25 Cal.App.5th 680
Cal. Ct. App.2018Background
- Plaintiffs (parents of a 19‑year‑old employee killed at Double Diamond dairy) sued HR Mobile Services, a safety/HR consultant retained by the dairy, for negligence under a negligent‑undertaking theory after their son was struck and run over by a front‑end loader.
- HR Mobile had an oral agreement to provide HR, training, loss prevention and workers’ compensation assistance for $24,000/year; it performed a site inspection and an employee safety meeting in August 2012 and provided an IIPP obtained from a vendor.
- The parties dispute the scope of HR Mobile’s role (primary vs. secondary), whether HR Mobile reasonably reviewed/adapted the IIPP to the dairy, and whether HR Mobile’s acts/omissions caused or increased the risk of the fatality (issues include loader blind spot, operator inattentiveness, and whether the decedent wore high‑visibility clothing or earbuds).
- Trial court granted summary judgment for HR Mobile, concluding Civil Code § 2343 barred liability because the consultant’s alleged omissions were not “affirmative misfeasance” and thus not “wrongful in their nature.”
- Court of Appeal reversed: it held § 2343 does not bar negligent‑undertaking claims based on an agent’s independent torts, found triable issues on duty, breach, and causation, and remanded for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether HR Mobile owed a duty to employees under negligent‑undertaking (§ 324A / Artiglio) | HR Mobile undertook safety services (inspections, training, IIPP) and thus owed a duty to employees; employer and employees relied on the undertaking | HR Mobile only provided limited/secondary consulting and did not fully assume the employer’s duties, so no duty to third‑party employees | Duty may arise without full assumption; triable issues exist as to scope of undertaking, so summary judgment on duty improper |
| Whether Civil Code § 2343 precludes plaintiffs’ claim because HR Mobile’s conduct was mere nonfeasance | § 2343 does not bar suits for an agent’s own torts (including negligent undertaking) | § 2343 limits agent liability to affirmative misfeasance; passive omissions are not "wrongful in their nature" | § 2343 construed to mean agents are liable for their own independent torts; negligent undertaking, if proven, is "wrongful" and § 2343 does not preclude claim |
| Whether HR Mobile breached any duty it undertook | HR Mobile failed to tailor/verify IIPP, perform adequate inspections/training, and correct hazards, increasing risk | HR Mobile performed inspections/training and provided IIPP; any omissions were not shown as legal breaches as a matter of law | Material factual disputes exist about the precise scope of HR Mobile’s undertaking and whether it breached that duty; summary judgment inappropriate |
| Whether plaintiffs established causation (substantial factor) | HR Mobile’s omissions (inadequate IIPP, lack of high‑visibility clothing, failure to address blind spot) were substantial factors in death | Immediate cause was driver not looking; alternate causation theories are speculative | Causation analyzed under substantial‑factor test; triable factual issues exist about whether HR Mobile’s conduct was a substantial factor; summary judgment improper |
Key Cases Cited
- Artiglio v. Corning Inc., 18 Cal.4th 604 (1998) (adopts Restatement § 324A negligent‑undertaking elements and sets framework for duty analysis)
- Kurtin v. Elieff, 215 Cal.App.4th 455 (2013) (construed Civ. Code § 2343 as making agents liable for their own torts but not vicariously liable for principals’ torts)
- Ruiz v. Herman Weissker, Inc., 130 Cal.App.4th 52 (2005) (discusses § 2343 and agent liability; cited by trial court for affirmative‑misfeasance view)
- Santillo v. Chambersburg Eng’g Co., 603 F.Supp. 211 (E.D. Pa. 1985) (safety consultant inspections foreseeably relate to protection of employees; supports negligent‑undertaking liability)
- Canipe v. National Loss Control Serv., Inc., 736 F.2d 1055 (5th Cir. 1984) (under § 324A(b) employer may delegate part of its duty and consultant can be liable for that delegated portion)
- Wilson v. Rebsamen Ins., Inc., 957 S.W.2d 678 (Ark. 1997) (holds independent safety‑inspection company owes a duty to third‑party employees under Restatement § 324A)