concurring in part, dissenting in part.
I concur with the panel majority’s disposition of sections III, IV, and V of its opinion; however, I cannot in conscience join the panel majority in its disposition of sections II and III of its decision wherein, by an erroneous application of § 324A Second Restatement of Torts, it forecloses individuals, firms, and corporations from limiting the liability of their contractual commitments.
The district court in the instant case excluded the testimony of George Green (Green) and Phil Wyatt (Wyatt), employees of Pennwalt (Pennwalt), a third-party defendant to this controversy, implicating industry custom and practice concerning the scope of responsibilities generally delegated to and assumed by service representatives when performing services of the type here in issue. The court denied the admission of this proffered testimony because, after a voir dire review of the witnesses, it concluded that the service contract between Cooper Industries (Cooper), incorporated into a purchase order between it and Pennwalt, specifically identified and defined the scope of the services to be performed by Cooper’s representative, Bab-cock and because of the patent impropriety of the form of the proffered questions and answers. Accordingly, the court ruled the testimony to be highly prejudicial personal expressions of opinion on the ultimate issue *1275of common law negligence which determination was within the exclusive domain of the factfinder, in this case, the jury. The court also observed that the responsibilities assumed by service representatives of companies other than Cooper could not be unilaterally imposed upon Cooper without its express or implied consent or undertaking. In the instant case, Cooper, by the concise, unambiguous language of its service contract with Pennwalt, identified, defined and limited the scope of its responsibility to “services required to inspect assembly ” of the said compressor, and “services required for factory service man to inspect assembly of one 16 X 10 X 7 HACP Pennwalt air compressor CL No. 106780.” As more fully hereinafter discussed, the language of section 324A of the Restatement 2d of Torts notwithstanding, to extend the precise language of the agreement beyond the intentions of the contracting parties by judicial edict is offensive to existing fundamental concepts of basic contractual precedent.
At all times here in issue, Pennwalt operated a chemical plant in Calvert City, Kentucky. In March of 1984, its maintenance personnel were rebuilding a large air compressor which Pennwalt had purchased from the manufacturer, a subsidiary of defendant Cooper in July of 1967, which had been damaged in October of 1983. The compressor supplied compressed air throughout the Pennwalt installation for use in various plant functions. The extensive air conduction system for the compressed air supplied by the compressor had been designed, manufactured, installed, and operated exclusively by Pennwalt. Cooper had not participated in either the design, manufacture, or installation of the conduction system including the block valves and discharge pipes which were an integral part of Pennwalt’s installation. On March 15, 1984, Cooper’s representative, Babcock, arrived at the Pennwalt plant and, pursuant to Cooper’s contract with Pennwalt, undertook inspection of the assembly of the rebuilt compressor which was being completed by George McGowan (McGowan) and two other Pennwalt mechanics. During the four days during which he observed the assembly of the compressor, he made various suggestions to the Pennwalt employees, which were implemented. On the morning of his fourth day at the Pennwalt plant, Babcock reported to Donald Kent Berkley (Berkley), Pennwalt’s foreman, and his immediate supervisor, Phillip Wyatt (Wyatt), that the assembly of the compressor had been satisfactorily completed by Pennwalt’s mechanics and was ready for testing. Berkley summoned James Hurt (Hurt), Pennwalt’s compressor operator, to start and operate the compressor during the tests. He described Hurt’s job as:
Q. What is the job of an operator?
A. Well, operator’s responsible for all the equipment in his area as far as the operation of it. That would include the start-up or shut-down of a piece of equipment such as this air compressor.
Wayne O’Quinn, Pennwalt’s plant manager testified that:
Q. And who, under Mr. Wyatt, would have been the actual foreman on the repair job?
A. Kent Berkley.
Q. Okay. Is it a procedure at the Calvert City plant that anytime a compressor was started, that an operator is called to start that compressor?
A. That’s our general procedure.
Q. And is the operator responsible, either by union agreement or by plant protocol, for starting the compressor?
A. Yes, sir.
Q. Is anyone else authorized to start a compressor at Pennwalt other than an operator?
A. Generally not.
Q. And does Pennwalt train its operators to know what they should and shouldn’t do before they start a compressor or any other piece of equipment they might be starting?
A. Yes.
Hurt, in the presence of Babcock, conducted two test runs of the compressor which operated to Babcock’s satisfaction whereupon Babcock advised Berkley, his supervisor Wyatt, and the two machinists *1276McGowan and McAllister, that the compressor could be “put on-line.” The test runs had been conducted without the compressor suction valves in place to verify the proper mechanical operation of the compressor; consequently, no compressed air was being induced into Pennwalt’s air distribution system. After releasing the compressor for “on-line” operation, Babcock went to lunch. The available record does not reflect, beyond the following testimony of John Sklavos (Sklavos), Pennwalt’s mechanical engineer who drafted the Cooper requisition order, why Babcock returned to the plant after lunch except to be available in the event the compressor did not operate properly after it was placed “on line”:
Q. Why wouldn’t you want him to leave before you were sure it [the compressor] was functioning properly?
A. Simply because, on many occasions we have experienced it’s — our experience has been that things can go wrong right after you start up that piece of equipment [the compressor], and obviously you need the field representative to be there to assist if that is the case.
During Babcock’s absence, Pennwalt employees McGowan and McAllister replaced the compressor suction cups and Pennwalt employees James Knight (Knight) and Sammy Bryant (Bryant) were connecting the discharge pipes from the compressor to the block valve here in issue and the Pennwalt air conduction system when Babcock returned.
Upon returning from lunch and after Knight and Bryant had completed their task of connecting the compressor discharge pipes to the air conduction system and while Babcock was conversing with Berkley and Wyatt, Berkley instructed someone to summon Hurt to start and operate the compressor that had, at this juncture, been placed “on-line” by Pennwalt employees. Hurt appeared with a large wrench that was necessary to open the block valve before the compressor was energized. At this juncture, a conflict in testimony occurred. Babcock testified that after the two dry runs had been successfully concluded and he had certified the compressor for “on-line operation,” all of which occurred before he went to lunch, his responsibilities were concluded and he did not thereafter voluntarily or otherwise participate in the assembly and connection of the discharge pipes, or any of the remaining work, including the final energizing of the compressor, all of which was being conducted by Pennwalt employees during and after the lunch hour. No Pennwalt employee who was present at the time or immediately prior to the final energizing of the compressor with the exception of Hurt, including Wyatt, Berkley, McAllister, Knight, McGowan, Bryant, and O’Quinn, testified that Babcock gave them any instructions, individually or collectively, nor did they hear him instruct Hurt as to the manner in which the compressor should be energized, nor did they observe him in any way participate in the startup. Hurt, however, did testify by deposition that:
A. Well, I believe we started it two or three times without the valves in it. Then, shortly after lunch, well, they started putting the valves back in it after lunch. About three o’clock, they asked me to start it again. One of the machinists — I can’t remember right now who it was — came and got me about three o’clock and said they was ready to start it again. At that time, I took an eighteen inch pipe wrench with me from the control room, anticipating I had to open the discharge valve. I asked Mr. Babcock if he wanted the discharge valve open before he started the machine, and he said, no, he wanted to warm the machine up first. Then, I asked him if the unloader valves were hooked up and operable, and he assured me they was. I waited for his instructions to start the machine. He told me I’d have to hold the start button in until the oil pressure reached seventeen pounds to keep the machine from kicking off. So, I did that. It started fine. Within just a matter of seconds, why, it blew up.
* * * # # >)<
Q. I believe you also said that you came when they were ready to start the *1277machine into plant operation, it was about three o’clock in the afternoon, and you came with a wrench.
A. Yes, sir.
Q. What kind of a wrench?
A. It was an 18 inch pipe wrench.
Q. And Babcock told you that it wasn’t necessary to open the discharge valve?
A. No. He didn’t say it wasn’t necessary. I asked him if he wanted it open before I started the machine. He said he wanted to warm the machine up first.
Hurt further testified that he followed Babcock’s instructions because factory representatives were usually in charge of instructing Pennwalt employees under similar circumstances. In any event, upon Berkley’s order, Hurt energized the compressor and it exploded within seconds.
This action was initiated in common law negligence and product liability. The jury’s responses to special interrogatories submitted by the court found no breach of express or implied warranty or negligence in the design or manufacture of the compressor or in the quality of Babcock’s services in supervising and inspecting the assembly of the air compressor during its rebuilding thereby absolving Babcock and Cooper from all liability anchored in plaintiff’s product liability cause of action.
In considering the cause of action asserted under common law negligence, the jury, in arriving at its decision, as evidenced by its answers to special interrogatories, assigned greater credibility to the testimony of Babcock and other Cooper witnesses than it did to the testimony produced by Pennwalt and its employee witnesses including Hurt, since it also absolved Bab-cock and Cooper of any negligence in the startup of the compressor, including the responsibility for opening the “block valve” the failure of which act proximately caused the explosion and resultant injuries and damages.
Accordingly, this appellate review is confronted with appellant’s challenges to the district court’s exclusion of the Green and Wyatt testimony which appellants charge would have resulted in a verdict other than that returned by the jury. Addressing the appellants’ assignments of error, I am constrained to conclude that Section 324A imposes no extra-contractual duties upon Cooper or Babcock beyond those expressed in Cooper’s contract with Pennwalt.
For the purposes of this discussion, the essence of § 324A is incorporated into the following language: “One who undertakes, gratuitously or for consideration, to render services to another ...”. In the instant case, appellants and the panel majority conceded that “if the purchase order was the only source of Babcock’s duties, then, its clear language would prevail over any proffered testimony on Pennwalt’s routine practices as a service customer.” The parties are in accord that any liability imposed upon Babcock or Cooper had to result from an act by Babcock or Cooper that was beyond those acts specified in the written contract between Cooper and Pennwalt. The majority opinion urges that the undertaking, which is the predicate for a relationship between Pennwalt and Cooper, if one existed, was created by § 324A Second Restatement of Torts through an application of the “good Samaritan” doctrine as manifested by some affirmative act voluntarily performed by Babcock after his return from lunch. The record, however, fails to demonstrate any express or implied “undertaking.” All the evidence is to the contrary as previously noted with the exception of Hurt’s testimony which was discredited by the jury.
Neither Wyatt, Berkley, McAllister, Knight, McGowan, Bryant, nor any other individual who was present at the time of or immediately prior to the explosion of the compressor observed Babcock perform any act or issue any instruction to any Penn-walt employee concerning the startup of the compressor. Consequently, the evidence affords no support for appellants’ argument or the panel majority’s conclusion that Cooper, through Babcock, gratuitously undertook to render services beyond the contractual agreement between Cooper and Pennwalt to provide “services required for factory service man to inspect assembly of one 16 X 10 X 7 HACP Penn-*1278wait air compressor CL # 106780.” I am confident that the appellants are not urging that Babcock’s mere presence in the vicinity of the working area here in issue, standing alone, is sufficient to unilaterally create a legal relationship between the parties that imposed a duty upon Babcock and/or Cooper beyond the existing contract between the principals. See Blessing v. United States, 447 F.Supp. 1160 (E.D.Pa.1978) (where inspector is not under legal duty to inspect premises, inspector only liable under § 324 if he has physically undertaken to inspect the specific instrumentality causing the subsequent injury). Simply stated, the evidence fails to disclose any gratuitous undertaking by Babcock. Consequently, the “good Samaritan” doctrine and its restatement in Section 324A is inapplicable. See Homer v. Pabst Brewing Co., 806 F.2d 119, 121 (7th Cir.1986) (under Good Samaritan “doctrine,” the scope of duty is limited by the extent of the undertaking ... courts have “impose[d] a duty only to the extent actually assumed by the defendant”); Trosclair v. Bechtel Corp., 653 F.2d 162, 165 (5th Cir.1981) (to impose liability under Good Samaritan doctrine, there must be proof of a contractual undertaking or representations by defendant).
The instant situation is analogous to that presented by the hornbook example of a physician who inadvertently witnesses an accident and refuses to volunteer his services to assist the injured victims. The majority would impose liability upon the physician by creating a relationship between the parties by virtue of the physician’s happenstance presence at the scene.
While custom and practice surely define the standard of care to which a party must conform after he has undertaken, for consideration or gratuitously, a duty, custom cannot alone create a legal relationship to perform a duty between the parties. See, e.g., Lee and Lindahl, Modern Tort Law Litigation and Liability, § 3.27 at 92 (1988) (“[although custom and usage may be considered as evidence bearing on the question of negligence, they do not establish a duty ... ”). Accordingly, Babcock’s inaction did not render him liable given that he had no contractual or other legal duty to assist Pennwalt’s employees.
Appellants argue and the panel majority concludes that Babcock and Cooper were subject to “obligations imposed apart from and independent of promises made and therefore apart from any manifested intention of parties to a contract or other bargaining transaction.” Assuming, arguen-do, the correctness of appellants’ erroneous hypothecation, I am familiar with no principle of law that precludes a contractual waiver of any custom or practice within any given trade or industry. Here the contract between Pennwalt and Cooper would have accomplished such a waiver if one had been necessary. A review of existing legal precedent fails to surface any authority which would unilaterally impute responsibilities customarily undertaken by service representatives of companies other than a defendant company, to a defendant company, in this case, Cooper.
The reliance of the majority upon Raymer v. United States, 660 F.2d 1136 (6th Cir.1981), cert. denied, 456 U.S. 944, 102 S.Ct. 2009, 72 L.Ed.2d 466 (1982) to support its conclusion that § 324A of the Second Restatement of Torts created a cause of action in favor of an injured plaintiff “separate and distinct from appellees’ contractually created duties” is misplaced. Ray-mer arrives at no such conclusion either directly or by inference. To the contrary, Raymer recognized that the conditional predicate precedent essential to invoking § 324A was an existing legal relationship between the parties, undertaken for a consideration or gratuitously. The decision addressed the “alleged negligence of employees of the Bureau of Mines of the Department of Interior in performing inspection activities required by the Federal Coal Mine Health and Safety Act of 1969, 30 U.S.C. § 801 et seq.” Raymer 660 F.2d at 1137. Obvious from this circuit’s definition of the Raymer issue, the decision considered and decided only the scope of the duties allegedly created, not by § 324 Second Restatement of Torts, but rather by the Federal Coal Mine Health and Safety Act of 1969. Thus Raymer addressed events that occurred subsequent *1279to a duty that had been purportedly created by a federal statute and not § 324A. The plaintiff in Raymer never asserted or argued that § 324 unilaterally imposed a duty upon a defendant without the defendant having affirmatively accepted the duty either gratuitously or for a consideration:
The plaintiffs argue that Kentucky recognizes the “good Samaritan” doctrine in the context of a third-party inspection. Under this doctrine one who undertakes an inspection and in doing so finds a danger has an obligation either to abate the danger or to see that the owner of affected premises does so. Thus they contend, once the government assumed the task of inspecting coal mines, with enforcement powers to correct violations of safety rules and regulations, it was required to act with reasonable care and is liable where it failed to do so. As did the district court, the plaintiffs rely principally on the decision of the Kentucky Court of Appeals (then the State’s highest court) in Haddad v. Louisville Gas & Electric Co., 449 S.W. 2d 916 (Ky.1970) (emphasis added).
Raymer, 660 F.2d at 1140.
The court in Raymer went on to observe and decide that:1
Furthermore, reliance would not have been justified in view of the scheme of the 1969 Act. Under the 1969 Act the role of the Bureau of Mines in promoting mine safety was strictly secondary. The Act provided that “the operators of such mines with the assistance of the miners have the primary responsibility to prevent the existence of such [unsafe and unhealthful] conditions and practices in such mines_” 30 U.S.C. § 801(e). The purpose of the Act was declared to be the establishment of mandatory health and safety standards for coal mines and “to require that each operator of a coal mine and every miner in such mine comply with such standards. ...” § 801(g) (emphasis added in both quotations). In the face of this language which completely negates the idea that responsibility for mine safety has been shifted to the federal government, it would have been unreasonable to rely on the mere failure of federal inspectors to require immediate abatement of the ROPS [Rollover Protection System] violation as an indication that the vehicle was safe. Our discussion of the provisions of the 1969 Act demonstrates that the second alternative basis of liability under § 32^A, “he has undertaken to perform a duty owed by the other to the third person, ” was not satisfied. The mine operator’s duty to the miners to maintain safe conditions was unaffected by the 1969 Act and the mine inspectors did not assume this duty.
Raymer, 660 F.2d at 1143-44 (emphasis added). Moreover, the Kentucky courts have consistently declared that the custom and the practice of parties other than a defendant are irrelevant in assigning re*1280sponsibility for negligent conduct under circumstances similar to those of the instant case.2
Apart from the inapplicability of § 324A of the Second Restatement of Torts to the instant case, a review of the record discloses the patent impropriety of the excluded Green testimony. Appellants have, for purposes of this appellate review, characterized him as an expert, experienced in the customs and practices of field representatives servicing similar types of equipment under similar circumstances for customers similar to Pennwalt in the case at bar. Initially, the transcript of the record fails to support Green’s professed qualifications.
Secondly, Green’s qualifications notwithstanding, his proffered testimony does not, as appellants suggest, address the custom and practice of service representatives when servicing customers within the industry of Pennwalt.
The circumstances surrounding Green’s proffered testimony confuse the substance of that testimony. The record disclosed that Green was presented to provide engineering expertise and opinion to support the plaintiff’s product liability cause of action which charged design defects and/or Babcock’s competence in supervising the reassembly of the compressor. The record further reflected that plaintiff’s counsel inartfully attempted to extend Green’s professed expertise beyond his experience by soliciting opinions calculated to place the ultimate duty of opening the block valve, the proximate cause of the injuries here in issue, upon Babcock and Cooper. After having explained the conclusory character of Green’s proposed testimony to appellants’ counsel, who promptly ignored the court’s suggestion to restructure his interrogation, plaintiff’s counsel directed a series of questions patently improper in form to Green which questions elicited equally improper, opinionated, obviously inadmissible responses. The trial judge properly excluded Green’s testimony.
I regret the extended extrapolation from the record, however, the verbatim testimony best demonstrates the absurdity of appellants’ interrogation and the correctness of the experienced trial court’s ultimate ruling:
THE COURT: Well, I’m going to make it very clear, because I don’t know who— he’s acting as a juror deciding what the facts of this case are as to an essential issue to come to a conclusion, and I just don’t believe he can do that.
MR. LOFTON: He can based on Mr. Hurt's testimony. You can ask him a hypothetical.
THE COURT: All right. You may go, but you got a problem there.
Let me make myself perfectly clear. I don’t believe you can bring an expert in here to assist the jury on a fact that they can decide as well as the expert. It doesn’t take an expert to determine whether Mr. Babcock’s testimony is to be believed or whether the—
MR. HARDY: Hurt or any of the others.
THE COURT: — Hurt’s testimony is to be believed. That is not a matter to be addressed to the expert. That is something that a jury does not need any help on.
*1281Now, if he wants to testify about scientific or engineering matters, I’ll hear his testimony, but not on matters which will not assist the jury. He is not a named juror.
MR. LOFTON: Can we not ask him to assume Mr. Hurt’s testimony to be true for purposes of a hypothetical?
THE COURT: Well, I’d like to hear the hypothetical before it’s asked. He can look at this — this engineer can look at this schematic and these photographs and he can tell whether this was a good design, bad design, good approach to the repair, bad approach to the repair, but I don’t know that an engineer — the jury don’t need an engineer to come in here and tell us who was in charge.
You understand that, sir?
WITNESS: Yes, Your Honor.
MR. OWENS: Hold on just a minute, two other things. On the hypothetical, on Hurt’s deposition it would just be what — you want me to do that now or at the—
THE COURT: Yes, I want to hear it right now.
MR. OWENS: All right. I’d ask him to assume that Mr. Hurt has testified to the following, and then I’ll refer to that deposition of Hurt where he says something to the effect, “Do you want the valve opened?” And he says that Babcock told him, “No, we’re going to just warm it up some first.” And then Mr. Hurt replies, “Well, are the unloaders connected up?” And Babcock replied, according to Hurt, “Yes, they are open and operable. They are operable and working,” or something to ...
THE COURT: All right, let’s get everybody on the same track.
Under Federal Rules of Evidence 702, if scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine the fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education may testify thereto in the form of an opinion or otherwise.
This gentleman is presented to the Court as an engineer. The first conclusion he reaches is as follows:
1. —and I’m reading from the report which has been handed to me at the bench.
“Harold Babcock, the plaintiffs’ representatives and the person most knowledgeable in all aspects of compressor operations, was present and actually was performing a start-up operation. The Pennwalt personnel — ”
MR. OWENS: Excuse me, sir. We had specifically asked him to delete the sentence you’re about to read.
THE COURT: “ — were actually working under his direction and control.”
That sentence may not be referred to. That sentence does not — that conclusion does not require scientific, technical or specialized knowledge.
* * * * # *
MR. SIMS: Judge, while we’ve got the jury out, why don’t we address the other things in his report?
On Page 3 of his report he [Green] starts out, paragraph one: “Mr. Harold Babcock, an employee of the Cooper Engineering services, was negligent in that he allowed the start-up of the compressor without confirming the proper selection and installation of the external safety equipment and, further, did not confirm the compressor discharge was in open position. Both
Continuing on, the next sentence:
“Both of these procedures were the final responsibility of the Cooper Energy Services representative since he was — ”
THE COURT: That is a legal conclusion and will be stricken.
MR. SIMS: Okay. Is the entire paragraph stricken, ...
******
THE COURT: No, I said paragraph one. This man is an engineer; he’s not a psychologist or — I’m not going to let him say Mr. Babcock knew more than these other people. That’s not an engineering *1282opinion; that’s a psychological or educational opinion. And if he knew more, he’d had to give them a test, and I don’t think he has. Just eliminate one and use his engineering opinion.
Do you understand that, Dr. Green —or Mr. Green?
WITNESS: Yes, sir, Your Honor.
* * * * *
A. They’re both non-adjustable relief valves. You just — one is a Ford and one is a Chevrolet, you just take your pick.
Q. It’s my understanding it’s your testimony that in the design of this machine, way back when it was made, that should have been put in there by the manufacturer at that time as a design factor in the manufacturing of this machine, is that correct, sir?
A. That’s true. An integral relief system, that’s correct, sir, to keep it from self-destruction if somebody makes a mistake.
MR. RUSSELL: I believe that’s all I have. Thank you, sir.
AVOWAL DIRECT EXAMINATION
BY MR. OWENS:
Q. Mr. Green, did you reach any conclusions, or referring to Page 2 of your report, following your study of the material provided to you in the visit to the Pennwalt plant, Calvert City, Kentucky?
A. Yes, sir, I did.
Q. Would you state what those are, please?
* * # * * *
A. “Mr. Harold Babcock, the manufacturer’s representative, and the person most knowledgeable about all aspects of the compressor operation, was present and actively was performing the start-up operation. Pennwalt personnel were actually working under his direction and control.”
Q. All right. In relation to that, what experience do you have that would qualify you to know what a manufacturer’s representative does and Mr. Babcock was in control in performing the start-up operation?
A. Well, sir, I’ve worked under manufacturer’s representatives, for them, on equipment. I acted as a manufacturer’s representative, to go out and troubleshoot and repair equipment. And, in the last fifteen years, in the area that I work in today, in safety engineering, I frequently work with people from the factory that are — that are manufacturer representatives, that are most familiar with the equipment. And I know generally what their procedures are, sir.
Q. Regarding the block valve not being open and the rising stem not being out, does that indicate anything as far as what should have been done by the manufacturer’s representative?
A. Yes, sir, it does.
Q. What?
A. First, it’s perfectly obvious to anyone standing there that that valve was closed. The compressor should not have been started with the valve closed, sir. And I would place as much blame on Mr. Babcock for allowing it to be started in that condition as I would on Pennwalt, sir.
Q. As far as the relief valve that Penn-walt had not installed, that is in issue here, what is your opinion, if you have one, as to that, regarding the manufacturer’s representative’s performance?
A. Well, again, you know, I would fault Pennwalt for not putting one in there. But it would be perfectly obvious to Mr. Babcock that there is not a relief valve installed between the block valve and the compressor. That is something that is half the size of that big gate valve. It would be obvious to anyone. And it is my opinion that Mr. Babcock should not have even considered starting that compressor up without having a relief valve installed, sir.
Q. Okay. Would you go to item number two — two through six in your report?
*1283A. All right, sir. Item two. During the start-up operation, the compressor discharge block valve was left in the closed position. I don’t think anybody-contests that.
THE COURT: That’s why we are making an avowal on that. That was openly discussed before the jury, that the block valve was closed, was it not?
MR. HARDY: Yes, sir.
MR. REED: Yes, sir.
5jt * * >jC * *
BY MR. OWENS:
Q. That’s all right. Turn to number one on the next page. That I’m sure was not let in, and ask you what that conclusion was.
A. All right. I reached two conclusions. Number two, we’ve already discussed. Number one states that:
“Mr. Harold Babcock, an employee of Cooper Energy Services, was negligent in that he allowed the start-up of the compressor without confirming the proper selection and installation of external safety equipment, and he further did not confirm that the compressor discharge valve was in an open position. Both of these procedures were the final responsibility of Cooper Energy Services’ representative, since he was in effect the expert on the job and was employed by Pennwalt as a factory engineer to bring the compressor back on line.”
MR. OWENS: Thank you, sir.
AVOWAL CROSS EXAMINATION
BY MR. HARDY:
Q. Mr. Green, I believe your experience with the factory representative prior to your receiving an engineering degree was as a roustabout in the oil fields?
A. No, sir. No, no. I worked in the oil field, but I worked for Columbia Southern Chemical Corporation, which I mentioned in my deposition, for two years, and that’s primarily where I worked with factory representatives. I did repair work in the plant, sir.
Q. Was this with you working as a field service representative?
A. No. I was accompanying the field service representative to go in and operate the equipment, to determine why that equipment may have failed.
Q. Why would you have been accompanying the field service representative?
A. Because I don’t know anything about the operation of the machine itself. The field man is an expert in setting up and turning on, operating it, making sure it’s working properly. I would observe what was going on and make an analysis as why a failure would have occurred, sir.
The appellants’ additional charge of error, namely, that Wyatt was precluded from testifying as to the existence of an industry-wide duty broader than that stated in the purchase order is equally illusory for reasons already discussed. Absent a legally imposed relationship between Penn-walt, Babcock and Cooper, beyond the agreement limiting Cooper’s undertaking, appellants’ representation that the trial court also improperly excluded testimony from Pennwalt personnel that they routinely looked to factory representatives as experts who did everything necesary to restart compressors being repaired or rebuilt is inaccurate and misleading.
Initially, Wyatt’s testimony concerning the routine business practice in Pennwalt’s industry of relying upon directions from manufacturers’ representatives was cumulative, and already before the jury when Wyatt testified. Accordingly, if for no other reason, its exclusion was within the discretion of the court.
Again relying upon the testimony of the witnesses, the following evidence was presented to the jury:
DEPOSITION OF HURT:
Q. Did you know Mr. Babcock prior to this occasion?
A. No, sir.
Q. But, you said it was the usual thing when a factory representative came that he would tell you what to do?
A. Yes, sir.
*1284Q. I believe that it was your testimony that Babcock called the shots?
A. That’s the way I put it, I guess. * # * * * *
Q. You knew Mr. Babcock was a factory rep. in there on the job; is that correct?
A. Yeah.
Q. You had seen him in there, and you knew that the procedure was with him or any factory rep. that if they tell you something to do on the machine, then that’s what you do?
A. Right, because a lot of times we don’t know what their intentions are or what they are wanting to find out or check the machines. We do whatever they want to do.
Q. In other words, he’s an expert on it, and if he does something that might not, or you might wonder why, still he’s the one in charge; is that your understanding?
A. That’s right.
TESTIMONY OF BERKLEY:
Q. Okay. What did you understand Mr. Babcock’s duties to be?
A. To supervise the assembly and start-up of this machine.
Q. Would that have been normal procedure for factory representatives?
A. Absolutely. We have factory representatives on a lot of critical equipment, and that’s what they come in and expect them to do.
Q. All right. Did the condition of the compressor seem to suit Mr. Babcock?
A. Yes.
Q. Did you intend for Mr. Babcock to come in and start it that afternoon?
A. Yes.
Q. And I take it from what you said that you understood from him [Wyatt] that Babcock was going to be in charge of the start-up?
A. I understood that he was a field service representative who is normally in charge of the start-up of any equipment they work on.
TESTIMONY OF SKLAVOS:
Q. Mr. Sklavos, you were asked on cross-examination whether you depended upon Mr. Babcock only to work on the internal parts of the compressor, and you answered no. I asked you what did you depend upon Mr. Babcock for?
* * * * * *
A. It's very typical, in similar occasions when a request is made for a field representative to—
THE COURT: What did you depend on him for?
A. I depended on him to inspect the compressor, make sure that the machine was overhauled and was put back to its original specifications, and also to be advised that if there were anything — any clearances, any tolerances, any safety devices, — any electrical or instrument changes that required to be made, I expect to him [sic], as an expert in this field, to advise us accordingly.
* * * * * *
Q. Mr. Sklavos, I have just a couple further questions. You mentioned the things that you depended on Mr. Bab-cock for. Let me ask you during what period of time you depended on him?
A. From the time he arrived at the plant to, of course, the time he was released by us to go back home.
Q. My question is whether you [Penn-walt employees] depended on him only through the dry runs or through the final start-up?
A. We depended on him from, let’s say for inspecting the equipment; making sure it was, like I indicated earlier, it was put back to its original specifications; have a dry run, which I believe it was done; and then put the equipment — start the equipment and observe it for a while to make sure that everything was functioning properly.
Secondly, had the testimony of Hurt, Berkley, and Sklavos addressed to Penn-walt’s industry routine business practice to rely upon directions from manufacturers’ representatives while on the premises been totally withheld from the jury, as Wyatt’s *1285cumulative proffered testimony was excluded, no error would have resulted for the same reasons that legally justified the exclusion of Green’s testimony under § 324A of the Second Restatement of Torts and the failure of the plaintiffs to prove the existence of a legal relationship between Babcock, Cooper, and Pennwalt beyond the contract which limited Cooper’s liability to “services required for factory service man to inspect assembly of one 16 x 10 X 7 HACP Pennwalt air compressor CL No. 106780.” Thus, having failed to prove the existence of a legal relationship between Pennwalt and Cooper and/or Babcock undertaken either for a consideration or gratuitously, beyond the terms of the written agreement between the parties, the issue of “reliance” addressed by part (c) of § 324A is beyond the instant appellate review and need not be addressed.
The trial judge, having correctly distinguished between the two causes of action pursued by the plaintiffs, i.e. proof of products liability versus simple common law negligence and the nuances of the proof required to satisfy the plaintiffs’ burden, in each instance, the rulings of the trial court and the verdict of the jury, should be affirmed.
Accordingly, I would affirm the trial judge’s evidentiary rulings and the verdict of the jury.
. Section 324A provides:
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 protect his undertaking, if
(a) his failure to exercise reasonable care increases the risk of such harm, or
(b) he has undertaken to perform a duty owed by the other to the third person, or
(c) the harm is suffered because of reliance of the other or the third person upon the undertaking.
The gravamen of the instant case in considering the application of § 324 is not subparagraph (c) as reasoned by the majority which presumes the defendant’s undertaking to act but rather, as in Raymer, subparagraph (b) of the Restatement. The jury in the instant case, as did the appellate court in Raymer, concluded in its answers to interrogatories that Babcock and Cooper assumed no duties either directly or by inference beyond those limited responsibilities incorporated into the written agreement between Cooper and Pennwalt. Cooper and Bab-cock, the jury decided, had not “undertaken to perform a duty owed by the other [Pennwalt] to the third person [Pennwalt employees].” Since the juries' findings of fact, which are not clearly erroneous, are dispositive of the § 324A argument, the "reliance” addressed in subparagraph (c) of § 324A of the Restatement loses its viability and is of no consequence as an issue and, accordingly, need not be addressed by this court in its appellate review.
. Kentucky law explicitly dictates that the custom and practices of other parties are irrelevant. "[E]ach case in court must stand on its own merits or fall by its own demerits." J.B. Colt v. Asher, 239 Ky. 235, 39 S.W.2d 263, 264 (1931) (evidence regarding the operation of similar machines was inadmissible). This principle has been repeatedly reaffirmed in later cases. See Humana Inc. v. Fairchild, 603 S.W.2d 918, 921 (Ky.Ct.App.1980) (evidence relating to nature of employment contracts between employer and other employees was of no relevance to Kentucky law cause of action). See also Cincinnati, N.O. & T.P. Ry. Co. v. Hare’s Adm'x, 297 Ky. 5, 178 S.W.2d 835, 838 (1944) (evidence of practices or customs in relation to similar instances is not admissible; the question is what defendant did or did not do upon a particular occasion). Moreover, in cases analogous to the one at bar, Kentucky courts have decided that specific contractual provisions govern over evidence of industry custom or routine practice. See Alvey v. Kern, 354 S.W.2d 516, 518 (Ky.1962) (evidence with reference to construction of another house was inadmissible where contract set forth specific specifications to be followed in the particular case at bar). See also Simplex, Inc. v. Diversified Energy Systems, Inc., 847 F.2d 1290 (7th Cir.1988) (evidence regarding party’s conduct with relation to other contracts not admissible); see also Anderson v. Malloy, 700 F.2d 1208, 1212 (8th Cir.1983).