Low, Ball & Lynch’s
WEEKLY
LAW RESUME
Torts
- Negligent Undertaking Doctrine
Mukthar v.
Latin American Security Service
(
Court of Appeal, Second
District
The negligent
undertaking doctrine, better known as the “Good Samaritan” rule, provides that when a volunteer
undertakes to provide services or aid to another, he or she may have a duty to
exercise due care. This case deals with whether this doctrine also applies when
an actor contracts to render services for the protection of a third
person.
Plaintiff Tofik Mukthar worked as a cashier
at a 7-11 store in
The women became further
agitated. Mukthar then pushed a security button behind
the cash register. At the time of the incident, Defendant Latin American
Security Service, Inc (Service) was under contract with the store to provide
armed, uniformed security guards every evening. A guard reported for work that
evening. However, the guard was not on duty when the incident
occurred.
After Mukthar refused to serve the women, the women grabbed some
items and headed for the front door. Mukthar came out
from behind the register and tried to block the door. The women and the boy
rushed the door and Mukthar was allegedly injured.
Mukthar filed suit against Service for a claimed
failure to prevent the attack. Service brought a motion for summary judgment.
The trial court granted the motion.
The Second District Court of Appeal reversed.
The Court of Appeal
opined that the negligent undertaking doctrine is firmly rooted in the law of
negligence. This doctrine has traditionally been applied to volunteers. However,
if an individual or company contracts to render services for the protection of
third persons, the negligent undertaking doctrine may also apply. Looking to the
Restatement Second of Torts, the Court held that a negligent undertaking claim
of liability requires evidence that the services rendered were of a kind the
defendant should have recognized were necessary for the protection of third
persons, and that the defendant failed to exercise reasonable care resulting in
physical harm to a third person.
In this case, Service
presented no evidence as to why its guard was not on the premises at the time of
the incident. Service also did not contest that its guard should have been at
the 7-11 store. The Court rejected Service’s contention
that it owed no duty to the store, because Service had no actual notice an
assault was about to occur. The negligent undertaking doctrine is not predicated
on notice of impending harm.
Service’s primary
argument dealt with the causation issue. Service argued that even if it had a
duty to have a guard present, it was mere speculation as to whether the presence
of the guard would have prevented the attack. The Second District disagreed.
Based on the evidence, the Court held that it was more likely than not that the
assault would not have occurred if an armed security guard would have been in
close proximity. The Court held that causation is a triable issue for the jury to decide. The Court
distinguished several security cases raised by Service, wherein other courts held there was a
lack of a causal connection between a claimed lack of security and an attack on a
third person. The Court held that Service’s failure to provide a security guard
in this case increased the risk of harm to Mukthar.
Therefore, the Court reversed the
trial court’s order granting summary judgment.
COMMENT
This case makes clear
that if a person or company contracts to provide security services, they have a duty, under the negligent undertaking
doctrine, to exercise due care to prevent injuries to third
persons.
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