
defendant’s failure to exercise reasonable care in acting to aid one person has
resulted in harm to another person.
Select one or more of the three options for element 5 depending on the facts.
Sources and Authority
• Negligent Undertaking. Restatement Second of Torts section 324A.
“Under well-established common law principles, a person has no duty to come
to the aid of another. If, however, a person elects to come to someone’s aid, he
or she has a duty to exercise due care. Thus, a ‘good Samaritan’ who attempts
to help someone might be liable if he or she does not exercise due care and
ends up causing harm.” (Van Horn v. Watson (2008) 45 Cal.4th 322, 324 [86
Cal.Rptr.3d 350, 197 P.3d 164], internal citations omitted.)
• “[T]he [Restatement Second of Torts] section 324A theory of
liability—sometimes referred to as the “Good Samaritan” rule—is a settled
principle firmly rooted in the common law of negligence. Section 324A
prescribes the conditions under which a person who undertakes to render
services for another may be liable to third persons for physical harm resulting
from a failure to act with reasonable care. Liability may exist if (a) the failure
to exercise reasonable care increased the risk of harm, (b) the undertaking was
to perform a duty the other person owed to the third persons, or (c) the harm
was suffered because the other person or the third persons relied on the
undertaking.” (Paz, supra, 22 Cal.4th at p. 553, original italics.)
• “Thus, as the traditional theory is articulated in the Restatement, and as we
have applied it in other contexts, a negligent undertaking claim of liability to
third parties requires evidence that: (1) the actor undertook, gratuitously or for
consideration, to render services to another; (2) the services rendered were of a
kind the actor should have recognized as necessary for the protection of third
persons; (3) the actor failed to exercise reasonable care in the performance of
the undertaking; (4) the actor’s failure to exercise reasonable care resulted in
physical harm to the third persons; and (5) either (a) the actor’s carelessness
increased the risk of such harm, or (b) the actor undertook to perform a duty
that the other owed to the third persons, or (c) the harm was suffered because
either the other or the third persons relied on the actor’s undertaking. [¶]
Section 324A’s negligent undertaking theory of liability subsumes the well-
known elements of any negligence action, viz., duty, breach of duty, proximate
cause, and damages.” (Paz, supra, 22 Cal.4th at p. 559, original italics, internal
citation omitted; see also Scott v. C. R. Bard, Inc. (2014) 231 Cal.App.4th 763,
775 [180 Cal.Rptr.3d 479] [jury properly instructed on elements as set forth
above in Paz].)
• “The general rule is that a person who has not created a peril is not liable in
tort for failing to take affirmative action to protect another unless they have
some relationship that gives rise to a duty to act. However, one who undertakes
to aid another is under a duty to exercise due care in acting and is liable if the
failure to do so increases the risk of harm or if the harm is suffered because the
other relied on the undertaking. Section 324A integrates these two basic
principles in its rule.” (Paz. supra, 22 Cal.4th at pp. 558−559.)
• “[T]he ‘negligent undertaking’ doctrine, like the special relationship doctrine, is
an exception to the ‘no duty to aid’ rule.” (Conti v. Watchtower Bible & Tract
Society of New York, Inc. (2015) 235 Cal.App.4th 1214, 1231 [186 Cal.Rptr.3d
• “Under the good Samaritan doctrine, CHP may have a duty to members of the
public to exercise due care when CHP voluntarily assumes a protective duty
toward a certain member of the public and undertakes action on behalf of that
member thereby inducing reliance, when an express promise to warn of a
danger has induced reliance, or when the actions of CHP place a person in peril
or increase the risk of harm. In other words, to create a special relationship and
a duty of care, there must be evidence that CHP ‘ “made misrepresentations that
induced a citizen’s detrimental reliance [citation], placed a citizen in harm’s
way [citations], or lulled a citizen into a false sense of security and then
withdrew essential safety precautions.” ’ Nonfeasance that leaves the citizen in
exactly the same position that he or she already occupied cannot support a
finding of duty of care. Affirmative conduct or misfeasance on the part of CHP
that induces reliance or changes the risk of harm is required.” (Greyhound
Lines, Inc. v. Department of the California Highway Patrol (2013) 213
Cal.App.4th 1129, 1136 [152 Cal.Rptr.3d 492], internal citations omitted.)
Secondary Sources
4 Witkin, California Procedure (4th ed. 1996) Pleadings, § 553
6Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 1060–1065
Flahavan et al., California Practice Guide: Personal Injury (The Rutter Group)
¶¶ 2:583.10–2:583.11, 2:876
1 Levy et al., California Torts, Ch. 1, Negligence: Duty and Breach, § 1.11
(Matthew Bender)
4 California Trial Guide, Unit 90, Closing Argument, § 90.90 (Matthew Bender)
33 California Forms of Pleading and Practice, Ch. 380, Negligence, § 380.32[2][d],
[5][c] (Matthew Bender)
16 California Points and Authorities, Ch. 165, Negligence, §§ 165.150, 165.241
(Matthew Bender)