In many cases, a defendant’s first line of defense is arguing that it owed no duty to the plaintiff and it therefore cannot be found liable as a matter of law. In the construction field, this argument is often refuted by pointing to contractual language that places responsibilities for safety on the defendant. In other situations, the plaintiff can show that the defendant owed a duty under common law; for example, in a motor vehicle accident, the defendant driver owes a duty to all other persons on the roadway and those that may be affected by the defendant driver’s operation of the vehicle, to operate the vehicle in a reasonable and safe manner. In some situations, however, there may be no applicable contractual duties and no general common law that applies to the defendant. In these situations, the plaintiff is not completely out of luck, and may argue that the defendant assumed a duty that it did not originally owe, and subsequently negligently carried out that duty.
Pennsylvania courts apply Sections 323 and 324A of the Restatement (Second) of Torts to assign liability to those who undertake to render services, whether gratuitously or for consideration, which are necessary for the protection of another and then do so negligently. The applications of Sections 323 and 324A are vast and can provide liability against parties that otherwise would owe no duty to Plaintiff. The “assumed duty” case can be envisioned in the following way. Assume “Steve” owns a large property in a rural area and that a major highway runs immediately adjacent to Steve’s property. One day, Steve becomes aware that deer routinely enter his property to graze on his shrubbery, before exiting his property and crossing the major highway. Steve learns that the deer crossing his property have caused accidents on the highway. Steve decides to erect fencing along the edge of his property adjacent to the highway to prevent the deer from entering the roadway and causing an accident. Steve, however, fails to maintain the fence he erected, and it eventually breaks, allowing the deer to enter the roadway once again. One day, the deer enter the roadway and cause a devastating accident and severe injuries to a motorist, “Susan.”
Ordinarily, Steve owes no duty to Susan to prevent the wild deer from entering the roadway and causing an accident. Clearly, Steve and Susan do not have a contract that requires Steve to prevent the deer from entering the roadway, and the common law places no such duty on Steve. However, Steve may still be found liable under Sections 323 and/or 324A of the Restatement (Second) of Torts. In erecting the fence to prevent the deer from entering the roadway and causing accidents, Steve gratuitously assumed a duty to prevent such an occurrence. Arguably, Steve erected the fence in recognition that it was necessary for the protection of the motorists on the roadway. Steve’s negligent failure to maintain the fence resulted in the deer once again entering the roadway and causing injury to Susan. Susan may pursue a cause of action against Steve for his failure to reasonably carry out the duty he assumed by erecting fencing.
Thus, even in situations in which a party has no contractual duties and no duties under common law, the party’s actions prior to the accident may constitute an assumption of duty for which the party can be found liable for failing to carry out these actions in a reasonable manner.