§25.4 Duty Gratuitously Undertaken

The Case: Bennett v. Trevecca Nazarene University , 216 S.W.3d 293 (Tenn. 2007).

The Basic Facts: Defendant university called Plaintiffs who were electrical workers after a power outage at part of the university's campus. Plaintiffs were subsequently injured in a high-voltage electrical explosion and brought suit against the university misinformed the workers regarding the amount of voltage they would be working with.

The Bottom Line:

• ''One who assumes to act, even though gratuitously, may thereby become subject to the duty of acting carefully.'' Biscan v. Brown, 160 S.W.3d 462, 482-83 (Tenn. 2005) (quoting Stewart v. State, 33 S.W.3d 785, 793 (Tenn. 2000)). Our state's courts have applied this principle in a variety of factual contexts. See, e.g., id. at 467, 483 (adult who supervised underage drinkers at a house party assumed a duty of care vis-à-vis a motorist injured in an alcohol-related traffic accident); Nidiffer v. Clinchfield R.R. Co., 600 S.W.2d 242, 246 (Tenn. Ct. App. 1980) (railroad had a duty of reasonable care to its employees to select a solvent group life insurance carrier); cf. Stewart v. State, 33 S.W.3d 785, 787-88, 793-94 (Tenn. 2000) (state trooper did not assume a duty to control the actions of local police officers at the scene of an arrest); Lett v. Collis Foods, Inc., 60 S.W.3d 95, 104 (Tenn. Ct. App. 2001) (employer of an intoxicated employee driving home from work did not assume a duty vis-à-vis an injured motorist); Marr v. Montgomery Elevator Co., 922 S.W.2d 526, 529 (Tenn. Ct. App. 1995) (maintenance company did not assume a duty vis-à-vis a patron who rode on top of an elevator at a tourist attraction)." 216 S.W.3d at 300.

Recent Cases: Downs ex rel. Downs v. Bush , 263 S.W.3d 812 (Tenn. 2008) (reversing summary judgment finding genuine issues of material fact as to whether decedent was "helpless" and whether the defendants "took charge of him" so as to give rise to duty of care); Burks v. Kroger Company, No. M2008-02664-COA-R3-CV, 2009 WL 4059145 (Tenn. Ct. App. Nov. 23, 2009) (reversing summary judgment finding genuine issues of material fact as to whether defendant roofing consultant and defendant roofing contractor assumed a duty of care to plaintiff in slip in fall on pool of water in store caused by leaky roof by undertaking to render services for the protection of others); Bailey v. Grooms, No. E2008-01520-COA-R3-CV, 2009 WL 3460654 (Tenn. Ct. App. Oct. 28, 2009) (affirming summary judgment for defendant property owner finding that hosting an adult party did not create legal duty to prevent adult attendees from becoming intoxicated and injuring each other and finding no special relationship arose out of being social host, finding risk of injury from a guest firing a gun not reasonably foreseeable, finding no assumption of duty, and finding plaintiff statutorily prevented from showing causation by Tenn. Code Ann. 57-10-101); Barron v. Emerson Russell Maintenance Company, No. W2008-01409-COA-R3-CV, 2009 WL 2340990 (Tenn. Ct. App. July 30, 2009) (reversing summary judgment finding duty on part of defendant security company and rejecting security company's argument that only the owner of premises has a duty to customers); Collins v. Arnold, No. M2004-02513-COA-R3-CV, 2007 WL 4146025 (Tenn. Ct. App. Nov. 17, 2007) perm. appeal denied (Apr. 14, 2008) (reversing jury verdict because jury was not instructed as to the conditions for liability under an assumed, rather than imposed, duty of care as established in Section 324A of the [Restatement of Torts]).

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