South Florida Injury Lawyers Blog
An appellate court in California recently reversed summary judgment in favor of a company that employed a maintenance worker accused by plaintiff of negligently failing to conduct an adequate check on her – a guest – at her husband’s urgent request. It turned out the wife had suffered a brain aneurism and was in dire need of medical attention. While the lower court found the hotel owed no legal duty to the couple (co-plaintiffs), the appellate court said the “negligent undertaking” theory of liability can be invoked where one comes to the aid of another but fails to do so with reasonable care.
In Florida, this is sometimes referred to as the “undertaker’s doctrine.” Having nothing to do with funeral homes, it involves establishing a defendant owed a “duty of care” (a key element in any negligence case) to the plaintiff. As noted in the Restatement (Second) of Torts Chapter 323, anytime a person undertakes to provide a service to others – whether gratuitously or by contract – the person who undertakes to provide that service (i.e., “the undertaker”) assumes a duty to act carefully and not to place others at unnecessary risk of harm. A good West Palm Beach injury attorney recognizes that this applies to governmental and non-governmental entities, and not only to those parties who have a contract with one another, but also third parties, as noted in the 2003 Florida Supreme Court ruling in Clay Electric Cooperative v. Johnson.
These cases can be pursued when a person undertakes or renders services to another that he/ she should recognize as necessary for the protection of the third person and his/her things is subject to liability if the third person suffers physical harm resulting from failure to exercise reasonable care if:
- Failure to do so increases the risk of such harm;
- Harm is suffered because of the third-person’s reliance on this undertaking.