Introduction to the Law of Negligent Performance of an Undertaking

This post was published on the now-closed HuffPost Contributor platform. Contributors control their own work and posted freely to our site. If you need to flag this entry as abusive, send us an email.

Introduction to the Law of Negligent Performance of an Undertaking

Yoda may have been expressing a legal truism when he said: “Do or do not, there is no try.” This comment provides a brief and incomplete educational overview of the law of negligent performance when one undertakes an action. Always contact an experienced attorney in specific situations.

The common statement of the law of negligent performance of an undertaking to perform actions is found in the Restatement (Second) of Torts Section 323:

“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.”

This is not legislation but is commentary frequently cited by courts because of the prestige of the American Law Institute that for many years has issued treatises, such as the quoted Restatement, concerning U.S. law.

There is a public policy concern that while U.S. law does not impose a “brother’s keeper” duty to act in many situations, having undertaking an action, one should act reasonably. This leads inevitably to the somewhat cynical conclusion that it is better to do nothing than to do something and be sued. For this reason, many states have enacted Good Samaritan legislation preventing lawsuits based upon negligence against a passerby who stops and renders aid at the scene of a traffic accident.

There are many examples of problem areas where public and legal opinion are of two minds, simultaneously wanting both action and inaction. For example, residential universities face difficult legal and public relations questions involving hazing and alcohol consumption, to name two common issues. When tragic events occur, there is an inevitable complaint that something should have been done by the university to regulate possibly off-campus conduct by adults.

In fact, for many years universities did operate under the legal doctrine of “in loco parentis” (in the place of a parent). This came about when the age of adulthood was typically 21 and most students were minors. However, with a lower age of adulthood and increasing individualism and personal autonomy, as well as the application of due process standards to the actions by public universities, there would be an explosion if a university reverted back to the traditional parental control stance. When a university does attempt to regulate conduct, it enters the negligent undertaking legal minefield. This is complicated by the fact that there are no hard and fast rules defining “reasonable care.” It is situational and ultimately frequently dependent upon a jury’s judgment.

Another increasingly tragic issue involves domestic violence that occurs at the workplace. Since frequently there is little legally preventing an employer from simply terminating an employee under the employment-at-will doctrine, employers may with finesse find reasons (or not provide any explanation) to terminate employment to make the potential problem leave. Hence, the victim is doubly injured and may fear revealing anything concerning personal issues to the employer.

Beyond the scope of this brief comment, there is a smattering of legislation granting very limited employment rights such as unpaid work leave or court appearance time for domestic violence victims. A few states prohibit discrimination or retaliation against domestic violence victims or otherwise require workplace accommodations. However, a comprehensive solution requires, among other things, a modification of employment-at-will, a clear definition of what constitutes “domestic violence” (is it mental anguish as well as physical injury and criminal activity?), a consideration of what hardship new requirements would impose on the employer, and ultimately a public policy debate that federal and state legislatures are reluctant to undertake. Consult an experienced attorney to determine what legal options are available in a given jurisdiction if you are either an employer or victim in a domestic violence situation.

Under current law, especially where both perpetrator and victim work for the employer and the employer knows or should know of violent propensities or mental instability, there may be a claim based upon negligent supervision, negligent undertaking resulting in inadequate security, or a generally recognized duty to provide a reasonably safe workplace. The legal theories of liability somewhat overlap.

Even if there is no undertaking, an employer may be sued, at least in some states. A 2017 decision by the Louisiana Court of Appeals, Carr v. Sanderson Farm, Inc., allowed a negligence lawsuit against an employer for injuries from a workplace assault by a coworker. The employee had reported an off-site threat to the employer who declined to act because the threats were not made on the employer’s property.

In an incomplete summary, the Court held that Worker’s Compensation was not an exclusive remedy for this workplace injury. The employer knew of the worker’s criminal history and other physical altercations at work. The Court wrote: “If an employer knows or should know of a dangerous condition or person on its premises, the employer is obligated to take reasonable steps to protect its employees.” “The foreseeability of the risk of [the employee’s] intentional act being committed on the defendant’s property and the gravity of the harm determine both the existence and scope of the defendant’s duty.”

Again, the unspoken and unintended result may be to provide an employer an incentive to find a lawful basis, such as employment-at-will provides, to fire both employees. Even if the victim obtains a restraining order, the paper that the order is written upon will not stop bullets. Nor may the police be sued for failing to enforce the restraining order according to a Supreme Court 7:2 majority opinion in 2005 [Town of Castle Rock v. Gonzales]. A potential victim should never lightly regard a perceived or expressed threat and, as unfair as it may seem, must undertake a variety of appropriate self-defense measures. Seek professional and advocacy assistance.

A 2017 Vermont federal District Court decision dismissed a lawsuit involving an allegation of child sexual abuse by a church employee. The Court favorably cited the Restatement in the context of allegations that the church was aware of previous allegations involving the employee and had possibly engaged in monitoring the employee [Lewis v Bellows Fall Congregation]. However, there were intervening events and, in the case of one defendant, the plaintiff filed suit about nine months after the statute of limitations (time to sue) had run.

Again, beyond the scope of this comment, there may be affirmative duties to act imposed by both statute and judicial decisions. Mandatory requirements to report child and elder abuse are examples. There appears to be a gradual legal trend to require reasonable care (non-negligent conduct) in all situations. This trend is contrary to the traditional “no duty” to act standard. Thus, at some future date commentators may be discussing the negligent failure to act rather than the negligent performance of an act.

This comment provides a brief and incomplete educational overview of a complex topic and is not intended to provide legal advice. Always consult an experienced attorney in specific situations.

Popular in the Community