CACI No. 450C. Negligent Undertaking

Judicial Council of California Civil Jury Instructions (2020 edition)

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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 in rendering services to [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 to [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 plaintiff];
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
services.]
New June 2016; Revised November 2018
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
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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 performing services to 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.
• “[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].)
• “Under this formulation, a duty of care exists when the first, second and fifth
elements are established. The third element addresses the breach of that duty of
care and the fourth element covers both causation and damages.” (Peredia v. HR
Mobile Services, Inc. (2018) 25 Cal.App.5th 680, 691 [236 Cal.Rptr.3d 157].)
• “Section 324A is applied to determine the ‘duty element’ in a negligence action
where the defendant has ‘ “specifically . . . undertaken to perform the task that
he is charged with having performed negligently, for without the actual
assumption of the undertaking there can be no correlative duty to perform that
undertaking carefully.” ’ The negligent undertaking theory of liability applies to
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personal injury and property damage claims, but not to claims seeking only
economic loss.” (Lichtman v. Siemens Industry Inc. (2017) 16 Cal.App.5th 914,
922 [224 Cal.Rptr.3d 725], internal citations omitted.)
• “The foundation for considering whether an actor . . . should be exposed to
liability on this theory is whether the actor made a specific undertaking ‘ “to
perform the task that he is charged with having performed negligently, for
without the actual assumption of the undertaking there can be no correlative duty
to perform that undertaking carefully.” ’ ” (Jabo v. YMCA of San Diego County
(2018) 27 Cal.App.5th 853, 878 [238 Cal.Rptr.3d 588].)
• “[U]nder a negligent undertaking theory of liability, the scope of a defendant’s
duty presents a jury issue when there is a factual dispute as to the nature of the
undertaking. The issue of ‘whether [a defendant’s] alleged actions, if proven,
would constitute an “undertaking” sufficient . . . to give rise to an actionable
duty of care is a legal question for the court.’ However, ‘there may be fact
questions “about precisely what it was that the defendant undertook to do.” That
is, while “[t]he ‘precise nature and extent’ of [an alleged negligent undertaking]
duty ‘is a question of law . . . “it depends on the nature and extent of the act
undertaken, a question of fact.” ’ ” [Citation.] Thus, if the record can support
competing inferences [citation], or if the facts are not yet sufficiently developed
[citation], “ ‘an ultimate finding on the existence of a duty cannot be made prior
to a hearing on the merits’ ” [citation], and summary judgment is precluded.
[Citations.]’ (see CACI No. 450C [each element of the negligent undertaking
theory of liability is resolved by the trier of fact].)” (O’Malley v. Hospitality
Staffıng Solutions (2018) 20 Cal.App.5th 21, 27-28 [228 Cal.Rptr.3d 731],
internal citations omitted.)
• “To establish as a matter of law that defendant does not owe plaintiffs a duty
under a negligent undertaking theory, defendant must negate all three alternative
predicates of the fifth factor: ‘(a) the actor’s carelessness increased the risk of
such harm, or (b) the undertaking was to perform a duty owed by the other to
the third persons, or (c) the harm was suffered because of the reliance of the
other or the third persons upon the undertaking.’ ” (Lichtman,supra, 16
Cal.App.5th at p. 926.)
• “The undisputed facts here present a classic scenario for consideration of the
negligent undertaking theory. This theory of liability is typically applied where
the defendant has contractually agreed to provide services for the protection of
others, but has negligently done so.” (Lichtman,supra, 16 Cal.App.5th at p.
927.)
• “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. 558559.)
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• “[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
26].)
• “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.)
• “A defendant does not increase the risk of harm by merely failing to eliminate a
preexisting risk.” (University of Southern California v. Superior Court (2018) 30
Cal.App.5th 429, 450 [241 Cal.Rptr.3d 616].)
• “A operates a grocery store. An electric light hanging over one of the aisles of
the store becomes defective, and A calls B Electric Company to repair it. B
Company sends a workman, who repairs the light, but leaves the fixture so
insecurely attached that it falls upon and injures C, a customer in the store who
is walking down the aisle. B Company is subject to liability to C.” (Restat. 2d of
Torts, § 324A, Illustration 1.)
Secondary Sources
5 Witkin, California Procedure (5th ed. 2008) Pleadings, § 594
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1205-1210
Flahavan et al., California Practice Guide: Personal Injury, Ch. 2(II)-I, Negligence
Liability Based on Omission to Act - Legal Duty Arising from “Special
Relationship”, ¶¶ 2:2005-2:2009 (The Rutter Group)
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)
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