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.)