Lewis Barbe recently provided expert advice in a California Superior Court case which ultima

resolved a repair and rental vehicle accident. Use in his material which was extrapolated from an

unknown author was the following information.

A garage or service station operator undertaking to repair or service a motor vehicle owes a

duty to exercise due care in doing so. This duty is owed not only to the party at whose request

the operator performs the repairs but also to all persons who would be exposed to a foreseeable

risk of harm during the normal use of the vehicle if the repairs are negligently done. Spolter v.

Four-Wheel Brake Serv. Co. (1950) 99 Cal. App. 2d 690, 222 P.2d 307; See also, Dahms v. General

Elevator Co. (1932) 214 Cal. 733, 741-742, 7 P.2d 1013 (duty of care owed by repairer of chattels

and liability for negligence); Jackson v. Ryder Truck Rental, Inc. (1993) 16 Cal. App. 4th 1830,

1846, 20 Cal. Rptr. 2d 913 (duty of care owed by vehicle maintenance company and liability for

death of driver of negligently-maintained vehicle)

Additionally, Defendants may be liable for negligently undertaking to repair the subject vehicle.

Artiglio v. Corning Inc. (1998) 18 Ca1.4th 604, 613, Paz v. State of California (2000) 22 Ca1.4th 550,

559.the doctrine of liability for negligent performance of a voluntary undertaking set forth in the

Restatement Second of Torts has gained acceptance in California. The Restatement provides that

"one who undertakes, gratuitously or for consideration, to render services to another which he

should recognize as necessary for the protection of a third person or his things, is subject to

liability to the third person for physical harm resulting from his failure to exercise reasonable

care to [perform] his undertaking, if [P] (a) his failure to exercise reasonable care increases the

risk of such harm, or [P] (b) he has undertaken to perform a duty owed by the other to the third

person, or [P] (c) the harm is suffered because of the reliance of the other or the third person

upon the undertaking." (Rest.2d Torts, 324A.)

The California Supreme Court has explicitly adopted the Restatement principle of tort liability for

the negligent performance of a voluntarily assumed undertaking. ( Artiglio v. Corning Inc., supra,

18 Ca1.4th at p. 613; Paz v. State of California (2000) 22 Ca1.4th 550, 559, 994 P.2d 975.) The

Supreme Court recently held that a negligent undertaking claim 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." (

Paz v. State of California, supra, 22 Ca1.4th at p. 559.)

We believe that the Paz reasoning applies to instances in which the promisor fails to perform the

undertaking altogether, because there is no logical distinction between the failure to perform a task

properly and the failure to perform it at all--there is the same risk, the same harm, the same reliance,

and at least the same level of moral culpability in nonperformance as in partial or substandard

performance. As one California court stated some time ago, "a person may become liable in tort for

negligently failing to perform a voluntarily assumed undertaking even in the absence of a contract so

to do." ( Valdez v, Taylor Automobile Co. (1954) 129 Cal. App. 2d 810, 817, 278 P.2d 91.)