O'Malley v. Hosp. Staffing Sols. - 20 Cal. App. 5th 21, 228 Cal. Rptr. 3d 731 (2018)

Rule:

The general rule is that a person who has not created a peril is not liable in tort for failing to take affirmative action to protect another unless they have some relationship that gives rise to a duty to act. However, one who undertakes to aid another is under a duty to exercise due care in acting and is liable if the failure to do so increases the risk of harm or if the harm is suffered because the other relied on the undertaking. Thus, a negligent undertaking claim of liability to third parties 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.

Facts:

A hotel guest and her husband sued the hotel and a maintenance worker's staffing agency employer for negligence. The guest had checked into a hotel room in the early evening and did not answer her husband's calls for several hours. He suspected that she might have been injured and called the hotel. The maintenance worker checked the hotel room and reported that no one was there. Hours later, the husband went to the hotel room and found the guest, who had suffered a brain aneurysm, lying on the floor. The employer filed a motion for summary judgment, arguing that it owed no legal duty to the married couple. The trial court granted the motion. The plaintiffs appealed. 

Issue:

 As a matter of law, could it be said that the maintenance worker owed no legal duty to the hotel guest, thereby justifying the grant of summary judgment? 

Answer:

No.

Conclusion:

The Court of Appeal reversed the judgment. Although a person ordinarily has no legal duty to come to the aid of another, if a person did come to the aid of another, and did so without exercising reasonable care, that person may be responsible for any damages caused under a negligent undertaking theory of liability. A reasonable trier of fact might infer that the maintenance worker assumed a duty to check on whether the guest was in her room, and if she was there, why she was not answering the phone. If the maintenance worker had such a duty, the scope of his duty would depend on the nature of the harm that was foreseeable. The risk that the guest was incapacitated and needed assistance might have been reasonably foreseeable, but that was a jury question. Further, it appeared that the guest's husband might have relied on the maintenance worker's representation that the guest was not in the hotel room, and that he delayed coming to the hotel, thereby possibly exacerbating the guest's injuries. A trier of fact could ultimately decide that some portion of the couple's injuries were the result of a lack of reasonable care exercised by the maintenance worker (and ultimately his employer) under a negligent undertaking theory of liability.