The Voluntary Undertaking Doctrine Explained

Generally, pursuant to the voluntary undertaking theory of liability, “one who undertakes, gratuitously or for consideration, to render services to another is subject to liability for bodily harm caused to the other by one’s failure to exercise due care in the performance of the undertaking.” Rhodes v. Illinois Central Gulf R.R., 172 Ill.2d 213, 239, 216 Ill.Dec. 703 (1996).

Illinois relies on §§ 323 and 324 of the Restatement (Second) of Torts to assess when a breach of a voluntary undertaking has occurred. Wakulich v. Mraz, 203 Ill.2d 223, 271 Ill.Dec. 649, 785 N.E.2d 843, 855-56 (2003). Specifically, § 324A establishes liability for breach of a voluntary undertaking if: (1) a party undertakes to do something and then fails to exercise reasonable care in a way that increases a third party’s risk of harm; (2) undertakes to perform a duty that a different party was obligated to perform and then negligently fulfills its duty; or (3) a third party relies to its detriment on the fact that a duty has been voluntarily undertaken. Section 323 addresses when the injured party is the person for whom the voluntary undertaking was made.  , Bourgonje v Machev, 362 Ill.App.3d 984, 298 Ill.Dec. 953 (2005).

Section 323 of the Restatement (Second) of Torts states:

“One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other’s person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if:

(a) His failure to exercise such care increases the risk of such harm, or

(b) The harm is suffered because of the other’s reliance upon the undertaking”

Restatement (Second) of Torts § 323, at 135 (1965).

Once a voluntary undertaking exists, it must be performed with reasonable care. Rowe v. State Bank of Lombard, 125 Ill.2d 203, 126 Ill.Dec. 519 (1988).

Illinois recognizes an affirmative duty of care independent of a special relationship where a voluntary undertaking is shown. See Rhodes v. Illinois Central Gulf R.R., 172 Ill.2d 213, 216 Ill.Dec. 703 (1996). The Illinois Supreme Court has on several occasions clarified the voluntary undertaking theory of tort liability. As early as Nelson v. Union Wire Rope Corp., 31 Ill.2d 69 (1964), and more recently in Wakulich v. Mraz, 203 Ill.2d 223, 271 Ill.Dec. 649, 785 N.E.2d 843, 854 (2003), the state Supreme Court has considered whether a defendant’s actions were sufficient to impose a duty upon it that it then negligently performed. In the court’s view, whether a voluntary undertaking has been assumed is necessarily a fact-specific inquiry. Although Nelson applied Florida law, the Supreme Court of Illinois has cited it with approval. See, e.g., Vesey v. Chicago Housing Auth., 145 Ill.2d 404, 164 Ill.Dec. 622, 583 N.E.2d 538, 543 (1991); Cross v. Wells Fargo Alarm Servs., 82 Ill.2d 313, 45 Ill.Dec. 121, 412 N.E.2d 472, 474 (1980). Other cases in which the court has found a voluntary undertaking involve facts where the defendant undertook to provide assistance and then did so negligently, Wakulich, 271 Ill.Dec. 649, 785 N.E.2d at 854 (finding voluntary assumption of duty to care for young woman who became unconscious after consuming quart of alcoholic beverage); or the defendant voluntarily undertook to provide security services in a public housing facility, and then did so negligently. Cross, 45 Ill.Dec. 121, 412 N.E.2d at 474-75 (finding housing authority’s voluntary assumption of duty to provide guard services obligated it “to use reasonable care not to create increased dangers to persons lawfully on its property”).

Most recently the state Supreme Court examined the issue of voluntary undertaking in Bell v. Hutsell, 955 NE 2d 1099, 353 Ill.Dec. 288 (Ill. 2011). The Court, interpreting the Restatement (Second) of Torts § 323, explained that the voluntary undertaking theory contemplates two separate and distinct avenues to duty and breach: those concerning misfeasance and those concerning nonfeasance. Though the line between the two has been blurred recently, the Court emphasized that in Illinois each requires its own pleading and evidentiary requirements. Id. at 1107.

A misfeasance theory of voluntary undertaking is an assertion that the defendant, though initially having no duty to the plaintiff, affirmatively undertook a duty, whether gratuitously or for compensation. Id.  Hence, in order to maintain an action based on misfeasance, a plaintiff must allege and prove that the defendant took specific and substantial actions in performing a duty, and that in doing so the plaintiff was proximately harmed. Id.

Failure to act is more properly classified under the nonfeasance branch of voluntary undertaking. Id.  In order to maintain a claim for nonfeasance, a plaintiff must allege and prove that the defendant made a promise to perform a duty and that plaintiff detrimentally relied on said promise. Id. Thus, as distinguished from claims based on misfeasance, nonfeasance claims require the essential element of reliance. Id.

The essential element of the voluntary undertaking doctrine is the undertaking itself. And the duty of care imposed on a defendant is limited to the extent of its undertaking. Rhodes v. Illinois Central Gulf R.R., 172 Ill.2d 213, 239, 216 Ill.Dec. 703 (1996); Decker v. Domino’s Pizza, Inc., 268 Ill. App. 3d.521, 526, 205 Ill.Dec. 959(1994).  See also Pippin v. Chicago Housing Authority, 78 Ill.2d 204, 210, 35 Ill.Dec. 530 (1990) (“The [Chicago Housing] Authority’s duty was limited by the extent of the undertaking, viz, to use reasonable care in engaging Interstate [Service Corporation] to provide the guard services. The Authority can therefore be liable at most for the negligent hiring of Interstate”).).